AMENDMENT NO. 3 TO SENIOR SECURED CREDIT FACILITY
AMENDMENT NO. 3 dated as of December 23, 2010 (the "Amendment No. 3"), among the undersigned (i) EXCEL MARITIME CARRIERS LTD., a Liberian corporation, as borrower (the "Borrower"), (ii) the banks, financial institutions and other institutional lenders listed Lenders on the signature pages hereof, (iii) NORDEA BANK FINLAND PLC, LONDON BRANCH individually ("Nordea") and as Administrative Agent (the "Administrative Agent") for the Secured Parties, (iv) NORDEA, DVB BANK SE, DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHAFT ("DB"), GENERAL ELECTRIC CAPITAL CORPORATION, and HSH NORDBANK AG, as lead arrangers (the "Lead Arrangers"), (v) NATIONAL BANK OF GREECE S.A., CREDIT SUISSE AG (previously known as Credit Suisse) and BNP PARIBAS S.A. (as assignee of BNP PARIBAS FORTIS), as co-arrangers (the "Co-Arrangers"), (vi) NORDEA and DB, as book runners and (vii) NORDEA, as Issuing Bank, to the SENIOR SECURED CREDIT FACILITY, dated as of April 14, 2008, as amended by Amendment No. 1 to Senior Secured Credit Facility dated as March 31, 2009, as further amended by Amendment No. 2 to Senior Secured Credit Facility dated as of June 1, 2010 (as so amended, the "Original Credit Agreement"), among (i) the Borrower, (ii) the Lenders party thereto, (iii) the Administrative Agent appointed thereunder, (iv) the Lead Arrangers, (v) the Co-Arrangers, (vi) the book runners and (vii) the Issuing Bank. The Original Credit Agreement as amended by this Amendment No.3, and as the same may be further amended, modified or supplemented from time to time, is herein called the "Credit Agreement." Capitalized terms used herein and not otherwise defined shall have the meaning defined in the Credit Agreement.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Administrative Agent, the Lenders and the other parties thereto have executed and delivered the Credit Agreement and the other Loan Documents; the Lenders have made Advances to the Borrower; and to secure the Obligations of the Loan Parties under the Credit Agreement and the other Loan Documents, the Collateral Documents have been executed and delivered and the Ship Mortgages have been duly recorded in the relevant ship registries in accordance with applicable law.
(2) The Borrower has requested, and the Lenders have agreed to, certain amendments to the Original Credit Agreement, subject to the terms and conditions and otherwise as set forth herein.
(3) The Lenders, by their respective signatures set forth below, hereby direct the Administrative Agent (i) to facilitate the execution and delivery of this Amendment No. 3, and (ii) to carry out the transactions hereby contemplated.
NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN AMENDMENTS TO THE ORIGINAL CREDIT AGREEMENT
Section 1. Section 5.04(f) of the Original Credit Agreement is hereby amended and restated in its entirety to read as follows:
"(f) Vessel Fair Market Value. The aggregate Fair Market Value of the ollateral Vessels shall at all times be at least 135% of the then aggregate outstanding principal amount of the Facilities; provided that, so long as any Default in respect of this Section 5.04(f) is not caused by any voluntary Vessel Disposition, such Default shall not constitute an Event of Default so long as within 45 days of the occurrence of such Default, the Borrower shall either (i) post additional collateral satisfactory to all Lenders as set forth in Section 8.01(b), pursuant to security documentation reasonably satisfactory in form and substance to all Lenders, sufficient to cure such Default (and shall at all times during such period and prior to satisfactory completion thereof, be diligently carrying out such actions) or (ii) repay the outstanding principal balance of the Advances in an amount sufficient to cure such Default (it being understood that any action taken in respect of this proviso shall only be effective to cure such Default pursuant to this Section 5.04(f) to the extent that no Default or Event of Default exists hereunder immediately after giving effect thereto)."
ARTICLE II
BORROWER'S REPRESENTATIONS AND WARRANTIES
Section 1. The Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) is duly qualified and in good standing as a foreign corporation or limited liability company in each jurisdiction other than its jurisdiction of formation in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate (or limited liability company) power and authority (including, without limitation, all Governmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. Each Loan Party that is a Liberian corporation is a non-resident domestic corporation as defined in the relevant laws of the Republic of Liberia and has no taxable presence or permanent establishment in Liberia as referred to in Section 803 of the Revenue Code of Liberia (2000).
Nordea Senior Secured Credit Facility Amendment No. 3
(b) The execution, delivery and performance of this Amendment No. 3 is within its powers, has been duly authorized by all necessary corporate action, and does not (i) contravene its charter or bylaws; (ii) violate any law, rule, regulation (including, without limitation, Regulations T, U and X of the Board of Governors of the United States Federal Reserve System), order, writ, judgment, injunction, decree, determination r award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any agreement respecting Indebtedness or any other material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting it or any of its properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any Collateral. No Loan Party or any of it Subsidiaries is in material violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award except to the extent that any such violation, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect.
(c) This Amendment No. 3 has been duly authorized, executed and delivered by the Borrower and each other Loan Party as applicable to each such Loan Party. This Amendment No. 3 constitutes the legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party in accordance with its terms except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or at law) but not excepting fraudulent conveyance laws.
(d) No Default or Event of Default has occurred and is continuing, or will result upon execution and delivery of this Amendment No. 3 or giving effect to the transactions hereby contemplated.
ARTICLE III
MISCELLANEOUS
Section 1. Except as expressly modified by this Amendment No. 3, all of the terms and conditions of the Original Credit Agreement and each other Loan Document remain in full force and effect and are hereby ratified and confirmed by the parties and are incorporated by reference in this Amendment No. 3 and in each other Loan Document to the same extent as if set forth in this Amendment No. 3 in their entirety.
Section 2. This Amendment No. 3 may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which, respectively, when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery by telecopier or other electronic means of an executed counterpart of a signature page to this Amendment No. 3 shall be effective as delivery of an original executed counterpart of this Amendment No. 3.
Section 3. The Borrower agrees to pay a fee of $5,000 to each of the Lenders, who has given its written consent hereto on or before December 17, 2010. Such fee shall be paid to the Administrative Agent for distribution by it to the relevant Lenders. Such fee is payable by the Borrower on or prior to the execution of the Amendment No. 3 as a precondition thereof.
Section 4. THIS AMENDMENT NO. 3 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAW RULES.
Nordea Senior Secured Credit Facility Amendment No. 3
Section 5. EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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Nordea Senior Secured Credit Facility Amendment No. 3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| EXCEL MARITIME CARRIERS LTD., AS |
| borrower |
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By: /s/ P. Kanellopoulos |
| Name: P. Kanellopoulos |
| Title: CFO |
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| NORDEA BANK FINLAND PLC, LONDON |
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By: /s/ Ulf B. Andersson |
| Name: B. Andersson |
| Title: Head of Shipping, Offshore & Oil Services London |
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By: /s/ Peter Roberts |
| Name: Peter Roberts |
Nordea Senior Secured Credit Facility Amendment No. 3
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| NORDEA BANK FINLAND PLC, LONDON |
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By: /s/ Ulf B. Andersson |
| Name: Ulf B. Andersson |
| Title: Head of Shipping, Offshore & Oil Services |
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By: /s/ Peter Roberts |
| Name: Peter Roberts |
Nordea Senior Secured Credit Facility Amendment No. 3
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CREDIT SUISSE AG (previously known as Credit Suisse), as Lender |
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By: /s/ Stephen Schurch |
| Name: Stephan Schurch |
| Title: Vice President |
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By: /s/ Georgios Tzelepis |
| Name: Georgios Tzelepis |
| Title: Assistant Vice President |
Nordea Senior Secured Credit Facility Amendment No. 3
| DVB BANK SE, as Lender |
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By: /s/ Ingo Fruhauf |
| Name: Ingo Fruhauf |
| Title: Vice President |
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By: /s/ Klaus Schurmann |
| Name: Klaus Schurmann |
| Title: Vice President |
Nordea Senior Secured Credit Facility Amendment No. 3
| DEUTSCHE BANK AG FILIALE |
| DEUTSCHLANDGESCHAFT, as Lender |
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| By: /s/ Tilman Stein |
| Name: Tilman Stein |
| Title: Director |
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By: /s/ Kerstin Seefeld |
| Name: Kerstin Seefeld |
| Title: Director |
Nordea Senior Secured Credit Facility Amendment No. 3
| HSH NORDBANK AG, as Lender |
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| By: /s/ Bjorn Kaufmann |
| Name: Bjorn Kaufmann |
| Title: Senior Vice President |
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By: /s/ Natalia Verwega |
| Name: Natalia Verwega |
| Title: Vice President |
Nordea Senior Secured Credit Facility Amendment No. 3
GENERAL ELECTRIC CAPITAL CORPORATION, |
| as Lender |
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By: /s/ Steven V. Gonzalez |
| Name: Steven V. Gonzalez |
| Title: Attorney-in-Fact |
Nordea Senior Secured Credit Facility Amendment No. 3
| NATIONAL BANK OF GREECE S.A., |
| as Lender |
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| By: /s/ Kalyvas Christos |
| Name: Kalyvas Christos |
| Title: |
Nordea Senior Secured Credit Facility Amendment No. 3
| BNP PARIBAS S.A., as Lender |
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| By: /s/ Y. Karamanolis |
| Name: Y. Karamanolis |
| Title: |
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| BNP PARIBAS S.A., as Lender |
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By: /s/ Stratos Andrianis |
| Name: Stratos Andrianis |
| Title: |
Nordea Senior Secured Credit Facility Amendment No. 3
| LANDESBANK HESSEN – THURINGEN GIROZENTRALE |
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| By: /s/ Axel Zipser |
| Name: Axel Zipser |
| Title: Vice President |
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| LANDESBANK HESSEN – THURINGEN GIROZENTRALE |
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By: /s/ Stefan Muhling |
Name: Stefan Muhling |
Title: Vice President |
Nordea Senior Secured Credit Facility Amendment No. 3
| DEUTSCHE SCHIFFSBANK AKTIENGESELLSCHAFT |
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By: /s/ S. Zurmuhlen |
| Name: S. Zurmuhlen |
| Title: Prokurist, Assistant General Manager |
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By: /s/ I. Bohlig |
| Name: I. Bohlig |
| Title: Abteilungsdirektor, Deputy General Manager |
Nordea Senior Secured Credit Facility Amendment No. 3
| BNP PARIBAS (SUISSE) SA |
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| By: /s/ Olivier Blanchet |
| Name: Olivier Blanchet |
| Title: |
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| BNP PARIBAS (SUISSE) SA |
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By: /s/ Amelia Prost-Greco |
| Name: Amelia Prost-Greco |
| Title: |
Nordea Senior Secured Credit Facility Amendment No. 3
| SKANDINAVISKA ENSKILDA BANKEN AB (publ) |
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| By: /s/ N. Amundsen |
| Name: N. Amundsen |
| Title: |
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| SKANDINAVISKA ENSKILDA BANKEN AB (publ) |
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By: /s/ Per Olay Bucher-Johannessen |
| Name: Per Olay Bucher-Johannessen |
| Title: |
Nordea Senior Secured Credit Facility Amendment No. 3
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| THE ROYAL BANK OF SCOTLAND N.V. |
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By: /s/ Polymnia Lazopoulou |
| Name: Polymnia Lazopoulou |
| Title: Relationship Banker |
Nordea Senior Secured Credit Facility Amendment No. 3
| CITIBANK INTERNATIONAL plc GREECE |
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By: /s/ Takis Constantaras |
| Name: Takis Constantaras |
| Title: Managing Director Corporate Bank |
Nordea Senior Secured Credit Facility Amendment No. 3
| NATIXIS |
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By: /s/ Sylvie Noel |
| Name: Sylvie Noel |
| Title: |
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| NATIXIS |
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By: /s/ Franck Chambras |
| Name: Franck Chambras |
| Title: |
Nordea Senior Secured Credit Facility Amendment No. 3
The undersigned Guarantors, by their respective signatures set forth below, acknowledge notice, as of the date thereof, and consent to, the foregoing AMENDMENT NO. 3 TO SENIOR SECURED CREDIT FACILITY, dated as of December 23, 2010, among (i) EXCEL MARITIME CARRIERS LTD., a Liberian corporation, as borrower (the "Borrower"), (ii) the banks, financial institutions and other institutional lenders listed as Lenders on the signature pages thereof, (iii) NORDEA BANK FINLAND PLC, LONDON BRANCH ("Nordea"), as "Administrative Agent") for the Secured Parties (as therein defined), (iv) NORDEA, DVB BANK SE, DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHAFT ("DB"), GENERAL ELECTRIC CAPITAL CORPORATION, and HSH NORD BANK AG, as lead arrangers, (v) NATIONAL BANK OF GREECE S.A., CREDIT SUISSE AG (previously known as Credit Suisse) and BNP PARIBAS S.A. (as assignee of BNP PARIBAS FORTIS), as co-arrangers, (vi) NORDEA and DB, as book runners and (vii) NORDEA, as Issuing Bank. to the SENIOR SECURED CREDIT FACILITY, dated as of April 14, 2008, as amended by Amendment No. 1 to Senior Secured Credit Facility, dated as of March 31, 2009, as further amended by Amendment No. 2 to Senior Secured Credit Facility dated as of June 1, 2010, and the transaction thereby contemplated.
| Whitelaw Enterprise Co. | Coal Hunter Shipco LLC |
| Marias Trading Inc. | Santa Barbara Shipco LLC |
| Amanda Enterprises Limited | Ore Hansa Shipco LLC |
| Yasmine International Inc. | Iron Kalypso Shipco LLC |
| Snapper Marine Ltd. | Iron Bill Shipco LLC |
| Harvey Development Corp. | Pascha Shipco LLC |
| Tanaka Services Ltd. | Coal Gypsy Shipco LLC |
| Candy Enterprises Inc. | Iron Fuzeyya Shipco LLC |
| Fianna Navigation S.A. | Iron Anne Shipco LLC |
| Barland Holdings Inc. | Iron Vassilis Shipco LLC |
| Ingram Limited | Grain Express Shipco LLC |
| Thurman International Ltd. | Iron Knight Shipco LLC |
| Fountain Services Limited | Grain Harvester Shipco LLC |
| Teagan Shipholding S.A | Coal Pride Shipco LLC |
| Castalia Services Ltd. | Fearless Shipco LLC |
| Centel Shipping Company Limited | King Coal Shipco LLC |
| Iron Miner Shipco LLC | Coal Glory Shipco LLC |
| Lowlands Beilun Shipco LLC | Coal Age Shipco LLC |
| Kirmar Shipco LLC | Iron Man Shipco LLC |
| Iron Beauty Shipco LLC | Barbara Shipco LLC |
| Iron Bradyn Shipco LLC | Linda Leah Shipco LLC |
| Iron Manolis Shipco LLC | Sandra Shipco LLC |
| Iron Brooke Shipco LLC | Bird Acquisition Corp. (formerly known as Quintana Maritime Limited) |
| Iron Lindrew Shipco LLC | Point Holdings Ltc. |
By:_______________ Name: Efstathia Sereti Title Legal Counsel | By:_______________ Name: Efstathia Sereti Title Legal Counsel |
Nordea Senior Secured Credit Facility Amendment No. 3
