USD 202,000,000 REDUCING REVOLVING CREDIT FACILITY AGREEMENT for The Companies listed in Schedule 1 as Borrowers provided by The Financial Institutions listed in Schedule 1 as Lenders and Nordea Bank Norge ASA as Mandated Lead Arranger and DvB Bank...
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ADDENDUM
NO. 3
to
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|
USD
202,000,000
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The
Companies listed in Schedule 1
as
Borrowers
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provided
by
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The
Financial Institutions
listed
in Schedule 1
as
Lenders
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|
and
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Nordea Bank Norge
ASA
as
Mandated Lead Arranger
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and
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DvB
Bank America NV
Bank
of Scotland plc
HSH
Nordbank AG
as
Co-Arrangers
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and
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Nordea Bank Norge
ASA
as
Agent
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and
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Nordea
Bank Finland Plc.
as
Swap Bank
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THIS ADDENDUM NO. 3 (the
“Addendum”) is dated ___
January 2010 and made between:
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(1)
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THE COMPANIES listed in
Part I of Schedule 1 as
original borrowers (together the “Original
Borrowers”)
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(2)
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The banks and financial
institutions listed in Part II of Schedule
1, as original lenders (together, the “Lenders”);
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(3)
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Nordea Bank Finland Plc.
of TO1, FIN-00020 Nordea, Helsinki, Finland, as swap bank, (the “Swap
Bank”);
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(4)
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Nordea Bank Norge ASA of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, organisation number 911 044 110,
as bookrunner (the “Bookrunner”);
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(5)
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Nordea Bank Norge ASA of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, organisation number 911 044 110,
as facility agent (the “Agent”);
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(6)
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Nordea Bank Norge ASA of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, organisation number 911 044 110,
as mandated lead arranger (the “Arranger”) and
underwriter (the “Underwriter”);
and
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(7)
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DVB Bank America NV of
Zeelandia Office Park, Kaya W.F.G. ▇▇▇▇▇▇▇ ▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ Antilles, Bank of Scotland plc of ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ and acting from their office at New Uberior
House, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ and HSH Nordbank AG of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, as co-arrangers (the
“Co-Arrangers”).
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WHEREAS:
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(A)
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This
Addendum is supplemental to the USD 202,000,000 Reducing Revolving Credit
Facility Agreement dated 29 August 2006 as amended by addendum no. 1 dated
10 October 2008 and addendum no. 2 and waiver agreement dated 17 July 2009
(together, the “Original
Facility Agreement”) and made between the Borrowers, the Lenders,
the Arranger, the Agent, the Co-Arrangers and the Swap Bank relating to a
certain reducing revolving credit facility for an aggregate amount of USD
202,000,000;
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(B)
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The
Borrowers have requested and the Finance Parties have agreed to certain
amendments to be made to the Original Facility Agreement, inter alia, to (i)
defer certain scheduled reductions, (ii) amend the financial covenants,
(iii) provide additional security and (iv) amend certain other provisions
of the Original Facility Agreement and the Finance Documents;
and
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(C)
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The
Parties have agreed to supplement and amend the Original Facility
Agreement by entering into this Addendum to reflect the agreement reached
between the Parties with respect to the amendments set out
above.
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NOW IT IS HEREBY AGREED as
follows:
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1
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CONSTRUCTION
AND INTERPRETATION
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1.1
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References
to this Agreement
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References
in the Original Facility Agreement to “this Agreement” and the like shall, with
effect from the Effective Date be references to the Original Facility Agreement
as amended by this Addendum.
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1.2
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Defined
Expressions
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In this
Addendum, words and expressions defined in the Original Facility Agreement
shall, unless the context otherwise requires or unless otherwise defined herein,
have the same meaning when used in this Addendum (including the
recitals).
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1.3
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Construction
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In this
Addendum, unless the context otherwise requires:
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a)
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words
denoting the singular number shall include the plural and vice
versa;
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b)
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references
to Clauses, Annexes and Schedules are references, respectively, to the
Clauses, Annexes and Schedules of this
Addendum;
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c)
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references
to a Finance Document or any other document are references to it as
amended or supplemented, whether before the date of this Addendum or
otherwise;
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d)
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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
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e)
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clause
headings are inserted for convenience of reference only and shall be
ignored in the interpretation of this
Addendum.
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2
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CONDITIONS
PRECEDENT
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a)
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The
provisions of Clause 3 (Amendments to the Original
Facility Agreement) below shall be effective on ___ January 2010
(the “Effective
Date”).
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b)
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The
Obligors shall deliver to the Agent the documents and other evidence as
listed in Annex
1 (Conditions
precedent documents) in form and substance satisfactory to the
Agent no later than on the Effective
Date.
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3
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AMENDMENTS
TO THE ORIGINAL FACILITY AGREEMENT
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3.1
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General
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The
Original Facility Agreement shall, with effect from the Effective Date, be
supplemented and amended as set out in this Clause 3 and will continue to be
binding upon each of the Parties thereto in accordance with its terms as so
amended.
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3.2
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Amendments
to Clause 1.1 (Definitions) of the Original Facility
Agreement
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(i)
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The
definition of the following terms in Clause 1.1 (Definitions) of the
Original Facility Agreement shall be deleted in their entirety and
replaced by the following
definitions:
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“Charter Guarantor”
means:
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a)
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in
respect of (i) MV “Rip Hudner”, (ii) MV “▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇” and (iii) MV
“Searose G”, Sempra Energy of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇.▇.▇.;
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b)
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in
respect of MV “▇▇▇▇▇ ▇. ▇▇▇▇▇”; The Royal Bank of Scotland
plc;
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c)
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in
respect of MT “Sagamore”, ENOC Supply & Trading LLC of
Dubai, however only to the extent that the ENOC Supply & Trading LLC
has nominated another company as charterers under the Charterparty for
MT “Sagamore”; and
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d)
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any
other charter guarantor for any of the Vessels, as approved by the Agent
(on behalf of the Lenders) from time to
time.
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“Charterers”
means:
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a)
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in
respect of each of MV “Rip Hudner”, MV “▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇”, MV “Searose G”
and “▇▇▇▇▇ ▇. ▇▇▇▇▇”, TTMI Sarl. of Geneva,
Switzerland;
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b) in
respect of MT “Sagamore”, ENOC Supply & Trading LLC of Dubai;
and
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c)
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any
other charterer of any of the Vessels as approved by the Agent (on behalf
of the Lenders) from time to time.
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“Charterparty”
means:
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a)
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in
respect of each of MV “Rip Hudner” and MV “▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇”, the time
charterparties dated 4 February 2005, respectively, made between BHOBO Two
and BHOBO One (as owners), respectively, and TTMI Sarl. (as charterers),
for a period of six (6) years at a net daily charter rate of not less than
USD 26,600 during year 1, USD 24,600 during year 2, USD 23,600 during year
3, USD 22,600 during year 4, a USD 20,600 during year 5 and USD 24,400
during year 6;
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b)
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in
respect of MV “Searose G”, the time charterparty dated 4 February 2005
made between BHOBO Three (as owner) and TTMI Sarl. (as charterers), for a
charter period of six (6) years at a net daily charter rate of not less
than USD 26,000 during year 1, USD 24,000 during year 2, USD 23,000 during
year 3, USD 22,000 during year 4, USD 20,000 during year 5 and USD 24,400
during year 6 and with a 35.00% profit share in years 2 –
5;
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c)
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in
respect of MV “▇▇▇▇▇ ▇. ▇▇▇▇▇”, the time charterpartydated 28 May 2008
made between RMJ OBO Shipping Ltd. (as owner) and TTMI Sarl (as
charterers), for a period of three (3) years commencing on 13 October
2009, at a daily charter rate of not less than USD
31,140;
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d)
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in
respect of MV “Sagamore”, the time charterparty made or to be made between
Sagamore Shipping Ltd. (as owner) and ENOC Supply & Trading LLC (as
charterers), for a charter period of three (3) years commencing at the
relevant Drawdown Date, at a daily charter rate of not less than USD
21,500 (less 3.75% commission);
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e)
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in
respect of any of the New Vessels, the time charterparty between the
relevant Borrower and TTMI Sarl;
and
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f)
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any
other time charterparty between the relevant Borrower and a
Charterer,
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in
any event, in form and substance as approved by the Agent (on behalf of the
Finance Parties).
“Finance Documents” means,
collectively, this Agreement, the Addendum No. 1, the Addendum No. 2, the
Addendum No. 3, any Fee Letters, any Security Documents and any other document
designated as such by the Agent and the Borrowers.
“Margin” means three point
seventy-five per cent (3.75%) per annum.
“Transaction Documents” means
the Finance Documents, the MOAs, the Charterparties, the Charter Guarantees, the
Technical Management Agreements, the ▇▇▇▇▇▇ Co-ordination Agreement, the Safecom
Co-ordination Agreement, the Boss Tankers Co-ordination Agreement and the Swap
Agreement(s), together with the other documents contemplated herein or
therein.”
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(ii)
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The
following new definitions shall be inserted in Clause 1.1 (Definitions) of the
Original Facility Agreement:
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““Addendum No. 3” means the
addendum no. 3 to this Agreement dated ___ January 2010 and made between the
parties set out therein.
“Barge” means MV “Safecom 1”,
being an accommodation barge to be delivered to Straits Offshore Ltd.
of Palm Grove House, Tortola, BVI and to be registered in a ship registry
acceptable to the Agent (on behalf of the Lenders).
“Boss Tankers Loan Agreement”
means the USD 3,975,230 credit facilities agreement entered or to be entered
into (as amended from time to time) and made between i.a. the Guarantor (as
borrower) and Bank of Scotland plc.
“Boss Tankers Co-ordination Agreement” means
the co-ordination agreement to be entered into between the Agent (on behalf of
the Finance Parties and the Swap Bank), Bank of Scotland plc (as [lender]) under
the Boss Tankers Loan Agreement) and the Guarantor, in respect of i.a. any
second priority securities to be granted by any of the Borrowers in favour of
Bank of Scotland plc as security for the obligations of Boss Tankers Ltd. under
the Boss Tankers Loan Agreement, in form and substance satisfactory to the Agent
(on behalf of the Lenders and the Swap Bank).
“Effective Date” means ___
January 2010.
“Excess Cash” means (measured
quarterly) any amount of Cash and Cash Equivalents in excess of the aggregate
amount of (i) USD 10,000,000 and (ii) provisions for dry-docking for the
following twelve (12) months for the Vessels.
“▇▇▇▇▇▇ Co-ordination
Agreement” means the co-ordination agreement to be entered into between
the Agent (on behalf of the Finance Parties and the Swap Bank), Nordea Bank
Norge ASA (as lender under a certain USD 8,000,000 term loan facility agreement
dated 5 September 2006 (as amended) and made between Nordea Bank Norge ASA),
Bank of Scotland plc and Seapowet Trading Ltd., in respect of the ▇▇▇▇▇▇ Share
Pledge, in form and substance satisfactory to the Agent (on behalf of the
Lenders and the Swap Bank).
“▇▇▇▇▇▇ Share Pledge” means the
share pledge agreement for the second priority pledge over 50% of the shares in
▇▇▇▇▇▇ OBO 2 Inc. (Liberia) dated 14 December 2009 and made between Seapowet
Trading Ltd. and the Agent (on behalf of the Finance Parties and the Swap Bank),
in form and substance satisfactory to the Agent (on behalf of the Lenders and
the Swap Bank) and subject to the approval of such share pledge by the first
priority pledgee over such shares.
“Retention Account” means
account no. 6015.04.42640 with the Agent in the name of OBO Holdings
Ltd.
“Retention Account Charge
Agreement” means the account charge collateral to this Agreement for the
first priority charge over the Retention Account dated 14 December 2009 and made
between OBO Holdings Ltd. and the Agent (on behalf of the Finance Parties and
the Swap Bank) as security for the Borrowers’ obligations under this Agreement
and any Swap Agreement, in form and substance satisfactory to the Agent (on
behalf of the Lenders and the Swap Bank).
“Safecom Assignment Agreement”
means the assignment agreement dated 14 December 2009 and made between Straits
Offshore Ltd. and the Agent (on behalf of the Finance Parties and the Swap Bank)
collateral to this Agreement for the second assignment of (i) any monies to be
paid to Straits Offshore Ltd. for the operation and chartering of the Barge and
(ii) any sales proceeds to be received by Straits Offshore Ltd. upon the sale or
transfer of the Barge, in form and substance satisfactory to the Agent (on
behalf of the Lenders and the Swap Bank) and always subject to the approval by
the first priority assignee over such assets.
“Safecom Co-ordination
Agreement” means the co-ordination agreement to be entered into between
the Agent (on behalf of the Finance Parties and the Swap Bank), the relevant
lender under a senior facility with Straits Offshore Ltd. to be entered
into and Straits Offshore Ltd., in respect of i.a. the Safecom
Assignment Agreement, in form and substance satisfactory to the Agent (on behalf
of the Lenders and the Swap Bank).
“Share Pledge 1” means the
share pledge agreement for the first priority pledge of all of the shares (and
any dividends and distributions in respect of such shares) in OBO Holdings Ltd.
dated 14 December 2009 and made between the Guarantor and the Agent (on behalf
of the Finance Parties and the Swap Bank), in form and substance acceptable to
the Agent (on behalf of the Lenders and the Swap Bank).
“Share Pledge 2” means the
share pledge agreement for the first priority pledge of all of the shares (and
any dividends and distributions in respect of such shares) in the Borrowers
(other than OBO Holdings Ltd.) dated 14 December 2009 and made between OBO
Holdings Ltd. and the Agent (on behalf of the Finance Parties and the Swap
Bank), in form and substance acceptable to the Agent (on behalf of the Lenders
and the Swap Bank).”
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3.3
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Amendments
to Clause 1.2 (Construction) of the Original Facility
Agreement
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The
current wording of Clause 1.2 (Construction) of the Original
Facility Agreement shall be deleted in its entirety and be replaced with the
following wording:
“In this Agreement, unless the
context otherwise requires:
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a)
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Clause
and Schedule headings are for ease of reference
only;
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b)
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words
denoting the singular number shall include the plural and vice
versa;
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c)
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references
to Clauses and Schedules are references, respectively, to the Clauses and
Schedules of this Agreement;
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d)
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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;
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e)
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references
to a Finance Document or any other document are references to it as
amended or supplemented, whether before the date of this Agreement or
otherwise;
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f)
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references
to “control” means
the power to appoint a majority of the board of directors or to direct the
management and policies of an entity, whether through the ownership of
voting capital, by contract or
otherwise;
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g)
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references
to “indebtedness”
includes any obligation (whether incurred as principal or as surety) for
the payment or repayment of money, whether present or future, actual or
contingent; and
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h)
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references
to a “person”
shall include any individual, firm, partnership, joint venture, company,
corporation, trust, fund, body, corporate, unincorporated body of persons,
or any state or any agency of a state or association (whether or not
having separate legal
personality).”
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3.4
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Amendments
to paragraph a) of Clause 6.2 (Repayment of Loans) of the Original
Facility Agreement
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The
current wording of paragraph a) Clause 6.2 (Repayment of Loans) of the
Original Facility Agreement shall be deleted in its entirety and replaced with
the following wording:
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“a)
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The
Allocated Loan Amount for each Existing Vessel shall be reduced on the
dates and in such amounts as set out in Schedule 7
(Scheduled reductions) (and the Total Commitments shall be reduced
accordingly), however so that:
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(i)
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the
reduction to be made on 15 December 2009 in an amount of USD 5,100,000
shall be deferred and such reduction shall be made in its entirety on the
Final Maturity Date; and
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(ii)
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fifty
per cent (50%) of the reduction to be made on 15 March 2010, being an
amount of USD 2,550,000 shall be deferred and such reduction shall be made
over the six (6) consecutive succeeding reductions to be made after 15
March 2010 by USD 425,000 each, so that such reduction shall have been
made in full by 15 September 2011.”
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3.5
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New
Clause 6.3 (Mandatory reductions – Excess Cash) shall be inserted in the
Original Facility Agreement
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A new
Clause 6.3 (Mandatory
reductions – Excess Cash) shall be incorporated into the Original
Facility Agreement with the following wording:
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“a)
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Any Excess Cash (to be
allocated to this Agreement in accordance with paragraph b) and c) below)
shall in the period commencing on the Effective Date be applied to reduce
the Total Commitments as set out in paragraph b) and c)
below.
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b)
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Any
reductions of the Total Commitments which are, in accordance with Clause
6.3 c) below, to be paid to the Lenders shall be
applied:
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(i)
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firstly: to
reduce the deferred reductions as set out in paragraph a)(i) and (ii) of
Clause 6.2 (Repayment of Loans) until such deferred reductions have been
reduced in full; and
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(ii)
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secondly: to
reduce the Facility in inverse order of
maturity.
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c)
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The
Borrowers shall provide the Agent with a calculation of Cash and Cash
Equivalents (as required when providing a Compliance Certificate) no later
than five (5) Business Days prior to each scheduled reduction date as set
out in Schedule
7 (Scheduled reductions). Any Excess Cash shall thereafter on the
relevant reduction date (as set out in Schedule 7
(Scheduled reductions)) be applied as
follows:
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(i)
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firstly
in payment to the Lenders to reduce the deferred reductions as set out in
paragraph a)(i) and (ii) of Clause 6.2 (Repayment of Loans) until such
deferred reductions have been reduced in
full;
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(ii)
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secondly,
after such deferred reductions have been reduced in full, in payment to
the lender under the Boss Tankers Loan Agreement (“BoS”) provided
that:
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(A)
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in
any calendar quarter (ending 31/3, 30/6, 30/9 and 31/12 in any year) BoS
shall not be entitled to receive more than USD 100,000 pursuant to this
paragraph (which amount shall form part of (and not be in addition to) the
quarterly amount under the Boss Tankers Loan Agreement as set out in
paragraph b) of Clause 21.20 (Repayment of debt under the Boss Tankers
Loan Agreement)); and
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(B)
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BoS
shall not be entitled to receive any amount under this paragraph at any
time when the Borrowers are not in compliance with the requirements of
Clause 20.3.3 (Minimum value); and
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(iii)
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thirdly,
any remaining balance shall be distributed between the Lenders and BoS on
a pro rata basis calculated on basis of the outstanding amount under this
Agreement and the Boss Tankers Loan Agreement at the relevant time,
however always observing the first priority status of the
Lenders.
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d)
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The
Agent shall be authorised to transfer any Excess Cash from any of the
Earnings Accounts for such amount to be applied in accordance with this
Clause 6.3, such transfer to take at the relevant reduction date as set
out in Schedule
7 (Scheduled reductions) (in addition to the scheduled reductions
in accordance with Clause 6.2 (Repayment of Loans) and Schedule 7
(Scheduled reductions)).
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e)
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If
at any date when Excess Cash is to be paid to the Agent (on behalf of the
Lenders) in accordance with this Clause 6.3, the amount standing to the
credit of the Earnings Accounts is less than the Excess Cash to be paid,
the Guarantor shall be obliged to grant a fully subordinated intercompany
loan to the Borrowers in an amount equal to the Excess Cash to be paid at
such time, such intercompany loan to be paid to the Agent (on behalf of
the Lenders) in accordance with this Clause
6.3.
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f)
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No
amount of the Total Commitments reduced in accordance with this Clause 6.3
shall be reinstated.”
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3.6
|
New
Clause 6.4 (Retention Account) of the Original Facility
Agreement
|
A new
Clause 6.4 (Retention Account)
shall be incorporated into the Original Facility Agreement with the
following wording:
|
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“a)
|
OBO
Holdings Ltd. shall open the Retention Account with the Agent which shall
be blocked and pledged in favour of the Agent (on behalf of the Finance
Parties and the Swap Bank) under the Retention Account Charge
Agreement.
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b)
|
The
Borrowers shall transfer and amount equal to the aggregate of (i) 1/3 of
the amount of the next scheduled reduction in accordance with Clause 6.2
(Repayment of Loans) and Schedule 7
(Scheduled reductions) and (ii) 1/3 of the interest falling due for
payment on such reduction date, from the Earnings Accounts to the
Retention Account at the last day of each calendar
month.
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c)
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The
accumulated amount in the Retention Account shall automatically be applied
against the next following scheduled reduction in accordance with Clause
6.2 (Repayment of Loans) and Schedule 7
(Scheduled reductions) on the relevant reduction
date.
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d)
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Each
of the Borrowers hereby irrevocably authorized the Agent to debit the
relevant Earnings Account as set out in this Clause
6.4.
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e)
|
OBO
Holdings Ltd. hereby irrevocably authorizes the Agent to debit the
Retention Account as set out in this Clause
6.4.”
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Clause
6.3 (Final repayment)
shall be renumbered to Clause 6.5 and any references to such Clause shall be
amended accordingly.
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3.7
|
Amendments
to Clause 17.1 (Security – Loans) of the Original Facility
Agreement
|
The
current wording of Clause 17.1 (Security – Loans) of the
Original Facility Agreement shall be deleted in its entirety and be replaced
with the following wording:
“The
Borrowers’ obligations and liabilities under the Finance Documents, including
(without limitation) the Borrowers’ obligation to repay the Loans together with
all unpaid interest, default interest, commissions, charges, expenses and any
other derived liability whatsoever of any of the Borrowers towards the Lenders
and the Agent in connection with this Agreement, shall at any time until all
amounts due to the Lenders and the Agent hereunder have been paid and/or repaid
in full, be secured by:
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a)
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the
Mortgages;
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b)
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the
Deeds of Covenants;
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c)
|
the
Assignment Agreements;
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d)
|
the
Charterparty Assignments;
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e)
|
the
Account Charges;
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f)
|
the
Retention Account Charge Agreement;
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g)
|
the
▇▇▇▇▇▇ Share Pledge;
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h)
|
the
Share Pledge 1;
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i)
|
the
Share Pledge 2;
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j)
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the
Safecom Assignment Agreement; and
|
|
k)
|
the
Guarantee.
|
The
Borrowers undertake to ensure that the above Security Documents are being duly
executed by the parties thereto in favour of the Agent (on behalf of the Finance
Parties), legally valid and in full force and effect, and to execute or procure
the execution of such further documentation as the Agent may reasonable require
in order for the relevant Finance Parties to maintain the security position
envisaged hereunder.”
|
3.8
|
Amendments
to Clause 19.4 (Information – miscellaneous) of the Original Facility
Agreement – new paragraphs d) and
e)
|
New
paragraphs d) and e) shall be incorporated into Clause 19.4 (Information - miscellaneous)
of the Original Facility Agreement with the following wording:
|
|
“d)
|
within
the end of February 2010, evidence of the sale and repayment of the
applicable debt in relation to MT “Sachem” (owned by Sachem Shipping
Ltd.); and
|
|
|
e)
|
confirmation
in respect of cash flow projections to the satisfaction of the Lenders,
including the deferred reductions in accordance with paragraph (a)(i) and
(ii) of Clause 6.2 (Repayment of Loans), evidencing sufficient cash flow
of the Borrowers and the Guarantor up until the Final Maturity
Date.”
|
|
3.9
|
Amendments
to Clause 20.1 (Definitions) of the Original Facility
Agreement
|
The
current wording of Clause 20.1 (Definitions) of the Original
Facility Agreement shall be deleted in its entirety and be replaced with the
following wording:
“For
the purposes of the financial covenants set out herein, the following
definitions shall apply:
a) “Cash and Cash Equivalents”
means, in respect of the Group, and at any time:
|
|
(i)
|
cash
in hand or on deposits with any acceptable bank available for cash
management purposes;
|
|
|
(ii)
|
investment
grade certificates or deposit or investment grade marketable debt
securities, maturing within one (1) year after the relevant
date of calculation; or
|
|
|
(iii)
|
any
other instrument, security or investment approved by the Majority
Lenders,
|
in
each case, to which any member of the Group beneficially entitled at that time
and which is capable of being applied against the Total Debt,
b) “Equity” means Total Assets
less Total Debt.
|
|
c)
|
“Equity Ratio” means
Equity divided by Total Assets.
|
|
|
d)
|
“Measurement Period”
means a rolling period of twelve (12) calendar months ending on a Quarter
Date.
|
|
|
e)
|
“Quarter Date” means each
31 March, 30 June, 30 September and 31
December.
|
|
|
f)
|
“Total Assets” means, on
a consolidated basis, the aggregate book 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 20.2.4 (Cash and Cash
Equivalents).
|
|
|
g)
|
“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
n Clause 20.2.4 (Cash and Cash
Equivalents).
|
h) “Value Adjusted Equity” means
Value Adjusted Total Assets less Total Debt.
|
|
i)
|
“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 20.2.4 (Cash and Cash
Equivalents).”
|
|
3.10
|
Amendments
to Clause 20.2 (Financial covenants) of the Original Facility
Agreement
|
The
current wording of Clause 20.2 (Financial covenants) of the
Original Facility Agreement shall be deleted in its entirety and be replaced
with the following wording:
“20.2.1 Minimum
Value Adjusted Equity
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall at
all times during the Security Period maintain a minimum Value Adjusted Equity of
USD 30,000,000.
20.2.2 Positive
working capital
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall at
all times following the delivery of the Compliance Certificate for the period
ending on 30 June 2010, ensure that its current assets exceed its current
liabilities (excluding the current portion of long term debt), all as determined
in accordance with GAAP.
20.2.3 Minimum
value
The
Borrowers shall ensure that the Market Value of the Vessels shall be at least
one hundred and thirty-five per cent (135%) of the Loans at any
time.
20.2.4 Cash
and Cash Equivalents
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall at
any time in the period from the Effective Date and ending on the earlier of (i)
30 September 2010 and (ii) the delivery of the Barge to Straits Offshore Ltd.,
ensure that it has Cash and Cash Equivalents (including cash in Retention
Account) equal to or greater than USD 4,000,000 and at all times thereafter
ensure that the Guarantor (on a consolidated basis) has Cash and Cash
Equivalents (including cash in Retention Account) equal to or greater than USD
6,000,000.
20.2.5 Minimum
Equity Ratio
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall at
all times during the Security Period maintain an Equity Ratio of minimum
twenty-five per cent (25%).”
|
3.11
|
Amendments
to Clause 21.5 (Negative pledge) of the Original Facility
Agreement
|
The
current wording of Clause 21.5 (Negative pledge) of the
Original Facility Agreement shall be deleted in its entirety and be replaced by
the following wording;
|
|
“The
Borrower shall not create or permit to subsist any Security Interest over
any of the Vessels nor upon any of their present or future undertakings,
property, assets, rights of revenues, other
than:
|
a) Security
Interest under the Security Documents;
b) Security
Interest arising in the ordinary course of business;
|
|
c)
|
Security
Interest ranking with second priority after the Security Interest under
the relevant Security Document over the Vessels, the Earnings, the
Insurances, the Earnings Accounts, the shares in the Borrowers, the
Retention Account and security assignment over the Borrowers’ rights under
the 31 July 2007 Master Agreement with HBOS Treasury Services plc (as
amended) and all transactions entered into under that Master Agreement, in
favour of Bank of Scotland plc as security for Boss Tankers Ltd.’s
obligations under the Boss Tankers Loan Agreement, however always subject
to the Boss Tankers Co-ordination Agreement;
and
|
|
|
d)
|
Security
Interest consented to in writing by the Agent (acting upon instructions
from the Majority Lenders).”
|
|
3.12
|
Amendment
to Clause 21.6 (Borrowings and guarantees) of the Original Facility
Agreement
|
The
current wording of Clause 21.6 (Borrowings and guarantees) of
the Original Facility Agreement shall be deleted in its entirety and be replaced
by the following wording:
|
|
“a)
|
None of the Borrowers shall
enter into any new Financial Indebtedness or assume or grant any guarantee
liabilities, other than current liabilities related to the day to day
operation of the Vessels.
|
|
|
b)
|
The
Borrowers shall procure that the Guarantor does not incur any general
commitments or Financial Indebtedness in an amount exceeding USD 200,000
from any of its creditors without the prior written consent of the Agent
(on behalf of the Majority
Lenders).”
|
|
3.13
|
Amendment
to Clause 21.7 (Interest hedging) of the Original Facility
Agreement
|
The
current wording of Clause 21.7 (Interest hedging) of the
Original Facility Agreement shall be deleted in its entirety and be replaced by
the following wording:
“The
Borrowers shall, prior to the first Drawdown Date, enter into interest hedging
arrangements with the Swap Bank in relation to a minimum of fifty per cent
(50.00%) of the total interest rate risk under the Finance Documents in a manner
acceptable in the sole discretion of the Agent. The Borrowers shall not enter
into any other interest hedging arrangements other than with the Swap Bank,
except for assuming obligations under the existing interest hedging arrangements
originally entered into in 2007 in connection with the Boss Tankers Loan
Agreement”.
|
3.14
|
New
Clause 21.9 (Distributions) of the Original Facility
Agreement
|
The
current wording of Clause 21.9 (Distributions) shall be
incorporated in the Original Facility Agreement with the following
wording:
|
|
“a)
|
Provided
that the Borrowers and the Guarantor are in compliance with the provisions
of the Finance Documents to which they are respective parties (including,
but not limited to, the financial covenants set out in Clause 20
(Financial covenants)) both before and following such distributions, the
Borrowers may distribute dividends and make other distributions in
whatever form to their shareholder(s) without the prior written consent of
the Agent (on behalf of the
Lenders).
|
|
|
b)
|
The
Borrowers shall procure that the Guarantor shall
not:
|
|
|
(i)
|
make,
pay or declare any dividend or other distribution on or in respect of its
share capital;
|
|
|
(ii)
|
repay
or distribute any of its share premium
reserve;
|
|
(iii)
|
redeem,
repurchase or repay any of its share capital (or resolve to do
so);
|
|
(iv)
|
make
any loans (including intercompany loans, intercompany credits and
intercompany advances), grant any contributions, credit or any advances
(save for guarantees in the ordinary course of
business),
|
to
its shareholders.”
|
3.15
|
Amendments
to Clause 21.11 (Bank accounts) of the Original Facility
Agreement
|
The
current wording of Clause 21.11 (Bank accounts) shall be
deleted in its entirety and be replaced by the following wording:
“The
Borrowers shall hold and maintain all their bank accounts (hereunder the
Earnings Accounts and the Retention Account) with the Agent and/or Nordea Bank
Finland Plc London Branch and ensure that all Earnings are paid to the Earnings
Account.”
|
3.16
|
New
Clause 21.18 (Undertakings by the Guarantor) of the Original Facility
Agreement
|
A new
Clause 21.18 (Undertakings by the Guarantor) shall be incorporated in the
Original Facility Agreement with the following wording:
|
|
“The Borrowers shall procure
that the Guarantor shall raise a minimum of USD 7,000,000, of which
minimum USD 5,000,000 shall be raised by 31 May 2010 and the balance
amount up to USD 7,000,000 by 30 September 2010 to improve its liquidity
by any combination of one or more of the
following:
|
|
|
a)
|
new
equity (or other capital acceptable to the Agent (on behalf of the
Majority Lenders)); and/or
|
|
|
b)
|
sale
of one or more of the Guarantor’s assets, to generate sufficient free cash
ensuring that their budgeted expenses (including, but not limited to,
principal and interest payments towards its lenders) are covered until the
Final Maturity Date.
|
Subject
to the full reduction of the deferred scheduled reductions in Clause 6.2 a)(i)
and (ii) (Repayment of Loans), any capital raised in accordance with this Clause
21.18 shall not be included when calculating the Excess Cash to be mandatory
prepaid in accordance with Clause 6.3 (Mandatory reduction – Excess
Cash).”
|
3.17
|
New
Clause 21.19 (Trade debt payment report etc.) of the Original Facility
Agreement
|
A new
Clause 21.19 (Trade debt
payment report etc.) shall be incorporated in the Original Facility
Agreement with the following wording:
|
|
“a)
|
The
Borrowers shall procure the Agent with evidence (to be distributed to the
Lenders) on a monthly basis no later than five (5) Business Days after the
end of each calendar month, of the status of repayment of the trade debt
of the Guarantor (on a consolidated basis), first time on 7 January 2010
(for December 2009).
|
|
|
b)
|
Such
repayment of trade debt shall be in accordance with the payment schedule
outlined in the report prepared by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ and published
on the Intralinks on 25 November 2009 (the “Payment Report”) and so
that the third party trade debt as set out in the Payment Report shall be
repaid on 30 September 2010 at the latest, bringing the total acceptable
third party debt to maximum USD 3,500,000 and not above maximum USD
3,500,000 at any point thereafter.
|
|
|
c)
|
The
total third party outstanding trade debt of the Guarantor (on a
consolidated basis), shall at all times following 30 September 2010 be
maximum USD 3,500,000.
|
|
|
d)
|
If
the amount of Cash and Cash Equivalent of the Guarantor at the end of any
month until 30 September 2010 exceeds USD 5,000,000, such excess amount
(above USD 5,000,000) shall be used to repay the trade debt of the
Guarantor (on a consolidated basis) until the total third party debt is
maximum USD 3,500,000. Any such repayment of trade debt as set out in this
paragraph d) shall accelerate the repayment schedule as set out in the
Payment Report by a corresponding
amount.
|
|
|
e)
|
The
Lenders shall, at the cost of the Borrowers, appoint an adviser to provide
the Agent (on behalf of the Lenders) with confirmations with regard
to:
|
|
|
(i)
|
the
trade debt balance of the Guarantor (on a consolidated
basis);
|
|
|
(ii)
|
the
compliance with the provisions set out in paragraph a) to c)
above;
|
|
(iii)
|
commitments
and Financial Indebtedness of the Guarantor as set out in paragraph b) of
Clause 21.6 (Borrowings and guarantees);
and
|
|
(iv)
|
such
other information as the Agent (on behalf of the Lenders) may require from
time to time,
|
|
|
on
a monthly basis”.
|
|
3.18
|
New
Clause 21.20 (Repayment of debt under the Boss Tankers Loan Agreement) of
the Original Facility Agreement
|
A new
Clause 21.20 (Repayment of
debt under the Boss Tankers Loan Agreement) shall be incorporated into
the Original Facility Agreement with the following wording:
“The
Borrowers shall procure that the Guarantor and Boss Tankers Ltd. make no
prepayments and/or repayments (as the case may be) under the Boss Tankers Loan
Agreement other than:
|
|
a)
|
payments of Excess Cash as
provided for in Clause 6.3 (Mandatory prepayment – Excess Cash);
|
|
|
b)
|
payment
of a quarterly amount of USD 100,000, subject to (i) the reduction in full
of the deferred reductions as set out in paragraph a)(i) and (ii) of
Clause 6.2 (Repayment of Loan) and (ii) compliance with the requirements
in Clause 20.2.3 (Minimum value);
|
|
|
c)
|
payment
of the full outstanding balance of the loan under the Boss Tankers Loan
Agreement on 31 December 2011 provided that no prepayment or repayment
pursuant to this paragraph (c) shall be permitted to the extent that
such prepayment or repayment would be inconsistent with the first priority
status of the Security Documents granted in favour of the Agent and the
second priority status of the "Junior Mortgage Documents" as defined in
the Boss Tankers Co-ordination Agreement;
and
|
|
|
d)
|
in
the event of a Total Loss of a Vessel, prepayment of the Boss Tankers Loan
Agreement in an amount equal to such proportion of the advance then
outstanding under the Boss Tankers Loan Agreement as is attributable to
that Vessel, and for these purposes 20% of the actual outstanding balance
under the Boss Tankers Loan Agreement at the date of the Addendum No. 3 is
attributable to each of the five Vessels, however such prepayment always
being subject to (i) the receipt by the Lenders in full of the amount to
be prepaid pursuant to Clause 7.1 (Mandatory prepayment – Total Loss and
sale) in respect of such Total Loss of any of the Vessels and (ii) the
reduction in full of the deferred reductions as set out in paragraph a)(i)
and (ii) of Clause 6.2 (Repayment of
Loan).”
|
|
3.19
|
New
Clause 21.21 (Undertakings in respect of the Barge) of the Original
Facility Agreement
|
A new
Clause 21.21 (Undertakings in
respect of the Barge) shall be incorporated into the Original Facility
Agreement with the following wording:
|
|
“a)
|
The
Borrowers shall procure that the Guarantor and/or Straits Offshore Ltd.
shall, provide evidence satisfactory to the Agent (on behalf of the
Majority Lenders) of a satisfactory charter agreement and long term
financing of the Barge, at the earlier of 30 September 2010 and (b) one
(1) month prior to the delivery date of the Barge to Straits Offshore
Ltd.
|
|
|
b)
|
The
Borrowers shall procure that the other companies in the Group (including
the Guarantor (on a consolidated basis)) shall not incur any further
costs, expenses or capital expenses related to the Barge in the period
commencing on the Effective Date and ending on 30 June 2010, however
always subject to the compliance with the provisions of Clause 21.18
(Undertakings by the Guarantor).”
|
|
3.20
|
Amendments
to Clause 22.4 (Restrictions on chartering, appointment of Managers etc.)
of the Original Facility Agreement
|
The
current wording of Clause 22.4 (Restrictions on chartering,
appointment of Managers etc.) of the Original Facility Agreement shall be
deleted in its entirety and be replaced by the following:
|
|
“a)
|
The
Borrowers shall not without the prior written consent of the Agent (on
behalf of the Majority Lenders):
|
(i) let
the Vessels on bareboat charter for any period;
|
|
(ii)
|
enter
into any agreement related to the chartering and operation of any of the
Vessels exceeding twelve (12) months or any pooling arrangements related
to the Earnings of the Vessels;
|
|
|
(iii)
|
appoint
a technical manager for the Vessels other than the Technical Manager or
agree to any alteration to the terms of the Technical Management
Agreement;
|
|
(v)
|
change
the classification society of any of the Vessels;
or
|
|
(vi)
|
neither
terminate, cancel, amend (save for immaterial amendments which will have
no impact on the Borrowers’ ability to fulfil their obligations under the
Finance Documents) or supplement any of the Charterparties nor assign any
of the Charterparties to any other
person.
|
|
b)
|
The
Borrowers shall within 31 December 2010 or by 31 January 2011 at the
latest facilitate new charterparties for the Vessels or extension of the
existing Charterparties (which expires during 2011) by nine (9) months in
average, in any event at average rates for all Vessels sufficient to cover
the Borrowers’ budgeted expenses (including, but not limited to, principal
and interest payments towards their lenders) until the Final Maturity
Date.”
|
|
3.21
|
Amendments
to Clause 22.8 (Inspections and class records) paragraph a) of the
Original Facility Agreement
|
The
current wording of paragraph a) of Clause 22.8 (Inspections and class
records) of the Original Facility Agreement shall be deleted in its
entirety and be replaced by the following wording:
|
|
“a)
|
The
Borrowers shall permit, and shall procure that any charterers permit, one
person appointed by the Agent to inspect the Vessels twice a year for the
account of the Borrowers upon the Agent giving prior written
notice.”
|
|
3.22
|
Amendments
to Schedule 4 (Form of Compliance Certificate) of the Original Facility
Agreement
|
Schedule
4) (Form of Compliance
Certificate) of the Original Facility Agreement shall be deleted and
replaced in its entirety by Annex 2 (Schedule 4)
- Form of Compliance Certificate) to this Addendum.
|
4
|
REPRESENTATIONS
AND WARRANTIES
|
Each of
the Borrowers represents and warrants to the Finance Parties and the Swap Bank
on the Effective Date that:
|
a)
|
all
corporate actions required by it and its respective directors and officers
have been taken in order to authorize this Addendum and any Finance
Documents or other documents related hereto, and the execution and
performance thereof, in accordance with the laws of its constitution, and
this Addendum and any documents related hereto have been validly executed
and are binding upon the Borrowers;
|
|
b)
|
no
consent is necessary from any governmental or other authorities for the
execution of and performance under this Addendum or any documents related
hereto;
|
|
c)
|
the
making of this Addendum and any documents related hereto will not infringe
any other agreement to which it is a
party;
|
|
d)
|
nothing
has occurred in the period between 30 September 2009 and up until the
Effective Date which the Lenders could determine has had or could
reasonably be expected to have a material adverse effect on the ability of
any of the Borrowers or the Guarantor to comply with its obligations under
any of the Finance Documents or a Swap
Agreement;
|
|
e)
|
this
Addendum and the other Finance Documents to which it is a party constitute
valid, binding and enforceable obligations of the Borrowers, and the
execution and performance of this Addendum and the other Finance Documents
to which it is a party do not and will not contravene any applicable law,
order, regulation or restriction of any kind, including contractual
restrictions, binding on the
company;
|
|
f)
|
any
information and documentation supplied by or on behalf of it in connection
with the preparation of this Addendum was (taken as a whole) true,
complete and accurate in all material respect at the date
supplied;
|
|
g)
|
nothing
has occurred or come to light since the date such information or
documentation was supplied which renders any material facts contained in
such information and/or documentation inaccurate or
misleading;
|
|
h)
|
the
factual information provided by it to any of the Finance Parties was true
and accurate as at its date and no information has been omitted which, if
disclosed, would make the information provided untrue or misleading;
and
|
|
i)
|
the
representations and warranties as set out in Clause 18 (representations and
warranties) of the Original Facility Agreement are true and correct
in all respects.
|
|
5
|
CONTINUED
FORCE AND EFFECT
|
|
a)
|
The
provisions of the Original Facility Agreement and the other Finance
Documents shall, save as amended by this Addendum (and by separate
amendments to the relevant Finance Documents (if any)), continue in full
force and effect between the Parties and the Original Facility Agreement
and this Addendum shall be read and construed as one instrument with
effect from the Effective Date.
|
|
b)
|
Each
of the Borrowers hereby represents, warrants and confirms to and for the
benefit of the Finance Parties and the Swap Bank
that:
|
|
(i)
|
the
Security Interest created by the Security Documents to which it is a party
extend to the liabilities and obligations of the Borrowers under the
Original Facility Agreement as amended by this Addendum and the
obligations of the Borrowers arising under or in connection with this
Addendum, the Original Facility Agreement and the other Finance Documents
constitute obligations and liabilities secured under the Security
Documents; and
|
|
(ii)
|
the
Security Interest created or conferred under the Security Documents to
which it is a party continue in full force and effect on the terms of the
respective Security Document.
|
|
6
|
AMENDMENT
FEE
|
The
Borrowers shall pay an amendment fee of USD 187,000 to the Agent (for further
distribution to the Lenders on a pro rata basis) at the date of this
Addendum.
|
7
|
MISCELLANEOUS
|
|
a)
|
This
Addendum shall be a Finance
Document.
|
|
8
|
GOVERNING
LAW AND JURISDICTION
|
|
8.1
|
Governing
law
|
This
Addendum shall be governed by Norwegian law.
|
8.2
|
Jurisdiction
|
|
a)
|
The
Finance Parties and 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 Addendum, and the Borrowers accordingly
submit to the non-exclusive jurisdiction of the Oslo District Court (Oslo
tingrett).
|
|
b)
|
Nothing
in this Clause 8.2 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.
|
|
8.3
|
Service
of Process
|
Without
prejudice to any other mode of service, each of the Borrowers:
|
a)
|
irrevocably
appoints Wikborg Rein & Co., Kronprinsesse Märthas ▇▇▇▇▇ 1, ▇.▇. ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, as its agent for service of process
relating to any proceedings before the Norwegian courts in connection with
this Addendum or any other Finance
Documents;
|
|
b)
|
agree
that failure by its process agent to notify it or the process will not
invalidate the proceedings concerned;
and
|
|
c)
|
consent
to the service of process to any such proceedings before the Norwegian
courts by prepaid posting of a copy of the process to its address for the
time being applying under Clause 30 (Notices) of the
Original Facility Agreement.
|
***
SCHEDULE
1
ORIGINAL
PARTIES
PART I: ORIGINAL
BORROWERS
|
Name
|
Address
|
Ownership
|
|
OBO
Holdings Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
The
Guarantor (100%)
|
|
BHOBO
One Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
OBO
Holdings (100%)
|
|
BHOBO
Two Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
OBO
Holdings (100%)
|
|
BHOBO
Three Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
OBO
Holdings (100%)
|
|
RMJ
OBO Shipping Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
OBO
Holdings (100%)
|
|
Sagamore
Shipping Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇▇ (100%)
|
PART
II: ORIGINAL LENDERS
|
Lenders:
|
|
DVB Bank America NV of
Zeelandia Office Park, Kaya W.F.G., ▇▇▇▇▇▇▇ 14, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ Antilles
|
|
Bank of Scotland plc of
New Uberior House, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇
|
|
HSH Nordbank AG of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
|
|
Nordea Bank Norge ASA of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
|
|
Deutsche Schiffsbank AG
of [·]
|
|
UniCredit Bank AG (formerly
known as Bayerische Hypo- und Vereinsbank AG) of ▇▇▇▇▇ ▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
|
ANNEX 1
CONDITION
PRECEDENT DOCUMENTS
|
1
|
CORPORATE
DOCUMENTS – EACH BORROWER
|
|
a)
|
Certificate
of Incorporation or similar;
|
|
b)
|
Certificate
of Goodstanding;
|
|
c)
|
Memorandum
and Articles of Association or similar (including Secretary’s
certificate);
|
|
d)
|
Resolutions
passed at a board meeting/shareholders meeting of such Borrower
evidencing:
|
|
(i)
|
the
approval of the terms of, and the transactions contemplated by, inter alia, this
Addendum and the other Finance Documents;
and
|
|
(ii)
|
the
authorisation of its appropriate officer or officers or other
representatives to execute this Addendum and the Finance Documents and any
other documents necessary for the transactions contemplated by this
Addendum and the other Finance Documents, on its
behalf;
|
|
e)
|
Power(s)
of attorney (notarised if requested by the Agent);
and
|
|
f)
|
Specimen
signatures and certified copies of valid identification documents of its
authorised representatives referred to in d) above (“know your customer”)
(if applicable).
|
|
2
|
CORPORATE
DOCUMENTS – THE GUARANTOR
|
|
a)
|
Certificate
of Incorporation or similar;
|
|
b)
|
Certificate
of Goodstanding;
|
|
c)
|
Memorandum
and Articles of Association or similar (including Secretary’s
certificate);
|
|
d)
|
Resolutions
passed at a board meeting/shareholders meeting of the Guarantor
evidencing:
|
|
(i)
|
the
approval of the terms of, and the transactions contemplated by, inter alia, this
Addendum and the other Finance Documents;
and
|
|
(ii)
|
the
authorisation of its appropriate officer or officers or other
representatives to execute this Addendum and the Finance Documents and any
other documents necessary for the transactions contemplated by this
Addendum and the other Finance Documents, on its
behalf;
|
|
e)
|
Power(s)
of attorney (notarised if requested by the Agent);
and
|
|
f)
|
Specimen
signatures and certified copies of valid identification documents of its
authorised representatives referred to in d) above (“know your customer”)
(if applicable).
|
|
3
|
CORPORATE
DOCUMENTS – STRAITS OFFSHORE LTD., SEAPOWET TRADING LTD. AND [·]
|
|
a)
|
Certificate
of Incorporation or similar;
|
|
b)
|
Certificate
of Goodstanding;
|
|
c)
|
Memorandum
and Articles of Association or similar (including Secretary’s
certificate);
|
|
d)
|
Resolutions
passed at a board meeting/shareholders meeting of [·]
evidencing:
|
|
(i)
|
the
approval of the terms of, and the transactions contemplated by, inter alia, the
relevant Finance Document to which it is or is to become a party;
and
|
|
(ii)
|
the
authorisation of its appropriate officer or officers or other
representatives to execute the relevant Finance Documents and any other
documents necessary for the transactions contemplated by this Addendum and
the other Finance Documents, on its
behalf;
|
|
e)
|
Power(s)
of attorney (notarised if requested by the Agent);
and
|
|
f)
|
Specimen
signatures and certified copies of valid identification documents of its
authorised representatives referred to in d) above (“know your customer”)
(if applicable).
|
|
4
|
AUTHORISATIONS
|
All
approvals, authorisations and consents required by any government or other
authorities for any of the Borrowers, the Guarantor, Straits Offshore Ltd. and
Seapowet Trading Ltd. to enter into and perform its obligations under this
Addendum and the other Finance Documents to which it is a party.
|
5
|
FINANCE
DOCUMENTS
|
Each of
the following Finance Documents, duly signed:
|
a)
|
this
Addendum;
|
|
b)
|
an
addendum to the Guarantee;
|
|
c)
|
the
Share Pledge 1 and any documents to be delivered
thereunder;
|
|
d)
|
the
Share Pledge 2 and any documents to be delivered
thereunder;
|
|
e)
|
the
▇▇▇▇▇▇ Share Pledge and any documents to be delivered
thereunder;
|
|
f)
|
the
Retention Account Charge Agreement and any notices and acknowledgements to
be delivered thereunder;
|
|
g)
|
the
Safecom Assignment Agreement; and
|
|
h)
|
the
Charterparty Assignment (in respect of “▇▇▇▇▇ ▇. ▇▇▇▇▇”) and any notices
and acknowledgements thereunder.
|
|
6
|
TRANSACTION
DOCUMENTS
|
|
a)
|
The
▇▇▇▇▇▇ Co-ordination Agreement;
|
|
b)
|
The
Boss Tankers Co-ordination
Agreement;
|
|
c)
|
The
Safecom Co-ordination Agreement;
|
|
d)
|
The
Compliance Certificate (including updated Market Valuations of the
Vessels, not to be older than thirty (30) days);
and
|
|
e)
|
The
effective interest letter.
|
|
7
|
MISCELLANEOUS
|
|
a)
|
Appointment
of and the acceptance by Wikborg Rein & Co as the Borrowers and the
Guarantor as process agent in
Norway;
|
|
b)
|
Appointment
of and the acceptance by [·] as RMJ OBO Shipping
Ltd.’s process agent in England;
|
|
c)
|
Evidence
satisfactory to the Agent that the amendment fee as set out in Clause 6
(Amendment fee)
has been paid to the Agent;
|
|
d)
|
Evidence
satisfactory to the Agent that any costs and expenses incurred in
connection with this Addendum and/or any of the Finance Documents related
thereto, has been or will be paid in accordance with Clause 16.2 (Amendment and enforcement
costs etc) of the Original Facility
Agreement;
|
|
e)
|
Any
other documents as reasonably requested by the
Agent.
|
|
8
|
LEGAL
OPINIONS
|
|
a)
|
A
legal opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP relating to ▇▇▇▇▇▇▇▇ Islands
law issues;
|
|
b)
|
A
legal opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP relating to Liberian law
issues;
|
|
c)
|
A
legal opinion from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ related to Bahamas law
issues;
|
|
d)
|
A
legal opinion from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ related to British Virgin
Islands law issues;
|
|
e)
|
A
legal opinion from Prettys related to English law issues;
and
|
|
f)
|
A
legal opinion from Advokatfirmaet Thommessen AS relating to Norwegian law
issues; and
|
|
g)
|
Any
such other favourable legal opinions in form and substance satisfactory to
the Agent from lawyers appointed by the Agent on matters concerning all
relevant jurisdictions.
|
ANNEX 2
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. The Minimum Value Adjusted Equity of the Guarantor (on a
consolidated basis) was USD [•].
|
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall at
all times during the Security Period maintain a Minimum Value Adjusted Equity of
USD 30,000,000.
The
covenant set out in Clause 20.2.1 (Minimum Value Adjusted
Equity) is thus [not] satisfied.
|
b)
|
Positive working capital.
The working capital of the Guarantor (on a consolidated basis) was
[·].
|
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall at
all times following the delivery of the Compliance Certificate for the period
ending 30 June 2010, 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 20.2.2 (Positive working capital) is
thus [not] satisfied.
c) [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 be
one hundred and thirty-five per cent (135.00%) of the Loans at any
time.
The
covenant in Clause 20.2.3 (Minimum value) is thus [not]
satisfied.]
|
d)
|
Cash and Cash Equivalents.
The Cash and Cash Equivalent of the Guarantor (on a consolidated
basis) is [·].
|
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall at
any time in the period from the Effective Date and ending on the earlier of (i)
30 September 2010 and (ii) the delivery of the Barge to Straits Offshore Ltd.,
ensure that it has Cash and Cash Equivalents equal to or greater than USD
4,000,000 and at all times thereafter endure that the Guarantor (on a
consolidated basis) has Cash and Cash Equivalents equal to or greater than USD
6,000,000.
The
covenant in Clause 20.2.4 (Cash and Cash Equivalents) is
this [not] satisfied.
|
e)
|
Minimum Equity Ratio.
The Equity Ratio of the Guarantor (on a consolidated basis) is [·]%.
|
|
|
The
Borrowers shall procure that the Guarantor (on a consolidated basis) shall
at all times during the Security Period maintain a Equity Ratio of minimum
twenty-five per cent (25%).
|
|
|
The
covenant in Clause 20.2.5 (Minimum Equity Ratio)
is thus [not] satisfied.
|
|
f)
|
Insurance. We confirm
that each of the Vessels is insured against such risks and in such amounts
as set out in Appendix 1 hereto.
|
|
g)
|
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]
Appendix
1
|
Name
of Vessel
|
Hull
& Machinery
|
Increased
Value
|
Loss
of Hire
|
Protection
& Indemnity
|
War
Risk
|
|||||
|
M/V
“-Rip Hudner ”
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
|
MV
“▇▇▇▇▇▇
▇▇▇▇▇-
▇▇▇▇”
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
|
MV
“Searose G”
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
Insurer:
|
Amount:
|
|
MV
“▇▇▇▇▇ ▇. ▇▇▇▇▇”
|
||||||||||
|
MT
“Saga-more”
|
||||||||||
3656810/13
***
SIGNATORIES
|
The Borrowers:
|
The Agent:
|
|
OBO
Holdings Ltd.
By:
_________________________
Name:
Title:
|
Nordea Bank Norge
ASA
By:
_____________________________
Name:
Title:
|
|
The Arranger:
|
|
|
BHOBO
One Ltd.
By:
_________________________
Name:
Title:
|
Nordea
Bank Norge ASA
By:
_____________________________
Name:
Title:
|
|
BHOBO
Two Ltd.
By:
_________________________
Name:
Title:
|
|
|
BHOBO
Three Ltd.
By:
_________________________
Name:
Title:
|
|
|
RMJ
OBO Shipping Ltd.
By:
_________________________
Name:
Title:
|
3656810/13
|
Sagamore
Shipping Ltd.
By:
_________________________
Name:
Title:
|
|
The Lenders:
|
|
|
Nordea
Bank Norge ASA
By:
_________________________
Name:
Title:
|
DVB
Bank America NV
By:
_________________________
Name:
Title:
|
|
HSH
Nordbank AG
By:
_________________________
Name:
Title:
|
Bank
of Scotland plc
By:
_________________________
Name:
Title:
|
|
UniCredit
Bank AG (formerly known as
Bayerische
Hypo- und Vereinsbank AG)
By:
_________________________
Name:
Title:
|
Deutsche
Schiffsbank AG
By:
_________________________
Name:
Title:
|
|
The Swap Bank:
|
|
|
Nordea
Bank Finland Plc
By:
_________________________
Name:
Title:
|
We, B+H
Ocean Carriers Ltd. acknowledge the receipt of this Addendum, agree to the terms
and conditions set out herein and to be bound hereof and confirm that the
Guarantee issued by us, shall continue to be in full force and effect
guaranteeing the obligations and liabilities of the Borrowers under the Original
Facility Agreement as amended by this Addendum and any Swap
Agreement.
___
January 2010
B+H
Ocean Carriers Ltd.
By:
______________________
Name:
Title:
3656810/13