Exhibit 10.1
SECOND AMENDMENT TO THE CREDIT AGREEMENT
SECOND AMENDMENT TO THE CREDIT AGREEMENT (this "Second Amendment"), dated
as of March 25, 2005, among GENERAL MARITIME CORPORATION, a Xxxxxxxx Islands
corporation (the "Borrower"), the Lenders party hereto from time to time to the
Credit Agreement referred to below, and NORDEA BANK FINLAND PLC, NEW YORK
BRANCH, as Sole Lead Arranger, Sole Bookrunner and Administrative Agent (in such
capacity, the "Administrative Agent"). Unless otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement are used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into a Credit Agreement, dated as of July 1, 2004 (as amended, restated,
modified or supplemented to, the "Credit Agreement");
WHEREAS, subject to the terms and conditions set forth below, the parties
hereto wish to amend certain provisions of the Credit Agreement as provided
herein;
NOW, THEREFORE, it is agreed;
A. Amendments to the Credit Agreement
1. Section 1.01(b) of the Credit Agreement is hereby amended by deleting
clause (iv) thereof in its entirety and inserting the following new clauses (iv)
and (v) in lieu thereof:
"(iv) shall not exceed for any Lender at any time that aggregate
principal amount outstanding which, when added to such Lender's
Percentage of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incurrence of Revolving Loans) at
such time, equals the Available Revolving Loan Commitment of such
Lender at such time and (v) shall not exceed for all Lenders at any
time that aggregate principal amount outstanding which, when added to
the amount of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incurrence of Revolving Loans) at
such time, equals the Total Available Revolving Loan Commitment at such
time."
2. Section 1.11 of the Credit Agreement is hereby amended by inserting the
words "or Letters of Credit" immediately following the words "lending office for
any Loans".
3. Section 1.12 of the Credit Agreement is hereby amended by inserting the
text "2.05," immediately following the text "Sections 1.09, 1.10," appearing in
the last sentence thereof.
4. Section 2 of the Credit Agreement is hereby amended by (i) deleting the
text "[INTENTIONALLY OMMITTED], (ii) inserting in lieu thereof the title,
"Letters of Credit" and (iii) the following new Sections 2.01 to 2.05 inclusive:
"2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that any Issuing
Lender issue, at any time and from time to time on and after the Second
Amendment Effective Date and prior to the 60th day prior to the
Maturity Date, for the account of the Borrower, irrevocable sight
standby letters of credit, in a form customarily used by such Issuing
Lender or in such other form as has been approved by such Issuing
Lender (each such letter of credit, a "Letter of Credit"). All Letters
of Credit shall be denominated in Dollars and shall be issued on a
sight draft basis.
(b) Subject to the terms and conditions contained herein,
each Issuing Lender hereby agrees that it will, at any time and from
time to time on or after the Second Amendment Effective Date and prior
to the 60th day prior to the Maturity Date, following its receipt of
the respective Letter of Credit Request, issue for the account of the
Borrower one or more Letters of Credit as permitted to remain
outstanding without giving rise to a Default or Event of Default
hereunder, provided that the respective Issuing Lender shall be under
no obligation to issue any Letter of Credit of the types described
above if at the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuing Lender from issuing such Letter of Credit
or any requirement of law applicable to such Issuing Lender or
any request or directive (whether or not having the force of law)
from any governmental authority with jurisdiction over such
Issuing Lender shall prohibit, or request that such Issuing
Lender refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon such
Issuing Lender with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which such
Issuing Lender is not otherwise compensated) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was
not applicable, in effect or known to such Issuing Lender as of
the date hereof and which such Issuing Lender in good xxxxx xxxxx
material to it; or
(ii) such Issuing Lender shall have received notice from
any Lender prior to the issuance of such Letter of Credit of the
type described in the second sentence of Section 2.02(b); or
(iii) a Lender Default exists, unless such Issuing Lender
has entered into arrangements satisfactory to it and the Borrower
to eliminate such Issuing Lender's risk with respect to the
participation in Letters of Credit of any Defaulting Lender(s),
including by cash collateralizing any such Defaulting Lender's
(or Defaulting Lenders') Percentage (or Percentages) of the
Letter of Credit Outstandings.
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(c) Notwithstanding anything to the contrary contained in
this Agreement, (i) no Letter of Credit shall be issued the Stated
Amount of which, when added to the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time
would exceed either (x) $50,000,000 or (y) when added to the aggregate
principal amount of all Revolving Loans then outstanding, an amount
equal to the Total Available Revolving Loan Commitment at such time,
and (ii) each Letter of Credit shall by its terms terminate on or
before the earlier of (A) the date which occurs 12 months after the
date of the issuance thereof (although any such Letter of Credit shall
be extendible for successive periods of up to 12 months, but, in each
case, not beyond the twentieth Business Day prior to the Maturity Date,
on terms acceptable to the respective Issuing Lender) and (B) twenty
Business Days prior to the Maturity Date.
Section 2.02 Letter of Credit Requests; Minimum Stated Amount.
(a) Whenever the Borrower desires that a Letter of Credit be issued,
the Borrower shall give the Administrative Agent and the respective
Issuing Lender at least five Business Days' (or such shorter period as
is acceptable to the respective Issuing Lender) written notice prior to
the proposed date of issuance (which shall be a Business Day). Each
notice shall be substantially in the form of Exhibit P (each a "Letter
of Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such
Letter of Credit may be issued in accordance with, and will not violate
the requirements of, Section 2.01(c). Unless the respective Issuing
Lender determines that, or has received notice from any Lender before
it issues a Letter of Credit that one or more of the conditions
specified in Section 6 are not then satisfied, or that the issuance of
such Letter of Credit would violate Section 2.01(c), then such Issuing
Lender shall issue the requested Letter of Credit for the account of
the Borrower in accordance with such Issuing Lender's usual and
customary practices.
(c) The initial Stated Amount of each Letter of Credit
shall not be less than $20,000 or such lesser amount as is acceptable
to the respective Issuing Lender.
Section 2.03 Letter of Credit Participations. (a) Immediately
upon the issuance by any Issuing Lender of any Letter of Credit, such
Issuing Lender shall be deemed to have sold and transferred to each
Lender with a Revolving Loan Commitment, other than such Issuing Lender
(each such Lender, in its capacity under this Section 2.03, a
"Participant"), and each such Participant shall be deemed irrevocably
and unconditionally to have purchased and received from such Issuing
Lender, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Percentage, in such
Letter of Credit, each drawing made thereunder and the obligations of
the Borrower under this Agreement with respect thereto, and any
security therefor or guaranty pertaining thereto. Upon any change in
the Revolving Loan Commitments or Percentages of the Lenders pursuant
to Sections 1.12 or 13.04, it is hereby agreed that, with respect to
all outstanding Letters of Credit and Unpaid Drawings, there shall be
an automatic adjustment to the participations pursuant to this Section
2.03 to reflect the new
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Percentages of the assignor and assignee Lender or of all Lenders with
Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of
Credit, such Issuing Lender shall have no obligation relative to the
other Lenders other than to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and
that they appear to substantially comply on their face with the
requirements of such Letter of Credit. Subject to the provisions of
the immediately preceding sentence, any action taken or omitted to be
taken by any Issuing Lender under or in connection with any Letter of
Credit if taken or omitted in the absence of gross negligence or
willful misconduct, as determined by a court of competent jurisdiction,
shall not create for such Issuing Lender any resulting liability to any
Credit Party or any Lender.
(c) In the event that any Issuing Lender makes any payment
under any Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to such Issuing Lender pursuant to
Section 2.04(a), such Issuing Lender shall promptly notify the
Administrative Agent, which shall promptly notify each Participant, of
such failure, and each Participant shall promptly and unconditionally
pay to the Administrative Agent for the account of such Issuing Lender
the amount of such Participant's Percentage (as relates to the
respective Letter of Credit) of such unreimbursed payment in Dollars
and in same day funds. If the Administrative Agent so notifies, prior
to 11:00 A.M. (New York time) on any Business Day, any Participant
required to fund a payment under a Letter of Credit, such Participant
shall make available to the Administrative Agent at the Payment Office
for the account of such Issuing Lender in Dollars such Participant's
Percentage (as relates to the respective Letter of Credit) of the
amount of such payment on such Business Day in same day funds. If and
to the extent such Participant shall not have so made its Percentage of
the amount of such payment available to the Administrative Agent for
the account of such Issuing Lender, such Participant agrees to pay to
the Administrative Agent for the account of such Issuing Lender,
forthwith on demand such amount, together with interest thereon, for
each day from such date until the date such amount is paid to the
Administrative Agent for the account of such Issuing Lender at the
overnight Federal Funds Rate. The failure of any Participant to make
available to the Administrative Agent for the account of such Issuing
Lender its Percentage of any payment under any Letter of Credit issued
by it shall not relieve any other Participant of its obligation
hereunder to make available to the Administrative Agent for the account
of such Issuing Lender its Percentage of any such Letter of Credit on
the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available
to the Administrative Agent for the account of such Issuing Lender such
other Participant's Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a
reimbursement obligation as to which the Administrative Agent has
received (for the account of any such Issuing Lender) any payments from
the Participants pursuant to clause (c) above, such Issuing Lender
shall forward such payment to the Administrative Agent, which in turn
shall distribute to each Participant which has paid its Percentage
thereof, in same day funds, an amount equal to such Participant's share
(based upon the proportionate
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aggregate amount originally funded by such Participant to the aggregate
amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase
of the respective participations.
(e) Each Issuing Lender shall, promptly after the issuance
of, or amendment to, a Letter of Credit give the Administrative Agent
and the Borrower written notice of such issuance or amendment, as the
case may be, and such notice shall be accompanied by a copy of the
issued Letter of Credit or amendment, as the case may be. Upon receipt
of such notice, the Administrative Agent shall promptly notify each
Participant, in writing, of such issuance or amendment and in the event
a Participant shall so request, the Administrative Agent shall furnish
such Participant with a copy of such issuance or amendment.
(f) Each Issuing Lender shall deliver to the
Administrative Agent, promptly on the first Business Day of each week,
by facsimile transmission, the aggregate daily Stated Amount available
to be drawn under the outstanding Letters of Credit issued by such
Issuing Lender for the previous week. The Administrative Agent shall,
within 10 days after the last Business Day of each calendar month,
deliver to each Participant a report setting forth for such preceding
calendar month the aggregate daily Stated Amount available to be drawn
under all outstanding Letters of Credit during such calendar month.
(g) The obligations of the Participants to make payments
to the Administrative Agent for the account of the respective Issuing
Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Subsidiaries may have at
any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), the Administrative Agent, any
Lender, any Issuing Lender, any Participant, or any other Person,
whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the
Borrower or any of its Subsidiaries and the beneficiary named in
any such Letter of Credit);
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
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(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the
Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Section 2.04 Agreement to Repay Letter of Credit Drawings.
(a) The Borrower hereby agrees to reimburse each Issuing Lender, by
making payment to the Administrative Agent in immediately available
funds at the Payment Office, for any payment or disbursement made by
such Issuing Lender under any Letter of Credit issued by it (each such
amount, so paid until reimbursed, an "Unpaid Drawing"), not later than
four Business Days following receipt by the Borrower of notice of such
payment or disbursement (provided that no such notice shall be required
to be given if a Default or an Event of Default under Section 10.05
shall have occurred and be continuing, in which case the Unpaid Drawing
shall be due and payable immediately without presentment, demand,
protest or notice of any kind (all of which are hereby waived by the
Borrower)), with interest on the amount so paid or disbursed by such
Issuing Lender, to the extent not reimbursed prior to 12:00 Noon
(New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but excluding the date such
Issuing Lender was reimbursed by the Borrower therefor at a rate per
annum equal to the Base Rate, as in effect from time to time, plus the
Applicable Margin as in effect from time to time minus 1%; provided,
however, to the extent such amounts are not reimbursed prior to 12:00
Noon (New York time) on the fourth Business Day following the receipt
by the Borrower of notice of such payment or disbursement or following
the occurrence of a Default or an Event of Default under Section 10.05,
interest shall thereafter accrue on the amounts so paid or disbursed by
such Issuing Lender (and until reimbursed by the Borrower) at a rate
per annum equal to the Base Rate in effect from time to time plus the
Applicable Margin as in effect from time to time plus 1%, with such
interest to be payable on demand. Each Issuing Lender shall give the
Borrower prompt written notice of each Drawing under any Letter of
Credit issued by it, provided that the failure to give any such notice
shall in no way affect, impair or diminish the Borrower's obligations
hereunder.
(b) The obligations of the Borrower under this Section
2.04 to reimburse the respective Issuing Lender with respect to
drawings on Letters of Credit (each, a "Drawing") (including, in each
case, interest thereon) shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower may have or have had against any
Lender (including in its capacity as Issuing Lender or Participant or
as Participant), or any non-application or misapplication by the
beneficiary of the proceeds of such Drawing, the respective Issuing
Lender's only obligation to the Borrower being to confirm that any
documents required to be delivered under such Letter of Credit appear
to have been delivered and that they appear to comply on their face
with the requirements of such Letter of Credit. Subject to the
provisions of the immediately preceding sentence, any action taken or
omitted to be taken by any Issuing Lender under or in connection with
any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct as determined by a court of competent
jurisdiction, shall not create for such Issuing Lender any resulting
liability to the Borrower or any other Credit Party.
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2.05 Increased Costs. If at any time after the Second
Amendment Effective Date, any Issuing Lender or any Participant
determines that the introduction of or any change in any applicable
law, rule, regulation, order, guideline or request or in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or
compliance by any Issuing Lender or any Participant with any request or
directive by any such authority (whether or not having the force of
law), shall either (a) impose, modify or make applicable any reserve,
deposit, capital adequacy or similar requirement against Letters of
Credit issued by any Issuing Lender or participated in by any
Participant, or (b) impose on any Issuing Lender or any Participant any
other conditions relating, directly or indirectly, to this Agreement or
any Letter of Credit; and the result of any of the foregoing is to
increase the cost to any Issuing Lender or any Participant of issuing,
maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Lender or any
Participant hereunder or reduce the rate of return on its capital with
respect to Letters of Credit, then, upon demand to the Borrower by such
Issuing Lender or any Participant (a copy of which demand shall be sent
by such Issuing Lender or such Participant to the Administrative
Agent), the Borrower agrees to pay to such Issuing Lender or such
Participant such additional amount or amounts as will compensate such
Lender for such increased cost or reduction in the amount receivable or
reduction on the rate of return on its capital. Any Issuing Lender or
any Participant, upon determining that any additional amounts will be
payable pursuant to this Section 2.05, will give prompt written notice
thereof to the Borrower, which notice shall include a certificate
submitted to such Borrower by such Issuing Lender or such Participant
(a copy of which certificate shall be sent by such Issuing Lender or
such Participant to the Administrative Agent), setting forth in
reasonable detail the basis for and the calculation of such additional
amount or amounts necessary to compensate such Issuing Lender or such
Participant, although the failure to give any such notice shall not
release or diminish the Borrower's obligations to pay additional
amounts pursuant to this Section 2.05. The certificate required to be
delivered pursuant to this Section 2.05 shall, if delivered in good
faith and absent manifest error, be final and conclusive and binding on
the Borrower."
5. Section 3.01 of the Credit Agreement is hereby amended by (i) inserting
the text "; Fees" immediately after the first time the word "Commitment
Commission" appearing in said Section and (ii) inserting the following new
clauses (c), (d) and (e) at the end thereof:
"(c) The Borrower agrees to pay to the Administrative
Agent for distribution to each Lender (based on each such Lender's
respective Percentage), a fee in respect of each Letter of Credit (the
"Letter of Credit Fee") for the period from and including the date of
issuance of such Letter of Credit to and including the date of
termination or expiration of such Letter of Credit, computed at a rate
per annum equal to the Applicable Margin then in effect from time to
time on the daily Stated Amount of each such Letter of Credit. Accrued
Letter of Credit Fees shall be due and payable quarterly in arrears on
each Scheduled Payment Date and on the Maturity Date (or such earlier
date upon which the Total Revolving Loan Commitment is terminated).
(d) The Borrower agrees to pay directly to each Issuing
Lender, for its own account, a facing fee in respect of each Letter of
Credit issued by it (the "Facing
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Fee") for the period from and including the date of issuance of such
Letter of Credit to and including the date of termination or expiration of
such Letter of Credit, computed at a rate per annum equal to 1/8 of 1% on
the daily Stated Amount of such Letter of Credit, provided that in any
event the minimum amount of Facing Fees payable in any twelve-month period
for each Letter of Credit shall be not less than $500; it being agreed
that, on the day of issuance of any Letter of Credit and on each
anniversary thereof prior to the termination or expiration of such Letter
of Credit, if $500 will exceed the amount of Facing Fees that will accrue
with respect to such Letter of Credit for the immediately succeeding
twelve-month period, the full $500 shall be payable on the date of
issuance of such Letter of Credit and on each such anniversary thereof.
Except as otherwise provided in the proviso to the immediately preceding
sentence, accrued Facing Fees shall be due and payable quarterly in
arrears on each Scheduled Payment Date and upon the first day on or after
the termination of the Total Revolving Loan Commitment upon which no
Letters of Credit remain outstanding.
(e) The Borrower agrees to pay, upon each payment
(including any partial payment) under, issuance of, extension of, or
amendment to, any Letter of Credit issued hereunder, such amount as
shall at the time of such event be the administrative charge which the
respective Issuing Lender is generally charging in connection with such
occurrence with respect to letters of credit."
6. Section 3.01(a) of the Credit Agreement is hereby amended by (i)
inserting the text "(i)" immediately prior to the word "daily average" appearing
in said Section and (ii) inserting the following text immediately after the
words "Non-Defaulting Lender":
"minus (ii) the Percentage of the aggregate of all Letter of Credit
Outstandings for such Non-Defaulting Lender".
7. Section 4.02(a) of the Credit Agreement is hereby amended by (x)
inserting the words "and the Letter of Credit Outstandings" immediately
following the words "outstanding principal amount of Revolving Loans" appearing
in said Section and (y) inserting the following new sentence at the end thereof:
"If, after giving effect to the prepayment of all outstanding Revolving
Loans, the aggregate amount of the Letter of Credit Outstandings
exceeds the Total Revolving Loan Commitment as then in effect, the
Borrower shall pay to the Collateral Agent on such date an amount of
cash or Cash Equivalents equal to the amount of such excess (up to a
maximum amount equal to the Letter of Credit Outstandings at such
time), such cash or Cash Equivalents to be held as security for all
obligations of the Borrower hereunder in a cash collateral account to
be established by the Collateral Agent."
8. Section 6 of the Credit Agreement is hereby amended by deleting the
first paragraph thereof in its entirety and inserting the following new first
paragraph in lieu thereof:
"SECTION 6. Conditions Precedent to All Credit Events. The obligation
of each Lender to make Loans (including Loans made on the Initial
Borrowing Date and each Borrowing
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Date thereafter), and the obligation of any Issuing Lender to issue any
Letter of Credit, is subject to the satisfaction of the following
conditions:"
9. Section 6.02 of the Credit Agreement is hereby amended by (i) inserting
the text "(a)" immediately prior to the word "Prior" appearing in said Section
and (ii) inserting the following new sub-clause (b) immediately following
sub-clause (a) of said Section:
"(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Lender shall have
received a Letter of Credit Request meeting the requirements of Section
2.02."
10. The first paragraph of Section 7 of the Credit Agreement is hereby
amended by (x) inserting the text ", and issue (or participate in) the Letters
of Credit" immediately following the words "to make the Loans" appearing therein
and (y) inserting the words "and issuance of the Letters of Credit" immediately
following the words "the making of Loans" appearing therein.
11. The first paragraph of Section 8 of the Credit Agreement is hereby
amended by (x) inserting the words "and all Letters of Credit" immediately
following the words "Total Revolving Loan Commitments" appearing therein and (y)
deleting the words "Loans and Notes" appearing therein and inserting the text
"Loans, Notes and Unpaid Drawings" in lieu thereof.
12. Section 8.01(d) of the Credit Agreement is hereby amended by (x)
inserting the text "(i)" immediately prior to the text "commencing" and (y)
inserting the following new clause (ii) at the end of clause (i) thereof:
" and (ii) commencing on and after January 1, 2005 a
determination of the Annual Fleet Renewal Reserve Amount and the
Annual Fleet Maintenance Reserve Amount for such fiscal year
together with such calculations (in reasonable detail) of the
Annual Fleet Renewal Amount and the Annual Fleet Maintenance
Amount and a certification that such calculations and
determinations have been approved by the Borrower's Board of
Directors; provided that for the fiscal year commencing on
January 1, 2005, the Borrower shall deliver the determinations,
calculations and certification required by this clause (ii) to
the Administrative Agent not less than 30 days prior to the
declaration or payment of any Dividend. It is recognized by each
Lender and the Administrative Agent that such projections and
determinations provided by the Borrower, although reflecting the
Borrower's good faith projections and determinations, are not to
be viewed as facts and that actual results covered by any such
determination may differ from the projected results.".
13. The first paragraph of Section 9 of the Credit Agreement is hereby
amended by (x) inserting the words "and all Letters of Credit" immediately
following the words "Commitments" appearing therein and (y) deleting the words
"Loans and Notes" appearing therein and inserting the text "Loans, Notes and
Unpaid Drawings" in lieu thereof.
14. Section 9.03 of the Credit Agreement is hereby amended by (i) deleting
the word "and" appearing at the end of clause (i) of said Section, (ii) deleting
the period appearing at the
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end of clause (ii) of said Section and inserting the text "; and" in lieu
thereof and (iii) inserting the following new clause (iii) immediately following
clause (ii) therein:
"(iii) the Borrower may make, pay or declare cash Dividends;
provided that, for all Dividends paid pursuant to this clause (iii),
(A) Dividends shall be paid within 90 days of the declaration thereof;
(B) Dividends paid in respect to a fiscal quarter shall only be paid
after the date of delivery of quarterly or annual financial statements
for such fiscal quarter, pursuant to Sections 8.01(a) and (b), as the
case may be, and on or prior to 45 days after the immediately
succeeding fiscal quarter, (C) no Default or Event of Default has
occurred and is continuing at the time of declaration, (D) no
Significant Default has occurred and is continuing (or would arise
after giving effect thereto) at the time of payment, (E) the aggregate
Dividends paid in respect of a fiscal quarter shall not exceed the
Permitted Dividend Amount for such fiscal quarter and (F) on or prior
to the declaration and payment of a Dividend the Borrower shall deliver
to the Administrative Agent an officer's certificate signed by the
Chief Financial Officer of the Borrower, certifying that the
requirements set forth in clauses (A) through (E) are satisfied and
setting forth the calculation of the Permitted Dividend Amount in
reasonable detail.".
15. Section 9.11 of the Credit Agreement is hereby amended by deleting the
text "130" appearing therein and inserting in lieu thereof "140".
16. Section 9.12(b) of the Credit Agreement is hereby amended by deleting
such Section in its entirety and inserting the following new Section 9.12(b) in
lieu thereof:
"(b) The Borrower will not, and will not permit any of its
Subsidiaries to amend or modify, or permit the amendment or
modification of, any provision of any Senior Note Document or make any
payment consistent with an amendment thereof or change thereto if the
effect of such amendment or change is to (i) increase the interest rate
on the Senior Notes, (ii) change (to earlier dates) any dates upon
which payments of principal or interest are due thereon, (iii) increase
the outstanding principal amount of the Senior Notes, (iv) change any
event of default or condition to an event of default with respect
thereto (other than to (A) eliminate any such event of default or
condition to an event of default, (B) increase any grace period related
thereto or (C) modify or amend any event of default or condition to an
event of default in any manner so as to make such event of default or
condition less restrictive to the Borrower), (v) together with all
other amendments or changes made, is to increase materially the
obligations of the Borrower thereunder or to confer any additional
rights on the holders of such Senior Notes (or a trustee or other
representative on their behalf), which would reasonably be expected to
be materially adverse to any Lenders, or (vi) make all other terms of
the Senior Note Documents (including, without limitation, with respect
to the amortization, redemption provisions, maturities, covenants,
defaults and remedies) less favorable in any material respect to the
Borrower and its Subsidiaries than those previously existing.
Notwithstanding the foregoing, no amendments or modifications of any
provision of any Senior Note Document shall be incurred if any Default
or Event of Default has occurred and is continuing at the time of such
amendment or modification (or would arise after giving effect thereto).
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17. Section 9.12(c) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following in lieu thereof:
"(c) The Borrower will not make (or give any notice in respect
of) any voluntary or optional payment (excluding, for avoidance of
doubt, any payment of regularly accruing interest on any Senior Notes)
or optional prepayment on or optional redemption, optional repurchase
or acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto or any other Person
money or securities before due for the purpose of paying when due) of
any Senior Notes; provided that the Borrower shall be permitted to make
a voluntary or optional prepayment, repurchase or redemption of the
Senior Notes when (i) the aggregate amount paid in respect of such
prepayment, repurchase or redemption (exclusive of accrued and unpaid
interest) does not exceed the Senior Note Repurchase Amount, (ii) the
price paid to prepay, repurchase or redeem any Senior Notes may not
exceed 130% of the principal amount of the Senior Notes being
repurchased or redeemed plus accrued and unpaid interest thereon, (iii)
no Default or Event of Default has occurred and is continuing (or would
arise after giving effect thereto) and (iv) the Administrative Agent
shall have received a certificate, dated the date of such prepayment,
redemption or repurchase of Senior Notes, signed by the Chief Financial
Officer of the Borrower, certifying that the requirements set forth in
clauses (i) through (iii) are satisfied.".
18. Section 10.01(ii) of the Credit Agreement is hereby amended by
inserting the words "Unpaid Drawings or" immediately following the words
"payment when due of any" appearing therein.
19. Section 10 of the Credit Agreement is hereby further amended by (x)
inserting the following new clauses (iii) and (iv) immediately following the
semicolon at the end of clause (ii) appearing in the last paragraph thereof:
"(iii) terminate any Letter of Credit that may be terminated in
accordance with its terms; (iv) direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the
occurrence and during the continuance of an Event of Default specified
in Section 10.05, it will pay) to the Collateral Agent at the Payment
Office such additional amount of cash, to be held as security by the
Collateral Agent, as is equal to the aggregate Stated Amount of all
Letters of Credit issued for the Borrower and then outstanding;"
and (y) redesignating clause (iii) (before giving effect to immediately
preceding clause (x) above) thereof as clause (v).
20. The definition of "Indebtedness" appearing in Section 11.01 of the
Credit Agreement is hereby amended by (x) deleting the text "(vi) or (vii)"
appearing in clause (iii) thereof and inserting the text "(vi), (vii) or (viii)
in lieu thereof, (y) deleting the word "and" at the end of clause (vi) thereof
and inserting a comma in lieu thereof and (z) inserting the following new clause
(viii) at the end of clause (vii) thereof:
11
"and (viii) the maximum amount available to be drawn under all
Letters of Credit issued for the account of such Person and all Unpaid
Drawings in respect of such Letters of Credit."
21. The definition of "Obligations" appearing in Section 11.01 of the
Credit Agreement is hereby amended by (x) inserting the text ", each Issuing
Lender" immediately following the words "or any Lender" appearing therein.
22. The definition of "Required Lenders" appearing in Section 11.01 of the
Credit Agreement is hereby amended by inserting the words "and the Percentage of
Letter of Credit Outstandings" immediately following the words "outstanding
Revolving Loans" appearing in the third parenthetical thereof.
23. The definition of "Unutilized Revolving Loan Commitment" appearing in
Section 11.01 of the Credit Agreement is hereby amended by (x) inserting the
text " plus the Percentage of such Lender's Letter of Credit Outstandings"
immediately following the words "then outstanding" appearing therein.
24. Section 11 of the Credit Agreement is hereby amended by inserting in
the appropriate alphabetical order the following new definitions:
"Annual Fleet Maintenance Reserve Amount" shall mean, for any
fiscal year, the aggregate amount of funds budgeted by the Borrower for
such fiscal year to maintain and drydock the Borrower's fleet during
such fiscal year in order to maintain each Vessel in the fleet in
accordance with the provisions contained in the Credit Agreement and
the other Credit Documents, such amount to be approved by the
Borrower's Board of Directors acting reasonably and in good faith.
"Annual Fleet Renewal Reserve Amount" shall mean, for any fiscal
year, the amount determined by the Borrower's Board of Directors acting
reasonably to be an amount which should be reserved and/or expended
during such fiscal year for renewal capital expenditures and/or vessel
acquisitions to insure the indefinite renewal of the Borrower's fleet,
such determination to take into account, inter alia the remaining life
and prevailing asset value of the fleet.
"Drawing" has the meaning provided in Section 2.04(b).
"Equity Issuance Amount" shall mean an amount equal to the
aggregate net cash proceeds received by the Borrower from the issuance
of its common stock or Qualified Preferred Stock after the Second
Amendment Effective Date.
"Facing Fee" shall have the meaning provided in Section 3.01(d).
"Fleet Maintenance Reserve" shall mean for a fiscal quarter one
quarter of the Annual Fleet Maintenance Reserve Amount for the fiscal
year in which such fiscal quarter occurs.
"Fleet Renewal Reserve" shall mean for a fiscal quarter one
quarter of the Annual Fleet Reserve Amount for the fiscal year in which
such fiscal quarter occurs.
12
"Issuing Lender" shall mean the Administrative Agent and any
Lender (which, for purposes of this definition, also shall include any
banking affiliate of any Lender which has agreed to issue Letters of
Credit under this Agreement) which at the request of the Borrower and
with the consent of the Administrative Agent (which consent shall not
be unreasonably withheld) agrees, in such Lender's sole discretion, to
become an Issuing Lender for the purpose of issuing Letters of Credit
pursuant to Section 2.01.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(c).
"Letter of Credit Outstandings" shall mean, at any time, the sum
of (i) the aggregate Stated Amount of all outstanding Letters of Credit
and (ii) the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Negative Permitted Dividend Carry Forward Amount" shall mean for
a fiscal quarter, the aggregate Permitted Dividend Amounts for each
fiscal quarter commencing on or after January 1, 2005 and ended prior
to such fiscal quarter.
"Participant" shall have the meaning provided in Section 2.03(a).
"Percentage" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving
Loan Commitment of such Lender at such time and the denominator of
which is the Total Revolving Loan Commitment at such time, provided
that if the Percentage of any Lender is to be determined after the
Total Revolving Loan Commitment has been terminated, then the
Percentages of the Lenders shall be determined immediately prior (and
without giving effect) to such termination.
"Permitted Dividend Amount" shall mean, for each fiscal quarter
of the Borrower, the sum of (x) Specified EBITDA for such fiscal
quarter and (y) the lesser of zero or the Negative Permitted Dividend
Carry Forward Amount for such fiscal quarter, minus the sum of the (a)
the Fleet Maintenance Reserve for such fiscal quarter, (b) the Fleet
Renewal Reserve for such fiscal quarter, (c) net interest expenses for
such fiscal quarter and (d) cash taxes for such fiscal quarter.
"Second Amendment" shall mean the Second Amendment to the Credit
Agreement, dated as of March __, 2005, among the Borrower, the Lenders
and the Administrative Agent.
"Second Amendment Effective Date" shall have the meaning provided
in the Second Amendment.
13
"Senior Note Repurchase Amount" shall mean an amount equal to the
sum of $125,000,000 plus the Equity Issuance Amount.
"Significant Default" shall mean any Event of Default pursuant to
Section 10.03 with respect to any failure to comply with Sections 9.07,
9.08, 9.09, 9.10 or 9.11 or any Default or Event of Default pursuant to
Section 10.01 or 10.05.
"Specified EBITDA" shall mean, for any period, Consolidated Net
Income plus Consolidated Net Interest Expense for such period and the
amount of all depreciation and amortization deducted in determining
Consolidated Net Income for such period.
"Stated Amount" of each Letter of Credit shall, at any time, mean
the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could
then be met).
"Total Available Revolving Loan Commitment" shall mean, at any
time, the sum of the Available Revolving Loan Commitments of each of
the Lenders at such time.
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
25. Section 13.04(b) of the Credit Agreement is hereby amended by
inserting the text "2.05," immediately following the text "Sections 1.09, 1.10,"
each time it appears therein.
26. Section 13.13 of the Credit Agreement is hereby amended by inserting
the text "2.05," immediately following the text "Sections 1.09, 1.10," appearing
therein.
27. Section 13.14 of the Credit Agreement is hereby amended by inserting
the text ", 2.05" immediately following the text "Section 1.09, 1.10" appearing
therein.
28. Section 13.15 of the Credit Agreement is hereby amended by inserting
the text ", 2.05" immediately following the text "Section 1.09, 1.10" appearing
therein.
29. The Credit Agreement is hereby amended by inserting Exhibit P attached
hereto thereto.
B. Miscellaneous Provisions
1. In order to induce the Lenders to enter into this Second Amendment, the
Borrower hereby represents and warrants to each of the Lenders that immediately
after giving effect to this Second Amendment (i) all of the representations and
warranties contained in the Credit Agreement and in the other Credit Documents
are true and correct in all material respects on and as of the Second Amendment
Effective Date (unless such representations and warranties 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) and (ii) there
exists no Default or Event of Default on the Second Amendment Effective Date.
14
2. This Second Amendment is limited as specified and shall not constitute
a modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
3. This Second Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
4. THIS SECOND AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Second Amendment shall become effective on the date (the "Second
Amendment Effective Date") when each of the following conditions have been
satisfied:
(i) the Borrower, each Subsidiary Guarantor and the Required
Lenders shall have signed a counterpart hereof (whether the
same or different counterparts) and shall have delivered
(including by way of facsimile transmission) the same to the
Administrative Agent; and
(ii) each Vessel Mortgage shall have been amended (such amendments,
the "Vessel Mortgage Amendments") in a manner reasonably
satisfactory in form and substance to the Administrative Agent
to secure the Obligations.
6. On the Second Amendment Effective Date, the Borrower hereby agrees to
pay in immediately available funds to the Administrative Agent for distribution
to each Lender that executes and delivers to the Administrative Agent (or its
designee) a counterpart of this Amendment by the close of business on March 25,
2005, a non-refundable cash fee in an amount (in U.S. dollars) equal to 7.5
basis points (0.075%) of an amount equal to the sum of the outstanding principal
amount of Term Loans and the Revolving Loan Commitment of such Lender, in each
case, as the same is in effect on the Second Amendment Effective Date, which fee
shall not be subject to counterclaim or set-off for, or be otherwise affected
by, any claim or dispute relating to any other matter.
7. From and after the Second Amendment Effective Date, all references in
the Credit Agreement and in the other Credit Documents to the Credit Agreement
shall be deemed to be referenced to the Credit Agreement as modified hereby.
8. By executing and delivering a copy hereof, each Subsidiary Guarantor
hereby (i) agrees that the term "Credit Document Obligations" as defined in the
Subsidiaries Guaranty and Security Documents shall include all obligations
pursuant to the issuance of Letters of Credit (including the obligation to
reimburse Unpaid Drawings) and (ii) reaffirms that the Security Documents and
Subsidiaries Guaranty are in full force and effect.
* * *
15
[SIGNATURE PAGES TO FOLLOW]
16
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Second Amendment as of the date
first above written.
GENERAL MARITIME CORPORATION,
as Borrower
By___________________________________
Name:
Title:
Acknowledged and agreed to by:
GMR TRADER LLC,
GMR ADMINISTRATION CORP.,
GMR AGAMEMNON LLC,
GMR AJAX LLC,
GMR ALEXANDRA LLC,
GMR ALTA LLC,
GMR ARGUS LLC,
GMR ARISTON LLC,
GMR BOSS LLC,
GMR CENTAUR LLC,
GMR CHALLENGER LLC,
GMR CHAMP LLC,
GMR COMMANDER LLC,
GMR CONQUEROR LLC,
GMR XXXXXXXXXXX LLC,
GMR DEFIANCE LLC,
GMR ENDURANCE LLC,
GMR XXXXXXX LLC,
GMR XXXXXX LLC ,
GMR GULF LLC,
GMR XXXXXXX LLC,
GMR XXXXXX LLC,
as Subsidiary Guarantors
By:_________________________________
Name:
Title:
17
GMR HONOUR LLC,
GMR HOPE LLC,
GMR HORN LLC,
GMR KESTREL LLC,
GMR LEONIDAS LLC,
GMR MACEDON LLC,
GMR MINOTAUR LLC,
GMR XXXXXX LLC,
GMR ORION LLC,
GMR PERICLES LLC,
GMR PHOENIX LLC,
GMR PRINCESS LLC,
GMR PROGRESS LLC,
GMR PROMETHEUS LLC,
GMR REVENGE LLC,
GMR SKY LLC,
GMR SPARTIATE LLC,
GMR SPIRIT LLC,
GMR SPYRIDON LLC,
GMR STAR LLC,
GMR STRENGTH LLC,
GMR SUN LLC,
GMR TRADER LTD,
GMR TRANSPORTER LLC,
GMR TRAVELLER LLC,
GMR TRUST LLC,
GMR ZOE LLC,
as Subsidiary Guarantors
By:____________________________
Name:
Title:
00
XXXXXX XXXX XXXXXXX XXX, XXX XXXX BRANCH, as
Administrative Agent and as Collateral Agent
By_______________________________________
Title:
By_______________________________________
Title:
NORDEA BANK NORGE ASA, GRAND CAYMAN BRANCH, as
a Lender
By_______________________________________
Title:
By_______________________________________
Title:
SIGNATURE PAGE TO THE SECOND AMENDMENT, DATED
AS MARCH __, 2005, TO THE CREDIT AGREEMENT,
DATED AS OF JULY 1, 2004, AMONG GENERAL
MARITIME CORPORATION, VARIOUS LENDERS AND
NORDEA BANK FINLAND PLC, NEW YORK BRANCH AS
ADMINISTRATIVE AGENT
NAME OF INSTITUTION:
______________________________________
By:____________________________________
Name:
Title:
EXHIBIT P
---------
LETTER OF CREDIT REQUEST
------------------------
Dated _______________(1)
Nordea Bank Finland Plc,
New York Branch as
Administrative Agent under the
Credit Agreement referred to below
000 Xxxxxxx Xxxxxx, 00XX Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trade Finance Department
Facsimile: (000) 000-0000
[Name and Address of the
respective Issuing Lender]
Attention:_________________
Ladies and Gentlemen:
The undersigned, General Maritime Corporation, a Xxxxxxxx Islands
corporation (the "Borrower"), refer to the Credit Agreement, dated as of July
1, 2004, (as amended, modified or supplemented from time to time, the "Credit
Agreement", the capitalized terms defined therein being used herein as
therein defined), among the Borrowers the lending institutions from time to
time party thereto (the "Lenders") and Nordea Bank Finland Plc, New York
Branch, as Administrative Agent.
The undersigned hereby requests that __________,(2) as Issuing
Lender, issue a standby Letter of Credit on ______ ___, _____ (the "Date of
Issuance")(3) in the aggregate amount of $________.(4)
--------------------
(1) Date of Letter of Credit Request.
(2) Name of Issuing Lender.
(3) Date of Issuance, which shall be at least five Business Days from the date
hereof (or such shorter period as may be acceptable to the respective
Issuing Lender).
(4) Initial Stated Amount of Letter of Credit, which shall not be less than
$20,000 or such lesser amount as is acceptable to the respective Issuing
Lender.
The beneficiary of the requested standby Letter of Credit will be
__________,(5) and such standby Letter of Credit will have a stated termination
date of __________________.(6)
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the Date of Issuance:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and
correct in all material respects, both before and after giving effect
to the issuance of the Letter of Credit requested hereby, as though
made on the Date of Issuance, 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;
and
(B) no Default or Event of Default has occurred and is
continuing, or would result after giving effect to the issuance of the
standby Letter of Credit requested hereby.
GENERAL MARITIME CORPORATION
By:____________________________
Name:
Title:
------------------
(5) Insert name and address of beneficiary.
(6) Insert last date upon which drafts may be presented, which may not be
later than the earlier of (x) twelve months after the Date of Issuance and
(y) the twentieth Business Day immediately preceding the Maturity Date..
