EX-10.4: SECOND SUPPLEMENTAL AGREEMENT TO CREDIT FACILITY

EX-10.4 8 y08227a2exv10w4.txt EX-10.4: SECOND SUPPLEMENTAL AGREEMENT TO CREDIT FACILITY EXHIBIT 10.4 ALLEN & OVERY LLP SECOND SUPPLEMENTAL AGREEMENT TO US$262,456,000 CREDIT FACILITY Between QUINTANA MARITIME LIMITED as Borrower with QUINTANA MARITIME INVESTORS LLC QUINTANA MANAGEMENT, LLC KING COAL SHIPCO LLC FEARLESS SHIPCO LLC COAL AGE SHIPCO LLC IRON MAN SHIPCO LLC LINDA LEAH SHIPCO LLC BARBARA SHIPCO LLC COAL GLORY SHIPCO LLC COAL PRIDE SHIPCO LLC as Guarantors Arranged by CITIGROUP GLOBAL MARKETS LIMITED THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as Mandated Lead Arrangers with CITIBANK, N.A. THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND CREDIT SUISSE HSH NORDBANK AG, LUXEMBOURG BRANCH ABN AMRO as Lenders with CITIBANK INTERNATIONAL PLC as Facility Agent and CITICORP TRUSTEE COMPANY LIMITED as Security Trustee 22nd June, 2005 CONTENTS

THIS AGREEMENT is dated 22nd June, 2005 BETWEEN: (1) QUINTANA MARITIME LIMITED, a corporation incorporated according to the laws of the Republic of the Marshall Islands with its registered office at Ajeltake Island, Ajeltake Road, Majuro, Republic of the Marshall Islands, MH 96960 (the BORROWER); (2) THE COMPANIES listed in Schedule 1, each of which is a limited liability company formed according to the law of the country indicated against its name in Schedule 1, with its registered office at Ajeltake Island, Ajeltake Road, Majuro, Republic of the Marshall Islands, MH 96960 (each an OWNER and together the OWNERS); (3) QUINTANA MARITIME INVESTORS LLC, a limited liability company formed according to the laws of the Republic of the Marshall Islands with its registered office at Ajeltake Island, Ajeltake Road, Majuro, Republic of the Marshall Islands, MH 96960 (QUINTANA); (4) QUINTANA MANAGEMENT, LLC, a limited liability company formed according to the laws of the Republic of the Marshall Islands with its registered office at Ajeltake Island, Ajeltake Road, Majuro, Republic of the Marshall Islands, MH 96960 (QUINTANA MANAGEMENT and, together with the Owners and Quintana, the GUARANTORS); (5) CITIGROUP GLOBAL MARKETS LIMITED and THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as joint mandated lead arrangers (together the ARRANGERS); (6) CITIBANK, N.A. as original Tranche A lender (the ORIGINAL TRANCHE A Lender) and THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as original Tranche B lender (the TRANCHE B LENDER and, together with the Original Tranche A Lender, the ORIGINAL LENDERS); (7) CREDIT SUISSE, HSH NORDBANK AG, LUXEMBOURG BRANCH and ABN AMRO as new lenders (the NEW LENDERS, and, together with the Original Lenders, the LENDERS); (8) CITIBANK INTERNATIONAL PLC as administrative agent (the FACILITY AGENT); and (9) CITICORP TRUSTEE COMPANY LIMITED as security trustee for (i) the Tranche A Lenders (as defined herein) in relation to the Tranche A Loans (as defined herein), and (ii) as security trustee for the Tranche B Lenders (as defined herein) and Swap Bank (as defined herein) in relation to the Tranche B Loans (as defined herein) and the Swap Agreements (as defined herein) (the SECURITY TRUSTEE). WHEREAS (A) This Agreement is supplemental to and amends a credit agreement dated 29th April, 2005 between the Borrower, the Guarantors, Citibank N.A as original lender, Citigroup Global Markets Limited as mandated lead arranger, the Facility Agent and the Security Trustee (the ORIGINAL PARTIES) as amended by a first supplemental agreement dated 1st June, 2005 between the Original Parties, the Tranche B Lender and The Governor and Company of the Bank of Scotland as new joint mandated lead arranger (the CREDIT AGREEMENT), pursuant to which the Original Tranche A Lender made the Tranche A Loans available to the Borrower, and the Tranche B Lender made the Tranche B Loans available to the Borrower (as each such term is defined in the Credit Agreement). (B) Pursuant to transfer certificates dated on or around the date of this Agreement the Original Tranche A Lender transferred a proportion of its interest in the Tranche A Loans to the New Lenders. It is a 1 condition to such transfer certificate coming into effect that each of the parties hereto execute this Agreement, which will amend and restate the Credit Agreement. IT IS AGREED as follows: 1. INTERPRETATION 1.1 DEFINITIONS (a) In this Agreement: AMENDED CREDIT AGREEMENT has the meaning ascribed thereto in Clause 2.1. ARRANGERS has the meaning ascribed thereto in the Preamble. BORROWER has the meaning ascribed thereto in the Preamble. CREDIT AGREEMENT has the meaning ascribed thereto in the Preamble. EFFECTIVE DATE means the date on which all documents set out in Schedule 2 (Conditions Precedent Documents) have been received by the Facility Agent and which shall not in any event be later than 15th July, 2005 unless otherwise agreed in writing by the Borrower and the Facility Agent. FACILITY AGENT has the meaning ascribed thereto in the Preamble. GROUP shall have the meaning ascribed thereto in the Credit Agreement. GUARANTORS has the meaning ascribed thereto in the Preamble. LENDERS has the meaning ascribed thereto in the Preamble. NEW LENDERS has the meaning ascribed thereto in the Preamble. ORIGINAL LENDER has the meaning ascribed thereto in the Preamble. ORIGINAL TRANCHE A LENDER has the meaning ascribed thereto in the Preamble. ORIGINAL PARTIES has the meaning ascribed thereto in the Preamble OWNERS has the meaning ascribed thereto in the Preamble. QUINTANA has the meaning ascribed thereto in the Preamble. QUINTANA MANAGEMENT has the meaning ascribed thereto in the Preamble. SECURITY TRUSTEE has the meaning ascribed thereto in the Preamble. SUBORDINATION DEED shall have the meaning ascribed thereto in the Credit Agreement. SWAP AGREEMENTS shall have the meaning ascribed thereto in the Credit Agreement. TRANCHE B LENDER has the meaning ascribed thereto in the Preamble. (b) Capitalised terms defined in the Credit Agreement have, unless expressly defined in this Agreement, the same meaning in this Agreement. 2 1.2 CONSTRUCTION The principles of construction set out in Clause 1.2 of the Credit Agreement will have effect as if set out in this Agreement. 2. AMENDMENTS 2.1 DECLARATION OF EFFECTIVE DATE (a) Subject as set out below, the Credit Agreement will be amended from the Effective Date in accordance with Clause 2.2 (the AMENDED CREDIT AGREEMENT). (b) The Credit Agreement will not be amended by this Agreement unless the Facility Agent notifies the Borrower and the Finance Parties that it has received all of the documents set out in Schedule 2 (Conditions Precedent Documents) in form and substance satisfactory to the Facility Agent on or prior to the Effective Date. The Facility Agent must give this notification as soon as reasonably practicable. (c) If the Facility Agent fails to give the notification under Clause 2.1 (b) by the Effective Date, the Credit Agreement will not be amended in the manner contemplated by this Agreement. 2.2 AMENDMENTS TO CREDIT AGREEMENT From the Effective Date the Credit Agreement will be amended as follows: (a) Clause 7.2 of the Credit Agreement shall be deleted in its entirety and replaced with the following: "7.2 PAYMENT OF INTEREST (a) Except where it is provided to the contrary in this Agreement and subject to Clause 7.2(b) below, the Borrower must pay accrued interest on each Loan on the last Business Day of each Term. (b) Notwithstanding Clause 7.2(a) above, where a Term is of more than three (3) months, the Borrower must pay accrued interest on each Loan on the last Business Day of each three (3) month period during that Term." (b) Clause 12.2 of the Credit Agreement shall be amended by the insertion of the words "or trading on spot" at the end of the last sentence of that Clause following the words "whilst the relevant Vessel is under charter." (c) Clause 16.1(a)(i) of the Credit Agreement shall be deleted and replaced with the following: "(i) its audited, consolidated, financial statements for the Group, including Quintana, for each of its financial years ending after the date hereof; and" (d) Clause 18.8(e) of the Credit Agreement shall be deleted in its entirety and replaced with the following: "(e) Following the Trigger Date the Borrower, Quintana and Quintana Management (but not the Owners) shall be permitted to incur Financial Indebtedness provided that: (i) no Event of Default has occurred and is continuing; and 3 (ii) incurring such Financial Indebtedness would not cause the Group to be in breach of any of the covenants set out in Clause 17." (e) Clause 18.31 of the Credit Agreement shall be amended by the insertion of a new clause 18.31(d) as follows: "(d) In the event that the Borrower exercises its option pursuant to Clause 5(a) to defer payment of the first and second Tranche A Repayment Instalments then, notwithstanding any provisions to the contrary in this Agreement, the Borrower shall not be permitted to pay dividends or make any other distribution (whether by loan or otherwise) to its shareholders until the Charter Shortfall Payment has been received in full and applied by the Facility Agent pursuant to Clause 6.3(d) or such deferred payment shall otherwise be paid in full." (f) Clause 28.1 of the Credit Agreement shall be deleted in its entirety and replaced with the following: "28. Each of the Obligors and the Finance Parties agrees and acknowledges that in the event that the Tranche B Loans are not syndicated within forty five (45) days of the drawdown of Vessel Loan 1, the Facility Agent may (acting on the unanimous instructions of the Lenders) give notice to the Borrower of the Finance Parties intention to combine the Tranche A Loans and Tranche B Loans into a single tranche (the COMBINATION NOTICE)." (g) Clause 29.2 of the Credit Agreement shall be amended by the insertion of a new Clause 29.2(a)(viii) as follows and the existing Clause 29.2(a)(viii) shall be renumbered accordingly: "(viii) the Repayment Schedule; or" (h) Schedule 1, Part 2 of the Credit Agreement shall be deleted in its entirety and replaced with a new list of Original Lenders and their commitments in the form set out in Schedule 3 (Lenders and their Commitments) hereto. (i) Schedule 6 of the Credit Agreement shall be deleted in its entirety and replaced with a new repayment schedule in the form set out in Schedule 4 (Revised Repayment Schedule) hereto. 2.3 CONSENT TO TRANSFER In accordance with Clause 30.2(c) of the Credit Agreement, the Borrower hereby consents to the transfer by the Original Tranche A Lender to the New Lenders of a proportion of the Original Tranche A Lender's rights and obligations with respect to the Tranche A Loans and the Commitment to make Tranche A Loans. 3. REPRESENTATIONS 3.1 REPRESENTATIONS The representations set out in this Clause are made by each of the Borrower and the Guarantors on the date of this Agreement to each Finance Party. 4 3.2 POWERS AND AUTHORITY It has the power to enter into and perform, and has taken all necessary action to authorise the entry into and performance of this Agreement and the transactions contemplated by this Agreement. 3.3 LEGAL VALIDITY This Agreement constitutes its legally binding, valid and enforceable obligation and in entering into this Agreement, it is acting on its own account. 3.4 NON-CONFLICT The entry into and performance by it of, and the transactions contemplated by, this Agreement do not and will not conflict with: (a) any law or regulation or judicial or official order applicable to it as at the date of this Agreement; (b) the constitutional documents of any member of the Group; or (c) any document which is binding on it or any member of the Group or any assets of any member of the Group. 3.5 AUTHORISATIONS All authorisations, consents, registrations, filings, notarisations and the like required by it or desirable in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, this Agreement have been obtained or effected (as appropriate) and are in full force and effect. 3.6 CREDIT AGREEMENT The representations set out in clause 15 (Representations) of the Credit Agreement are true as if made on the date of this Agreement and on the Effective Date, in each case as if references to the Credit Agreement are references to the Amended Credit Agreement with reference to the facts and circumstances then existing. 4. CONSENTS Each of the Borrower and the Guarantors: (a) agrees to the amendment of the Credit Agreement as contemplated by this Agreement; and (b) with effect from the Effective Date, confirms that any security or guarantee created or given by it under a Finance Document will: (i) continue in full force and effect; and (ii) extend to the liabilities and obligations of the Borrower and the Guarantors to the Finance Parties under the Finance Documents as amended by this Agreement. 5 5. MISCELLANEOUS 5.1 Each of this Agreement and the Amended Credit Agreement is a Finance Document. 5.2 Subject to the terms of this Agreement, the Credit Agreement will remain in full force and effect and, from the Effective Date, the Credit Agreement and this Agreement will be read and construed as one document. 6. GOVERNING LAW 6.1 This Agreement is governed by English law. 6.2 Clauses 34, 35, 36, 37, 38 and 39 of the Credit Agreement shall apply to this Agreement as if they were set out in full herein. This Agreement has been entered into on the date stated at the beginning of this Agreement. 6 SCHEDULE 1 THE OWNERS

7 SCHEDULE 2 CONDITIONS PRECEDENT 1. A duly executed original of three (3) transfer certificates between the Original Tranche A Lender and each of the New Lenders, in substantially the same form as that set out in Schedule 5 to the Credit Agreement, pursuant to which the Original Tranche A Lender transfers and agrees to transfer a proportion of its interest in the Tranche A Loans to the New Lenders. 2. A duly executed deed of accession executed by each of the New Lenders, in substantially the same form as that set out in Schedule 2 to the Subordination Deed, pursuant to which the New Lenders accede to and agrees to be bound by the terms of the Subordination Deed. 8 SCHEDULE 3 THE LENDERS AND THEIR COMMITMENTS

9 SCHEDULE 4 REVISED REPAYMENT SCHEDULE TRANCHE A

10 ~~20 30 September, 2010 4,250,000 21 30 December, 2010 4,250,000 22 30 March, 2011 4,250,750 23 30 June, 2011 4,250,750 24 30 September, 2011 54,744,000~~

TRANCHE B
INSTALMENT NUMBER DATE AMOUNT (UNITED STATES DOLLARS) - ----------------- ------------------------------------- ------------------------------ 1 30 December, 2005 0 2 12 months from the date of the Credit Agreement 25,000,000 3 30 June, 2006 0 4 30 September, 2006 0 5 30 December, 2006 0 6 30, March, 2007 333,375 7 30, June, 2007 333,375 8 30, September, 2007 333,375 9 30, December, 2007 333,375 10 30, March, 2008 333,375 11 30, June, 2008 333,375 12 30, September, 2008 333,375 13 30, December, 2008 333,375 14 30, March, 2009 333,375 15 30, June, 2009 333,375 16 30, September, 2009 333,375
11 17 30, December, 2009 333,375 18 30, March, 2009 333,375 19 30, June, 2009 333,375 20 30, September, 2009 333,375 21 30, December, 2009 333,375 22 30, March, 2010 333,375 23 30, June, 2010 333,375 24 30 September, 2011 18,209,750

12 SIGNATORIES THE BORROWER QUINTANA MARITIME LIMITED By: _________________________________ Name: Paul J. Cornell Title: Chief Financial Officer THE GUARANTORS QUINTANA MARITIME INVESTORS LLC By: __________________________________ Name: Paul J. Cornell Title: Manager QUINTANA MANAGEMENT LLC By: QUINTANA MARITIME LIMITED, its Sole Member By: ___________________________________ Name: Paul J. Cornell Title: Chief Financial Officer KING COAL SHIPCO LLC By: QUINTANA MARITIME LIMITED, its Sole Member By: ___________________________________ Name: Paul J. Cornell Title: Chief Financial Officer 13 FEARLESS SHIPCO LLC By: QUINTANA MARITIME LIMITED, its Sole Member By: ___________________________________ Name: Paul J. Cornell Title: Chief Financial Officer COAL AGE SHIPCO LLC By: QUINTANA MARITIME LIMITED, its Sole Member By: ___________________________________ Name: Paul J. Cornell Title: Chief Financial Officer IRON MAN SHIPCO LLC By: QUINTANA MARITIME LIMITED, its Sole Member By: ___________________________________ Name: Paul J. Cornell Title: Chief Financial Officer LINDA LEAH SHIPCO LLC By: QUINTANA MARITIME LIMITED, its Sole Member By: ___________________________________ Name: Paul J. Cornell Title: Chief Financial Officer 14 BARBARA SHIPCO LLC By: QUINTANA MARITIME LIMITED, its Sole Member By: ___________________________________ Name: Paul J. Cornell Title: Chief Financial Officer COAL GLORY SHIPCO LLC By: QUINTANA MARITIME LIMITED, its Sole Member By: ___________________________________ Name: Paul J. Cornell Title: Chief Financial Officer COAL PRIDE SHIPCO LLC By: QUINTANA MARITIME LIMITED, its Sole Member By: ___________________________________ Name: Paul J. Cornell Title: Chief Financial Officer THE ARRANGERS CITIGROUP GLOBAL MARKETS LIMITED By: Authorised signatory THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND By: Authorised signatory 15 THE LENDERS CITIBANK, N.A. By: Authorised signatory THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND By: Authorised signatory CREDIT SUISSE By: Attorney in fact HSH NORDBANK AG, LUXEMBOURG BRANCH By: Attorney in fact ABN AMRO By: Attorney in fact THE FACILITY AGENT CITIBANK INTERNATIONAL PLC Authorised signatory By: THE SECURITY TRUSTEE CITICORP TRUSTEE COMPANY LIMITED By: Authorised signatories 16