LIMITED WAIVER AND CONSENT AGREEMENT
Exhibit 4.16
This LIMITED WAIVER AND CONSENT
AGREEMENT (this “Waiver”), dated as of
April 20, 2010 is made by and between HSH Nordbank AG, New York Branch (“HSHN”)
and Straits Offshore Ltd. (“Straits”).
WHEREAS,
reference is made to that certain Letter of Credit Facility Agreement dated as
of July 31, 2008 between Straits and HSHN (as amended from time to time, the
“Agreement”; capitalized terms shall have the meanings assigned in the Agreement
unless otherwise defined herein); and
WHEREAS,
Straits has requested that HSHN waive compliance with certain requirements under
Section 7.3(d) of the Agreement, as set forth below;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Section
1. Consent and
Waiver.
HSHN
confirms that, with effect on 30 September 2009, it has waived the requirement
under Section 7.3(d) of the Agreement that Guarantor has on a consolidated basis
Cash and Cash Equivalents equal to the greater of $15,000,000 and 6% of long
term debt. Instead, Section 7.3(d) shall provide as
follows:
“(d) Cash and Cash
Equivalents. ensure that it has, on a consolidated basis, at
any time in the period beginning on 30 September 2009 and ending on 30 September
2010, Cash and Cash Equivalents equal to or greater than USD 4,000,000, and at
all times thereafter equal to or greater than USD 6,000,000.”
Section
2. Representations and
Warranties.
Straits
represents and warrants to HSHN that immediately after giving effect to the
terms of this Waiver, the representations and warranties set forth in the
Agreement as amended hereby are true and correct, and there exists no Event of
Default or any condition which, with the giving of notice or passage of time, or
both, would constitute an Event of Default.
Section
3. Covenants.
Straits
hereby affirms that it has duly performed and observed the covenants and
undertakings set forth in the Agreement, and covenants and undertakes to
continue to duly perform and observe such covenants and undertakings, as amended
hereby, so long as the Agreement as amended hereby shall remain in effect,
subject to the following qualifications or
exceptions: None.
Section
4. Fees and
Expenses. Straits agrees to pay to HSHN, upon the execution
hereof, an initial fee of USD 64,462.50 (being 0.25% of the amount of the Letter
of Credit) in connection with its review and processing of the waiver request
and the preparation and execution of this Waiver. Straits will pay an
additional fee to HSHN promptly following execution and delivery of this Waiver,
such fee to be in an amount determined by the parties in good
faith.
Section
5. Conditions
Precedent. The effectiveness of this Waiver is subject to the
following conditions precedent:
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(a)
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Execution and
Delivery. Straits shall have duly executed and delivered
this Waiver to HSHN;
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(b)
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Consent, Agreement and
Affirmation. The Guarantor shall have duly executed and
delivered the Consent, Agreement and Affirmation attached hereto;
and
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(c)
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Corporate
Authority. HSHN shall have received an officer’s
certificate in form and substance satisfactory to HSHN and its counsel
that evidences approval of this Waiver and authorizes an appropriate
officer or officers or attorney-in-fact or attorneys-in-fact to execute
the same on its behalf;
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Section
6. No Other
Amendment. All other terms and conditions of the Agreement
shall remain in full force and effect and the Agreement shall be read and
construed as if the terms of this Waiver were included therein by way of
addition or substitution, as the case may be.
Section
7. Execution in
Counterparts. This Waiver may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
Section
8. Governing
Law. THIS WAIVER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO
CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 AND 5-1402 OF THE
NEW YORK GENERAL OBLIGATIONS LAW).
Section
9. Severability
. Any
provision of this Waiver held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions of this Waiver; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
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IN
WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
STRAITS
OFFSHORE, LTD.,
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By:___________________________________
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Name:
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Title:
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HSH
NORDBANK AG, NEW YORK BRANCH
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By:___________________________________
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Name
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Title:
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By:___________________________________
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Name:
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Title:
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CONSENT, AGREEMENT AND
AFFIRMATION
The
undersigned, referred to in the Agreement as a “Guarantor”, hereby (i) consents
and agrees to all of the terms and conditions of the foregoing Waiver dated as
of April 20, 2010 amending that certain Letter of Credit Facility Agreement,
dated as of July 31, 2008 (as amended, the “Agreement”), between STRAITS
OFFSHORE LTD., a company incorporated under the laws of the British Virgin
Islands, as account party (“Straits”) and HSH NORDBANK AG, NEW YORK BRANCH, as
letter of credit provider (“HSHN”); and (ii) reaffirms its obligations under
that certain Guaranty, dated July 31, 2008, given in favor of HSHN and that
certain Pledge Agreement, dated July 31, 2008, given in favor of HSHN with
respect to a pledge of the common shares of Straits, as all such instruments
have been amended.
B+H OCEAN
CARRIERS LTD.,
as
Guarantor
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By:
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Name:
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Title:
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SK 16279 0020 914275 v2
