USD 202,000,000 REDUCING REVOLVING CREDIT FACILITY AGREEMENT for The Companies listed in Appendix 1 as Borrowers The Financial Institutions named herein as Lenders Nordea Bank Norge ASA as Mandated Lead Arranger and Nordea Bank Norge ASA as Agent and...
Exhibit 4.3(b)
Execution version
9
|
ADDENDUM
NO. 2
AND
WAIVER
AGREEMENT
to
|
|
USD
202,000,000
|
|
The
Companies listed in Appendix 1
as
Borrowers
|
|
The
Financial Institutions named herein
as
Lenders
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|
as
Mandated Lead Arranger
|
|
and
|
|
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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17
July 2009
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(1)
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THE COMPANIES listed in
Part I of Appendix 1 as
borrowers (together the “Borrowers”);
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(2)
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The banks and financial
institutions listed in Part II of Appendix
1, as 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. 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”).
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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 and as amended by addendum no. 1
dated 10 October 2008 (the “Original Facility
Agreement”) and made between the Borrowers, the Lenders, the
Arranger, the Agent, the Bookrunner, the Underwriter, the Co-Arrangers and
the Swap Bank (together the “Parties” and each of
them a “Party”)
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 asked for a waiver or amendments (as the case may be) of
certain of the provisions of the Original Facility Agreement;
and
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(C)
|
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, amongst others, the temporary waiver
of the provisions in Clause 20.2.1 (Minimum Value Adjusted Equity
Ratio) of the Original Facility
Agreement.
|
3371516/3
|
|
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
|
References
in the Original Facility Agreement to “this Agreement” shall, with
effect from the Effective Date be read and interpreted as references to the
Original Facility Agreement as amended by this Addendum (the “Amended Facility
Agreement”).
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1.2
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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)
|
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;
|
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d)
|
clause
headings are inserted for convenience of reference only and shall be
ignored in the interpretation of this Addendum;
and
|
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e)
|
capitalized
terms shall, unless otherwise provided herein, have the meaning attributed
to them in the Original Facility
Agreement.
|
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2
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CONDITIONS
PRECEDENT
|
The
Obligors shall deliver the documents and other evidence listed in Appendix 2 (Conditions precedent) hereto
to the Agent (on behalf of the Finance Parties) as soon as possible and in any
event within 10 August 2009 at the latest (all such documents and evidence to be
in form and substance acceptable to the Agent).
|
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 30 June 2009 (the “Effective Date”), be 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 hereby amended.
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3.2
|
Amendments
to Clause 1.1 (Definitions) of the Original Facility
Agreement
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a)
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The
definitions 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:
|
“Finance Documents” means,
collectively, this Agreement, the Addendum No. 1, the Addendum no. 2, any
Security Document and any other documents designated as such by the Agent and
the Borrowers.”
“Margin” means three point zero
per cent (3.0%) per annum.”
|
b)
|
The
following new definitions shall be inserted in Clause 1.1 (Definitions) of the
Original Facility Agreement:
|
“Addendum No. 2” means the
addendum no. 2 and waiver agreement to this Agreement dated 17 July 2009 and
made between the Borrowers and the Finance Parties.”
|
4
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AMENDMENTS
TO THE SECURITY DOCUMENTS
|
The
Security Documents shall (if required by the Agent acting on behalf of the
Finance Parties) be amended (in such form as approved by the Agent (on behalf of
the Finance Parties)) and/or new Security Documents shall be issued so as to
ensure that the amendments as set out in this Addendum will apply to the
Security Documents and so that the Security Interest created under the Security
Documents shall extend to the obligations of the Borrowers under the Amended
Facility Agreement.
|
5
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TEMPORARY
WAIVER
|
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5.1
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Temporary
waiver
|
Subject
to the conditions set out in Clause 5.2 (Conditions for temporary
waiver) below, the Finance Parties have agreed to the temporary waiver of
the following provisions of the Amended Facility Agreement in the period from 31
December 2008 and up until 1 January 2010 (the “Waiver Period”):
|
a)
|
Clause
20.2.1 (Minimum Value
Adjusted Equity Ratio) of the Amended Facility Agreement so that
the minimum Value Adjusted Equity Ratio of the Guarantor (on a
consolidated basis) shall be of minimum twenty per cent (20%) in the
Waiver Period.
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5.2
|
Conditions
for temporary waiver under Clause
5.1
|
The
temporary waiver granted to the Obligors as set out in Clause 5.1 (Temporary waiver) above is
subject to:
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a)
|
the
payment by the Borrowers of a waiver fee of USD 10,000 per Lender, payable
to the Agent (for distribution to the Lenders) payable at the date of this
Addendum;
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b)
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the
delivery by the Obligors of the documents and other evidence listed in
Appendix
2 (Conditions
precedent) hereto to the Agent (on behalf of the Finance Parties)
as soon as possible and in any event within 10 August 2009 at the latest;
and
|
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c)
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save
as set out in this Clause 5, the Agent and the Finance Parties reserve all
their rights to take any action available to any of them under the Finance
Documents which shall not be diminished in any way by the issue of the
temporary waiver set out in this Clause 5 or be interpreted in any way as
an approval, surrender or consent to any Event of
Default.
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6
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CONTINUED
FORCE AND EFFECT
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a)
|
The
provisions of the Original Facility Agreement and the other Finance
Documents shall, save as amended by this Addendum (and/or separate
amendments to any of the Security 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.
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b)
|
The
Security Interest created by the Security Documents to which any of the
Obligors is a party shall extend to the liabilities and obligations of the
Borrowers under the Amended Facility Agreement and the obligations arising
under or in connection with the Amended Facility Agreement and the
Security Documents constitute obligations secured under the Security
Documents.
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7
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GOVERNING
LAW AND ENFORCEMENT
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7.1
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Governing
law
|
This
Addendum shall be governed by Norwegian law.
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7.2
|
Jurisdiction
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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 each of the Borrowers
accordingly submit to the non-exclusive jurisdiction of the Oslo District
Court (Oslo
tingrett).
|
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b)
|
Nothing
in this Clause 7.2 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.
|
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7.3
|
Service
of process
|
Without
prejudice to any other mode of service, each of the Borrowers:
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a)
|
irrevocably
appoints Wikborg Rein & Co., Kronprinsesse Märthas ▇▇▇▇▇ 1, ▇.▇. ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ as its agent for service of process in
relation to any proceedings before Norwegian courts in connection with any
Finance Document; and
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b)
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agrees
that failure by its process agent to notify it of the process will not
invalidate the proceedings
concerned.
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8
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COUNTERPARTS
|
This
Addendum may be executed in counterparts.
***
APPENDIX
1
PART I: BORROWERS
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Name
|
Address
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|
OBO
Holdings Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|
BHOBO
One Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|
BHOBO
Two Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|
BHOBO
Three Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|
RMJ
OBO Shipping Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|
Sagamore
Shipping Ltd.
|
Trust
Company Complex, Ajeltake Island. Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
PART
II: LENDERS
|
Name
and address:
|
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DVB Bank America NV of
Zeelandia Office Park, Kaya W.F.G. ▇▇▇▇▇▇▇ 14, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ Antilles
|
|
The Governor and Company of the
Bank of Scotland of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
|
|
HSH Nordbank AG of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
|
|
Nordea Bank Norge ASA of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
|
|
Deutsche Schiffsbank AG
of [·]
|
|
Bayerische Hypo- und
Vereinsbank AG of [·]
|
3371516/3
APPENDIX
2
CONDITION
PRECEDENT DOCUMENTS
|
1
|
CORPORATE
AUTHORISATION – IN RESPECT OF EACH OF THE
OBLIGORS
|
|
a)
|
Certificate
of Incorporation/Certificate of Registration (or
similar);
|
|
b)
|
Memorandum
and Articles of Association/Bye-laws (or
similar);
|
|
c)
|
Resolutions
passed at a board meeting
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;
|
|
e)
|
Updated
Good Standing Certificate/Certificate of
Compliance;
|
|
f)
|
Secretary’s
Certificate (notarised);
|
|
g)
|
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph (c) above;
|
|
2
|
FINANCE
DOCUMENTS
|
|
a)
|
This
Addendum.
|
|
b)
|
Any
amendments to the Security Documents or new Security Documents (and any
perfection acts).
|
|
3
|
MISCELLANEOUS
|
|
a)
|
Evidence
that the fee referred to in paragraph a) of Clause 5.2 (Conditions for temporary
waiver under Clause 5.1) of this Addendum, has or will be paid on
its due date;
|
|
b)
|
Documentary
evidence that the agent for service of process named in Clause 7.2 (Service of Process) of
the Addendum, has accepted its appointment;
and
|
|
c)
|
Any
other documents as reasonably requested by the
Agent.
|
|
4
|
LEGAL
OPINIONS
|
|
a)
|
A
legal opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP relating to ▇▇▇▇▇▇▇▇ Islands
law issues;
|
|
b)
|
A
legal opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP relating to Liberian law
issues; and
|
|
c)
|
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.
|
***
SIGNATORIES
|
The
Borrowers:
|
|
|
OBO
Holdings Ltd.
|
BHOBO
One Ltd.
|
|
By:
_________________________________
|
By:
__________________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
BHOBO
Two Ltd.
|
BHOBO
Three Ltd.
|
|
By:
_________________________________
|
By:
__________________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
RMJ
OBO Shipping Ltd.
|
Sagamore
Shipping Ltd.
|
|
By:
_________________________________
|
By:
__________________________________
|
|
Name:
|
Name:
|
|
The
Lenders:
|
|
|
Nordea
Bank Norge ASA
|
DVB
Bank America NV
|
|
By:
_________________________________
|
By:__________________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
The
Governor and Company of the Bank of Scotland
|
HSH
Nordbank AG
|
|
By:
_________________________________
|
By:__________________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
Deutsche
Schiffsbank AG
|
Bayerische
Hypo- und Vereinsbank AG
|
|
By:
_________________________________
|
By:
_________________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
The
Agent:
|
The
Arranger:
|
|
Nordea
Bank Norge ASA
|
Nordea
Bank Norge ASA
|
|
By:
_________________________________
|
By:__________________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
The
Bookrunner:
|
The
Underwriter:
|
|
Nordea
Bank Norge ASA
|
Nordea
Bank Norge ASA
|
|
By:
_________________________________
|
By:__________________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
The
Co-Arrangers:
|
|
|
HSH
Nordbank AG
|
The
Governor and Company of the Bank of Scotland
|
|
By:
_________________________________
|
By:__________________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
DVB
Bank America NV
|
|
|
By:
_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
The
Swap Bank:
|
|
|
Nordea
Bank Finland Plc
|
|
|
By:
_________________________________
|
|
|
Name:
|
|
|
Title:
|
17 July
2009
We, B+H
Ocean Carriers Ltd., agree to the above and confirm that the Guarantee shall
continue to be in full force and effect and guarantee the obligations of the
Borrowers under the Amended Facility Agreement.
We
confirm that the Security Interest created by the Security Documents to which
the Guarantor is a party extend to the liabilities and obligations of the
Borrowers under the Amended Facility Agreement and the obligations arising under
or in connection with the Amended Facility Agreement and the Security Documents
constitute obligations secured under the Security Documents.
B+H
Ocean Carriers Ltd.
By:
_______________________
Name:
Title:
3371516/3