AMENDMENT NO. 8 TO
AMENDMENT NO. 8
TO
FACILITY AGREEMENT PROVIDING FOR A
SENIOR SECURED TERM LOAN
OF V5,102,500,000
dated January 23, 2008,
EAST GULF SHIPHOLDING, INC.
as Borrower,
AND
The Banks and Financial Institutions listed on Schedule I thereto,
as Lenders,
, AND
DNB BANK ASA, NEW YORK BRANCH
as Facility Agent and as Security Trustee
AND
INTERNATIONAL SHIPHOLDING CORPORATION,
as Guarantor
Dated as of November 25, 2014
AMENDMENT NO. 8 TO LOAN AGREEMENT
THIS AMENDMENT NO. 8 TO LOAN AGREEMENT (this "Amendment") is dated as of November 25, 2014, by and among (1) EAST GULF SHIPHOLDING, INC., a corporation organized and existing under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands, as borrower (the "Borrower"), (2) INTERNATIONAL SHIPHOLDING CORPORATION, a corporation organized and existing under the laws of the State of Delaware, as guarantor (the "Guarantor"), (3) DNB Capital LLC and the other banks and financial institutions listed on Schedule 1 to the Facility Agreement (as defined below), as lenders (together with any bank or financial institution which becomes a Lender pursuant to Article 11 of the Facility Agreement, as defined below, the "Lenders" and each a "Lender"), and (4) DNB BANK ASA, NEW YORK BRANCH (formerly known as DnB NOR Bank ASA) ("DNB"), as facility agent (in such capacity including any successor thereto, the "Facility Agent"), as security trustee for the Lenders (in such capacity, the "Security Trustee" and, together with the Facility Agent, the "Agents"), and amends and is supplemental to the Senior Secured Facility Agreement dated as of January 23, 2008, entered into by and among the Borrower, the Guarantor, the Lenders and the Agents, as amended by Amendment No. 1 thereto dated as of April 21, 2010, Amendment No. 2 thereto dated as of December 31, 2010, Amendment No. 3 thereto dated as of April 5, 2011, Amendment No. 4 thereto dated as of November 28, 2012, Amendment No. 5 thereto dated as of August 7, 2013, Amendment No. 6 thereto dated as of August 26, 2014 and Amendment No. 7 dated as of October 31, 2014 (the "Original Agreement" and as further amended hereby, the "Facility Agreement").
WITNESSETH THAT:
WHEREAS, the Guarantor has informed the Creditors that the Borrower intends to sell (the "Sale") the Borrower's vessels EGS CREST, EGS TIDE and EGS WAVE and that two other wholly-owned Subsidiaries of the Guarantor intend to sell their respective vessels ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and OCEAN PORPOISE (the "Vessels");
WHEREAS, the Guarantor has informed the Creditors that as a result of the Sale, it is anticipated that the Borrower and the Guarantor may incur impairment losses under GAAP (the "Impairment Losses");
WHEREAS, the Guarantor has informed the Creditors that (i) a default under Section 8.1(m) of the Original Agreement may, absent a waiver from the Lenders, occur as a result of the Impairment Losses and (ii) the covenants contained in Sections 9.2(i) and 9.3(c) of the Original Agreement will, absent a waiver from the Lenders, be breached upon the occurrence of the Sale; and
WHEREAS, the Security Parties and the Creditors have agreed, inter alia, to amend the Original Agreement as follows.
NOW, THEREFORE, in consideration of the premises and such other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the parties, it is hereby agreed as follows:
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1. Definitions. Unless otherwise defined herein, words and expressions defined in the Original Agreement have the same meanings when used herein. |
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2. Representations and Warranties. Each of the Security Parties hereby reaffirms, as of the date hereof, each and every representation and warranty made thereby in the Original Agreement and the Note (updated mutatis mutandis). |
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3. No Defaults. Each of the Security Parties hereby represents and warrants that as of the date hereof there exists no Event of Default or any condition which, with the giving of notice or passage of time, or both, would constitute an Event of Default. |
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4. Performance of Covenants, Each of the Security Parties hereby reaffirms that it has duly performed and observed the covenants and undertakings set forth in the Original Agreement, the Note and the Security Documents on its part to be performed, and covenants and undertakes to continue duly to perform and observe such covenants and undertakings, other than as waived hereby, so long as the Facility Agreement, as may be amended or supplemented from time to time, shall remain in effect. |
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5. Waiver/Consent. Subject to the Security Parties' continued compliance with the provisions contained herein and in the Facility Agreement to the satisfaction of the Creditors in their sole discretion, the Creditors hereby (a) waive any default occurring under Section 8.1(m) of the Facility Agreement solely in connection with the Impairment Losses, (b) consent to the Sale and waive any breach of Section 9.2(i) of the Facility Agreement solely in connection with the Sale. The Creditors, solely in connection with the transactions described herein, hereby waive compliance with any other provision contained in the Facility Agreement or the other Transaction Documents as may be necessary to give full effect to the waiver and consent set forth in this Section 5. |
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6. Amendments to the Original Agreement. Subject to the terms and conditions of this Amendment, the Original Agreement is hereby amended and supplemented as follows: |
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(a) |
All references to "this Agreement" shall be deemed to refer to the Original |
Agreement, as amended hereby;
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(b) |
The following definition shall be added to Section 1.1 of the Original Agreement in its alphabetical order as follows: |
"'Impairment Losses' shall mean any impairment losses incurred by the Borrower or the Guarantor, which, in accordance with GAAP, would result from the sale of the vessels EGS CREST, EGS TIDE and EGS WAVE by the Borrower, and the sale of the vessels ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and OCEAN PORPOISE by two separate wholly-owned Subsidiaries of the Guarantor;"; and
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(c) |
Section 9.3(c) of the Original Agreement is hereby amended and restated in its entirety as follows: |
"(c) Minimum Consolidated Tangible Net Worth. Maintain a
Consolidated Tangible Net Worth, as measured at the end of each fiscal quarter, in an amount of not less than the sum of Two Hundred Ninety Nine Million Seven Hundred Eighty Six Thousand Dollars ($299,786,000), minus the amount of Impairment Losses, plus fifty percent (50%) of all Consolidated Net Income of the Guarantor and the Subsidiaries earned after March 31, 2014, excluding the amount of Impairment Losses, plus 100% of the proceeds of all issuances of Equity Interests (common or preferred) of the Guarantor and the Subsidiaries (on a consolidated basis) received after March 31, 2014 (other than issuances in connection with the exercise by a present or former employee, officer or director under a stock incentive plan, stock option plan or other equity-based compensation plan or arrangement).".
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7. Fees and Expenses. The Borrower agrees to pay the Facility Agent, for distribution to the Lenders ratably based on their respective commitments, an arrangement fee equal to 0.10% of the Facility, and, promptly upon demand therefor, all costs and expenses (including legal fees) incurred by the Lenders in connection with the preparation and execution of this Amendment. |
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8. No Other Amendment. All other terms and conditions of the Original Agreement shall remain in full force and effect and the Original Agreement shall be read and construed as if the terms of this Amendment were included therein by way of addition or substitution, as the case may be. |
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9. Conditions Precedent to the Effectiveness of this Amendment. The effectiveness of this Amendment shall be expressly subject to the following conditions precedent:
(a)This Amendment. The Borrower and the Guarantor shall have duly
executed and delivered this Amendment to the Facility Agent;
(b)Corporate Authority. The Facility Agent shall have received the following
documents in form and substance satisfactory to the Facility Agent and its legal advisers:
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i. |
copies, certified as true and complete by an officer of each of the Security Parties, of the resolutions of its board of directors and, with respect to the Borrower, shareholders evidencing approval the transactions contemplated hereby and authorizing an appropriate officer or officers or attorney-in-fact or attorneys-in-fact to execute the same on its behalf; |
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ii. |
certificate of the jurisdiction of incorporation of each Security Party as to the good standing thereof; and |
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iii. |
a certificate signed by the Chairman, President, Chief Financial Officer, Vice President, Treasurer or Controller of each of the Security Parties to the effect that (A) no Default or Event of Default shall have occurred and be continuing, (B) the representations and warranties of such Security Party contained in the Original Agreement as Amended hereby are true and correct as of the date of such certificate and (C) the copies of its certificate or articles of incorporation and by-laws or similar constituent documents thereof attached to its Certificate delivered in connection with its entering into Amendment No. 6 to the Facility Agreement have not been amended or rescinded and remain in full force and effect as of the day hereof. |
(c)Legal Opinions. The Facility Agent shall have received such legal
opinions as it shall reasonably require.
(d) Interest, Fees and Expenses Paid. The Facility Agent shall have received
payment in full of all interest, fees and expenses due under or in connection to the Original Agreement and this Amendment.
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10. Other Documents. By the execution and delivery of this Amendment, the Security Parties and the Lenders hereby consent and agree that all references in the Note and the Security Documents to the Original Agreement shall be deemed to refer to the Original Agreement as amended by this Amendment. By the execution and delivery of this Amendment, each of the Security Parties hereby consents and agrees that each of the Note and any other documents that has been executed in connection with the Original Agreement and each of the
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Security Parties' obligations under the Original Agreement shall remain in full force and effect notwithstanding the amendments contemplated hereby. |
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11. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws thereof other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York. |
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12. Counterparts. This Amendment may be executed in as many counterparts as may be deemed necessary or convenient, and by the different parties hereto on separate counterparts each of which, when so executed, shall be deemed to be an original but all such counterparts shall constitute but one and the same agreement. |
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13. Headings; Amendment. In this Amendment, section headings are inserted for convenience of reference only and shall be ignored in the interpretation of this Amendment. This Amendment cannot be amended other than by written agreement signed by the parties hereto. |
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