ADDENDUM NO. 2 to LOAN AGREEMENT dated 19th December, 2008
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ADDENDUM
NO. 2
to
dated
19th
December, 2008
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made
between
NORDDEUTSCHE
LANDESBANK GIROZENTRALE
as
Lender, Mandated Lead Arranger and Agent
THE
TWELVE LIMITED PARTNERSHIPS
AS
MORE CLOSELY DESCRIBED HEREIN
as
jointly and severally liable Borrowers
12
A.H.T.S. Vessels
built
by Fincantieri Cantieri Navali S.p.A.
THIS ADDENDUM NO. 2 IS MADE THIS
24th DAY OF JANUARY, 2010 between
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(1)
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NORDDEUTSCHE
LANDESBANK GIROZENTRALE, a banking institution organized and existing
under the laws of Germany having its registered offices at Xxxxxxxxxxxxxx
00, 00000 Xxxxxxxx, Xxxxxxx (sometimes "NORD/LB" or the "Mandated Lead
Arranger" or the "Agent", as the case may be), and
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(2)
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The
Lenders set forth in Schedule 1 attached hereto (the
“Lenders”)
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and
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(3)
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ATL
OFFSHORE GMBH & CO. MS "JUIST" KG (the "Borrower
1"),
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(4)
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ATL
OFFSHORE GMBH & CO. MS "NORDERNEY" KG (the "Borrower
2"),
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(5)
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ATL
OFFSHORE GMBH & CO. "ISLE OF BALTRUM" KG (the "Borrower
3"),
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(6)
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ATL
OFFSHORE GMBH & CO. "ISLE OF LANGEOOG" KG (the "Borrower
4"),
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(7)
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ATL
OFFSHORE GMBH & CO. "ISLE OF AMRUM" KG (the "Borrower
5"),
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(8)
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ATL
OFFSHORE GMBH & CO. "ISLE OF SYLT" KG (the "Borrower
6"),
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(9)
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ATL
OFFSHORE GMBH & CO. "ISLE OF WANGEROOGE" KG (the "Borrower
7"),
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(10)
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ATL
OFFSHORE GMBH & CO. "ISLE OF NEUWERK" KG (the "Borrower
8"),
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(11)
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ATL
OFFSHORE GMBH & CO. "ISLE OF USEDOM" KG (the "Borrower
9"),
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(12)
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ATL
OFFSHORE GMBH & CO. "ISLE OF FEHMARN" KG (the "Borrower
10"),
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(13)
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ATL
OFFSHORE GMBH & CO. "ISLE OF MEMMERT" KG (the "Borrower
11"),
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(14)
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ATL
OFFSHORE GMBH & CO. "ISLE OF XXXXXX" KG (the "Borrower
12")
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| each of them a limited partnership incorporated and existing under the laws of Germany having its registered office at Xxxx Xxx. 00, 00000 Xxxx, Xxxxxxx (collectively the "Borrowers", and each one of them a "Borrower"), as jointly and severally liable borrowers on the other part. |
WHEREAS pursuant to the terms
and conditions of a loan agreement dated 19th
December, 2008 (as amended by an addendum no. 1 dated 17th
September, 2010 the "Loan Agreement"), made between the Lenders as lenders and
the Borrowers as jointly and severally liable borrowers, the Lenders have agreed
to grant to the Borrowers loans in the aggregate maximum amount of Euros four
hundred twenty million five hundred seventy thousand (EUR 420,570,000.00) (the
"Loan") (i) for the part-financing of the construction price of twelve A.H.T.S
Vessels built or to be built at FINCANTIERI CANTIERI NAVALI ITALIANI S.P.A. of
Genoa, Italy, (the “Builder”), (ii) for the issuing of certain payment
guarantees to the Builder and (iii) to enable the Borrowers to postpone the
repayment of part of the Loan.
WHEREAS pursuant to a loan
agreement dated 6th
December, 2010 (the “WC Agreement”) made between the Agent as lender and the
Borrowers as borrowers, the Agent has agreed to grant the Borrowers a loan in
the amount of up to Euros ten million (EUR 10,000,000.00) (the “WC Facility”) to
strengthen the Borrowers’ working capital.
1
WHEREAS pursuant to the last
sentence of clause 2.3 of the Loan Agreement the Borrowers have no further right
or claim under the Loan Agreement for the utilization of the Commitment not yet
drawn down in the total amount of EUR 15,005,500.00.
WHEREAS upon request of the
Borrowers, the Lenders are willing to agree to certain amendments of the Loan
Agreement subject to the terms and conditions of this Addendum No.
2.
NOW THEREFORE in consideration
of the premises herein contained and other good and valid considerations herein
recited, the parties hereto agree as follows:
| 1. | DEFINITIONS |
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1.1.
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Expressions
defined in the Loan Agreement shall have the same meaning when used in
this Addendum No. 2, unless defined otherwise herein or unless the context
does not permit so.
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1.2.
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Any
term as defined in this Addendum No. 2 shall apply to the Loan Agreement
unless the context does not permit so.
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1.3.
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Where
the context of this Addendum No. 2 allows so, words importing the singular
include the plural and vice versa. Clause headings in this Addendum No. 2
are for ease of reference only and shall not affect the construction
thereof.
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1.4.
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Unless
the context does not allow so, references to "Clauses" are to clauses of
this Addendum No. 2. References to any contract or other instrument or
document include any amendment or supplement thereto.
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| 2. | AMENDMENTS TO THE LOAN AGREEMENT |
With
effect from the date hereof, the Loan Agreement shall be amended as
follows:
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2.1.
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Mandatory Prepayment
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In
addition to the stipulations of clause 9 of the Loan Agreement, after (i)
full repayment of the WC Facility to the satisfaction of the Lenders and
after (ii) either (a) the commitment termination date under the WC
Agreement has occurred or (b) the Borrowers have waived their rights for
re-borrowing under clause 9.2 of the WC Agreement, the Borrowers shall
make a mandatory prepayment of twenty (20) percent of their annual
earnings after tax (equalling the annual turnover less operating expenses
of the Vessels less debt service under the Loan Agreement less ten (10)
percent dividend payout in relation to the paid-in share-capital and less
any taxes to be paid by the Relevant Borrowers) in accordance with clause
9 of the Loan Agreement, being due and payable on the 31st July
of each year until all amounts outstanding under the Credit Facility have
been repaid in full.
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2.2.
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Asset Protection
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In
alteration of clause 18 of the Loan Agreement, the outstanding balance of
the WC Facility shall be added to the outstanding balance of the Tranches
LT when calculating the loan-to value-ratio in accordance with clause 18
of the Loan Agreement.
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2.3.
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Change in Corporate
Structure
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The
Equity Provider 2 has transferred a part of its shares in each of the
Borrowers to the Manager and the Pool Manager. Therefore, the definition
of the term “Equity Provider 2” shall be amended and read as
follows:
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“Equity
Provider 2
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Together
the Corporate Guarantor and the Manager and the Pool Manager or any of
them or an affiliated company of the Corporate Guarantor accepted by the
Agent”.
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2
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2.4.
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Representations and
Warranties
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In
alteration of clause 17.1.16 of the Loan Agreement, the Borrowers
represent and warrant to and for the benefit of the Lenders that (i) the
Equity Provider 2 shall be and remain a limited partner (Kommanditist) of
each of the Borrowers, such Equity Provider 2 holding at least twenty five
(25) percent of each of the Borrower's share capital, and (ii) Xx. Xxxxx
Xxxxxxxx is the sole shareholder of (a) NH Beteiligungen
Geschäftsführungs-GmbH of Leer, Germany, being the sole general partner of
NH Beteiligungen GmbH & Co. KG of Leer, Germany and (b) NH
Beteiligungen GmbH & Co. KG of Leer, Germany, being the sole
shareholder of the General Partner.
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2.5.
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Covenants regarding Corporate
Structure
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2.5.1.
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In
alteration of clause 19.5.1 of the Loan Agreement, the Borrowers undertake
to the Lenders that during the Security Period they will not without the
prior written consent of the Agent allow any change in any of the
Borrowers’ corporate or shareholder structure to the effect that the
Equity Provider 2 holds less than twenty five (25) percent of the shares
of each of the Borrowers or to the effect that any of the Borrowers ceases
to be a limited partnership.
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2.5.2.
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In
alteration of clause 19.5.2 of the Loan Agreement, the Borrowers undertake
to the Lenders that during the Security Period they will not without the
prior written consent of the Agent allow any change of the General Partner
or any change in the General Partner's corporate or shareholder structure
without (i) promptly informing the Agent in detail prior to any such
proposed change in writing and (ii) agreeing with the Agent any amendments
to this Agreement in respect of e.g. margin, term, security or any other
terms.
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2.5.3.
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In
addition to the stipulations of clause 19.5 of the Loan Agreement, the
Borrowers undertake to procure that any of the entities referred to in the
definition of the term Equity Provider 2 shall provide the Agent with an
undertaking that it will not sell any of the its shares in any of the
Borrowers without the Agent’s prior written consent, in the form attached
hereto as New Exhibit.
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2.6.
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Event of
Default
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2.6.1.
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In
addition to the stipulations of clause 22 of the Loan Agreement, it shall
constitute an Event of Default if the General Partner changes its
corporate and/or shareholder structure as described in Clause 17.1.16 of
the Loan Agreement (as amended hereby) without the Agent’s prior written
consent
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2.6.2.
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In
addition to the stipulations of clause 22 of the Loan Agreement, it shall
further constitute an Event of Default if any of the entities referred to
in the definition of the term Equity Provider 2 sells any of its shares in
any of the Borrowers without the Agent’s prior written
consent.
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2.6.3.
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In
deviation of clauses 22.1.16 and 22.1.17 of the Loan Agreement, it shall
constitute an Event of Default if
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2.6.3.1.
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the
Equity Provider 1 ceases to be a limited partner (Kommanditist) of each of
the Borrowers (except for Borrower 10, Borrower 11, and Borrower 12)
holding at least seventy five (75) percent of each of the Borrowers’
(except for Borrower 10, Borrower 11 and Borrower 12) share capital,
unless (i) the Equity Provider 1 transfers its shares in the Borrowers to
any entity referred to in the definition of the term Equity
Provider 2 or an affiliated company of thereof accepted by the Agent or
(ii) the Equity Provider 1 transfers its shares in the Borrowers to
another third party accepted by the Agent;
and
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2.6.3.2.
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the
Equity Provider 2 ceases to hold at least twenty five (25) percent of the
shares of each the Borrowers or if any of the Borrowers ceases to be a
limited partnership.
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3.
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EFFECTIVENESS
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This
Addendum No. 2 shall become effective on the date hereof.
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4.
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COSTS
AND EXPENSES
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All costs
and expenses of the Lenders, in case of external services engaged in connection
with this Addendum No. 2 upon presentation of a copy of the relevant invoice,
incurred under or in connection with this Addendum No. 2 shall be borne by the
Borrowers including without limitation expenses for external attorneys or other
persons commissioned by any of the parties hereto for any action required by it
under or in connection with this Addendum No. 2 and expenses incurred by any of
the parties hereto in connection with the preparation, execution and carrying
out of this Addendum No. 2 (including any stamp, documentary, registration or
other like duties and Taxes, fees and charges), translations and legal opinions
(if any).
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5.
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SEVERABILITY
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In the
event that this Addendum No. 2 or any provision thereof 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 Addendum
No. 2, such documents and instruments as a whole and in such case the parties
shall execute and deliver such other and further agreements and/or documents
and/or instruments and such things as the Lenders in their sole discretion may
deem to be necessary to carry out the original intent of the parties to this
Addendum No. 2.
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6.
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CONTINUING
VALIDITY OF THE LOAN AGREEMENT
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Save as
amended by this Addendum No. 2 and such further instruments and documents as
shall be necessary to give effect to the terms of this Addendum No. 2, the Loan
Agreement shall remain unaltered and in full force and effect. In case of
conflicts between the provisions of the Loan Agreement and this Addendum No. 2,
the provisions of this Addendum No. 2 shall prevail.
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7.
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APPLICABLE
LAW AND JURISDICTION
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The terms
and conditions set out in this Addendum No. 2 shall be governed by and construed
in accordance with German law and the Borrowers submits to the jurisdiction of
the courts of Hannover, Germany. However, the Lenders reserve the right to
choose as place of jurisdiction any place where any of the Borrowers has any
assets or any place of business.
5
IN WITNESS WHEREOF the parties
hereto have caused this Addendum No. 2 to be signed by their duly authorized
attorneys the day and year first above written.
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THE
LENDERS:
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SIGNED
by
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Xxxx
Xxxxxx
and
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Xxxxxx
Xxxxxx
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)
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for
and on behalf of
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NORDDEUTSCHE
LANDESBANK
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)
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GIROZENTRALE
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)
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/s/ Xxxx Xxxxxx /s/ Xxxxxx
Xxxxxx
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THE
BORROWERS
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SIGNED
by
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Xxxxx
Xxxxxxxxx
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)
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for
and on behalf of
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/s/ Xxxxx
Xxxxxxxxx .
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ATL
OFFSHORE GMBH & CO. MS "JUIST" KG
ATL
OFFSHORE GMBH & CO. MS "NORDERNEY" KG
ATL
OFFSHORE GMBH & CO. "ISLE OF BALTRUM" KG
ATL
OFFSHORE GMBH & CO. "ISLE OF LANGEOOG" KG
ATL
OFFSHORE GMBH & CO. "ISLE OF AMRUM" KG
ATL
OFFSHORE GMBH & CO. "ISLE OF SYLT" KG
ATL
OFFSHORE GMBH & CO. "ISLE OF WANGEROOGE" KG
ATL
OFFSHORE GMBH & CO. "ISLE OF NEUWERK" KG
ATL
OFFSHORE GMBH & CO. "ISLE OF USEDUM" KG
ATL
OFFSHORE GMBH & CO. "ISLE OF FEHMARN " KG
ATL
OFFSHORE GMBH & CO. "ISLE OF MEMMERT" KG
ATL
OFFSHORE GMBH & CO. "ISLE OF XXXXXX" KG
6
ACKNOWLEDGEMENT AND
UNDERTAKING
We hereby
confirm to have full knowledge of this Addendum No. 2 and to agree to its
contents.
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THE
CORPORATE GUARANTOR
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Signed
by
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Xxxxx
Xxxxxxxxx
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)
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REEDEREI
XXXXXXXX
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)
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GMBH
& CO. KG
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/s/ Xxxxx
Xxxxxxxxx
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7
NEW
EXHIBIT
UNDERTAKING
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____________________
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_________________,
Germany
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To:
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NORDEUTSCHE
LANDESBANK GIROZENTRALE
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Shipping
and Aircraft Finance Department
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Xxxxxxxxxxxxxx
00
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00000
Xxxxxxxx
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Xxxxxxx
Xxxxxxxx of Germany
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Fax: x00-000-0000000
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__________________,20__
Loan
agreement dated 19th
December, 2008 (as amended by the addendum no. 1 dated 17th
September, 2010 and by an addendum no. 2 dated 24th
January, 2011 the “Loan Agreement”) made between, inter alia, you as agent and
twelve limited partnerships of Leer, Germany (the “Borrowers” as more closely
defined therein)
Dear
Sirs,
We,
__________________of ____________________, Germany, being an entity referred to
in the definition of the term “Equity Provider 2” in the Loan Agreement, hereby
undertake not to sell any of our shares in any of the Borrowers without your
prior written consent.
Sincerely,
____________________
____________________
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SCHEDULE
1
LIST
OF LENDERS AND PARTICIPATION
10
11
