d1272570_ex4-20.htm



Exhibit 4.20


 




Execution Version

















AMENDMENT NO. 2 TO SENIOR SECURED CREDIT FACILITY







 


AMENDMENT NO. 2 DATED AS OF JUNE 1, 2010 (the "Amendment No. 2"), 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 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 Credit Facility dated as March 31, 2009 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.2, 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. 2, 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:















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Nordea Senior Secured Credit Facility Amendment No. 2











  













ARTICLE I







CERTAIN AMENDMENTS TO THE ORIGINAL CREDIT AGREEMENT








	
  

	
Section 1.  Section 5.01(r) of the Original Credit Agreement is hereby amended and restated in its entirety to read as follows:













	
  

	
"(r) Collateral Vessels.  (i) No change of registration, flag, classification society, or technical or commercial management of any of the Collateral Vessels shall occur without the prior written consent of the Administrative Agent, such consent not to be unreasonably withheld.












(ii)           Each entity owning a Collateral Vessel shall remain, directly or indirectly, a Wholly Owned Subsidiary of the Borrower.







(iii)           Each Collateral Vessel shall remain in class with a classification society acceptable to the Administrative Agent, free of any overdue recommendations affecting class.







(iv)           On and after December 31, 2010, to and including December 31, 2013, no fewer than 50% of the Collateral Vessels' total available calendar days for the period of the next 12 months shall be employed, actively and in service, under time charters being arm's-length with companies unaffiliated with the Borrower, its Subsidiaries and management.  This clause (r)(iv) shall be tested semi-annually on and after December 31, 2010







(v)           Each entity owning a Collateral Vessel will at all times comply with the ISM Code and the International Ship and Port Facility Security Code as adopted by the IMO, as the same may be amended from time to time.















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Nordea Senior Secured Credit Facility Amendment No. 2











  














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).







(b)           The execution, delivery and performance of this Amendment No. 2 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 or 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. 2 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. 2 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. 2 or giving effect to the transactions hereby contemplated.















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Nordea Senior Secured Credit Facility Amendment No. 2











  













ARTICLE III


 


MISCELLANEOUS







Section 1.  Except as expressly modified by this Amendment No. 2, 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. 2 and in each other Loan Document to the same extent as if set forth in this Amendment No. 2 in their entirety.







Section 2.  This Amendment No. 2 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. 2 shall be effective as delivery of an original executed counterpart of this Amendment No. 2.







Section 3.  The Borrower agrees to pay a fee of $15,000 to each of the Lenders, who has given its written consent hereto on or before May 28, 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. 2 as a precondition thereof.







Section 4.  THIS AMENDMENT NO. 2 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.















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Nordea Senior Secured Credit Facility Amendment No. 2











  


















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. 2











  























IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be executed by their respective officers thereunto duly authorized, as of the date first above written.


 


 




	
EXCEL MARITIME CARRIERS LTD., as Borrower


	
 


	
By: /s/ P. Kanellopoulos


	
 Name: P. Kanellopoulos


 Title:   CFO


	
 


	
NORDEA BANK FINLAND PLC, LONDON BRANCH, 


as Administrative Agent


	 
	
By: /s/


	
Name:


	
Title:









 


 


 


 


 


 


 





Nordea Senior Secured Credit Facility Amendment No. 2


  





  











  








 




IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be executed by their respective officers thereunto duly authorized, as of the date first above written.


 



	
EXCEL MARITIME CARRIERS LTD., as Borrower


	
By: /s/


	
Name:


Title:


	
 


	
NORDEA BANK FINLAND PLC, LONDON BRANCH, 


as Administrative Agent


	
 


	
By: /s/ M.D. Sheppard


	
 Name: M.D. Sheppard


	
 Title: Vice President


	 
	
By: /s/ Ulf B. Andersson


	
 Name: Ulf B. Andersson


	
 Title:  Head of Shipping, 


 Offshore & Oil Services London







 




 


 


 


 


 




Nordea Senior Secured Credit Facility Amendment No. 2


  





  











  














	
NORDEA BANK FINLAND PLC, LONDON BRANCH, 


as Lender


	 
	
 


	
By: /s/ M.D. Sheppard


	
Name: M.D. Sheppard


	
Title: Vice President


	 
	
 


	
By: /s/Ulf B. Andersson


	
 Name: Ulf B. Andersson


	
 Title: Head of Shipping, 


 Offshore & Oil Services  London







 




 


 


 


 


 




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CREDIT SUISSE AG (previously known as Credit Suisse), as Lender


	 
	
 


	
By: /s/ Stephen Schurch


	
 Name:  Stephan Schurch


	
 Title:   Vice President


	 
	
 


	
By: /s/ Lydia Lampadaridou


	
 Name:  Lydia Lampadaridou


	
 Title:  Assistant Vice President







 




 


 


 


 


 




Nordea Senior Secured Credit Facility Amendment No. 2


  





  











  














	
DVB BANK SE, as Lender


	 
	
 


	
By: /s/ Ingo Fruhauf


	
 Name:  Ingo Fruhauf


	
 Title:   Vice President


	 
	
 


	
By: /s/ Klaus Schurmann


	
 Name:  Klaus Schurmann


	
 Title:  Vice President







 




 


 


 


 


 




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	DEUTSCHE BANK AG FILIALE  
	
DEUTSCHLANDGESCHAFT, as Lender


	 
	  
	By: /s/ Tilman Stein
	
 Name:  Tilman Stein


	
 Title:     Director


	 
	
 


	
By: /s/ Duhmert


	
 Name:  Duhmert


	
 Title:







 




 


 


 


 


 




Nordea Senior Secured Credit Facility Amendment No. 2


  





  











  














	
HSH NORDBANK AG, as Lender


	 
	
 


	By: /s/ Bjorn Kaufmann
	
 Name: Bjorn Kaufmann


	

 Title:   Senior Vice President




	 
	
 


	
By: /s/ Dr. Christina Stahn


	
 Name:  Dr. Christina Stahn


	
 Title:    Vice President







 




 


 


 


 


 




Nordea Senior Secured Credit Facility Amendment No. 2


  





  











  






 


 



	
BNP PARIBAS FORTIS, as Lender


	
 


	
 


	
By:  /s/:  P. Papatheodorou


	
Name: P. Papatheodorou


	
 


	
 


	
By:  /s/   E. Tastsidi


	
Name: E. Tastsidi







 


 


 


 


 


 


 




Nordea Senior Secured Credit Facility Amendment No. 2


  





  











  














	
LANDESBANK HESSEN – THURINGEN GIROZENTRALE


	 
	
 


	By: /s/ Andre Mele
	
 Name:  Andre Mele


	

 Title:




	 
	 
	
By: /s/ Stefan Muhling


	
 Name:  Stefan Muhling


	
 Title:







 




 


 


 


 


 




Nordea Senior Secured Credit Facility Amendment No. 2


  





  











  














	SKANDINAVISKA ENSKILDA BANKEN AB (publ)  
	 
	
 


	By: /s/ Roger Gifford
	
 Name:  Roger Gifford


	
 Title:    Head of London Branch


	 
	
 


	
By: /s/ M. Stoneh


	
 Name:    M. Stoneh







 




 


 


 


 


 




Nordea Senior Secured Credit Facility Amendment No. 2


  





  











  














	
THE ROYAL BANK OF SCOTLAND N.V.


	 
	
 


	
By: /s/  Elena Evangelatou


	
 Name:  Elena Evangelatou


	
 Title:    Vice President


	
 


	
 


	
By: /s/  Efthynia Tomazou


	
 Name:  Efthynia Tomazou


	
 Title:   Credit Administration


	
 


	
 







 




 




Nordea Senior Secured Credit Facility Amendment No. 2


  





  











  














	
CITIBANK INTERNATIONAL plc 


	GREECE
	 
	
 


	
By: /s/ Takis Constantaras


	
 Name:  Takis Constantaras


	
 Title:    Managing Director Corporate Bank







 




 


 


 


 


 




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NATIONAL BANK OF GREECE S.A., as Lender


	 
	
 


	
By: /s/ Konstantinos N. Simos


	
 Name: Konstantinos N. Simos


	
 Title:


	
 


	
 


	
By: /s/ Florakis Panagiotis


	
 Name: Florakis Panagiotis


	
 Title:







 




 


 


 


 


 




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BNP PARIBAS (SUISSE) SA


	
 


	
 


	
By: /s/ Olivier Blanchet


	
 Name:  Olivier Blanchet


	
 Title:    Member of Management


	
 


	
 


	
By: /s/ Louis-Valentin Neaul


	
 Name: Louis-Valentin Neaul


	
 Title: Relationship Manager







 




 


 


 


 


 




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GENERAL ELECTRIC CAPITAL CORPORATION, 


	as Lender
	
 


	
 


	
By: /s/ Steven V. Gonzalez


	
 Name: Steven V. Gonzalez


	
 Title: Attorney-in-Fact












 


 


 


 


 


 




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NATIXIS


	
 


	
 


	
By: /s/ Didier Berger


	
 Name:  Didier Berger


	
 Title:


	
 


	
NATIXIS


	
 


	
 


	
By: /s/ Sylvie Noel


	
 Name:  Sylvie Noel


	
 Title:

















 


 


 


 




 




Nordea Senior Secured Credit Facility Amendment No. 2