UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549

FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the
Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported):  December 21, 2011

 
GENCO SHIPPING & TRADING LIMITED
(Exact Name of Registrant as Specified in Charter)

Republic of the Marshall Islands	001-33393	98-043-9758	
(State or Other Jurisdiction
of Incorporation)	(Commission File Number)	(I.R.S. Employer
Identification No.)	

299 Park Avenue
20th Floor
(Address of Principal Executive Offices)	 	 
10171
(Zip Code)	

Registrant’s telephone number, including area code:  (646) 443-8550

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

r	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)	
 
r	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	
 
r	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))	
 
r	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	

 

 

Item 1.01.      Entry into a Material Definitive Agreement.
 
Credit Facility Amendments

On December 21, 2011, Genco Shipping & Trading Limited (“Genco”), entered into agreements to amend or waive provisions of the agreements for (i) its $1.4 billion senior secured credit facility with DnB Nor Bank ASA, as administrative agent, collateral agent, mandated lead arranger, bookrunner and lender, and other lenders party thereto (the “2007 Credit Facility”), (ii) its $253 million senior secured term loan facility with Deutsche Bank AG Filiale Deutschlandgeschäft, as Security Agent and Bookrunner, and other lenders party thereto (the “$253 Million Term Loan Facility”), and (iii) its $100 million senior secured term loan facility with Crédit Agricole Corporate and Investment Bank, as Agent and Security Trustee, and other lenders party thereto (the “$100 Million Term Loan Facility”).  The agreements implement, among other things, the following:
 
·  	Genco’s compliance with its existing maximum leverage ratio covenant is waived for a period starting on October 1, 2011 and ending on (and including) March 31, 2011, or the waiver period.  This covenant governs the ratio of Genco’s net debt to EBITDA (as such term is defined in the credit agreements).	
 
·  	Genco’s compliance with its existing minimum permitted consolidated interest ratio covenant is also waived for the waiver period.  This covenant governs the ratio of Genco’s EBITDA to consolidated interest expense.	
 
·  	A new gross interest-bearing debt to total capital covenant applies to Genco for the duration of the waiver period.  This covenant limits the ratio of Genco’s interest-bearing indebtedness to the sum of its interest-bearing indebtedness and its consolidated net worth in accordance with GAAP to 62.5% on the last day of any fiscal quarter of Genco during the waiver period.	
 
·  	Consenting lenders under the facilities received an upfront fee of 25 basis points on the amount of outstanding loans.	
 
As contemplated under these agreements, Genco prepaid $52.5 million under its 2007 Credit Facility, $7.0 million under its $253 Million Term Loan Facility, and $3.0 million under its $100 Million Term Loan Facility.  All such prepayments were applied in inverse order of maturity under each credit facility.  In addition, the 2007 Credit Facility is subject to a facility fee of 200 basis points per annum on the average daily outstanding principal amount of the loans thereunder, payable quarterly in arrears. The other two credit facilities are not subject to a new facility fee.
 
Item 2.03.      Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
The disclosure contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference in its entirety into this Item 2.03.
 
Item 9.01.      Financial Statements and Exhibits

(d) Exhibits:

The following exhibits are filed herewith:

 

 

 

Exhibit No.            	Description	
 
10.1        	Amendment and Supplement No. 5  to Senior Secured Credit Agreement, dated as of December 21, 2011, among Genco Shipping & Trading Limited, the lenders party thereto, DNB NOR Bank ASA, New York Branch, as Administrative Agent, mandated lead arranger, bookrunner, security trustee and collateral agent, and Bank of Scotland PLC, as mandated lead arranger.	
 
10.2        	First Side Letter to $253,000,000 Secured Loan Facility Agreement dated August 20, 2010, by and among Genco Shipping & Trading Limited as Borrower; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken AB (publ), as Lenders; Deutsche Bank Luxembourg S.A., as Agent; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE; Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken Ab (publ), as Mandated Lead Arrangers; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG, and Skandinaviska Enskilda Banken AB (publ), as Swap Providers; Deutsche Bank AG Filiale Deutschlandgeschäft, as Security Agent and Bookrunner; and the subsidiaries of Genco listed therein as Guarantors.	
 
10.3        	Waiver Letter Agreement, dated as of December 21, 2011, regarding $253,000,000 Secured Loan Facility Agreement dated August 20, 2010, by and among Genco Shipping & Trading Limited as Borrower; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken AB (publ), as Lenders; Deutsche Bank Luxembourg S.A., as Agent; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE; Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken Ab (publ), as Mandated Lead Arrangers; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG, and Skandinaviska Enskilda Banken AB (publ), as Swap Providers; Deutsche Bank AG Filiale Deutschlandgeschäft, as Security Agent and Bookrunner; and the subsidiaries of Genco listed therein as Guarantors.	
 
10.4        	First Amendment to Loan Agreement, dated as of December 21, 2011, to the Loan Agreement, dated as of August 12, 2010, by and among Genco Shipping & Trading Limited as Borrower, the banks and financial institutions listed in Schedule 1 thereto as Lenders, the companies listed in Schedule 2 thereto as Guarantors on a joint and several basis and Crédit Agricole Corporate and Investment Bank, as Agent and Security Trustee.	

 

 

SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, Genco Shipping & Trading Limited has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
GENCO SHIPPING & TRADING LIMITED
 
DATE:  December 22, 2011

 
/s/ John C. Wobensmith
John C. Wobensmith
Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)

 

 

EXHIBIT INDEX

 
Exhibit No.            	Description	
 
10.1        	Amendment and Supplement No. 5  to Senior Secured Credit Agreement, dated as of December 21, 2011, among Genco Shipping & Trading Limited, the lenders party thereto, DNB NOR Bank ASA, New York Branch, as Administrative Agent, mandated lead arranger, bookrunner, security trustee and collateral agent, and Bank of Scotland PLC, as mandated lead arranger.	
 
10.2        	First Side Letter to $253,000,000 Secured Loan Facility Agreement dated August 20, 2010, by and among Genco Shipping & Trading Limited as Borrower; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken AB (publ), as Lenders; Deutsche Bank Luxembourg S.A., as Agent; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE; Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken Ab (publ), as Mandated Lead Arrangers; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG, and Skandinaviska Enskilda Banken AB (publ), as Swap Providers; Deutsche Bank AG Filiale Deutschlandgeschäft, as Security Agent and Bookrunner; and the subsidiaries of Genco listed therein as Guarantors.	
 
10.3        	Waiver Letter Agreement, dated as of December 21, 2011, regarding $253,000,000 Secured Loan Facility Agreement dated August 20, 2010, by and among Genco Shipping & Trading Limited as Borrower; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken AB (publ), as Lenders; Deutsche Bank Luxembourg S.A., as Agent; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE; Deutsche Bank AG Filiale Deutschlandgeschäft, and Skandinaviska Enskilda Banken Ab (publ), as Mandated Lead Arrangers; BNP Paribas, Crédit Agricole Corporate and Investment Bank, DVB Bank SE, Deutsche Bank AG, and Skandinaviska Enskilda Banken AB (publ), as Swap Providers; Deutsche Bank AG Filiale Deutschlandgeschäft, as Security Agent and Bookrunner; and the subsidiaries of Genco listed therein as Guarantors.	
 
10.4        	First Amendment to Loan Agreement, dated as of December 21, 2011, to the Loan Agreement, dated as of August 12, 2010, by and among Genco Shipping & Trading Limited as Borrower, the banks and financial institutions listed in Schedule 1 thereto as Lenders, the companies listed in Schedule 2 thereto as Guarantors on a joint and several basis and Crédit Agricole Corporate and Investment Bank, as Agent and Security Trustee.	

 

 

Exhibit 10.1

AMENDMENT AND SUPPLEMENT NO. 5 TO
SENIOR SECURED CREDIT AGREEMENT
 
THIS AMENDMENT AND SUPPLEMENT NO. 5 TO SENIOR SECURED CREDIT AGREEMENT (this “ Amendment ”) is made as of December 21, 2011, by and among (1) GENCO SHIPPING & TRADING LIMITED, a corporation organized and existing under the laws of the Republic of Marshall Islands (the “ Borrower ”), (2) the banks and financial institutions as are signatories hereto, as lenders (the “ Lenders ”), (3) DNB BANK ASA (f/k/a DnB NOR Bank ASA) (“ DnB ”) as Administrative Agent (in such capacity, the “ Administrative Agent ”), mandated lead arranger, bookrunner (in such capacity, the “ Bookrunner ”), security trustee and collateral agent under the Security Documents (in such capacity, the “ Collateral Agent ”), and (4) BANK OF SCOTLAND PLC, as mandated lead arranger (together with DnB, in such capacity, the “ Mandated Lead Arrangers ”) and amends and is supplemental to the Senior Secured Credit Agreement dated as of July 20, 2007, as amended by Amendment and Supplement No. 1 to the Senior Secured Credit Agreement dated as of September 21, 2007, Amendment and Supplement No. 2 to the Senior Secured Credit Agreement dated as of February 13, 2008, Amendment and Supplement No. 3 to the Senior Secured Credit Agreement dated as of June 18, 2008, and Amendment and Supplement No. 4 to the Senior Secured Credit Agreement dated as of January 26, 2009 (the “ Credit Agreement ”), made by and among the parties.
 
W I T N E S S E T H :
 
WHEREAS, pursuant to the Credit Agreement, the Lenders made available to the Borrower a senior secured credit facility in the amount of US$1,377,000,000 (the “ Facility ”);
 
WHEREAS, the Borrower has requested, and the Lenders signatory hereto have agreed, subject to the terms and conditions of this Amendment, that the application of the covenants contained in Sections 11.07 and 11.08 of the Credit Agreement be suspended during the Waiver Period (as defined below); and
 
WHEREAS, the Borrower and the Lenders signatory hereto have agreed to certain other amendments to the Credit Agreement.
 
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:
 
1.     Definitions .  Unless otherwise defined herein, words and expressions defined in the Credit Agreement have the same meanings when used herein, including in the recitals hereto.
 
2.     Representations and Warranties .  The Borrower hereby reaffirms, as of the date hereof, each and every representation and warranty made thereby in the Credit Agreement, the Note and the Security Documents (updated mutatis mutandis). The Borrower hereby represents and warrants that there have been no changes to the Certificate of Incorporation or By-Laws (or equivalent organizational documents) of any Credit Party from the most recent copies of such documents delivered to the Administrative Agent.

 

 

3.     No Defaults .  The Borrower hereby represents and warrants that as of the date hereof no Event of Default or event which, with the passage of time, giving of notice or both would become an Event of Default, has occurred.
 
4.     Performance of Covenants .  Each Credit Party hereby reaffirms that it has duly performed and observed the covenants and undertakings set forth in the Credit Agreement, the Note and the Security Documents, on its part to be performed, and each Credit Party covenants and undertakes to continue duly to perform and observe such covenants and undertakings so long as the Credit Agreement, as the same is amended and supplemented hereby, and may hereafter be amended or supplemented, shall remain in effect.
 
5.     Amendments to the Credit Agreement .  Subject to the terms and conditions of this Amendment, the Credit Agreement is hereby amended and supplemented as follows:
 
(a)  	All references to “this Agreement” shall be deemed to refer to the Credit Agreement, as further amended and supplemented hereby.	
 
(b)  	Section 10 of the Credit Agreement is amended by inserting the following new Section 10.18:	

“ Most Favored Lender .  During the Additional Covenant Period, the Borrower shall deliver to the Administrative Agent a written notice of any Additional Covenant included in an Additional Facility or an Amended Facility within five (5) Business Days of the date it enters into such Additional Facility or Amended Facility.  Such Notice shall be signed by the Borrower’s senior financial officer and set forth in reasonable detail a description of the Additional Covenant, including any defined terms used therein and related explanatory calculations.  Except for any Additional Covenant that has been expressly waived in writing by the Agents or Required Lenders before the commencement of the Additional Covenant Period or is so waived in writing within fifteen days after the Administrative Agent’s receipt of a notice of the Additional Covenant, such Additional Covenant (i) shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully herein, effective as of the date when such Additional Covenant shall have become effective under such Additional Facility or Amended Facility and the Administrative Agent will be authorized to execute an amendment to the Credit Agreement adding such covenant and (ii) shall be effective only during the Additional Covenant Period, after which time such Additional Covenant shall no longer have any force or

 
 
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effect.  During the Additional Covenant Period, any Additional Covenant incorporated into this Agreement pursuant to this Section 10.18 shall be deemed automatically amended herein to reflect any subsequent amendments made to such Additional Covenant under the applicable Additional Facility or Amended Facility.  Upon the occurrence of any event described in the preceding sentence, the Administrative Agent may enter into any additional agreement or amendment to this Agreement evidencing the amendment of any such incorporated covenants.  All of the existing covenants in Sections 10 and 11 as of the date of this Agreement shall remain in this Agreement regardless of whether any Additional Covenants are incorporated into this Agreement.”
 
(c)  	Section 11 of the Credit Agreement is amended by inserting the following new Section 11.17:	

“During the period commencing October 1, 2011 and ending on (and including) March 31, 2013, the Borrower will not permit, as of the last day of any fiscal quarter during such period,  the aggregate amount of its interest-bearing Consolidated Indebtedness to exceed 62.5% of  the aggregate amount of its interest-bearing Consolidated Indebtedness plus its Consolidated Net Worth (as defined in the following sentence) at such time.  For purposes of, and only of, this Section 11.17, “Consolidated Net Worth” shall mean the Net Worth of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP without any deduction for any minority interests in Subsidiaries.”
 
(d)  	The definition of “LIBOR” set forth in Section 13.01 of the Credit Agreement shall be amended to add the following at the end thereof:	
 
 “; provided , however , that if the rate set forth in clause (a) is below zero, LIBOR will be deemed to be zero.”
 
(e)  	Section 13.01 shall be amended to add the following definitions in alphabetical order:	
 
 	(i)	“ Additional Covenant ” means a restrictive or financial covenant applicable to the Borrower or any of its Subsidiaries, whether expressed as a covenant, undertaking, restriction or other such provision which requires the maintenance of any particular financial ratio or metric or which prohibits or limits actions which the Borrower or any of its Subsidiaries could otherwise take (or permits any such action only upon satisfaction of specified conditions), which applicable covenant or restriction has no equivalent provision in this Agreement or would be more restrictive as to the Borrower or any of its Subsidiaries than the corresponding provision set forth herein.  Additional Covenants shall not  be deemed to include any covenant (i) directly relating to (x) lender commitment reductions or terminations or the amount or payment terms of principal, interest or fees payable under an Additional Facility or an Amended Facility or (y) additional collateral or other security granted to a lender or creditor under an Additional Facility or an Amended Facility; or (ii) that would require the Borrower or any Subsidiary to (x) provide additional collateral or other security under this Agreement, any Security Document or any other Credit Document, whether due to the Borrower’s failure to maintain a specified financial ratio or metric or otherwise, or (y) maintain a particular collateral maintenance ratio or substantially similar financial ratio or metric.”	

 
 
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 	(ii)	“ Additional Covenant Period ” means the period from December 21, 2011 through the later of (i) March 31, 2013 and (ii) the first date after December 21, 2011 on which the Aggregate Appraised Value is equal to or more than 100% of the aggregate principal amount of the outstanding Loans, all Letter of Credit Outstandings and the Borrower’s obligations under the Interest Rate Protection Agreements entered into with respect to the Loans.	
 
 	(iii)	“ Additional Facility ” means a credit agreement, note purchase agreement, indenture, promissory note, letter agreement or similar agreement for borrowed money with other lenders or creditors of the Borrower (other than trade creditors) entered into by the Borrower during the Additional Covenant Period; provided , however , that an Additional Facility shall not include an Amended Facility.	
 
 	(iii)	“ Amended Facility ” means an amendment, modification, supplement or side letter entered into by the Borrower during the Additional Covenant Period to a credit agreement, note purchase agreement, indenture, promissory note, letter agreement or similar agreement for borrowed money, in each case, which is in existence on December 21, 2011, with other lenders or creditors of the Borrower (other than trade creditors).	
 
6.     Waivers .  By their execution hereof, the Required Lenders hereby waive Sections 11.07 and 11.08 of the Credit Agreement for the period commencing October 1, 2011 and ending on (and including) March 31, 2013 (the “Waiver Period”).  For the avoidance of doubt, the Borrower shall be obligated to provide the financial statements, Appraisals, projections, certificates, notices and all other reports and filings required pursuant to Section 10.01 of the Credit Agreement notwithstanding the waiver of Sections 11.07 and 11.08 of the Credit Agreement.

 
 
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7.     Fees and Expenses .
 
 (a)           The Borrower agrees to pay the Administrative Agent for distribution to each Lender evidencing its agreement herewith by delivering an executed counterpart of this Amendment on or prior to the date hereof a facility fee (the “ Facility Fee ”) for the period from the effective date of this Amendment until the Maturity Date, computed at a rate for each day equal to (i) with respect to the period after the effective date of this Amendment until the date on which the Borrower has consummated an equity offering resulting in an aggregate amount of $50,000,000 of gross proceeds (such date, the “ Equity Sale Date ”), 2.0% per annum on such Lender’s pro rata share of the daily average outstanding principal amount of the Loans, and (ii) on and after the Equity Sale Date, 1.0% per annum until the Maturity Date on such Lender’s pro rata share of the daily average outstanding principal amount of the Loans.  Accrued Facility Fees shall be due and payable quarterly in arrears on each Payment Date and on the Maturity Date (or such earlier date upon which the Total Commitment is terminated and the full outstanding amount of the Obligations is paid in full).
 
 (b)           The Borrower agrees to pay the Administrative Agent for distribution to each Lender evidencing its agreement herewith by delivering an executed counterpart of this Amendment on or prior to the date hereof an amendment fee equal to 0.25% of the outstanding principal amount of the Loans as of the date of this Amendment (after giving effect to the Prepayment (as defined below)), payable to each such Lender based on their pro rata share of the outstanding principal amount of the Loans payable to such consenting Lenders. The Borrower shall, subject to Section 13(e) of the Credit Agreement, pay promptly to the each of the Agents all reasonable legal fees of the Agents in connection with the preparation and execution of this Amendment.
 
8.     No Other Amendment .  All other terms and conditions of the Credit Agreement shall remain in full force and effect and the Credit 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.
 
9.     Other Documents .  By the execution and delivery of this Amendment, each of the parties hereto consents and agrees that all references in the Note and the Security Documents to the Credit Agreement shall be deemed to refer to the Credit Agreement as amended and supplemented by this Amendment. By the execution and delivery of this Amendment, the Borrower hereby consents and agrees that the Security Documents and any other documents that have been or may be executed as security for the Facility and any of its obligations under the Credit Agreement, the Note or any Security Document shall remain in full force and effect notwithstanding the amendments contemplated hereby.

 
 
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10.     Compliance .  Each Security Party shall have complied with and shall then be in compliance with all the terms, covenants and conditions of the Credit Documents and this Amendment, which are binding upon it.
 
11.     No Material Adverse Effect .  By its execution hereof, the Borrower agrees that as of the date hereof, nothing shall have occurred which would constitute a Material Adverse Effect, nor anything that could reasonably be expected to have a Material Adverse Effect.
 
12.     Financial Information . The Administrative Agent shall have received such financial and other information concerning the Borrower as it may reasonably request.
 
13.     Conditions Precedent .  The effectiveness of this Amendment shall be expressly subject to the following conditions precedent:
 
(a)     Prepayment of Loans and Reduction of Total Commitment .
 
 (i) The Borrower shall have paid to the Administrative Agent $52,500,000 (the “ Prepayment ”) which shall be applied to the amount of the Final Payment; and
 
 (ii) The Borrower shall have paid to the Administrative Agent all accrued and unpaid interest on the amount of the Prepayment.
 
(b)     Corporate Documents; Proceedings; etc .
 
(i)     The Mandated Lead Arrangers shall have received a certificate, dated the date hereof, signed by an Authorized Officer, member or general partner of each Credit Party, and attested to by the secretary or any assistant secretary (or, to the extent such Credit Party does not have a secretary or assistant secretary, the analogous Person within such Credit Party) of such Credit Party, as the case may be, certifying copies of resolutions of such Credit Party approving and authorizing such Credit Party to execute this Amendment, or in the case of the Subsidiary Guarantors, the Consent, Agreement and Reaffirmation attached hereto, and each additional Credit Document to which it is a party, and each of the foregoing shall be reasonably acceptable to the Mandated Lead Arrangers.
 
(ii)     A certificate of the jurisdiction of incorporation or formation, as the case may be, of each Credit Party as to the good standing thereof.
 
(c)     Amendment and Credit Documents .
 
(i)     The Borrower shall have executed and delivered to the Administrative Agent this Amendment and shall ensure that each of the Subsidiary Guarantors shall have executed and delivered to the Administrative Agent the Consent, Agreement and Reaffirmation attached hereto.

 

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(ii)     The Required Lenders shall have executed and delivered to the Administrative Agent this Amendment.
 
(iii)   E ach Credit Party shall have executed each additional Credit Document as may be required by the Lenders in connection with this Amendment.
 
(d)     Certificates of Ownership; Searches. The Administrative Agent shall have received each of the following with respect to each Vessel owned or operated by a Credit Party:
 
(i)     certificates of ownership from appropriate authorities showing (or confirmation updating previously reviewed certificates and indicating) the registered ownership of such Vessel by the relevant Subsidiary Guarantor; and.
 
(ii)     the results of maritime registry searches with respect to such Vessel, indicating no record liens other than Liens in favor of the Collateral Agent and/or the Lenders, Permitted Liens and Liens being discharged contemporaneously with such acquisition.
 
(e)     Payment of Fees .  The Agents and the Lenders shall have received from the Borrower payment of (i) all of the Agents’ reasonable legal fees and expenses incurred in connection with the negotiation and documentation of this Amendment (without duplication of any fees, costs and expenses  of any of the Agents or Lenders previously paid by the Borrower in connection with the preparation, execution and delivery of the Credit Agreement and other Credit Documents, or any of the prior amendments, waivers and consents thereto), (ii) all fees set forth in Section 7 hereof that are due and payable as of the effective date of this Amendment and (iii) all accrued and unpaid fees under the Fee Letter and Section 3.01 of the Credit Agreement.
 
(f)     Opinions of Counsel .  The Administrative Agent shall have received from Kramer Levin Naftalis & Frankel LLP, special New York counsel to the Borrower and its Subsidiaries, an opinion addressed to the Administrative Agent and each of the Lenders and dated the date hereof which shall be in form and substance reasonably acceptable to the Mandated Lead Arrangers and cover such matters incidental to the transactions contemplated herein as the Mandated Lead Arrangers may reasonably request.

14.     Total Commitment Reduction .  Notwithstanding anything to the contrary contained in Sections 3.02, 3.03 or 3.04 of the Credit Agreement, upon the receipt by the Administrative Agent of the Prepayment, the Total Commitment is hereby reduced by the amount of the Prepayment.

 
 
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15.     Release .   In consideration of the foregoing, each Credit Party, on behalf of itself and for each of its direct and indirect affiliates, parent companies, subsidiaries, subdivisions, successors, predecessors and assigns, and their present and former officers, managers, members, heirs, legal representatives, employees, agents, and attorneys, and their trustees, successors and assigns (collectively, the “Releasors”), hereby releases, remises, acquits and forever discharges (the “Release”) the Agents, each Lender evidencing its agreement herewith by delivering an executed counterpart of this Amendment on or prior to the date hereof and such Agents’ and Lenders’ employees, agents, representatives, consultants, attorneys, fiduciaries, servants, officers, directors, partners, predecessors, successors and assigns, subsidiary companies, parent companies and related company divisions (all of the foregoing hereinafter called the “Released Parties”) from any and all actions and causes of action, judgments, executions, suits, debts, claims, demands, liabilities, obligations, damages and expenses of any and every character, known or unknown, direct or indirect, at law or in equity, of whatsoever kind or nature, whether heretofore or hereafter arising, for or because of any matter or things done, omitted or suffered to be done by any of the Released Parties prior to and including the date of execution hereof, and in any way directly or indirectly arising out of or in any way connected to this Amendment, the Credit Agreement or the other Credit Documents (all of the foregoing hereinafter called the “Released Matters”).  Each Credit Party represents and warrants to the Lenders that it has not purported to transfer, assign, pledge or otherwise convey any of such Credit Party’s right, title or interest in any Released Matter to any other person or entity and that the foregoing constitutes a full and complete release of all Released Matters.  In any litigation arising from or related to an alleged breach of the Release, the Release may be pleaded as a defense, counterclaim or cross claim and shall be admissible into evidence without foundation testimony whatsoever.  The Releasors expressly covenant and agree that the Release shall be binding in all respects upon their respective successors, assigns and transferees including, without limitation, any trustee in bankruptcy, and shall inure to the benefit of the successors and assigns of the Released Parties.
 
16.     Acknowledgement .  Each Credit Party acknowledges that (a) the Borrower is indebted to the Lenders under the Credit Agreement, the Note and the other Credit Documents as of the date of this Amendment, in the aggregate  outstanding principal amount of $1,227,000,000 (prior to giving effect to the application of the Prepayment); (b) the Obligations are absolute and unconditional and are the legal, valid and binding obligations of the Credit Parties without offset, defense or counterclaim, subject to applicable bankruptcy, insolvency, fraudulent conveyance, 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); (c) as of the date of this Amendment, the Security Documents have created in favor of the Lender a valid security interest in the Collateral, subject to no Liens other than Permitted Encumbrances; and (d) interest, fees, costs, and expenses continue to accrue with respect to the Obligations including, without limitation, fees and expenses of counsel for the Agents and the Lenders in connection with the administration and enforcement of the Credit Agreement and the other Credit Documents.

 
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17.     Governing Law .  This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
 
18.     Further Assurances .
 
 (a)      The Borrower hereby consents and agrees that if this Amendment or any of the Security Documents shall at any time be deemed by the Lenders for any reason insufficient in whole or in part to carry out the true intent and spirit hereof or thereof, it will execute or cause to be executed such other and further assurances and documents as in the reasonable opinion of the Lenders may be reasonably required in order more effectively to accomplish the purposes of this Amendment or any of the Security Documents.
 
 (b)      Without limitation of the terms of Section 17(a) of this Amendment, by no later than January 6, 2012:
 
 	(i)    	each Credit Party which owns or operates a Vessel shall have duly authorized, executed and delivered, and caused to be recorded in the appropriate vessel registry, an amendment to its respective Vessel Mortgage to secure the Credit Agreement, as amended by this Amendment; and	
 
 	(ii)    	The Administrative Agent shall have received from (1) if the relevant Vessel is registered under the Marshall Islands flag, Reeder & Simpson P.C., special Marshall Islands counsel to the Borrower, (2) Constantine P. Georgiopoulos, special New York maritime counsel to the Borrower and its Subsidiaries or (3) if the relevant Vessel is registered in an Acceptable Flag Jurisdiction other than the Marshall Islands, special counsel to the Administrative Agent of such Acceptable Flag Jurisdiction, which shall be reasonably acceptable to the Administrative Agent, an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the date of delivery, which shall (x) be in form and substance reasonably acceptable to the Administrative Agent and (y) cover the perfection of the security interests granted pursuant to each amendment of the Vessel Mortgages and such other matters incident thereto as the Administrative Agent may reasonably request.	
 
19.     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.
 
20.     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.
 
[SIGNATURE PAGES TO FOLLOW]

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IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment by its duly authorized representative on the day and year first above written.

BORROWER:
 	
GENCO SHIPPING & TRADING
LIMITED , as Borrower

By /s/ John C. Wobensmith                                                          	
 Name: John C. Wobensmith	
 Title: Chief Financial Officer, Secretary, Treasurer
 	
Address :
 	
299 Park Avenue, 20th floor	
New York, NY 10171	
Telephone:(646) 443-8550	
Facsimile: (646) 443-8551	
 	
LENDERS:	
 	
DNB BANK ASA (f/k/a DnB NOR Bank ASA,
NEW YORK BRANCH) , as Administrative Agent,	
Collateral Agent, Mandated Lead Arranger,
Bookrunner and a Lender	
 	
By /s/ Sanjiv Nayar                                                           	
 Name: Sanjiv Nayar	
 Title: Senior Vice President	
 	
By /s/ Kjell Tore Egge                                                              	
 Name: Kjell Tore Egge	
 Title: Senior Vice President	

 

 

 
BANK OF SCOTLAND PLC,
as Mandated Lead Arranger and Lender

By /s/ Douglas Newton                                                                 	
 Name: Douglas Newton	
 Title:   Director	
 	
By /s/ Michael Brown                                                                 	
 Name: Michael Brown 	
 Title:   Associate Director	

WESTLB AG, NEW YORK BRANCH,
as Lender

By_______________________________________                                                                	
 Name:	
 Title:	
 	
By_______________________________________                                                                	
 Name:	
 Title:	
 	
SANTANDER ASSET FINANCE PLC,
as Lender

By /s/ Mark McCarthy                                                                	
 Name: Mark McCarthy	
 Title: Head of Shipping	
 	
By_______________________________________                                                                	
 Name:	
 Title:	

 

 

CREDIT INDUSTRIEL ET
COMMERCIAL, NEW YORK BRANCH,
as Lender

By /s/ Alex Aupoix                                                                 	
 Name: Alex Aupoix	
 Title: Managing Director	
 	
By /s/ Adrienne Molloy                                                                 	
 Name: Adrienne Molloy	
 Title: Vice President	

DEXIA BANK BELGIUM SA/NV
as Lender

By /s/ Katrien Metten                                                                 	
 Name: Katrien Metten	
 Title: Company Lawyer	
 	
By /s/ Benoit Terreur                                                                 	
 Name:  Benoit Terreur 	
 Title: Company Lawyer	
 	
LLOYDS TSB BANK,
as Lender

By /s/ Douglas Newton                                                                 	
 Name: Douglas Newton	
 Title: Director	
 	
By /s/ Michael Brown                                                                 	
 Name: Michael Brown	
 Title: Associate Director	
 
SWEDBANK AB(PUBL),
as Lender

By /s/ Dagobert Billsten                                                                 	
 Name: Dagobert Billsten	
 Title: Attorney-in-Fact	
 	
By_____________________________________                                                                	
 Name:	
 Title:	

 

 

 
CONSENT, AGREEMENT AND AFFIRMATION
 
Each of the undersigned Guarantors hereby consents and agrees to the terms and conditions of' the foregoing Amendment dated as of December 21, 2011 and to the documents contemplated thereby and to the provisions contained therein relating to conditions to be fulfilled and obligations to be performed by it pursuant to or in connection with said Amendment and agrees particularly to be bound thereby to the same extent as if the undersigned were a party to said Amendment.  Each of undersigned hereby reaffirms its obligations, representations, warranties and covenants under its respective Guaranty of the guaranty of the obligations of the Borrower to the Lenders under or in connection with the Credit Agreement, as amended.  Each of the undersigned hereby agrees that it shall execute each additional Credit Document, including executing and recording an amendment to its respective Vessel Mortgage, as may be required by the Lenders in connection with the Amendment.
 
GENCO ACHERON LIMITED
GENCO BEAUTY LIMITED
GENCO KNIGHT LIMITED
GENCO LEADER LIMITED
GENCO MUSE LIMITED
GENCO VIGOUR LIMITED
GENCO CARRIER LIMITED
GENCO PROSPERITY LIMITED
GENCO SUCCESS LIMITED
GENCO WISDOM LIMITED
GENCO MARINE LIMITED
GENCO EXPLORER LIMITED
GENCO PIONEER LIMITED
GENCO PROGRESS LIMITED
GENCO RELIANCE LIMITED
GENCO SURPRISE LIMITED
GENCO SUGAR LIMITED
GENCO AUGUSTUS LIMITED
GENCO TIBERIUS LIMITED
GENCO LONDON LIMITED
GENCO TITUS LIMITED
GENCO CONSTANTINE LIMITED
GENCO HADRIAN LIMITED
GENCO COMMODUS LIMITED
GENCO MAXIMUS LIMITED
GENCO CLAUDIUS LIMITED
GENCO CHALLENGER LIMITED
GENCO CHAMPION LIMITED
GENCO CHARGER LIMITED
GENCO HUNTER LIMITED
GENCO PREDATOR LIMITED
GENCO WARRIOR LIMITED

By /s/ John C. Wobensmith                                                                 
Name:  John C. Wobensmith
Title:  Chief Financial Officer, Secretary, Treasurer

GENCO RAPTOR LLC
GENCO CAVALIER LLC
GENCO THUNDER LLC

By /s/ John C. Wobensmith                                                                 
Name:  John C. Wobensmith
Title:  Manager

 

 

Exhibit 10.2

Deutsche Bank Luxembourg

 
 
Genco Shipping & Trading Limited
Genco Lorraine Limited/Genco Pyrenees
Limited/Genco Loire Limited/ Genco
Bourgogne Limited/Genco Picardy
Limited/Genco Aquitaine Limited/Genco
Normandy Limited/ Genco Auvergne
Limited/Genco Provence Limited /Genco
Ardennes Limited/Genco Brittany
Limited/Genco Languedoc Limited/Genco
Rhone Limited
 	Deutsche Bank Luxembourg S.A.
International Loans & Agency Services
Postfach 5 86
L-2015 Luxembourg
 
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
 
Franz-Josef Ewerhardy
Phone: (+352) 4 21 22-552
Fax:       (+352) 4 21 22-95771
franz-josef.ewerhardy@db.com
 
24 August 2010	

Dear Sirs

US$253,000,000 secured loan agreement dated 20 August 2010 (the "Loan Agreement") made between (1) Genco Shipping & Trading Limited as borrower, (2) the Lenders (as defined therein), (3) Deutsche Bank AG Filiale Deutschlandgeschäft, BNP Paribas, Credit Agricole Corporate and Investment Bank, DVB Bank SE and Skandinaviska Enskilda Banken AB (publ) as mandated lead arrangers, (4) yourselves as agent for the Lenders, (5) BNP Paribas, Credit Agricole Corporate and Investment Bank, Deutsche Bank AG, DVB Bank SE and Skandinaviska Enskilda Banken AB (publ) as swap providers (the "Swap Providers") and (vi) Deutsche Bank AG Filiale Deutschlandgeschäft as security agent for the Lenders and the Swap Providers and as bookrunner.
 
We refer to the Loan Agreement. This Letter is supplemental to the Loan Agreement
 
Unless the context otherwise requires, all the capitalised terms used herein shall have the meanings given to them in the Loan Agreement.
 
The Account Holder has informed us that no sub-account can be created to each Account. As a consequence, the following amendments need to be made to clauses of the Loan Agreement and the Guarantees.
 
With effect from the date of this Letter:
 
1.	clause 10.4 of the Loan Agreement shall be deleted and replaced with the following clause:	
 
" Deposit   The Borrower shall procure that each Collateral Owner shall deposit into the relevant Earnings Account or into the Master Account a minimum amount of seven hundred fifty thousand Dollars ($750,000) on or before the Drawdown Date of the relevant Tranche. The respective balance standing to the credit of such Earnings Account or the Master Account shall remain until 30 September 2010 and, after 30 September 2010 and at all times during the Facility Period in the Master Account to satisfy the Borrower's obligations under Clause 12.2.1 (Loan minimum liquidity)."
 
2.	clause 12.2.1 of the Loan Agreement shall be deleted and replaced with the following clause:	

 

 

"Minimum liquidity    The Borrower shall procure that the Collateral Owners shall maintain minimum free cash of seven hundred fifty thousand Dollars ($750,000) per Vessel (to be deposited by the relevant Collateral Owner on or before the relevant Drawdown Date) (i) in either the relevant Earnings Account or the Master Account until 30 September 2010, and (ii) after 30 September 2010 and at all times during the remainder of the Facility Period, in the Master Account."
 
3.	clause 6.1.8 of each Guarantee shall be deleted and replaced with the following clause:	
 
 	" The Guarantor shall deposit on or before the relevant Drawdown Date in respect of its Vessel, minimum free cash of seven hundred fifty thousand Dollars ($750,000) in the relevant Earnings Account or in the Master Account and the Guarantor agrees that such minimum free cash shall be maintained in such Earnings Account or the Master Account until 30 September 2010 and, after 30 September 2010 and at all times during the Facility Period in the Master Account ."	
 
Except as expressly amended hereby or pursuant hereto the Loan Agreement and the Security Documents shall remain in full force and effect and nothing herein contained shall relieve the Borrower or any other Security Party from any of its respective obligations under any such documents.
 
This Letter may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.
 
This Letter is expressed to be a deed and is a Finance Document.
 
  Please sign and return a copy of this letter to confirm your agreement to the above.
 
  This Letter and any non-contractual obligations arising from or in connection with it shall in all respects be governed by and interpreted in accordance with English law.

Yours faithfully
 
SIGNED by
as duly authorised signatory
for and on behalf of
DEUTSCHE BANK
LUXEMBOURG S.A.
(as the Agent)	)
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 	/s/ Franz-Joseph Ewerhardy

/s/ Sven Walther	
 
Acknowledged and agreed on 24 August 2010 by:
 
SIGNED by James Clayton 
as duly authorised attorney-in-fact
for and on behalf of                                            
GENCO SHIPPING &
TRADING LIMITED
(as Borrower)
in the presence of: /s/ Valentina Nikiforova
 
Valentina Nikiforova
Paralegal
Stephenson Harwood
One St. Paul’s Churchyard
London EC4M 8SH	)
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 	/s/ James Clayton

 

 	

 

 

 

SIGNED by James Clayton
as duly authorised attorney-in-fact
for and on behalf of                                            
GENCO AQUITAINE LIMITED                                                          
GENCO ARDENNES LIMITED                                                        
GENCO AUVERGNE LIMITED                                                          
GENCO BRITTANY LIMITED                                                             
GENCO LOIRE LIMITED                                                            
GENCO LORRAINE LIMITED                                                             
GENCO NORMANDY LIMITED                                                  
GENCO PICARDY LIMITED                                                    
GENCO PYRENEES LIMITED                                                        
GENCO LANGUEDOC LIMITED                                              
GENCO RHONE LIMITED                                                          
GENCO PROVENCE LIMITED                                                    
GENCO BOURGOGNE LIMITED                               
(as Guarantors)                                                             
in the presence of: /s/ Valentina Nikiforova
 
Valentina Nikiforova
Paralegal
Stephenson Harwood
One St. Paul’s Churchyard
London EC4M 8SH	)
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 	/s/ James Clayton

 

 

 

 

 

SIGNED by Jonathan Paul Ward
as duly authorised attorney-in-fact
for and on behalf of
DEUTSCHE BANK AG FILIALE
DEUTSCHLANDGESCHÄFT
(as a Lender, Mandated Lead Arranger
Security Agent and Bookrunner)
in the presence of: /s/ Valentina Nikiforova
 
Valentina Nikiforova
Paralegal
Stephenson Harwood
One St. Paul’s Churchyard
London EC4M 8SH	)
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 	/s/ Jonathan Paul Ward

 

 

 

 
SIGNED by
as duly authorised signatories
for and on behalf of
BNP PARIBAS
(as a Lender, Mandated Lead Arranger
and Swap Provider) 

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/s/ Guillaume Deve
-------------------------------------------------------------
Name: Guillaume Deve
     Managing Director
 
/s/ Kevin O'Hara
-------------------------------------------------------------
Name: Kevin O'Hara
     Director	

 

 

 
 
SIGNED by Jonathan Paul Ward
as duly authorised attorney-in-fact
for and on behalf of
CREDIT AGRICOLE CORPORATE
AND INVESTMENT BANK
(as a Lender, Mandated Lead Arranger
and Swap Provider)
in the presence of: /s/ Valentina Nikiforova
 
Valentina Nikiforova
Paralegal
Stephenson Harwood
One St. Paul’s Churchyard
London EC4M 8SH

SIGNED by Jonathan Paul Ward
as duly authorised attorney-in-fact
for and on behalf of
DVB BANK SE
(as a Lender, Mandated Lead Arranger
and Swap Provider)
in the presence of: /s/ Valentina Nikiforova

Valentina Nikiforova
Paralegal
Stephenson Harwood
One St. Paul’s Churchyard
London EC4M 8SH	)
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 	/s/ Jonathan Paul Ward

 

 

 

 

/s/ Jonathan Paul Ward

 

 

 	

 

 

SIGNED by Jonathan Paul Ward
as duly authorised attorney-in-fact
for and on behalf of
SKANDINAVISKA ENSKILDA
BANKEN AB (publ)
(as a Lender, Mandated Lead Arranger
and Swap Provider)
in the presence of: /s/ Valentina Nikiforova
 
Valentina Nikiforova
Paralegal
Stephenson Harwood
One St. Paul’s Churchyard
London EC4M 8SH
 
SIGNED by Jonathan Paul Ward
as duly authorised attorney-in-fact
for and on behalf of 
DEUTSCHE BANK AG
(as a Swap Provider)
in the presence of: /s/ Valentina Nikiforova

Valentina Nikiforova
Paralegal
Stephenson Harwood
One St. Paul’s Churchyard
London EC4M 8SH	)
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 	/s/ Jonathan Paul Ward

 

 

 

 

/s/ Jonathan Paul Ward

 

 

 

 

 

 

Exhibit 10.3

[On the letterhead of Deutsche Bank Luxembourg S.A.]

To: Genco Shipping & Trading Limited

Copy:	Genco Lorraine Limited
Genco Pyrenees Limited
Genco Loire Limited
Genco Bourgogne Limited
Genco Picardy Limited
Genco Aquitaine Limited
Genco Normandy Limited
Genco Auvergne Limited
Genco Provence Limited
Genco Ardennes Limited
Genco Brittany Limited
Genco Languedoc Limited
Genco Rhone Limited	
 
December 2011
 
Dear Sirs
 
US$253,000,000 secured loan agreement dated 20 August 2010 (as amended by a side letter dated 24 August 2010 the "Loan Agreement") made between (1) Genco Shipping & Trading Limited as borrower, (2) the Lenders (as defined therein), (3) Deutsche Bank AG Filiale Deutschlandgeschäft, BNP Paribas, Credit Agricole Corporate and Investment Bank, DVB Bank SE and Skandinaviska Enskilda Banken AB (publ) as mandated lead arrangers, (4) yourselves as agent for the Lenders, (5) BNP Paribas, Credit Agricole Corporate and Investment Bank, Deutsche Bank AG, DVB Bank SE and Skandinaviska Enskilda Banken AB (publ) as swap providers (the "Swap Providers") and (vi) Deutsche Bank AG Filiale Deutschlandgeschäft as security agent for the Lenders and the Swap Providers and as bookrunner.

All terms and expressions used in this letter shall have the same meaning given to them in the Loan Agreement.
 
This letter is designated as a Finance Document.
 
We refer to the Loan Agreement and to:
 
 	(i)	your letter to us dated 15 November 2011 requesting us a temporary waiver (the " Waiver ") of the Consolidated Interest Coverage Ratio in clause 12.2.2 ( Consolidated Interest Coverage Ratio ) of the Loan Agreement and the Leverage Ratio in clause 12.2.3 ( Maximum Leverage Ratio ) of the Loan Agreement during the six (6) fiscal quarters starting with the fourth quarter of 2011 (as of 1 October 2011) through and including the first quarter of 2013 (ending on 31 March 2013) (the " Waiver Period ") subject to certain conditions; and	

 

 

 	(ii)	our letter to you dated 30 November 2011 confirming that the Majority Lenders have consented to the Waiver subject to some additional conditions.	
 
We hereby agree to waive your compliance with the Consolidated Interest Coverage Ratio in clause 12.2.2 ( Consolidated Interest Coverage Ratio ) of the Loan Agreement and the Leverage Ratio in clause 12.2.3 ( Maximum Leverage Ratio ) of the Loan Agreement during the Waiver Period, subject to the following conditions:
 
(a)  	such waiver shall apply only in relation to the Waiver Period;	
 
(b)  	on the day of this letter, you provide us with a copy (with an original to follow) of a certificate from a duly authorised officer of each Security Party confirming that none of the documents delivered to the Agent pursuant to Part I of Schedule 2 ( Conditions Precedent to a Drawdown Notice ), sections 1 (Security Parties), 2 (Security and related documents) (except 2(b) and 2(c)), as well as (b) and (c) of section 3 (Other documents and evidence), and Part II of Schedule 2 ( Conditions Precedent to the making of a Drawing ) sections 1 (Security Parties) and (a), (c) and (g) of section 2 (Security and related documents) of the Loan Agreement have been amended or modified in any way since the date of their delivery to the Agent, or copies, certified by a duly authorised officer of the Security Party in question as true, complete, accurate and neither amended nor revoked, of any which have been amended or modified;	
 
(c)  	on the day of this letter, you provide us with a copy, certified by a director or the secretary of each Security Party as true, complete and accurate and neither amended nor revoked, of a resolution of the directors of that Security Party (together, where appropriate, with signed waivers of notice of any directors’ meetings) approving, and authorising or ratifying the execution of, the duplicate of this letter and any document to be executed by that Security Party pursuant to this letter;	
 
(d)  	on the day of this letter, you provide us with a copy of a power of attorney (with original to follow) of each Security Party under which the duplicate of this letter and any documents required pursuant to this letter are to be executed by that Security Party;	
 
(e)  	within two (2) Business Days of the date of this letter, you prepay the Loan in the aggregate amount of seven million Dollars ($7,000,000) (the " Prepaymen t"), with such prepayment to be applied proportionally in prepayment of each Tranche (and, within each Tranche, in inverse order of maturity), with the amount to be applied being calculated as:	
 
A x $7,000,000
 
B
 
where                A = the principal outstanding on the relevant Tranche on the date of prepayment; and
 
B = the principal outstanding under the Loan on the date of prepayment;
 
(f)  	within two (2) Business Days of the date of this letter, you pay us (for the account of the Lenders having consented to the Waiver in proportion to their respective Commitments) a waiver fee of zero point twenty five per cent (0.25%) on the outstanding amount of the Loan once the Prepayment has been made;	

 
 
2

 
 
(g)  	within fourteen (14) Business Days of receipt of any invoice in respect of any legal fees due from you in connection with this letter, evidence that such invoice has been paid on full;	
 
(h)  	during the Waiver Period, you will not authorize, declare or pay any Dividends with respect to the Borrower, notwithstanding the provisions of clause 12.3.13 of the Loan Agreement;	
 
(i)  	during the Waiver Period, you will not permit, as of the last day of any fiscal quarter during such period, the aggregate amount of its interest-bearing Consolidated Indebtedness to exceed sixty two point five per cent (62.5%) of the aggregate amount of its interest-bearing Consolidated Indebtedness plus its Consolidated Net Worth at such time (where " Consolidated Net Worth " means the Net Worth of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP without any deduction for any minority interests in Subsidiaries and " Net Worth " means, as to any Person, the sum of its capital stock, capital in excess of par or stated value of shares of its capital stock, retained earnings and any other account which, in accordance with GAAP, constitutes stockholders’ equity, but excluding any treasury stock); and	
 
(j)  	during the Waiver Period , you shall deliver to us a written notice of any Additional Covenant included in an Additional Facility or an Amended Facility within five (5) Business Days of the date it enters into such Additional Facility or Amended Facility.  Such notice shall be signed by the your senior financial officer and set forth in reasonable detail a description of the Additional Covenant, including any defined terms used therein and related explanatory calculations.  Except for any Additional Covenant that has been expressly waived in writing by us or the Majority Lenders before the commencement of the Waiver Period or is so waived in writing within fifteen (15) days after we receive a notice of the Additional Covenant, such Additional Covenant (i) shall be deemed automatically incorporated by reference into the Loan Agreement, mutatis mutandis , as if set forth fully therein, effective as of the date when such Additional Covenant shall have become effective under such Additional Facility or Amended Facility and (ii) shall be effective only during the Waiver Period, after which time such Additional Covenant shall no longer have any force or effect.  During the Waiver Period, any Additional Covenant incorporated into the Loan Agreement pursuant to this letter shall be deemed automatically amended herein to reflect any subsequent amendments made to such Additional Covenant under the applicable Additional Facility or Amended Facility. Where:	
 
" Additional Covenant " means a restrictive or financial covenant applicable to the Borrower or any of its Subsidiaries, whether expressed as a covenant, undertaking, restriction or other such provision which requires the maintenance of any particular financial ratio or metric or which prohibits or limits actions which the Borrower or any of its Subsidiaries could otherwise take (or permits any such action only upon satisfaction of specified conditions), which applicable covenant or restriction has no equivalent provision in the Loan Agreement or would be more restrictive as to the Borrower or any of its Subsidiaries than the corresponding provision set forth therein. Additional Covenants shall not  be deemed to include any covenant (i) directly relating to (x) lender commitment reductions or terminations or the amount or payment terms of principal, interest or fees payable under an Additional Facility or an Amended Facility or (y) additional collateral or other security granted to a lender or creditor under an Additional Facility or an Amended Facility; or (ii) that would require the Borrower or any Subsidiary to (x) provide additional collateral or other security under this Agreement, any Security Document or any other Finance Document, whether due to the Borrower’s failure to maintain a specified financial ratio or metric or otherwise, or (y) maintain a particular collateral maintenance ratio or substantially similar financial ratio or metric;

 
 
3

 
 
" Additional Facility " means a credit agreement, note purchase agreement, indenture, promissory note, letter agreement or similar agreement for borrowed money with other lenders or creditors of the Borrower (other than trade creditors) entered into by the Borrower during the Waiver Period; provided, however, that an Additional Facility shall not include an Amended Facility; and
 
" Amended Facility " means an amendment, modification, supplement or side letter entered into by the Borrower during the Waiver Period to a credit agreement, note purchase agreement, indenture, promissory note, letter agreement or similar agreement for borrowed money, in each case, which is in existence on 21 December 2011, with other lenders or creditors of the Borrower (other than trade creditors).
 
If any of the above conditions (a) to (h) is not complied with or the Waiver Period has expired then the Waiver shall cease to apply with immediate effect. Any breach of conditions (i) and (j) shall constitute an Event of Default. No such Event of Default will occur if the failure to comply is capable of remedy and is remedied within ten (10) Business Days of the Agent giving notice to the Borrower or the Borrower becoming aware of the failure to comply.
 
For the avoidance of doubt, save as set out in this letter, all the Lenders' rights powers and remedies under the Loan Agreement are reserved in full and remain in full force and effect both during and after the Waiver Period .
 
This letter may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this letter.
 
This letter and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
 
Please confirm your agreement to the terms of this letter by signing and returning a duplicate of this letter to us.
 
Yours faithfully,

 

/s/ M. Heinemann
M. Heinemann  
 
/s/ Ewerhardy
 Ewerhardy
 
For and on behalf of
Deutsche Bank Luxembourg S.A.
(as Agent acting on the instructions of the Majority Lenders)

 
4

 
[On Duplicate]

Confirmed and agreed on                                                      December 2011
for an on behalf of

/s/ John C. Wobensmith                                      
Genco Shipping & Trading Limited
(as Borrower)

 

 

/s/ John. C. Wobensmith                                    
Genco Lorraine Limited
Genco Pyrenees Limited
Genco Loire Limited
Genco Bourgogne Limited
Genco Picardy Limited
Genco Aquitaine Limited
Genco Normandy Limited
Genco Auvergne Limited
Genco Provence Limited
Genco Ardennes Limited
Genco Brittany Limited
Genco Languedoc Limited
Genco Rhone Limited
(as Collateral Owners and Guarantors)

 
 
5

 

 

Exhibit 10.4

 
FIRST AMENDMENT TO LOAN AGREEMENT
 
THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of December 21, 2011 (this “ Amendment ”), to the Existing Loan Agreement (as defined below) is among GENCO SHIPPING & TRADING LIMITED, a company organized and existing under the laws of the Republic of the Marshall Islands (the “ Borrower ”), the companies listed in Schedule 2 to the Existing Loan Agreement (the “ Guarantors ”), the Lenders (as such term is defined in the Existing Loan Agreement) signatory hereto (which Lenders constitute the Majority Lenders, as such term is defined in the Existing Loan Agreement (the “ Consenting Lenders ”)), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, in its capacity as Agent (the “ Agent ”), and CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, in its capacity as Security Trustee (the “ Security Trustee ”).
 
W I T N E S S E T H :
 
WHEREAS, pursuant to the Existing Loan Agreement, dated August 12, 2010 (as further amended, supplemented, amended and restated or otherwise modified prior to the date hereof, the “ Existing Loan Agreement ”), among the Borrower, the Guarantors, the Lenders, the Agent and the Security Trustee, the Lenders have agreed to make, and have made, Loans to the Borrower;
 
WHEREAS, the Borrower has requested and the Consenting Lenders have agreed, subject to the terms and conditions of this Amendment, to a temporary suspension of the undertakings contained in Clauses 12.2(d) and 12.2(e) of the Existing Loan Agreement for period commencing October 1, 2011 and ending on (and including) March 31, 2013 (the " Ratio Suspension Period "); and
 
WHEREAS, the Borrower, the Guarantors and the Consenting Lenders have agreed to certain other amendments to the Existing Loan Agreement.
 
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:
 
1.     Definitions .  Unless otherwise defined herein, words and expressions defined in the Existing Loan Agreement have the same meanings when used herein, including in the recitals hereto.
 
2.     Representations and Warranties .  To induce the Consenting Lenders to enter into this Amendment, each Obligor jointly and severally represents and warrants to each Credit Party that as of the date hereof (and after giving effect to this Amendment, in the case of clause (e)):
 
(a)     The Borrower and each Guarantor have the power and authority to execute and deliver this Amendment and to perform its obligations hereunder and has taken all necessary action to authorize the execution, delivery and performance by it of this Amendment.

 

 

(b)     The Borrower and each Guarantor have duly executed and delivered this Amendment, and this Amendment constitutes the legal, valid and binding obligation of the Borrower and of such Guarantor, enforceable against each such Obligor in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws affecting the rights of creditors generally or by general principles of equity.
 
(c)     There have been no changes to the Certificate of Incorporation or By-Laws of any Obligor from the most recently delivered copies of such documents delivered to the Agent in connection with the Existing Loan Agreement.
 
(d)     Each of the representations and warranties made by the Borrower and each Guarantor in or pursuant to the Existing Loan Agreement or other Finance Documents to which it is a party, including those representations and warranties contained in Clause 11 of the Existing Loan Agreement, is true and correct in all material respects on and as of the date hereof, as though made on and as of the date hereof (except for those representations and warranties which by their terms expressly related to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date).
 
(e)     The Borrower and each Guarantor are in compliance with all of the terms and provisions set forth in the Existing Loan Agreement and each other Finance Document on its part to be observed or performed and no Event of Default or Potential Event of Default has occurred and is continuing as of the date hereof after giving effect to this Amendment.
 
3.     Amendments to the Existing Loan Agreement and other Finance Documents .  Subject to the terms and conditions of this Amendment, the Existing Loan Agreement and other Finance Documents are hereby amended as follows:
 
(a)     All references to “this Agreement” set forth in the Existing Loan Agreement shall be deemed to refer to the Existing Loan Agreement, as amended and supplemented hereby, and all references in the other Finance Documents to “Loan Agreement” shall be deemed to refer to the Existing Loan Agreement as amended and supplemented hereby.
 
(b)     The definition of “LIBOR” set forth in Clause 1.1. of the Existing Loan Agreement shall be amended to add the following at the end thereof:
 
“ provided , however , that if the rate so determined by the Agent is below zero, LIBOR will be deemed to be zero.”

4.     Temporary Covenant Suspension; Additional Covenants Effective During Ratio Suspension Period .
 
(a)     For the duration of the Ratio Suspension Period, the Borrower shall not be required to comply with the requirements of Clause 12.2(d) and 12.2(e) of the Existing Loan Agreement.

 
 
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(b)     The Borrower will not permit, as of the last day of any fiscal quarter during the Ratio Suspension Period, the aggregate amount of its interest-bearing Consolidated Indebtedness to exceed 62.5% of the aggregate amount of its interest-bearing Consolidated Indebtedness plus its Consolidated Net Worth (as defined in the following sentence) at such time.  For purposes of, and only of, this Section 4(b), “Consolidated Net Worth” shall mean the Net Worth of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP without any deduction for any minority interests in Subsidiaries.
 
(c)     During the Additional Covenant Period (as defined in this Section 4(c)), the Borrower shall deliver to the Administrative Agent a written notice of any Additional Covenant (as defined in this Section 4(c)) included in an Additional Facility (as defined in this Section 4(c)) or an Amended Facility (as defined in this Section 4(c)) within five (5) Business Days of the date it enters into such Additional Facility or Amended Facility.  Such Notice shall be signed by the Borrower’s senior financial officer and set forth in reasonable detail a description of the Additional Covenant, including any defined terms used therein and related explanatory calculations.  Except for any Additional Covenant that has been expressly waived in writing by the Agent or Majority Lenders before the commencement of the Additional Covenant Period or is so waived in writing within fifteen days after the Agent’s receipt of a notice of the Additional Covenant, such Additional Covenant (i) shall be deemed automatically incorporated by reference into the Loan Agreement, mutatis mutandis , as if set forth fully therein, effective as of the date when such Additional Covenant shall have become effective under such Additional Facility or Amended Facility and the Administrative Agent will be authorized to execute an amendment to the Loan Agreement adding such covenant and (ii) shall be effective only during the Additional Covenant Period, after which time such Additional Covenant shall no longer have any force or effect.  During the Additional Covenant Period, any Additional Covenant incorporated into the Loan Agreement pursuant to this Section 4(c) shall be deemed automatically amended herein to reflect any subsequent amendments made to such Additional Covenant under the applicable Additional Facility or Amended Facility.  Upon the occurrence of any event described in the preceding sentence, the Agent may enter into any additional agreement or amendment to the Existing Loan Agreement evidencing the amendment of any such incorporated covenants.  All of the existing covenants in Clauses 12, 13, 14, 15 and 16 as of the date of this Amendment shall remain in the Existing Loan Agreement regardless of whether any Additional Covenants are incorporated into the Existing Loan Agreement.  For purposes of this Section 4(c):
 
(i)     “Additional Covenant” means a restrictive or financial covenant applicable to the Borrower or any of its Subsidiaries, whether expressed as a covenant, undertaking, restriction or other such provision which requires the maintenance of any particular financial ratio or metric or which prohibits or limits actions which the Borrower or any of its Subsidiaries could otherwise take (or permits any such action only upon satisfaction of specified conditions), which applicable covenant or restriction has no equivalent provision in the Existing Loan Agreement or would be more restrictive as to the Borrower or any of its Subsidiaries than the corresponding provision set forth therein.  Additional Covenants shall not  be deemed to include any covenant (A) directly relating to (x) lender commitment reductions or terminations or the amount or payment terms of principal, interest or fees payable under an Additional Facility or an Amended Facility or (y) additional collateral or other security granted to a lender or creditor under an Additional Facility or an Amended Facility; or (B) that would require the Borrower or any Subsidiary to (x) provide additional collateral or other security under the Existing Loan Agreement or any other Finance Document, whether due to the Borrower’s failure to maintain a specified financial ratio or metric or otherwise, or (y) maintain a particular collateral maintenance ratio or substantially similar financial ratio or metric.

 

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(ii)     “Additional Covenant Period” means the period from December 21, 2011 through (and including) March 31, 2013.
 
(iii)     “Additional Facility” means a credit agreement, note purchase agreement, indenture, promissory note, letter agreement or similar agreement for borrowed money with other lenders or creditors of the Borrower (other than trade creditors) entered into by the Borrower during the Ratio Suspension Period; provided , however , that an Additional Facility shall not include an Amended Facility.
 
(iv)     “Amended Facility” means an amendment, modification, supplement or side letter entered into by the Borrower during the Ratio Suspension Period to a credit agreement, note purchase agreement, indenture, promissory note, letter agreement or similar agreement for borrowed money, in each case, which is in existence on December 21, 2011, with other lenders or creditors of the Borrower (other than trade creditors).
 
(d)     Notwithstanding Clause 12.2(g) of the Existing Loan Agreement, during the Ratio Suspension Period, the Borrower will not authorize, declare or pay any Dividends with respect to the Borrower.
 
(e)     For the avoidance of doubt, after the expiry of the Ratio Suspension Period, (i) the Borrower shall be required to comply with the requirements of Clauses 12.2(d) and 12.2(e) of the Existing Loan Agreement for periods thereafter and (ii) the Borrower shall not be required to comply with Sections 4(b), 4(c) and 4(d) of this Amendment.
 
5.     Fees and Expenses .  On or prior to the date hereof, provided this Amendment is effective, the Borrower shall pay each Consenting Lender an amendment fee equal to 0.25% of the outstanding principal amount of such Lender’s Loans (after giving effect to the prepayment of the Loan under Section 8(a)).  The Borrower shall pay promptly to the Agent all reasonable legal fees incurred by the Agent in connection with the preparation and execution of this Amendment.
 
6.     No Other Amendment, etc.   This Amendment shall not constitute an amendment or waiver of or consent to any provision of the Existing Loan Agreement or any other Finance Document not expressly referred to herein and shall not be construed as an amendment, waiver or consent to any action on the part of the Borrower or any other Obligor that would require an amendment, waiver or consent of the Agent, the Security Trustee or the Lenders under any of the Finance Documents except as expressly stated herein.  Except as expressly amended hereby, the provisions of the Existing Loan Agreement and the other Finance Documents shall remain unchanged and shall continue to be, and shall remain, in full force and effect in accordance with their respective terms.

 
 
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7.     Other Documents .  By the execution and delivery of this Amendment, the Borrower and each Guarantor hereby consents and agrees that the Finance Documents and any other documents that have been or may be executed as security for any of its obligations under the Existing Loan Agreement and the other Finance Documents shall remain in full force and effect notwithstanding the amendments and supplements contemplated hereby
 
8.     Conditions Precedent .  The effectiveness of this Amendment shall be expressly subject to the following conditions precedent:
 
(a)     Prepayment .  The Borrower shall have prepaid Three Million Dollars ($3,000,000) of the outstanding principal amount of the Loan.
 
(b)     Corporate Documents; Proceedings; etc.
 
(i)     The Agent shall have received a certificate, dated the date hereof, signed by an authorized officer of each Obligor, and attested to by the secretary or any assistant secretary of such Obligor, certifying copies of resolutions of such Obligor approving and authorizing such Obligor to execute this Amendment and each additional Finance Document to which it is a party, and each of the foregoing shall be reasonably acceptable to the Agent.
 
(ii)     The Agent shall have received for each Obligor a certificate from the Republic of the Marshall Islands as to the good standing of such Obligor.
 
(iii)     The Agent shall have received for each Guarantor a certificate from the Republic of Liberia as to the good standing of such Obligor as a foreign maritime entity in the Republic of Liberia.
 
(c)     Amendment and Finance Documents.
 
(i)     The Borrower and each Guarantor shall have executed and delivered to the Agent this Amendment.
 
(ii)     The Agent, Security Trustee and each Consenting Lender shall have executed and delivered to the Agent this Amendment.
 
(iii)     Each Obligor shall have executed each additional Finance Document as may be reasonably required by the Agent in connection with this Amendment.
 
(d)     Payment of Fees .  The Agents and the Lenders shall have received from the Borrower payment of all fees in connection with this Amendment, including such fees as are set forth in Section 5 hereof.

 
 
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(e)     No Material Adverse Effect . As of the date hereof, no Material Adverse Effect, nor anything that could reasonably be expected to have a Material Adverse Effect, shall have occurred since December 31, 2010.
 
(f)     Financial Information .  The Agent shall have received such financial and other information concerning the Borrower as it may reasonably request.
 
(g)     Opinions of Counsel .
 
(i)     The Agent shall have received from Orrick, Herrington & Sutcliffe LLP, an opinion addressed to the Agent and each of the Lenders and dated the date hereof which shall be in form and substance reasonably acceptable to the Agent and cover such matters incidental to the transactions contemplated herein as the Agent may reasonably request.
 
(ii)     The Agent shall have received an opinion concerning the laws of the Republic of the Marshall Islands, which opinion shall be addressed to the Agent and each of the Lenders and dated the date hereof and shall be in form and substance reasonably acceptable to the Agent.
 
9.     Governing Law, Etc .
 
(a)     English Law .  This Amendment shall be governed by, and construed in accordance with, English law.
 
(b)     Exclusive English Jurisdiction .  Subject to Section 9(c), the courts of England shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Amendment.
 
(c)     Choice of Forum for Exclusive Benefit of Creditor Parties .  Section 9(b) is for the exclusive benefit of the Creditor Parties, each of which reserves the rights:
 
(i)     to commence proceedings in relation to any matter which arises out of or in connection with this Amendment in the courts of any country other than England and which have or claim jurisdiction to that matter; and
 
(ii)     to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
 
10.     Further Assurances .  The Borrower and each Guarantor hereby consents and agrees that if this Amendment or any of the other Finance Documents shall at any time be deemed, in the exercise of their good faith judgment, by the Lenders for any reason insufficient in whole or in part to carry out the true intent and spirit hereof or thereof, it will execute or cause to be executed such other and further assurances and documents as in the reasonable opinion of the Lenders may be reasonably required in order more effectively to accomplish the purposes of this Amendment.
 
11.     Counterparts .  This Amendment may be executed in any number of counterparts.
 
12.     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.

 
[SIGNATURE PAGES TO FOLLOW]

 
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IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment by its duly authorized representative on the day and year first above written.
 
GENCO SHIPPING & TRADING LIMITED
 
By: /s/ John C. Wobensmith
Name: John C. Wobensmith
Title: Chief Financial Officer, Secretary, Treasurer
 
GENCO BAY LIMITED
 
By: /s/ John C. Wobensmith
Name: John C. Wobensmith
Title: Chief Financial Officer, Secretary, Treasurer

GENCO OCEAN LIMITED
 
By: /s/ John C. Wobensmith
Name: John C. Wobensmith
Title: Chief Financial Officer, Secretary, Treasurer
 
GENCO AVRA LIMITED
 
By: /s/ John C. Wobensmith
Name: John C. Wobensmith
Title: Chief Financial Officer, Secretary, Treasurer

GENCO MARE LIMITED
 
By: /s/ John C. Wobensmith
Name: John C. Wobensmith
Title: Chief Financial Officer, Secretary, Treasurer

GENCO SPIRIT LIMITED
 
By: /s/ John C. Wobensmith
Name: John C. Wobensmith
Title: Chief Financial Officer, Secretary, Treasurer

 

 

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT
BANK, in its capacity as Agent

By: /s/ Craig E. Stearns
Name: Craig E. Stearns
Title: Attorney-in-Fact
 
By: /s/ William S. Haft
Name:  William S. Haft
Title: Attorney-in-Fact
 
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT
BANK, in its capacity as Security Trustee
 
By: /s/ Craig E. Stearns
Name: Craig E. Stearns
Title: Attorney-in-Fact
 
By: /s/ William S. Haft
Name:  William S. Haft
Title: Attorney-in-Fact
 
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT
BANK, as Consenting Lender
 
By: /s/ Craig E. Stearns
Name: Craig E. Stearns
Title: Attorney-in-Fact
 
By: /s/ William S. Haft
Name:  William S. Haft
Title: Attorney-in-Fact
 
CREDIT INDUSTRIEL ET COMMERCIAL, as
Consenting Lender
 
By: /s/ Alex Aupoix
Name: Alex Aupoix
Title: Managing Director
 
By: /s/ Adrianne Molloy
Name: Adrianne Molloy
Title: Vice President
 
SKANDINAVISKA ENSKILDA BANKEN AB (publ), as
Consenting Lender
 
By: /s/ Ame Juell-Skielse
Name: Ame Juell-Skielse
Title:
 
By: /s/ Olof Myhrman
Name: Olof Myhrman
Title: