EXHIBIT 2.37
AMENDMENT NO. 1 TO AMENDED AND RESTATED REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED REIMBURSEMENT
AGREEMENT (this "Amendment") is made as of the ____ day of May, 1999 among
BARRINGTON (AUSTRALIA) PTY LIMITED (ACN 080 850 559) ("Barrington") and
PALMERSTON (AUSTRALIA) PTY LIMITED (ACN 080 850 586) ("Palmerston" and with
Barrington collectively referred to as the "Original Borrowers"), each a company
organized and existing under the laws of New South Wales, Commonwealth of
Australia, and VSSI AUSTRALIA LIMITED, a company organized and existing under
the laws of the Republic of Liberia ("VSSI Australia" and with the Original
Borrowers collectively referred to as the "Borrowers"), VSSI TRANSPORT INC., a
company organized and existing under the laws of the Republic of Liberia ("VSSI
Transport" and with the Borrowers collectively referred to as the "Owners") and
ALLIANCE CHARTERING PTY LIMITED (ACN 080 850 540) ("Alliance") a company
organized and existing under the laws of New South Wales, Commonwealth of
Australia, as account parties ("Alliance" and with the Owners individually
referred to as an "Obligor" and collectively as the "Obligors"), the BANKS
listed on the signature pages thereof and any additional banks as may have
become a party thereto pursuant to Clause 8 thereto (the "Banks") and NEDSHIP
BANK (AMERICA) N.V., as agent (in such capacity, the "Agent") and security
trustee (in such capacity, the "Security Trustee") (the "Agreement") which
Agreement amends several loans and restates that certain reimbursement agreement
dated December 17, 1997 (the "Original Reimbursement Agreement") made among,
inter alia, the Original Borrowers, Palmstar Thistle Inc., a company organized
and existing under the laws of the Republic of Liberia, Alliance, certain of the
Banks, the Agent and the Security Trustee.
WITNESSETH THAT:
WHEREAS, pursuant to the Agreement, the Agent issued an Amended Letter of
Credit;
WHEREAS, the Borrowers have requested, and the Lenders have agreed, to
amend Section 6.1(h) of the Agreement;
NOW, THEREFORE, in consideration of the premises and such other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties, it is hereby agreed as follows:
1. Definitions. Unless otherwise defined herein, words and expressions
defined in the Agreement shall bear the same meanings ascribed thereto in the
Agreement.
2. Representations and Warranties. Each of the Borrowers hereby reaffirm,
as of the date hereof, each and every representation and warranty made thereby
in the Agreement, the Note and the Security Documents to which it is a party
(updated mutatis mutandis).
3. No Defaults. Each of the Borrowers hereby represent and warrant that as
of the date hereof 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.
4. Performance of Covenants. Each of the Borrowers hereby reaffirms that it
has duly performed and observed the covenants and undertakings set forth in the
Agreement, the Note and the Security Documents to which it is a party, on its
part to be performed, and covenants and undertakes to continue to duly perform
and observe such covenants and undertakings, as amended hereby, so long as the
Agreement shall remain in effect.
5. Amendment to the Agreement. Subject to the terms and conditions of this
Amendment, the Agreement is hereby amended and supplemented as follows: (a) The
existing Section
6.1(h) is deleted and replaced by the following: 6.1(h) Change of Control.
There is, without the prior written consent of the Majority Lenders, (i) any
change in the legal or beneficial stock ownership or voting control of any of
the Obligors or (ii) any pledge of the shares of the capital stock of any of the
Obligors in favor of a party other than the Security Trustee or (iii) a Change
of Control in respect of the Guarantor;
(b) The following definition of "Change of Control" is inserted in Section
1.1 immediately following the definition of "Borrowers": "means such time as
(i)(a) prior to the Merger less than a majority of the issued and outstanding
shares of capital stock of the Guarantor are legally and beneficially owned by
the Cirrus Trust and the JTK Trust and (b) after the Merger, a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
other than the Cirrus Trust or the JTK Trust becomes the ultimate "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the
total voting power of the outstanding shares of stock of the Guarantor; or (ii)
individuals who at the beginning of any period of two consecutive years
constituted the Board of Directors (together with any new directors whose
election by the Board of Directors or whose nomination by the Board of Directors
for election by the Guarantor's stockholders was approved by a vote of at least
two-thirds of the members of the Board of Directors then in office who either
were members of the Board of Directors on the date of the closing hereunder or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a t least 50% of the members of the Board of Directors
then in office";
(c) The following definition of "Exchange Act" is inserted in Section 1.1
immediately following the definition of "Event(s) of Default": "means the
Securities and Exchange Act of 1934, as amended";
(d) The following
definition of "Merger" is inserted in Section 1.1 immediately following the
definition of "Materials of Environmental Concern": "means the consummation of
the transaction announced by the Guarantor on March 29, 1999 pursuant to which
the Guarantor shall acquire the outstanding capital stock of Bona Shipholding
Ltd."
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 Amendment were included therein by way of
addition or substitution, as the case may be.
7. Note. By the execution and delivery of this Amendment, each of the
Borrowers hereby consents and agrees that (a) the Note shall remain in full
force and effect notwithstanding the amendment contemplated hereby, and (b) all
references in the Note to the Agreement shall be deemed to refer to the
Agreement as amended by this Amendment.
8. Fees and Expenses. The Borrowers jointly and severally agree to pay
promptly all costs and expenses (including reasonable legal fees) of the Agent
and any Lender in connection with the preparation and execution of this
Amendment.
9. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
10. Counterparts. This Amendment may be executed in as many counterparts as
may be deemed necessary or convenient, and by the different parties hereto on
separate counterparts each of which, when so executed, shall be deemed to be an
original but all such counterparts shall constitute but one and the same
agreement.
11. Headings; Amendment. In this Amendment, Clause headings are inserted
for convenience of reference only and shall be ignored in the interpretation of
this Amendment. This agreement cannot be amended other than by written agreement
signed by the parties hereto.
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment
by its duly authorized representative on the day and year first above written.
BARRINGTON (AUSTRALIA) PTY LIMITED
(ACN 080 850 559)
By ___________________________
Name:
Title:
PALMERSTON (AUSTRALIA) PTY LIMITED
(ACN 080 850 586)
By ___________________________
Name:
Title:
VSSI AUSTRALIA LIMITED
By ___________________________
Name:
Title:
VSSI TRANSPORT INC.
By ___________________________
Name:
Title:
ALLIANCE CHARTERING PTY LIMITED
By ___________________________
Name:
Title:
THE BANK OF NEW YORK
By ___________________________
Name:
Title:
NEDSHIP BANK (AMERICA) N.V.
as Agent, Security Trustee and Bank
By ___________________________
Name:
Title:
LANDESBANK SCHLESWIG-HOLSTEIN
By ___________________________
Name:
Title:
01029.004 #92149
CONSENT, AGREEMENT AND REAFFIRMATION
The undersigned hereby consents and agrees to all of the terms
and conditions of the Amendments dated the date hereof to each of (i) the Loan
Facility Agreement dated December 18, 1997 between Barrington (Australia) Pty
Limited and Palmerston (Australia) Pty Limited, as Borrowers and Rabo Australia
Limited, as Lender and (ii) the Loan Facility Agreement between VSSI (Australia)
Limited as Borrowers and Rabo Australia Limited as Lender dated April 17, 1998,
and hereby reaffirms its obligations under its Guaranties dated December 18,
1997 and April 17, 1998 executed in connection with the aforementioned Loan
Facility Agreements.
IN WITNESS WHEREOF, the undersigned has caused this Consent,
Agreement and Reaffirmation to be executed as of this _____ day of May, 1999.
NEDSHIP BANK (AMERICA) N.V.
By _______________________
Name:
Title:
01029.004 #92149