seapowetaddendum1.htm


  Exhibit 4.4(b)

    
      
         


      

      
         


        
          

        

      

      
         


        
          


          Execution copy
9

        

      

    


    
      	
              ADDENDUM
      NO. 1

              AND

              WAIVER
      AGREEMENT

              to

               

            
	
              USD
      8,000,000

              TERM
      LOAN FACILITY AGREEMENT

            
	 
      
	
              for

            
	 
      
	
              Seapowet
      Trading Ltd.

              as
      Borrower

            
	 
      
	 
      
	
              and

            
	 
      
	
              Nordea Bank Norge
      ASA

              as
      Lender

            
	 
      
	 
      
	 
      
	 
      
	 
      
	 
      
	 
      
	
              17
      July 2009

            
	 
      
	 
      


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    THIS ADDENDUM
NO. 1 AND WAIVER
AGREEMENT                                                                                                           (the
“Addendum”) is dated
17 July 2009
and made between:

     

    
      	
              (1)

            	
              Seapowet Trading Ltd.,
      of Marshall Islands with its business address at 3rd
      Floor Par La Place, 14 Par La Ville Road, Hamilton HM 08 Bermuda as
      borrower (the “Borrower”);
      and

            


    

     

    
      	
              (2)

            	
              Nordea Bank Norge ASA of
      Middelthunsgate 17, N-0368 Oslo, Norway, 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 (the “Original Facility
      Agreement”) and made between the Borrower and the Lender (together
      the “Parties” and
      each of them a “Party”) relating to a
      certain term loan facility for an aggregate amount of USD
      8,000,000;

            


    

     

    
      	
              (B)

            	
              The
      Borrower has asked for a waiver or amendments (as the case may be) of
      certain of the provisions of the Original Facility Agreement;
      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, amongst others, the temporary waiver
      of the provisions in Clause 20.2.1 (Minimum Value Adjusted Equity
      Ratio) of the Original Facility
  Agreement.

            


    

     

    


     

    
      	
               
      

            	
              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” 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”).

     

    
      	
              1.2  

            	
              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 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;

            


    

     

    
      	
              d)  

            	
              clause
      headings are inserted for convenience of reference only and shall be
      ignored in the interpretation of this Addendum;
  and

            


    

     

    
      	
              e)  

            	
              capitalized
      terms shall, unless otherwise provided herein, have the meaning attributed
      to      them in the Original Facility
      Agreement.

            


    

     

     

    
      	
              2  

            	
              CONDITIONS
      PRECEDENT

            


    

     

    The
Borrower shall deliver the documents and other evidence listed in Appendix 1 (Conditions precedent) hereto
to Lender 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 Lender).

     

     

    
      	
              3  

            	
              AMENDMENTS
      TO THE ORIGINAL FACILITY AGREEMENT

            


    

     

    
      	
              3.1  

            	
              General

            


    

     

    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.

     

    
      	
              3.2  

            	
              Amendments
      to Clause 1.1 (Definitions) of the Original Facility
    Agreement

            


    

     

    
      	
              a)  

            	
              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, any Security Document and any
other documents designated as such by the Lender and the Borrower.”

     

     “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. 1” means the
addendum no. 1 and waiver agreement to this Agreement dated 17

     

     July
2009 and made between the Borrower and the Lender.”

     

     

    
      	
              4  

            	
              AMENDMENTS
      TO THE SECURITY DOCUMENTS

            


    

     

    The
Security Documents shall (if required by the Lender) be amended (in such form as
approved by the Lender) 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 Borrower under the Amended
Facility Agreement.

     

     

    
      	
              5  

            	
              TEMPORARY
      WAIVER

            


    

     

    
      	
              5.1  

            	
              Temporary
      waiver

            


    

     

    Subject
to the conditions set out in Clause 5.2 (Conditions for temporary
waiver) below, the Lender has 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.

            


    

     

    
      	
              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:

     

    
      	
              a)  

            	
              the
      payment by the Borrower of a waiver fee of USD 10,000, payable to the
      Lender payable at the date of this
Addendum;

            


    

     

    
      	
              b)  

            	
              the
      delivery by the Borrower of the documents and other evidence listed in
      Appendix
      1 (Conditions
      precedent) hereto to the Lender as soon as possible and in any
      event within 10 August 2009 at the latest;
and

            


    

     

    
      	
              c)  

            	
              save
      as set out in this Clause 5, the Lender reserves all its rights to take
      any action available to it 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.

            


    

     

     

    
      	
              6  

            	
              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/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.

            


    

     

    
      	
              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
      Obligors 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.

            


    

     

     

    
      	
              7  

            	
              GOVERNING
      LAW AND ENFORCEMENT

            


    

     

    
      	
              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
      submits 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 plass 1, P.O. Box
      1513 Vika, N-0117 Oslo, Norway as its agent for service of process in
      relation to any proceedings before Norwegian courts in connection with any
      Finance Document; and

            


    

     

    
      	
              b)  

            	
              agrees
      that failure by its process agent to notify it of the process will not
      invalidate the proceedings
concerned.

            


    

     

     

    
      	
              8  

            	
              COUNTERPARTS

            


    

     

    This
Addendum may be executed in counterparts.

     

    ***

     

    APPENDIX
1

     

    


     

    CONDITION
PRECEDENT DOCUMENTS

     

     

    
      	
              1  

            	
              CORPORATE
      AUTHORISATION – IN RESPECT OF THE
BORROWER

            


    

     

    
      	
              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
  Lender.

            


    

     

     

    
      	
              4  

            	
              LEGAL
      OPINIONS

            


    

     

    
      	
              a)  

            	
              A
      legal opinion from Seward & Kissel LLP relating to Marshall Islands
      law issues;

            


    

     

    
      	
              b)  

            	
              A
      legal opinion from Seward & Kissel LLP relating to Liberian law
      issues; and

            


    

     

    
      	
              c)  

            	
              Any
      such favourable legal opinions in form and substance satisfactory to the
      Lender from lawyers appointed by the Lender on matters concerning all
      relevant jurisdictions.

            


    

     

    ***

     

    SIGNATORIES

     

    


     

    
      	
              The
      Borrower:

            	 
      
	
              Seapowet
      Trading Ltd.

            	
              Nordea
      Bank Norge ASA

            
	
               

               

               

              By:
      _________________________________

            	
               

               

               

              By:
      __________________________________

            
	
              Name:

            	
              Name:

            
	
              Title:

            	
              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
Borrower 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
Borrower 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:

     


    
      
        
           

          3371819/3