AMENDATORY AGREEMENT
AMENDATORY
AGREEMENT (this “Amendatory
Agreement”) is dated as of July 3, 2008 and made
between:
(1)
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EAGLE
BULK SHIPPING INC., a corporation incorporated in the Republic of
the Xxxxxxxx Islands, as Borrower (the “Borrower”);
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(2)
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THE
SUBSIDIARIES of the Borrower party hereto as Guarantors (the “Guarantors”);
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(3)
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THE
BANKS AND FINANCIAL INSTITUTIONS party hereto as Lenders (the
“Lenders”); and
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(4)
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THE
ROYAL BANK OF SCOTLAND plc as Mandated Lead Arranger, Bookrunner,
Swap Bank, Agent and Security
Trustee.
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PRELIMINARY
STATEMENTS:
(A)
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The
Borrower, the Guarantors, the Lenders and The Royal Bank of Scotland plc
acting in the several capacities as Mandated Lead Arranger, Bookrunner,
Swap Bank, Agent and Security Trustee are parties to a Third Amended and
Restated Credit Agreement dated as of October 19, 2007 (the “Credit
Agreement”) providing for a secured reducing revolving credit
facility in the original principal amount of $1,600,000,000 for the
purposes described therein.
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(B)
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The
Parties have agreed to amend certain provisions of the Credit Agreement,
in each case as herein provided.
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NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein, it is agreed as follows:
1.
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DEFINITIONS
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Words and
expressions defined in the Credit Agreement shall have the same meaning when
used in this Amendatory Agreement unless the context otherwise
requires.
2.
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REPRESENTATIONS
AND WARRANTIES
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Each
Obligor jointly and severally represents and warrants to each Finance Party
that:
(a)
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All
of the representations and warranties contained in Clause 18 of the Credit
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)
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No
Default has occurred and is continuing on the date
hereof.
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(c)
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The
obligations expressed to be assumed by it in this Amendatory Agreement
are, and, upon execution and delivery of this Amendatory Agreement and
each of the other documents contemplated hereby to which it is to be a
party, the obligations expressed to be assumed by it
herein and in such other documents will be, legal, valid, binding and
enforceable obligations, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforceability of
creditor’s rights generally.
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(d)
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It
has the power to enter into, perform and deliver, and has taken all
necessary action to authorize its entry into, performance and delivery of,
this Amendatory Agreement and the transactions contemplated by this
Amendatory Agreement.
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3.
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AMENDMENTS
TO CREDIT AGREEMENT
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With
effect from the date (the “Amendment
Effectiveness Date”) on which each of the conditions precedent set forth
in Clause 4 of this Amendatory Agreement shall have been satisfied:
3.01
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The
definition of “Commitment” in Clause 1.1 of the Credit Agreement is
amended to read in its entirety as
follows:
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“Commitment”
means:
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(a)
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in
relation to the Original Lender, $1,600,000,000;
and
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(b)
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in
relation to any other Lender, the amount of any Commitment transferred to
it under this Agreement,
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in each case, to the extent (i) modified to reflect its revised Commitment as a result of any Incremental Commitment pursuant to Clause 2.3, and (ii) not cancelled, reduced or transferred by it under this Agreement. |
3.02
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The
definition of “Margin” in Clause 1.1 of the Credit Agreement is amended to
read in its entirety as follows:
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“Margin” means
in relation to each Accounting Period (or relevant portion
thereof):
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(a)
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For
the period commencing on the Amendment Effective Date until the second
anniversary of the Amendment Effective Date, ninety-five hundredths of one
percent (0.95%) per
annum; and
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(b)
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After
the second anniversary of the Amendment Effective
Date:
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(i)
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if
the Advance Ratio for such Accounting Period is less than thirty-five
percent (35%), eighty hundredths of one percent (0.80%) per
annum;
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(ii)
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if
the Advance Ratio for such Accounting Period is equal to or greater than
thirty-five percent (35%) but less than sixty percent (60%), ninety-five
hundredths of one percent (0.95%) per annum;
and
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(iii)
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if
the Advance Ratio for such Accounting Period is equal to or greater than
sixty percent (60%), one and five hundredths of one percent (1.05%) per
annum.
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3.03
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The
definition of “Memorandum of Agreement” in Clause 1.1 of the Credit
Agreement is amended to read in its entirety as
follows:
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“Memorandum
of Agreement” means, in relation to an Additional Ship other than a
Newbuilding, a memorandum of agreement or other contract executed by, among
others, the registered and/or beneficial owner of such Ship, as seller, and the
Borrower and/or a Wholly-Owned Subsidiary of the Borrower, as buyer, providing
for the purchase or acquisition by the Borrower and/or such Subsidiary of the
registered and/or beneficial ownership of such Additional Ship, which contract
may include the purchase of more than one Additional Vessel en
bloc or the acquisition of beneficial ownership of one or more Additional
Ship(s).
3.04
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Clause
1.1 of the Credit Agreement is amended by inserting in the appropriate
alphabetical order the following new
definitions:
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“Amendment
Effectiveness Date” has the meaning specified in the Amendatory Agreement
dated as of July 3, 2008 among the Parties.
“Incremental
Commitment” shall mean, in relation to any Lender, any commitment by such
Lender pursuant to Clause 2.3, 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 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 Clause 2.3.
“Incremental
Commitment Agreement” shall mean an agreement substantially in the form
of Exhibit L executed pursuant to Clause 2.3.
“Incremental
Commitment Date” shall have the meaning provided in Clause
2.3(b).
“Incremental
Commitment Reduction Amount” shall mean, with respect to the Incremental
Commitments made pursuant to any Incremental Commitment Agreement, an amount
equal to (i) 46.875% of the sum of such Incremental Commitments, divided by (ii)
the number of Scheduled Commitment Reduction Dates remaining as of the
Incremental Commitment Date for such Incremental Commitment
Agreement.
“Incremental
Commitment Request Requirements” shall mean, with respect to any request
for an Incremental Commitment made pursuant to Clause 2.3, the satisfaction of
each of the following conditions on the date of such request: (i) no Default
then exists or would result therefrom, and (ii) all of the representations and
warranties contained herein and in the other Finance 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
Commitment Requirements” shall mean, with respect to any provision of an
Incremental Commitment on any given Incremental Commitment Date, the
satisfaction of each of the following conditions on or prior to the effective
date of the respective Incremental Commitment Agreement: (i) no
Default then exists or would result therefrom, (ii) all of the representations
and warranties contained
3
herein
and in the other Finance 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 Borrower to the
Agent of a certificate executed by an officer of the Borrower and certifying as
to compliance with preceding clauses (i) and (ii), (iv) the delivery by the
Borrower to the Agent of opinions, in form and substance reasonably satisfactory
to the 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 Lender on or
prior to the Effective Date pursuant to Clause 4.1 as may be reasonably
requested by the Agent, and such other matters incident to the transactions
contemplated thereby as the Agent may reasonably request, (v) the delivery by
the Borrower to the Agent of such other officers’ certificates and evidence of
good standing as the Agent shall reasonably request, and (vi) the completion by
the Borrower of such other actions as the Agent may reasonably request in
connection with such Incremental Commitment.
“Initial
Total Commitments” means the aggregate of Commitments excluding any
Incremental Commitments that become effective pursuant to Clause
2.3(b).
3.05
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Section
2 of the Credit Agreement is amended by inserting the following new Clause
2.3:
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2.3
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Incremental
Commitments
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(a)
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So
long as the Incremental Commitment Request Requirements are satisfied at
the time of the delivery of the request, the Borrower may, with the
consent of, and in coordination with, the Agent, request at any time and
from time to time after the Amendment Effective Date and prior to the date
the Total Commitments have been terminated, that the Lenders 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:
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(i)
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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 (such discretion to be exercised
reasonably) to provide an Incremental Commitment and executed and
delivered to the Agent an Incremental Commitment Agreement in respect
thereof as provided in Clause 2.3(b), such Lender shall not be obligated
to fund its participation in any Loan in excess of its Commitment as in
effect prior to giving effect to such Incremental Commitment provided
pursuant to Clause 2.3(b) below;
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(ii)
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no
Lender may provide an Incremental Commitment without the consent of all
other Lenders;
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(iii)
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each
provision of an Incremental Commitment on a given date pursuant to Clause
2.3(b) below shall be in a minimum aggregate amount (for all Lenders) of
at least $25,000,000 and in integral multiples of $25,000,000 in excess
thereof;
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(iv)
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the
aggregate amount of all Incremental Commitments provided pursuant to
Clause 2.3(b) below, shall not exceed
$200,000,000; and
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(v)
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all
Loans made pursuant to Incremental Commitments (and all interest, fees and
other amounts payable thereon) shall be obligations under this Agreement
and the other applicable Finance
Documents.
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(b)
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At
the time of the provision of an Incremental Commitment pursuant to this
Clause 2.3, the Borrower, the Guarantors, the Lenders and the Agent shall
execute and deliver to the Agent an Incremental Commitment Agreement, with
the effectiveness of such Incremental Commitment to occur on the date (the
“Incremental
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 Agent or any
Affiliate thereof), (x) all Incremental Commitment Requirements are
satisfied, (y) all other conditions set forth in this Clause 2.3(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 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, and (ii) to the extent requested by any Lender, Notes will be
issued, at the Borrower’s expense, to such
Lender.
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3.06
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Clause
3.2(a) of the Credit Agreement is amended to read in its entirety as
follows:
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(a)
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Where
the Borrower wishes to borrow a Loan to finance the purchase price of a
ship by a Guarantor, the Borrower shall notify the Agent (i) the name of
such ship, (ii) the general description and deadweight tonnage (which
shall be not less than 25,000 deadweight tons unless such ship is to be
purchased en
bloc with another ship of 25,000 deadweight tons or more acceptable
to the Majority Lenders), (iii) the age of such ship (which shall not be
greater than twenty years at the time of delivery to such
Guarantor; provided that at the time such ship is accepted by
the Majority Lenders under this Clause 3.2, no more than ten percent of
the Security Value of all Ships including such ship shall be attributable
to Ships in excess of ten years of age), (iv) the identity of the current
owner, (v) the identity of the Guarantor, (vi) the purchase price of such
ship paid or to be paid by such Guarantor, and (vii) such further
information as the Agent may
require.
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3.07 | Clause 5.5(b) of the Credit Agreement is amended to read in its entirety as follows: |
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(b)
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Each
Note shall (i) be executed by the Borrower, (ii) be payable to
the order of such Lender and be dated the Effective Date (or, in the case
of Notes issued after the Effective Date, be dated the date of issuance
thereof), (iii) be in a stated principal amount (together with the
principal amount of any other
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5
Note held by such Lender) equal to the Commitment of such Lender on the date of issuance thereof, (iv) mature on the Termination Date, (v) bear interest as provided in Clause 8 (Costs of Utilization), (vi) be subject to voluntary prepayment and mandatory repayment as provided in Section 4 (Reduction, Repayment, Prepayment and Cancellation) and (vii) be entitled to the benefits of this Agreement and the other Finance Documents. |
3.08 | Section 6.1 of the Credit Agreement is amended to read in its entirety as follows: |
The Total
Commitments (i) shall be reduced and cancelled on each Scheduled Commitment
Reduction Date (a) by an amount of $75,000,000 in respect of the Initial Total
Commitments, plus, (b) if any Incremental Commitments shall have been made
pursuant to an Incremental Commitment Agreement prior to such Scheduled
Commitment Reduction Date, an amount equal to the Incremental Commitment
Reduction Amount in respect of such Incremental Commitments, and (ii) shall be
reduced to zero and cancelled on the Termination Date.
3.09 |
Clause 11.1(a) of
the Credit Agreement is amended to read in its entirety as
follows:
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(a)
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The
Borrower shall pay to the Agent (for the account of each Lender) a fee
computed at the rate of three tenths of one percent (0.30%) per annum on
that Lender’s Available Commitment for the Availability
Period.
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3.10
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Clause
5(e)(i) of Part II of Schedule 2 of the Credit Agreement is amended to
read in its entirety as follows:
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(ii)
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has
been unconditionally delivered by the relevant seller or shipyard to the
Additional Guarantor (or if the relevant Memorandum of Agreement provides
for the acquisition of beneficial ownership of such Additional Ship, such
beneficial ownership has been conveyed to the Borrower or a Subsidiary of
the Borrower) in accordance with all the terms of the relevant Memorandum
of Agreement or Shipbuilding Contract, as the case may be, warranted free
and clear of all liens, and the relevant seller or shipyard has been paid
in full under the terms of the relevant Memorandum of Agreement or
Shipbuilding Contract, as the case may
be;
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3.11
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Exhibit
H (Form of Mortgage) to the Credit Agreement is hereby replaced by the
form of Exhibit H attached hereto.
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3.12
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Each
reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein” or words of like import, and each reference to the
“Credit Agreement” in any of the other Finance Documents, shall mean and
refer to the Credit Agreement as amended
hereby.
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4.
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CONDITIONS
PRECEDENT
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The
conditions precedent referred to in Clause 3 of this Amendatory Agreement are
that the Agent shall have received each of the following in form and substance
satisfactory to the Lender on or before July 10, 2008:
6
(a)
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A
copy of a resolution of the board of directors or sole member, as
appropriate, of each Obligor:
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(i)
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approving
the terms of, and the transactions contemplated by, this Amendatory
Agreement and resolving that it execute this Amendatory Agreement and any
other documents contemplated hereby to which it is or is to be a
party; and
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(ii)
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authorizing
a specified person or persons to execute this Amendatory Agreement and any
other documents contemplated hereby to which it is or is to be a party;
and
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(b)
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A
certificate of an officer of the Borrower, dated as of a current date (the
statements made in such certificate shall be true on and as of such date),
certifying as to (i) the absence of any amendments to the articles of
incorporation and by-laws, or certificate of formation and limited
liability company agreement of each Obligor previously certified to the
Agent pursuant to Clauses 4.1 or 4.2(a) of the Credit Agreement, (ii) the
due incorporation or formation, as the case may be, and good standing of
each Obligor, as a corporation or limited liability company formed under
the laws of the Republic of The Xxxxxxxx Islands and the absence of any
proceeding for the dissolution or liquidation of such Obligor, (iii) that
the representations and warranties of each Obligor contained in this
Amendatory Agreement are true and correct, and (iv) the absence of any
Default.
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(c)
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an
amendment to the Mortgage relating to each Ship subject to a Mortgage as
of the date of this Amendatory Agreement, duly executed by the relevant
Guarantor to secure the Incremental Commitments contemplated
hereby;
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(d)
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a
Certificate of Ownership and Encumbrance issued by the Maritime
Administrator for the Xxxxxxxx Islands (or other relevant authority)
stating that each of the Ships referred to in the preceding subclause (c)
is owned by the relevant Guarantor and that there is on record no Security
(as such term is defined in the Credit Agreement) on such Ship except the
relevant Mortgage as amended in accordance
herewith;
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(e)
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a
favorable opinion of Messrs. Xxxxxx & Xxxxxx LLP, counsel for the
Obligors, in respect of this Amendatory Agreement, the Mortgage amendments
referred to in the preceding subclause (c), and as to such other matters
as the Agent may reasonably
require; and
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(f)
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payment
to the Agent (for the account of the Lenders) of an amendment fee of
$1,600,000 (being one tenth of one percent (0.10%) of the Total
Commitments as of the date hereof).
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5.
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COSTS
AND EXPENSES
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The
Borrower agrees that the provisions of Clause 16 (Costs
and Expenses) of the Credit Agreement shall apply to this Amendatory
Agreement.
6.
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COUNTERPARTS
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This
Amendatory 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 Amendatory Agreement.
7. | GOVERNING LAW |
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THIS
AMENDATORY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS APPLICABLE IN THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES).
This
Agreement has been entered into as of the date stated at the beginning of this
Amendatory Agreement.
SIGNATORIES
BORROWER:
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By:
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/s/ Xxxx Xxxxxxxx |
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Xxxx
Xxxxxxxx
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Chief
Financial Officer
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GUARANTORS:
CARDINAL
SHIPPING LLC
CONDOR
SHIPPING LLC
CRESTED
EAGLE SHIPPING LLC
CROWNED
EAGLE SHIPPING LLC
FALCON
SHIPPING LLC
GOLDEN
EAGLE SHIPPING LLC
GRIFFON
SHIPPING LLC
HARRIER
SHIPPING LLC
HAWK
SHIPPING LLC
HERON
SHIPPING LLC
IMPERIAL
EAGLE SHIPPING LLC
XXXXXX
SHIPPING LLC
KESTREL
SHIPPING LLC
KITE
SHIPPING LLC
KITTIWAKE
SHIPPING LLC
MERLIN
SHIPPING LLC
OSPREY
SHIPPING LLC
PEREGRINE
SHIPPING LLC
SHRIKE
SHIPPING LLC
SKUA
SHIPPING LLC
SPARROW
SHIPPING LLC
STELLAR
EAGLE SHIPPING LLC
TERN
SHIPPING LLC
PETREL
SHIPPING LLC
PUFFIN
SHIPPING LLC
RAPTOR
SHIPPING LLC
ROADRUNNER
SHIPPING LLC
SAKER
SHIPPING LLC
SANDPIPER
SHIPPING LLC
SNIPE
SHIPPING LLC
SWIFT
SHIPPING LLC
GOLDENEYE
SHIPPING LLC
GOSHAWK
SHIPPING LLC
FULMAR
SHIPPING LLC
XXXX
SHIPPING LLC
as sole member
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By:
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/s/
Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx
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Chief
Financial Officer
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GUARANTORS:
AGALI
SHIPPING S.A.
AVLONA
SHIPPING X.X.
XXXXXXX
SHIPPING S.A.
DROSATO
SHIPPING S.A.
FOUNTANA
SHIPPING X.X.
XXXXXX
SHIPPING S.A.
KOFINA
SHIPPING X.X.
XXXXXXX
SHIPPING X.X.
XXXXX
SHIPPING S.A.
MYLOS
SHIPPING X.X.
XXXXX
SHIPPING S.A.
XXXXXX
SHIPPING S.A.
OLYMPI
SHIPPING S.A.
PELINEO
SHIPPING S.A.
PYRGI
SHIPPING S.A.
RAHI
SHIPPING S.A.
SIRIKARI
SHIPPING S.A.
SPILIA
SHIPPING S.A.
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By:
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/s/
Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx
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Chief
Financial Officer
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LENDERS:
THE
ROYAL BANK OF SCOTLAND PLC
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By:
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/s/ Colin Manchester | ||
Name:
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Title:
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WEST
LB AG, LONDON BRANCH
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By:
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/s/ Xxxxx Xxxxx | ||
Name:
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Title:
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By: | /s/ Dimitris Gennadios | ||
Name: | |||
Title: | |||
BANK
OF CHINA LIMITED, LONDON BRANCH
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By:
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/s/ Xxxxx-Xxx Xx | ||
Name:
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Title:
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LLOYDS
TSB BANK PLC
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By:
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/s/ Xxxxx Xxxxxx | ||
Name:
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Title:
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ALLIANCE
& LEICESTER COMMERCIAL FINANCE PLC
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By:
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/s/ Xxxx XxXxxxxx | ||
Name:
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Title:
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By: | /s/ Xxx Xxxxxxxx | ||
Name: | |||
Title: |
00
XXXXXX
XXXXXXXXXX XX XXXXXXXXXX, XXX XXXX BRANCH
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By:
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/s/ Xxxxxxx Xxxxxx | ||
Name:
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Title:
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By: | /s/ Xxxx Xxxxxx | ||
Name: | |||
Title: | |||
SUMITOMO
MITSUI BANKING CORPORATION
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By:
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/s/ Konstantinos Karabalis | ||
Name:
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Title:
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ARRANGER,
BOOKRUNNER, SWAP BANK, AGENT AND SECURITY TRUSTEE:
THE
ROYAL BANK OF SCOTLAND PLC
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By:
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/s/ Colin Manchester | ||
Name:
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Title:
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