Exhibit 10.3.2
AMENDATORY AGREEMENT
AMENDATORY AGREEMENT made as of May 3, 2007 among (i) EAGLE BULK SHIPPING INC.,
a Marshall Islands corporation (the "Borrower"), (ii) the Marshall Islands
limited liability companies identified as Guarantors on the signature page
hereof (collectively, the "Guarantors"), and (iii) THE ROYAL BANK OF SCOTLAND
PLC, as Lender (the "Lender").
W I T N E S S E T H:
WHEREAS, pursuant to a Second Amended and Restated Credit Agreement
dated as of November 1, 2006 as supplemented by Supplements Nos. 1 through 5
(as so supplemented, the "Credit Agreement") made among the Borrower, the
Guarantors and the Lender, the Lender agreed to make available a reducing
revolving credit facility in the initial aggregate principal amount of up to
$500,000,000 to the Borrower upon the terms and conditions set forth therein;
and
WHEREAS, the parties desire to amend certain provisions of the Credit
Agreement, in each case as herein provided;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
1. Representations and Warranties. Each of the Borrower and Guarantors
hereby represent and warrant to the Lender that:
(a) All of the representations and warranties contained in Article IV
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.
(b) No Default or Event of Default (as such terms are defined in the
Credit Agreement) has occurred and is continuing on the date hereof.
(c) This Amendatory Agreement has been duly authorized by all
necessary and proper corporate action and constitutes a valid, legal and
binding obligation or agreement of each of the Borrower and the Guarantors,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditor's rights generally.
2. Amendments. With effect from the date on which each of the
conditions precedent set forth in Section 3 hereof shall have been satisfied
(or waived in writing by the Lender):
(a) The definition of "Commitment" in Section 1.01 of the Credit
Agreement is amended to read in its entirety as follows:
"Commitment" means $500,000,000 as such amount may be (i)
reduced from time to time pursuant to Sections 2.05, 2.10, 2.11 or
8.01, or (ii) increased from time to time by Incremental Commitments
pursuant to Section 2.14."
(b) Section 1.01 of the Credit Agreement is amended by inserting in
the appropriate alphabetical order the following new definitions
"Incremental Commitment" shall mean any commitment by the
Lender pursuant to Section 2.14, as agreed to by the 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 shall be added to (and
thereafter become a part of) the Lender's Commitment for all purposes
of this Agreement as contemplated by Section 2.14.
"Incremental Commitment Agreement" shall mean an agreement
substantially in the form of Exhibit L executed pursuant to Section
2.14.
"Incremental Commitment Request Requirements" shall mean, with
respect to any request for an Incremental Commitment made pursuant to
Section 2.14, 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 Loan 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 Date" shall have the meaning provided
in Section 2.14(b).
"Incremental Commitment Requirements" shall mean, with respect
to any provision of an Incremental Commitment on a given Incremental
Commitment Date (as defined in Section 2.14(b)), the satisfaction of
each of the following conditions on or prior to the effective date of
the respective Incremental 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
Loan 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 Lender 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 of a new Note in the
amount of the Lender's Commitment after giving effect to such
Incremental Commitment, (v) the delivery by the Borrower to the Lender
of opinions, in form and substance reasonably satisfactory to the
Lender, 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 the Effective Date pursuant to Section 3.01 as may be
reasonably requested by the Lender, and such other matters incident to
the transactions contemplated thereby as the Lender may reasonably
request, (vi) the delivery by the Borrower to the Lender of such other
officers' certificates and evidence of good standing as the Lender
shall reasonably request, and (vii) the completion by the Borrower of
such other actions as the Lender may reasonably request in connection
with such Incremental Commitment."
(c) The preamble of Section 2.01 of the Credit Agreement is amended by
deleting the words "an aggregate principal amount of $500,000,000" and
inserting "the Commitment" so that the preamble reads in its entirety as
follows:
"SECTION 2.01. The Commitment. The Lender agrees, on the terms
and conditions hereinafter set forth, to make available advances (each
an "Advance") to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Commitment
Termination Date (the "Commitment Period") in an aggregate amount not
to exceed at any time the Commitment as follows:"
(d) Section 2.05(a) of the Credit Agreement is amended by inserting to
read in its entirety as follows:
"(a) On each Scheduled Commitment Reduction Date prior to the
Commitment Termination Date, the Lender's Commitment shall be reduced
by an amount equal to the sum of (i) $28,750,000 plus (ii) 5.75% of
each Incremental Commitment, and the Lender's Commitment shall be
reduced to nil on the Commitment Termination Date."
(e) Article II of the Credit Agreement is amended by inserting the
following new Section 2.14:
"SECTION 2.14 Incremental Commitments. (a) So long as the
Incremental Commitment Request Requirements are satisfied at the time
of the delivery of the request, the Borrower may request at any time
and from time to time after the Effective Date and prior to the
Commitment Termination Date, that the Lender provide an Incremental
Commitment and, subject to the applicable terms and conditions
contained in this Agreement, make Advances pursuant thereto; it being
understood and agreed, however, that (i) the Lender shall not be
obligated to provide an Incremental Commitment as a result of any such
request by the Borrower, and until such time, if any, as the Lender
has agreed in its sole discretion to provide an Incremental Commitment
and executed and delivered an Incremental Commitment Agreement in
respect thereof as provided in Section 2.14(b), the Lender shall not
be obligated to fund any Advances in excess of the Commitment as in
effect prior to giving effect to such Incremental Commitment provided
pursuant to Section 2.14(b) below, (ii) each provision of an
Incremental Commitment on a given date pursuant to Section 2.14(b)
below shall be in a minimum amount 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 2.14(b) below, shall not exceed $250,000,000, and (v) all
Advances made pursuant to Incremental Commitments (and all interest,
fees and other amounts payable thereon) shall be obligations under
this Agreement and the other applicable Loan Documents.
"(b) At the time of the provision of an Incremental
Commitment pursuant to this Section 2.14, the Borrower and the Lender
shall execute and deliver 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 Lender, (x) all Incremental Commitment
Requirements are satisfied, (y) all other conditions set forth in this
Section 2.14(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 Lender's
Commitment under, and for all purposes of, this Agreement shall be
increased by the amount of such Incremental Commitment on the
Incremental Commitment Date for such Incremental Commitment."
(f) Exhibit E (Form of Mortgage) to the Credit Agreement is hereby
replaced by the form of Exhibit E attached hereto.
(g) The Credit Agreement is amended by adding Exhibit L attached
hereto as an exhibit thereto.
(h) 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 Loan Documents, shall mean and refer
to the Credit Agreement as amended hereby.
(i) Each reference in any of the Loan Documents to "Note" shall mean
and refer to the Note executed and delivered by the Borrower pursuant to
Section 3.01(a)(viii) of the Credit Agreement and any other Note executed and
delivered by the Borrower hereafter pursuant to Section 2.14 of the Credit
Agreement as amended by this Amendatory Agreement.
3. Conditions Precedent. The conditions precedent referred to in
Section 2 hereof are that the Lender shall have received each of the following
in form and substance satisfactory to the Lender on or before May 31, 2007:
(a) certified copies of the resolutions of the board of directors of
the Borrower approving (for itself and as sole member of each Guarantor) this
Amendatory Agreement and each other document contemplated hereby to which the
Borrower or any Guarantor is or is to be a party, and of all documents
evidencing other necessary corporate or company action and governmental
approvals of each such party, if any, with respect to this Amendatory Agreement
and other documents to which it is or is to be a party;
(b) a certificate of an officer of the Borrower (for itself and as
sole member of each Guarantor), dated as of a current date (the statements made
in such certificate shall be true on and as of such date), certifying as to (A)
the absence of any amendments to the articles of incorporation and by-laws, or
certificate of formation and limited liability company agreement of the
Borrower and each Guarantor previously certified to the Lender pursuant to
Sections 3.01(a)(iii), 3.02(c)(ii) or 3.03(c)(ii), above, (B) 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 Marshall Islands and the absence of any proceeding for the
dissolution or liquidation of such Obligor, (C) the veracity of the
representations and warranties of the Borrower and each Guarantor contained in
this Amendatory Agreement mutatis mutandis on and as of such date, unless such
representation or warranty shall expressly relate to a different date, and (D)
the absence of any Default or Event of Default;
(c) an amendment to the Mortgage relating to each Vessel subject to a
Mortgage (as such terms are defined in the Credit Agreement) as of the date of
this Amendatory Agreement, duly executed by the relevant Guarantor so secure
the Incremental Commitments contemplated hereby;
(d) a Certificate of Ownership and Encumbrance issued by the maritime
administrator for the Marshall Islands (or other relevant authority) stating
that each of the Vessels referred to in the preceding clause (c) is owned by
the relevant Guarantor and that there are on record no Liens (as such term is
defined in the Credit Agreement) on such Vessel except the relevant Mortgage as
amended in accordance herewith; and
(e) a favorable opinion of Messrs. Seward & Kissel LLP, counsel for
the Borrower and each Guarantors, in respect of this Amendatory Agreement, the
Mortgage amendments referred to in the preceding clause (c), and as to such
other matters as the Lender may reasonably request addressed to the Lender in
form and substance satisfactory to the Lender.
4. Execution in Counterparts. This Amendatory Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
5. Costs and Expenses. The Borrower agrees that the provisions of
Section 9.04(a) (Costs; Expenses) shall apply to this Amendatory Agreement.
6. Law. This Amendatory Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective representatives thereunto duly authorized as of
the date first above written.
EAGLE BULK SHIPPING INC. CARDINAL SHIPPING LLC
CONDOR SHIPPING LLC
CRESTED EAGLE SHIPPING LLC
CROWNED EAGLE SHIPPING LLC
By: /s/ Sophocles Zoullas FALCON SHIPPING LLC
---------------------
Name: Sophocles Zoullas GOLDEN EAGLE SHIPPING LLC
Title: Chief Executive Officer GRIFFON SHIPPING LLC
HARRIER SHIPPING LLC
HAWK SHIPPING LLC
HERON SHIPPING LLC
IMPERIAL EAGLE
SHIPPING LLC JAEGER
SHIPPING LLC KESTREL
SHIPPING LLC KITE
SHIPPING LLC MERLIN
SHIPPING LLC OSPREY
SHIPPING LLC
PEREGRINE SHIPPING
LLC SHIKRA SHIPPING
LLC SHRIKE SHIPPING
LLC SPARROW SHIPPING
LLC TERN SHIPPING LLC
By: Eagle Bulk Shipping Inc., as
sole member
By: /s/ Sophocles Zoullas
------------------------------
Name: Sophocles Zoullas
Title: Chief Executive Officer
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Colin Manchester
-----------------------------
Name: Colin Manchester
Title: Senior Director, Americas
Nordic Region