REDUCING REVOLVING CREDIT FACILITY AGREEMENT
ADDENDUM
NO. 1
to
USD
202,000,000
for
The
Companies listed in Appendix 1
as
Borrowers provided by
The
Financial Institutions
named
herein
as
Lenders
with
Nordea
Bank Finland Plc.
as Swap
Bank
and
Nordea
Bank Norge ASA
as
Agent
and
Nordea
Bank Norge ASA
as
Mandated Lead Arranger
THIS ADDENDUM NO. 1 (the "Addendum") is dated 10
October 2008 and made between:
(1) THE COMPANIES listed in Appendix 1 as
borrowers (together the "Borrowers")
(2) The financial institutions listed in
Aonendix
a,
as lenders (together, the "Lenders");
|
(3)
|
Nordea Bank Finland Plc.
of TO1, FIN-00020 Nordea, Helsinki, Finland, as swap bank, (the
"Swap
Bank");
|
|
(4)
|
Nordea Bank Norge ASA of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, organisation number 911 044 110,
as bookrunner (the "Bookrunner");
|
|
(5)
|
Nordea Bank Norge ASA of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, organisation number 911 044 110,
as facility agent (the "Agent");
|
|
(6)
|
Nordea Bank Norge ASA of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, organisation number 911 044 110,
as mandated lead arranger (the "Arranger") and
underwriter (the "Underwriter");
and
|
|
|
(7)
DVB Bank America NV
of
Zeelandia Office Park, Kaya W.F.G. Mensnig 14, ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ Antilles, The Governor and Company of the
Bank of Scotland of
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ and acting from their
office at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
and HSH Nordbank AG
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, as
co-arrangers (the "Co-Arrangers").
|
WHEREAS:
|
|
(A)
This Addendum is supplemental to the USD 202,000,000 Reducing Revolving
Credit Facility Agreement dated 29 August 2006 (the "Original Agreement")
and made between the Borrowers, the Lenders, the Bookrunner, the
Swap Bank, the Agent, the Arranger, the Underwriter and the
Co-Arrangers;
|
|
(B)
|
The
Borrower have requested and the Finance Parties have agreed to make
certain amendments to the financial covenants in Clause 20 (Financial
covenants); and
|
|
(C)
|
The
Borrowers have requested and the Finance Parties have agreed to amend
certain provisions of the Agreement as set out in this
Addendum.
|
NOW
IT IS HEREBY AGREED as follows:
1 DEFINITIONS
AND INTERPRETATION
1.1 Defined expressions In this
Addendum:
"Effective Date" means as of
15 March 2008 (or such later date as approved by the Agent (on behalf of the
Finance Parties and the Swap Bank)).
In
addition, words and expressions defined in the Original Agreement shall unless
the context otherwise requires or unless otherwise defined herein, have the same
meaning when used in this Addendum (including the recitals).
1.2 References
to this Agreement
References
in the Original Agreement to "this Agreement" shall, wan
effect from the date hereof be references to the Original Agreement as amended
by this Addendum.
1,3 Construction
In this
Addendum, unless the context otherwise requires:
a) words
denoting the singular number shall include the plural and vice
versa;
|
b)
|
references
to Clauses and Appendices are references, respectively, to the Clauses and
Appendices of this Addendum;
|
|
c)
|
references
to a provision of law is a reference to that provision as it may be
amended or re-enacted, and to any regulations made by the appropriate
authority pursuant to such law; and
|
|
d)
|
clause
headings are inserted for convenience of reference only and shall be
ignored in the interpretation of this
Addendum.
|
2 CONDITIONS
PRECEDENT
The
Borrower shall provide the Agent with originals or certified copies of the
documents listed in Appendix 3 (Conditions)
in form and substance satisfactory to the Agent within [ten (10)]
Business Days after the date of this Addendum.
3 AMENDMENTS
TO THE ORIGINAL AGREEMENT
3.1 General
The
Original Agreement shall, with effect from the Effective Date be (and is hereby)
amended and restated as follows and will continue to be binding upon each of the
Parties thereto in accordance with its terms as so amended.
3.2 Amendments
to Clause 1.1 (Definitions) of the Original Agreement
|
(i)
|
The
following new definitions shall be inserted in Clause 1.1 (Definitions) of
the Original Agreement:
|
"Addendum
No. 1" means the
addendum no. 1 to this Agreement, dated 10
October 2008.
"Contracted
Employment" means any
time charterparty
(provided
that the freight
rates under
such charterparties are
fixed and ensure a firm and predictable cash flow), contract of affreightment
(or similar) and
forward freight
agreement (however only for hedging purposes in connection
with charter agreements
or charter contracts and not for speculative purposes).
"Effective
Date" means
as of 15 March 2008
or such later
date
as approved by the
Agent (on behalf of the
Finance
Parties)."
3.3 Amendment
to Clause 20.1 (Definitions) of the Original Agreement
|
a)
|
The
current wording of paragraph h) of Clause 20.1 (Definitions) of the
Original Agreement shall be deleted in its entirety and be replaced by the
following wording:
|
"Total Debt" means, on a
consolidated basis, the aggregate book value of all provisions, other long term
liabilities and current liabilities of the Borrowers and the Guarantor (on a
consolidated basis), however reduced by Cash and Cash Equivalents in excess of
the minimum Cash and Cash Equivalent requirement in Clause 20.2.6 (Cash and Cash
Equivalents) ."
|
b)
|
The
current wording of paragraph k) of Clause 20.1 (Definitions) of the
Original Agreement shall be deleted in its entirety and be replaced by the
following wording:
|
"Value Adjusted Total Assets"
means, on a consolidated basis, the total market value of all of
the assets of the Guarantor (on a consolidated basis) however, excluding
Cash and Cash Equivalents in excess of the minimum Cash and Cash Equivalents
requirement in Clause 20.2.6 (Cash and Cash Equivalent)."
|
3.4
|
Amendment
to Clause 20.2.3 (Ratio of EBITDA to Fixed Charges) of the Original
Agreement
|
The
current wording of Clause 20.2.3(Ratio of EBITDA to Fixed Charges) of the
Original Agreement shall be deleted in its entirety and be replaced by the
following wording:
"The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall
ensure that the ratio of EBITDA to Fixed Charges shall be (i) 1.15:1.00 if 75%
to 100% of the Vessels are on Contracted Employment for a period of
twelve (12) months or more, (ii) 1.20:1.00
if 50% to 74% of the Vessels are under Contracted Employment for a period
of
twelve (12) months or more and (iii) 1.25:1.00 at all times otherwise, in
any event on a twelve (12) months rolling basis on assumptions approved by the
Agent."
3.5 Amendment
to Clause 20.2.5 (Minimum value) of the Original Agreement
The
current wording of Clause 20.2.5 (Minimum value) of the Original Agreement shall
be deleted in its entirety and be replaced by the following
wording:
"The Borrowers shall ensure that the
Market Value of the Vessels be at least (a) one hundred and twenty per cent
(120.00%) of the Loans from the earlier of (i) the expiry of
the Charterperty for MV
"▇▇▇▇▇ ▇. ▇▇▇▇▇" and (ii) 30 September 2009 and (b) one hundred and thirty per
cent (130.00%) of the Loans from 1 December 2010
and at all times thereafter"
|
3.6
|
Amendment
to Clause 20.2.6 (Cash and Cash Equivalents) of the Original
Agreement
|
The
current wording of Clause 20.2.6 (Cash and Cash Equivalents) of the Original
Agreement shall be deleted in its entirety and be replaced by the following
wording:
"The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall at
all times ensure that it has Cash and Cash Equivalents equal to the greater of
(i) USD
15,000,000 and (ii) six per cent (6.00%) of
the long term debt of
the Guarantor."
|
3.7
|
Amendments
to Schedule 4 (Form of Compliance Certificate) of the Original
Agreement
|
The
current wording of Schedule 4 (Form of Compliance Certificate) shall be deleted
in its entirety and be replaced by the wording as set out in Appendix 4
hereto.
4 CONTINUED
FORCE AND EFFECT
The
provisions of the Original Agreement and the other Finance Documents shall, save
as amended by this Addendum, continue in full force and effect between the
Parties and the Original Agreement and this Addendum shall be read and construed
as one instrument.
5 GOVERNING
LAW AND ENFORCEMENT
5.1 Governing
law
This
Addendum shall be governed by Norwegian law. 5.2Jurisdiction
|
a)
|
For
the benefit of each Finance Party, the Borrowers agree that the courts of
Oslo, Norway, have jurisdiction to settle any disputes arising out of or
in connection with the Finance Documents including a dispute regarding the
existence, validity or termination of this Agreement, and the Borrowers
accordingly submit to the non-exclusive jurisdiction of the Oslo District
Court (Oslo tingrett).
|
|
b)
|
Nothing
in this Clause 5.2 shall limit the right of the Finance Parties to
commence proceedings against any of the Borrowers in any other court of
competent jurisdiction. To the extent permitted by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions.
|
5.3 Service
of process
Without
prejudice to any other mode of service, the Borrowers:
|
a)
|
irrevocably
appoints Wikborg Rein & Co., Kronprinsesse Marthas ▇▇▇▇▇ 1, ▇.▇. ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ as its agent for service of process
in relation to any proceedings before Norwegian courts in connection with
any Finance Document; and
|
|
b)
|
agrees
that failure by their process agent to notify any of them of the process
will not invalidate the proceedings
concerned.
|
|
a)
|
APPENDIX
1 BORROWERS
|
Name
|
Address
|
Ownership
|
|
OBO
Holdings Ltd.
BHOBO
One Ltd.
BHOBO
Two Ltd.
BHOBO
Three Ltd.
RM.]
OBO Shipping Ltd.
Sagamore
Shipping Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro,
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Trust
Company Complex, Ajeltake Island. Majuro,
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Trust
Company Complex, Ajeltake Island Majuro,
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Trust
Company Complex, Ajeltake Island. Majuro,
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Trust
Company Complex, Ajeltake Island. Majuro,
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Trust
Company Complex, Ajeltake Island. Majuro,
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
The
Guarantor (100%)
OBO
Holdings (100%)
OBO
Holdings (100%)
OBC
Holdings (100%)
OBO
Holdings (100%)
OBO
Holdings (100%)
|
APPENDIX
2 LENDERS
Lenders:
DVS Sank America NV Zeelandia
Office Park Kaya W.F.G.
▇▇▇▇▇▇ ▇▇ ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ Antilles
The Governor and Company of the Bank
of Scotland Pentland House ▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
MSM
Nordbank AG
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Nordea Sank Norge ASA
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇.▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
HypoVerelnsbank - Member of UniCredit
Group Alter Wall 2220457 Hamburg Germany
Deutsche Schiffsbank ▇▇
▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
APPENDIX
3 CONDITIONS
1 CORPORATE
AUTHORISATION - EACH OF BORROWERS AND THE GUARANTOR
|
a)
|
Certificate
of Incorporation/Certificate of Registration (or a confirmation that there
has been no amendments to the Certificate of Incorporation/Certificate of
Registration delivered in connection with the entry into of the Original
Agreement and that the same remain in full force and
effect);
|
|
b)
|
Memorandum
and Articles of Association/Bye-laws (or a confirmation that there has
been no amendments to the Memorandum and Articles of Association delivered
in connection with the entry into of the Original Agreement and that the
same remain in full force and
effect);
|
c) Resolutions
passed at a board meeting of the relevant Party evidencing:
|
|
(i)
|
the
approval of the terms of, and the transactions contemplated by, this
Addendum; and
|
|
|
(ii)
the authorisation of its appropriate officer or officers or other
representatives to execute this Addendum and any other documents necessary
for the transactions contemplated by this Addendum, on its
behalf;
|
d) Power of
Attorney (notarised and legalised);
e) Updated
Good Standing Certificate/Certificate of Compliance; and
f) Secretary's
Certificate (notarised and legalised).
2 AUTHORISATIONS
All
approvals, authorisations and consents required by any government (domestic and
foreign) or other authorities for the Borrowers and the Guarantor to enter into
and perform their obligations under this Addendum and/or any of the transactions
contemplated thereby have been obtained and are in full force and
effect.
3 FINANCE
DOCUMENTS
a) The
Addendum.
4 MISCELLANEOUS
|
a)
|
Any
such favourable legal opinions in form and substance satisfactory to the
Agent from lawyers appointed by the Agent on matters concerning all
relevant jurisdictions.
|
b) Any other
documents as reasonably requested by the Agent.
a)
APPENDIX
4
SCHEDULE
4
FORM
OF COMPLIANCE CERTIFICATE
To: Nordea
Bank Norge ASA, as Agent
From: [•]
|
Date:
|
[•]
[To
be delivered no
later than [one hundred and twenty (120) /forty-five (45)] days after each
Reporting Date]
|
USD
202,000,000 - REDUCING REVOLVING CREDIT FACILITY AGREEMENT DATED 29 AUGUST 2006
(AS AMENDED) (THE "AGREEMENT")
We refer
to the Agreement. Terms defined in the Agreement shall have the same meaning
when used in this Compliance Certificate.
With
reference to Clauses 19.1 (Compliance certificate) and 20 (Financial covenants)
of the Agreement, we confirm that as at [•] [insert relevant Reporting
Date]:
|
a)
|
Minimum Value Adjusted Equity
Ratio. The Minimum Value Adjusted Equity Ratio of the Guarantor (on
a consolidated basis) was [•].
|
The
Guarantor shall at all times maintain a minimum Value Adjusted Equity Ratio of
thirty per cent (30.00%). The covenant in Clause 20.2.1 (Minimum Value Adjusted
Equity Ratio) is thus [not] satisfied.
|
b)
|
Minimum Value Adjusted Equity
Ratio. The Minimum Value Adjusted Equity of the Guarantor (on a
consolidated basis) was USD [•].
|
The
Guarantor shall at all times maintain a Minimum Value Adjusted Equity of USD
50,000,000. The covenant set out in Clause 20.2.2 (Minimum cash balance) is thus
[not] satisfied.
|
c)
|
Ratio EBITDA to Fixed Charges.
The ratio of EBITDA to Fixed Charges of the Guarantor (on a
consolidated basis) was [•].
|
The
Guarantor (on a consolidated basis) shall ensure that the ratio of EBITDA to
Fixed Charges shall be (i) 1.15:1.00 if 75% to 100% of the Vessels are on
Contracted Employment for a period of twelve (12) months or more, (ii) 1.20:1.00
if 50% to 74%, of the Vessels are under Contracted Employment for a period of
twelve (12) months or more and (iii) 1.25:1.00 at all times otherwise, in any
event on a twelve (12) months rolling basis on assumptions approved by the
Agent. The covenant in Clause 20.2.3 (Ratio EBITDA to Fixed Charges) is thus
[not] satisfied.
|
d)
|
Positive working capital.
The working capital of the the Guarantor (on a consolidated basis)
was [•].
|
The
Guarantor (on a consolidated basis) shall at all times ensure that its current
assets exceeds its current liabilities (excluding the current portion of long
term debt), all as
determined
in accordance with GAAP. The covenant set out in Clause 20.2.4 (Positive working
capital) is thus [not] satisfied.
e) [Minimum value. The Market
Value of the Vessels pursuant to the attached survey is [•].
The
Borrowers shall ensure that the Market Value of the Vessels shall be at least
(a) one hundred and twenty per cent (120.00°k) of the Loans from the earlier of
(i) the expiry of the Charterparty for MV "▇▇▇▇▇ ▇. ▇▇▇▇▇" and (ii) 30 September
2009 and (b) one hundred and thirty per cent (130.00%) from 1 December 2010 and
at all times thereafter. The covenant in Clause 20.2.4 (minimum value) is thus
[not] satisfied.]
|
f)
|
Cash and Cash Equivalents.
The Cash and Cash Equivalent of the Guarantor (on a consolidated
basis) is [•].
|
The
Guarantor (on a consolidated basis) shall at all times ensure that it has Cash
and Cash Equivalents equal to the greater of (i) USD 15,000,000 and (ii) six per
cent (6.00%) of the long term debt of the Guarantor. The covenant in Clause
20.2.5 (Cash and Cash Equivalents) is thus [not] satisfied.
|
g)
|
Insurance. We confirm
that each of the Vessels is insured against such risks and in such amounts
as set out in Appendix 1 hereto.
|
|
|
h)
We confirm that, as of the date hereof (i) each of the representations and
warranties set out in Clause 18 (Representations and warranties) of the
Agreement is true and correct; and (ii) no event or circumstances has
occurred and is continuing which constitute or may constitute an Event of
Default.
|
Yours
sincerely
for and
on behalf of [•]
By:
Name:
Title:
[authorised officer]
Execution
copy
Appendix
1
|
Name
of
Vessel
|
Hull
& Machinery
|
Increased
Value
|
Loss
of Hire
|
Protection
6 Indemnity
|
War
Risk
|
|||||
|
M/V
Rtp
|
Insurer:
|
Amount:I
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
|
Hudner
"
|
||||||||||
|
MV Insurer:
▇▇▇▇▇▇
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
|
|
S h
ck
|
||||||||||
|
MV
"Searose
|
Insurer:
|
Amount:
|
I
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount;
|
|
NV
'*
▇▇▇▇▇
|
-
|
-
|
-..-r
|
|||||||
|
/746273/6
|
|
Name
|
Hull & Machinery
|
Increased
Value
|
Loss
of Hire
|
Protection & Indemnity
|
War
Risk
|
|||||
|
of
vessel
|
||||||||||
|
)ones"
|
||||||||||
|
MT
"Saga-
more"
|
||||||||||
|
/746273/6
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
SIGNATORIES
Borrowers:
OBO
Holdings Ltd.
By:
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title:Attorney-in-Fact
BHOBO
One Ltd.
By: *!,
• )
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title:Attorney-in-Fact
BHOBO
Two Ltd.
By:
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ Title:Attorney- in.
Fact
BHOBO
Three Ltd.
By:
Name:
Title: Attorney-in-Fact
RM]
OBO Shipping Ltd.
By:
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Sagamore
Shipping Ltd.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Lenders:
Nordea
Bank Norge ASA
By: J
!1' 1
y_*I
Name:
Siri Wennevik Title: Attorney-in-Fact
DVB
Bank America NV
By:
Name:
Siri Wennevik Title: Attorney-in-Fact
HSH
Nordbank AG
By:
Name:
Siri Wennevik Title: Attorney-in-Fact
The
Governor and Company of the Bank of Scotland
By: V
v
Name:
Siri Wennevik Title: Attorney-in-Fact
HypoVereinsbank
Deutsche
Schiffsbank AG
By:_
Name: Sin
Wennevik Title:Attorney-in-Fact
Bookrunner:
Nordea
Bank Norge ASA
By: ;J
" • `* v -
Name: Sin
Wennevik Title:Attorney-in-Fact
Agent:
Nordea
Bank Norge ASA
Arranger:
Nordea
Bank Norge ASA
By: lJ_
Name:
Siri Wennevik Title:Attorney-in-Fact
Co-arrangers:
DVB
Bank America NV
1/
By: Name:
Siri Wennevik Title:Attorney-in-Fact
HSH
Nordbank AG
By:
Name: Wennevik
Title: Attorney-in-Fact
The
Governor and Company of the Bank of Scotland
By: v -
Name:
Siri Wennevik
Title: Attorney
in-Fact Swap Bank:
Nordea
Bank Finland Plc.
By:
Name:
Siri Wennevik
Title: Attorney-in-Fact
|
By:
Name:
Title:
|
|
Attorney-in-Fact
|
We, B+H
Ocean Carriers Ltd., hereby acknowledge and agree to the terms of this Addendum
and agree to be bound thereby as if we were a party to this
Addendum.
October
2008