USD 8,000,000 TERM LOAN FACILITY AGREEMENT for Seapowet Trading Ltd. as Borrower and Nordea Bank Norge ASA as Lender
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ADDENDUM
NO. 2
to
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USD
8,000,000 TERM LOAN FACILITY AGREEMENT
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for
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Seapowet Trading
Ltd. as Borrower
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and
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Nordea Bank Norge
ASA as Lender
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THIS ADDENDUM NO. 2 (the
“Addendum”) is dated ___
January 2010 and made between:
(1) Seapowet Trading Ltd., of
Xxxxxxxx Islands with its business address at 0xx Xxxxx Xxx Xx Xxxxx, 14 Par La
Ville Road, Xxxxxxxx XX 08 Bermuda as borrower (the “Borrower”); and
(2) Nordea Bank Norge ASA of
Xxxxxxxxxxxxxxx 00, X-0000 Xxxx, Xxxxxx, organisation number 911 044 110, as
lender (the “Lender”).
WHEREAS:
(A) This
Addendum is supplemental to the USD 8,000,000 Term Loan Facility Agreement dated
5 September 2006 as amended by addendum no. 1 dated 17 July 2009 (together, the
“Original Facility
Agreement”) and made between the Borrower and the Lender, relating to a
certain term loan facility for an aggregate amount of USD
8,000,000;
(B) The
Borrower has requested and the Lender has agreed to certain amendments to be
made to the Original Facility Agreement, inter alia, to (i) amend the
financial covenants and (ii) amend certain other provisions of the Original
Facility Agreement and the Finance Documents; and
(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 the amendments set out above.
NOW IT IS HEREBY AGREED as
follows:
1
CONSTRUCTION AND INTERPRETATION
1.1
References to this Agreement
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.
1.2
Defined Expressions
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).
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, Annexes and Schedules are references, respectively, to
the Clauses, Annexes and Schedules of this Addendum;
c)
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;
d)
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
e) clause
headings are inserted for convenience of reference only and shall be ignored in
the interpretation of this Addendum.
2
CONDITIONS PRECEDENT
a) The
provisions of Clause 3 (Amendments to the Original Facility
Agreement) below shall be effective on ___ January 2010 (the “Effective Date”).
b) The
Borrower shall deliver to the Lender the documents and other evidence as listed
in Annex 1 (Conditions
precedent documents) in form and substance satisfactory to the Lender no
later than on the Effective Date.
3
AMENDMENTS TO THE ORIGINAL FACILITY AGREEMENT
3.1
General
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.
3.2
Amendments to Clause 1.1 (Definitions) of the Original Facility
Agreement
(i) 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:
““Finance Documents” means this
Agreement, the Addendum No. 1, the Addendum No. 2, the Security Documents and
any other document (whether creating a Security Interest or not) which is
executed at any time by the Borrower or any other person as security for, or to
establish any form of subordination to the Lender under this Agreement or any of
the other documents referred to herein or therein.
(ii) The
following new definitions shall be inserted in Clause 1.1 (Definitions) of the Original
Facility Agreement:
““Addendum No. 1” means the
addendum no. 1 to this Agreement dated 17 July 2009 and made between the parties
set out therein.
“Addendum No. 2” means the
addendum no. 2 to this Agreement dated ___ January 2010 and made between the
parties set out therein.
“Boss Tankers Facility
Agreement” means the loan agreement entered or to be entered into
between, among others, the Guarantor, Boss Tankers Ltd. and Bank of Scotland
plc.
“Co-ordination Agreement” means
the co-ordination agreement to be entered into between Nordea Bank Norge ASA (as
agent under the Senior Facility Agreement), the Lender, Bank of Scotland plc (as
lender under the Boss Tanker Facility Agreement) and the Borrower, in respect of
the Share Pledge Agreement, the Second Share Pledge Agreement and the Third
Share Pledge Agreement, in form and substance satisfactory to the
Lender.
“Effective Date” means ___
January 2010.
“Second Share Pledge Agreement”
means the share pledge agreement made or to be made between the Borrower and
Nordea Bank Norge ASA (in its capacity as agent under the Senior Facility
Agreement), for the second priority pledge over the Company Shares and any right
to receive dividends.
“Senior Facility Agreement”
means the reducing revolving credit facility agreement dated 29 August 2006 (as
amended from time to time) between, among others, OBO Holdings Ltd., BHOBO One
Ltd., BHOBO Two Ltd., BHOBO Three Ltd., RMJ OBO Shipping Ltd. and Sagamore
Shipping Ltd. (as borrowers), Nordea Bank Norge ASA (as agent) and the lenders
listed therein.
“Third Share Pledge Agreement” means
the share pledge agreement made or to be made between the Borrower and Bank of
Scotland plc (in its capacity as lender under the Boss Tankers Facility
Agreement), for the third priority pledge over the Company Shares and any right
to receive dividends.
“Transaction Documents” means
the Finance Documents, the Charterparty, the Co-ordination Agreement, the Second
Share Pledge Agreement, the Third Share Pledge Agreement and the Share Purchase
Agreement, together with the other documents contemplated herein or
therein.”
3.3
Amendments to Clause 1.2 (Construction) of the Original Facility
Agreement
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:
a)
Clause and Schedule headings are for ease of reference only;
b)
words denoting the singular number shall include the plural and vice
versa;
c)
references to Clauses and Schedules are references, respectively, to the Clauses
and Schedules of this Agreement;
d)
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;
e)
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;
f)
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;
g)
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
h) 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).”
3.4
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)
“Retention Account”
means account no. 6015.04.42640 with the Lender in the name of OBO Holdings
Ltd.
g)
“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 20.2.3
(Cash and Cash Equivalents).
h)
“Total Debt” means, on a
consolidated basis, the aggregate book value of all provisions, other long term
liabilities and current liabilities of the Borrower 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 20.2.3 (Cash and Cash
Equivalents).
i)
“Value Adjusted Equity”
means Value Adjusted Total Assets less Total Debt.
j)
“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 20.2.3 (Cash and Cash Equivalents).”
3.5
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
Borrower 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
Borrower 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
Cash and Cash Equivalents
The
Borrower 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.
20.2.4
Minimum Equity Ratio
The
Borrower 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%).”
3.6
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 the
Vessel nor upon any of its present or future undertakings, property, assets,
rights of revenues, other than:
a)
Security Interest under the Security Documents;
b)
the existing first priority mortgage in favour of Den Danske Skibskredit, the
second priority mortgage in favour of the Company, the Second Share Pledge
Agreement and the Third Share Pledge Agreement; and
c)
Security Interest arising in the ordinary course of business;
c)
Security Interest consented to in writing by the Lender.”
3.7
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
The
Borrower represents and warrants to the Lender on the Effective Date
that:
a) all
corporate actions required by it and its 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 Borrower;
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 Lender could determine has had or could reasonably be
expected to have a material adverse effect on the ability of the Borrower or the
Guarantor to comply with its obligations under any of the Finance
Documents;
e) this
Addendum and the other Finance Documents to which it is a party constitute
valid, binding and enforceable obligations of the Borrower, 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 the Lender 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) The
Borrower hereby represents, warrants and confirms to and for the benefit of the
Lender that:
(i) the
Security Interest created by the Security Documents to which it is a party
extend to the liabilities and obligations of the Borrower under the Original
Facility Agreement as amended by this Addendum and the obligations of the
Borrower 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
MISCELLANEOUS
a) This
Addendum shall be a Finance Document.
7
GOVERNING LAW AND JURISDICTION
7.1
Governing law
This
Addendum shall be governed by Norwegian law.
7.2
Jurisdiction
a) The
Lender and the Borrower 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 Borrower accordingly submit to the non-exclusive
jurisdiction of the Oslo District Court (Oslo tingrett).
b)
Nothing in this Clause 7.2 shall limit the right of the Lender to commence
proceedings against the Borrower in any other court of competent jurisdiction.
To the extent permitted by law, the Lender may take concurrent proceedings in
any number of jurisdictions.
7.3
Service of Process
Without
prejudice to any other mode of service, the Borrower:
a)
irrevocably appoints Wikborg Rein & Co., Kronprinsesse Märthas xxxxx 1, X.X.
Xxx 0000 Xxxx, X-0000 Xxxx, Xxxxxx, 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 27 (Notices) of the Original
Facility Agreement.
***
ANNEX 1 CONDITION PRECEDENT
DOCUMENTS
1
CORPORATE DOCUMENTS –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 the 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 Lender); 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 Lender); 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
AUTHORISATIONS
All
approvals, authorisations and consents required by any government or other
authorities for any of the Borrower and the Guarantor enter into and perform its
obligations under this Addendum and the other Finance Documents to which it is a
party.
4
FINANCE DOCUMENTS
Each of
the following Finance Documents, duly signed:
a) this
Addendum;
b) an
addendum to the Guarantee;
5
TRANSACTION DOCUMENTS
a) The
Co-ordination Agreement;
b) The
Compliance Certificate; and
c) The
effective interest letter.
6
MISCELLANEOUS
a)
Appointment of and the acceptance by Wikborg Rein & Co as the Borrower and
the Guarantor as process agent in Norway;
b)
Evidence satisfactory to the Lender 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; and
c) Any
other documents as reasonably requested by the Lender.
7
LEGAL OPINIONS
a) A
legal opinion from Xxxxxx & Xxxxxx LLP relating to Xxxxxxxx Islands law
issues;
b) A
legal opinion from Xxxxxx & Xxxxxx LLP relating to Liberian law
issues;
c) A
legal opinion from Advokatfirmaet Thommessen AS relating to Norwegian law
issues; and
d) Any
such other favourable legal opinions in form and substance satisfactory to the
Lender from lawyers appointed by the Lender on matters concerning all relevant
jurisdictions.
ANNEX 2 SCHEDULE 4 FORM OF COMPLIANCE
CERTIFICATE
To:
Nordea Bank Norge ASA, as Lender
From:
[]
Date: [•]
[To be delivered no later than
[one hundred and twenty (120) /forty-five (45)] days after each Reporting
Date]
USD
8,000,000 TERM LOAN FACILITY AGREEMENT DATED 5 SEPTEMBER 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 19.2 (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
Borrower 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
Borrower 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) Cash and Cash Equivalents. The
Cash and Cash Equivalent of the Guarantor (on a consolidated basis) is
[].
The
Borrower 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 20.2.3 (Cash and Cash Equivalents) is
this [not] satisfied.
e) Minimum Equity Ratio. The
Equity Ratio of the Guarantor (on a consolidated basis) is []%.
The
Borrower 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 20.2.4 (Minimum Equity Ratio) is thus
[not] satisfied.
F) 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 Seapowet Trading Ltd.
By:
__________________________________ Name: Title: [authorised
officer]
***
SIGNATORIES
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The
Borrower:
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The
Lender:
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|
Seapowet
Trading Ltd.
By:
_________________________ Name: Title:
|
Nordea Bank Norge
ASA 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 Borrower under the Original
Facility Agreement as amended by this Addendum.
___
January 2010
B+H Ocean Carriers
Ltd.
By:
______________________ Name: Title:
