Contract
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REVISED
12
A.H.T.S. Vessels
built
by Fincantieri Cantieri Navali S.p.A.
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EHLERMANN
XXXXXXXXXXX
XXXXX
RECHTSANWÄLTE
PARTNERSCHAFT
XXXXXXXXXX
00, 00000 XXXXXXX
TELEFON
+49 40 37 48 14 – 0
TELEFAX
-49 40 37 48 14 – 30
INTERNET
XXX.XXX-XXXXX.XXX
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between
NORDDEUTSCHE
LANDESBANK GIROZENTRALE
Hannover,
Germany
and
XXXXXXXX
ASIA HOLDING PTE LTD
Singapore
and
ATL
Offshore GmbH & Co. “ISLE OF USEDOM” KG
Leer,
Germany
This
INTERCREDITOR AGREEMENT is made the 31st day of
August, 2010 between
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(1)
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NORDDEUTSCHE LANDESBANK
GIROZENTRALE, a banking institution organized and existing under
the laws of the Federal Republic of Germany, having its registered office
at Xxxxxxxxxxxxxx 00, 00000 Xxxxxxxx, Xxxxxxx, (the “Senior Lender’),
and
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(2)
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XXXXXXXX ASIA HOLDING PTE
LTD, a company organised and existing under the laws of Singapore,
having its registered address at 0 Xxxxx Xxxxxx Xxxx, Xxxx Xxxxxx Xxxxxx
#00 - 18/19/20/21, Xxxxxxxxx 000000 (the “Junior Lender’),
and
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(3)
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ATL OFFSHORE GMBH & CO.
“ISLE OF USEDOM” KG, a limited partnership organised and existing
under the laws of the Federal Republic of Germany, and each having its
registered address at Xxxx Xxxxxx 00, 00000 Xxxx, Xxxxxxx (the
“Borrower”).
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WHEREAS
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I.
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Pursuant
to the terms of a loan agreement dated 19th
December, 2008 (as from time to time amended, varied or supplemented the
“Senior Loan Agreement”) made between the Senior Lender as lender and as
agent for the lenders stipulated therein and the Borrowers and certain
further limited partnerships as borrowers as more closely specified in the
Senior Loan Agreement, the Senior Lender agreed to grant - inter alia -
(A) a post-delivery loan of up to the lesser of (i) Euros four hundred
twenty million five hundred seventy thousand (EUR 420,570,000.00) or (ii)
seventy five (75) percent of the Investment Costs (as defined in the
Senior Loan Agreement), or any balance thereof outstanding from time to
time and (B) a post-delivery revolving credit facility of up to Euros
eighty one million one hundred fourteen thousand (EUR 81,114,000.00), to,
inter alia, the Borrowers for the purpose of - inter alia - assisting the
Borrowers in financing the acquisition cost of certain A.H.T.S.
newbuildings as more closely specified in Annex 1 attached hereto
(collectively the “Vessels” and any of them a “Vessel”);
and
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II.
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Pursuant
to the terms and conditions of the Senior Loan Agreement the Senior
Liabilities (as defined below) were made available on the security - inter
alia - of:
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A.
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a
first ranking hypothec over the relevant Vessels in favour of the Senior
Lender executed by the relevant Borrower (the “First Hypothecs”),
and
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B.
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first
priority assignments of the insurances and the earnings of each of the
Vessels and of the refund guarantees and the building contracts relating
to each of the Vessels and of payment guarantees by Reederei Xxxxxxxx GmbH
& Co. KG of Leer, Germany (together the “Assignments”) made between
the relevant Borrower and the Senior Lender;
and
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C.
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pledges
of earnings accounts (the “Pledges”) made between the Borrower and the
Senior Lender
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(the
First Hypothecs, the Assignments, and the Pledges are hereinafter together
referred to as the “Senior Security”); and
1
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III.
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The
Borrower has requested the Senior Lender to consent to the execution of
loan agreements (the “Junior Loan Agreements” as further defined below)
between the Junior Lender as lender and the Borrowers as borrower each for
a loan of up to United States Dollars twenty six million four hundred
thousand (USD 26,400,000.00) or the equivalent in Euros;
and
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IV.
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Pursuant
to the terms and conditions of the Junior Loan Agreements the Junior
Liabilities (as further defined below) are to be incurred without any
security.
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V.
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The
Senior Lender agrees to the execution of the Junior Loan Agreements on the
terms and subject to the conditions hereinafter
contained.
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NOW
THEREFORE IT IS HEREBY AGREED in consideration of the premises as
follows:
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1.
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DEFINITIONS
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The terms
used in this Agreement shall be defined as follows:
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Banking
Day
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A
day on which dealings in Euros are carried out in the relevant Interbank
Market and on which banks are open for business in Frankfurt, Hannover,
London, Milan and New York
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Creditors
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The
Senior Lender and the Junior Lender
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Debt
Documents
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This
Agreement, the Senior Loan Agreement, the Junior Loan Agreements and the
Security Documents
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Enforcement
Action
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(a)In
respect of any Liabilities
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(i)the
acceleration of any Liabilities or the making of any declaration that any
Liabilities are prematurely due and payable
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(ii)the
suing for, commencing or joining of any legal or arbitration proceedings
against any member of the Group to recover any Liabilities;
and
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(iii)the
exercise of any right of set off, account combination or payment netting
against any Borrower in respect of any Liabilities
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(b)
the taking of any steps to enforce or require the enforcement of any
Security Documents
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(c)
the petitioning, applying or voting for, or the taking of any steps
(including the appointment of any liquidator, receiver, administrator or
similar officer) in relation to, the winding up, dissolution,
administration or reorganisation of any member of the Group which owes any
Liabilities, or has given any Security, guarantee, indemnity or other
assurance against loss in respect of any of the Liabilities, or any of
such member of the Group’s assets or any suspension of payments or
moratorium of any indebtedness of any such member of the Group, or any
analogous procedure or step in any
jurisdiction,
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2
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Group
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Collectively
the Borrower and XXXXXXXX ASIA HOLDING PTE LTD, Singapore, and Reederei
Xxxxxxxx GmbH & Co. KG
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Junior
Default
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An
event of default under any of the Junior Loan
Agreements
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Junior
Liabilities
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The
Liabilities owed by the Borrowers to the Junior Lender under or in
connection with the Junior Loan Agreements
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Junior
Loan
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An
amount of United States Dollars twenty six million four hundred thousand
(USD 26,400,000.00) or the equivalent in Euros made or to be made
available under each of the Junior Loan Agreement by way of intercompany
loans.
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Junior
Loan Agreements
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The
junior loan agreements dated 31st
August, 2010 and made between each of the Borrowers and the Junior Lender
in the form attached hereto as Annex 2
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Liabilities
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All
present and future liabilities and obligations at any time of any Borrower
to any Creditor under any of the Debt Documents, both actual and
contingent and whether incurred solely or jointly or in any other capacity
together with any of the following matters relating to or arising in
respect of those liabilities and obligations:
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(a)
any refinancing, novation, deferral or extension;
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(b)
any claim for breach of representation, warranty or undertaking or on an
event of default or under any indemnity given under or in connection with
any document or agreement evidencing or constituting any other liability
or obligation falling within this definition;
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(c)
any claim for damages or restitution; and
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(d)
any claim as a result of any recovery by any debtor of a Payment an the
grounds of preference or otherwise,
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and
any amounts which would be included in any of the above but for any
discharge, non provability, unenforceability or non allowance of those
amounts in any insolvency or other
proceedings.
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3
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Payments
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In
respect of any Liabilities (or any other liabilities or obligations), a
payment, prepayment, repayment, redemption, defeasance or discharge of
those Liabilities (or other liabilities or obligations)
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Permitted
Payment
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The
Payments permitted by Clause 3.1 and by Clause 4.2
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Security
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A
mortgage, charge, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement having a
similar effect
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Security
Documents
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(a)
each of the documents constituting the Senior Security;
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(b)
any other document entered into at any time by any of the Borrowers or
other member of the Group creating any guarantee, indemnity, security or
other assurance against financial loss in favour of any of the Creditors
as security for any of the Liabilities; and
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(c)
any security granted under any covenant for further assurance in any of
the documents set out in paragraphs (a) and (b) above.
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Senior
Discharge Date
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The
date on which all Senior Lenders Liabilities have been fully and finally
discharged to the satisfaction of the Senior Lender, whether or not as the
result of an enforcement, and the Senior Lender is under no further
obligation to provide financial accommodation to any of the Borrowers
under the Senior Loan Agreement
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Senior
Lenders Liabilities
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The
Liabilities owed by the Borrowers to the Senior Lender under or in
connection with the Senior Loan Agreement
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2.
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RANKING
AND PRIORITY
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2.1
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Creditors’
Liabilities
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Each of
the parties agrees that the Liabilities owed by the Borrowers to the Creditors
shall rank in right and priority of payment in the following order as
follows:
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·
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first,
the Senior Lender’s Liabilities and
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·
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second,
the Junior Liabilities.
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4
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3.
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SENIOR
LENDER AND SENIOR LENDER’S
LIABILITIES
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3.1
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Payment
of Senior Lender’s Liabilities
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The
Borrowers may make payments in fulfilment of the Senior Lender’s Liabilities at
any time in accordance with the Senior Loan Agreement.
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3.2
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Amendments
and Waivers: Senior Lender
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The
Senior Lender may amend or waive the terms of the Senior Loan Agreement and the
Security Documents at any time.
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4.
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JUNIOR
LENDER AND JUNIOR LIABILITIES
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4.1
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Restriction
on Payment
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The
Borrowers shall not and shall procure that no other member of the Group will,
make any Payments of the Junior Liabilities at any time unless that Payment is
permitted under Clause 4.2.
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4.2
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Permitted
Payments
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The
Borrowers may:
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(a)
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prior
to the Senior Discharge Date, make Payments to the Junior Lender in
respect of the Junior Liabilities then due in accordance with the Junior
Loan Agreements only if the Senior Lender has given its prior written
consent to that Payment.
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(b)
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on
or after the Senior Discharge Date, make Payments to the Junior Lenders in
respect of the Junior Liabilities in accordance with the Junior Loan
Agreements.
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4.3
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Amendments
and Waivers
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(a)
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Subject
to paragraph (b) below, the Junior Lender may amend or waive the terms of
the Junior Loan Agreement in accordance with their terms at any
time.
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(b)
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Prior
to the Senior Discharge Date, the Junior Lender may not without the Senior
Lender’s prior written consent amend or waive the terms of the Junior Loan
Agreement if the amendment or waiver is, in relation to the original form
of or the contents of the terms and conditions of the Junior Loan
Agreement:
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(i)
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an
increase of the principal amount of the Junior Loan or any of
them;
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(ii)
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an
amendment to, or waiver of, the amount, currency, dates or terms of
repayment or prepayment (mandatory or otherwise) of the Junior
Loan;
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5
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(iii)
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any
other amendment or waiver the effect of which is to make any Borrower
liable to make additional or increased Payments;
or
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(iv)
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an
amendment or waiver:
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(A)
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which
would result in any Borrower being subject to more onerous obligations
under the representations, undertakings, financial covenants or events of
default; and
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(B)
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which
has not been made to, or given in respect of, the Senior Loan
Agreement.
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4.4
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Security
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At any
time prior to the Senior Discharge Date, the Junior Lenders may not take, accept
or receive from any Borrower or any member of the Group the benefit of any
Security, guarantee, indemnity or other assurance against loss in respect of the
Junior Liabilities.
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4.5
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Restriction
on Enforcement
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Subject
to Clause 4.6, no Junior Lender shall be entitled to take any Enforcement Action
in respect of any of the Junior Liabilities prior to the Senior Discharge
Date.
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4.6
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Permitted
Enforcement
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Prior to
the Senior Discharge Date, the Junior Lender may take Enforcement Action
available to it in respect of any of the Junior Liabilities only if the Senior
Lender has given its prior written consent.
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4.7
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No
Set-Off
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Prior to
the Senior Discharge Date neither the Borrower nor the Junior Lender may,
without the Senior Lender’s prior written consent, discharge any Junior
Liabilities by way of set-off.
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5.
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CHANGE
OF SENIOR LENDER OR JUNIOR LENDER
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5.1
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Transfer
by Senior Lender
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A Senior
Lender may assign any of its rights and benefits or transfer by novation any of
its rights, benefits and obligations in respect of any Debt Documents or the
Liabilities if any assignee or transferee has (if not already party to this
Agreement as a Senior Lender) acceded to this Agreement, as a Senior
Lender.
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5.2
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Transfer
by Junior Lender
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A Junior
Lender may assign any of its rights and benefits or transfer by novation any of
its rights, benefits and obligations in respect of any Debt Documents or the
Liabilities (i) if any assignee or transferee has (if not already party to this
Agreement as a Junior Lender) acceded to this Agreement, as a Junior Lender, and
(ii) only with the prior written consent of the Senior Lender.
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6.
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NOTIFICATION
OF PRESCRIBED EVENTS
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If a
Junior Default either occurs or ceases to be continuing the Borrowers and/or the
Junior Lender shall, upon becoming aware of that occurrence or cessation, notify
the Senior Lender thereof in writing.
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7.
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APPLICABLE
LAW, JURISDICTION
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The terms
and conditions set out in this Agreement shall unless otherwise specifically
provided be governed by and construed in accordance with the laws of the Federal
Republic of Germany and the Junior Lender and the Borrowers submit to the
jurisdiction of the courts in Hannover, Federal Republic of
Germany.
Nothing
in this Clause shall affect the right of the Senior Lender to serve process in
any manner permitted by law or limit the right of the Lenders to proceed against
the Junior Lender and/or Borrowers or any of them in any other
jurisdiction.
The
Junior Lender agrees that any writ, notice of judgment or other legal process or
document in connection with such proceeding may be served upon Reederei Xxxxxxxx
GmbH & Co. KG, at Xxxxxxxxxxx 00, 00000 Xxxx, Xxxxxxx.
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8.
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INVALIDITY
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In the
event that this Agreement or any provision hereof or any of the documents or
instruments which may from time to time be delivered hereunder or any provision
thereof shall be deemed invalid by present or future law of any nation or by
decision of any court this shall not affect the validity of this Agreement, such
documents and instruments as a whole and in such case the parties hereto shall
execute and deliver such other and further agreements and/or documents and/or
instruments and such things as the Senior Lender in its reasonable discretion,
may deem to be necessary to carry out the original intent of the parties to this
Agreement.
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9.
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NOTICES
AND TIME
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9.1
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Addresses
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Any
notice or other communication to be given pursuant hereto shall be by letter or
registered letter or telefax and addressed
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- if to
the Borrower. to
ATL
Offshore GmbH & Co. “ISLE OF USEDOM” KG
c/o
HARTMANN OFFSHORE GMBH & CO. KG
Xxxx
Xxxxxx 00
00000
Xxxx
Xxxxxxx
Fax: x00-000-0000000
- if to
the Senior Lender, to:
NORDDEUTSCHE
LANDESBANK GIROZENTRALE
Shipping
and Aircraft Finance Department
Xxxxxxxxxxxxxx
00
00000
Xxxxxxxx
Xxxxxxx
Xxxxxxxx of Germany
Fax: x00-000-0000000,
- if to
the Junior Lender, to
XXXXXXXX
ASIA HOLDING PTE LTD
0 Xxxxx
Xxxxxx Xxxx
Xxxx
Xxxxxx Xxxxxx #00 - 18/19/20121
Xxxxxxxxx
000000
Fax: x00-0000-0000
or to
such other address as either party may notify to the other in
writing.
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9.2
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Form
of Communicating
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Communications
sent by telefax shall be effective when sent and if sent by letter shall be
effective on receipt. Any communication by telefax from a party to
the relevant other party/ies shall be confirmed by letter if so requested by the
relevant party and the relevant party may (in its absolute discretion) refuse to
act on any such communication pending receipt of such letter.
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9.3
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Receipt
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A notice
or other communication received an a day which is not a Banking Day or after
business hours in the place of receipt on a Banking Day shall be deemed to be
served on the next following Banking Day in such place.
(remainder
of page left blank intentionally)
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In
witness whereof this Agreement has been executed by the parties hereto the day
and year first before written.
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The
Senior Lender:
SIGNED
by:
Xxxxxx
Xxxxxx and
Xxxx
Xxxxxx
for
and on behalf of
NORDDEUTSCHE
LANDESBANK
GIROZENTRALE
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)
)
)
)
)
)
)
)
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/s/ Xxxxxx Xxxxxx /s/
Xxxx Xxxxxx
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The
Junior Lender:
SIGNED
by:
__________________
and
______________________
for
and on behalf of
XXXXXXXX
ASIA HOLDING PTE LTD
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)
)
)
)
)
)
)
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/s/
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The
Borrowers:
SIGNED
by:
Xxxxx
Xxxxxxxxx
for
and on behalf of
ATL
OFFSHORE GMBH & CO. “ISLE OF USEDOM” KG
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)
)
)
)
)
)
)
)
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/s/ Xxxxx
Xxxxxxxxx
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9
Annex 1
List
of Vessels
10
Annex 2
Form
of Junior Loan Agreements
11
