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Clause
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Page No
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1
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INTERPRETATION
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1
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2
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AGREEMENT OF THE LENDER
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2
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3
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CONDITIONS PRECEDENT
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2
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4
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REPRESENTATIONS AND WARRANTIES
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4
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5
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AMENDMENTS TO LOAN AGREEMENT AND OTHER SECURITY DOCUMENTS
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4
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6
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FURTHER ASSURANCES
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12
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7
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FEES AND EXPENSES
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12
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8
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NOTICES
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13
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9
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SUPPLEMENTAL
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13
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10
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LAW AND JURISDICTION
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13
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| (1) |
DIAMANTIS SHIPOWNERS LTD. as borrower (the “Borrower”); and
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| (2) |
PIRAEUS BANK S.A as lender (the “Lender”).
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| (A) |
By a loan agreement dated 29 July 2019 (the “Loan Agreement”) and made between (1) the Borrower as borrower and (2) the Lender as lender, the Lender made available to the Borrower a term loan
facility of (originally) up to USD4,000,000 upon the terms and for the purposes therein specified, out of which USD3,186,300 remains outstanding.
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| (B) |
The Borrower has requested the Lender gives its consent to certain amendments to the Loan Agreement, including (inter alia):
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| (i) |
the rescheduling of the repayment of the Loan set out in clause 4.1.1 of the Loan Agreement;
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| (ii) |
an option to defer payment of the repayment instalment due on 30 October 2020 in accordance with clause 4.1.1 as same is due to be amended pursuant to the terms and conditions of this Supplemental Agreement;
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| (iii) |
the incorporation of a cash sweep mechanism to be applied for the financial year 2021 and thereafter throughout the Facility Period;
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| (iv) |
the waiver of the minimum liquidity required in accordance with clause 8.1.23 of the Loan Agreement until 30 June 2021; and
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| (v) |
the waiver of the Security Value maintenance requirement in accordance with clause 8.2.1 of the Loan Agreement until 30 June 2021.
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| (C) |
This Supplemental Agreement sets out the terms and conditions on which the Lender agrees, with effect on and from the Effective Date (as hereinafter defined), to the requests of the Borrower set out in Recital (B) and to the
consequential amendments to the Loan Agreement and the other Security Documents.
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| 1 |
INTERPRETATION
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| 1.2 |
Defined expressions. Words and expressions defined in the Loan Agreement shall have the same meaning when used in this Supplemental Agreement unless the context otherwise requires.
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| 1.3 |
Definitions. In this Supplemental Agreement, unless the contrary intention appears:
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| 1.4 |
Application of construction and Interpretation provisions of Loan Agreement. Clauses 1.3 to 1.5 (inclusive) of the Loan Agreement apply, with any necessary modifications, to this Supplemental
Agreement.
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| 2 |
AGREEMENT OF THE LENDER
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| 2.1 |
Agreement of the Lender. The consent of the Lender to amend the Loan Agreement in accordance with Clause 5 is conditional upon:
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| 2.1.1 |
the Lender having received the documents and evidence specified in Clause 3.1 in form and substance satisfactory to the Lender;
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| 2.1.2 |
the representations and warranties contained in Clause 4 being then true and correct as if each was made with respect to the facts and circumstances existing at such time; and
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| 2.1.3 |
no Event of Default having occurred or will arise following the amendment of the Loan Agreement pursuant to this Supplemental Agreement.
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| 2.2 |
Effective Date. The agreement of the Lender contained in Clause 2.1 shall have effect on and from the Effective Date.
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| 2.3 |
Waiver by the Lender. With effect from the Effective Date, the Lender agrees to waive compliance by the Borrower of its obligations under clause 8.1.23 (Unencumbered
liquidity) and clause 8.2.1 (Security shortfall) each of the Loan Agreement up to and including 30 June 2021.
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| 3 |
CONDITIONS PRECEDENT
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| 3.1 |
Conditions Precedent. The conditions referred to in Clause 2.1 are that the Lender shall have received the following documents:
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| 3.1.1 |
certified copies of all documents which evidence or relate to the constitution of each Security Party and their current corporate existence;
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| 3.1.2 |
Corporate authorities
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| (a) |
a list of directors and officers of each Security Party specifying the names and positions of such persons, certified by an officer of such Security Party to be true, complete and up to date;
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| (b) |
(if required) originals of resolutions of the directors of each Security Party and shareholders of the Borrower approving such of this Supplemental Agreement and the Mortgage Addendum to which such Security Party is a party and
authorising the execution and delivery hereof and thereof and performance of the relevant Security Party’s obligations hereunder and thereunder, additionally certified by an officer of the relevant Security Party as having been duly passed
at a duly convened meeting of the directors and shareholders of such relevant Security Party and not having been amended, modified or revoked and being in full force and effect; and
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| (c) |
(if required) an original of any power of attorney issued by each Security Party pursuant to such resolutions stated above;
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| 3.1.3 |
Mortgage Addendum and registration
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| 3.1.4 |
Declaration of compliance / “know your customer”
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| (a) |
the Borrower has complied at all times and in all respects with (i) any relevant employment legislation and employment regulations applicable to it and (ii) all documentation required by the Lender in relation to the Lender’s “know your
customer” requirements; and
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| (b) |
the Corporate Guarantor and the Shareholder have complied at all times and in all respects with all documentation required by the Lender in relation to the Lender’s “know your customer” requirements;
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| 3.1.5 |
Further documents
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| 3.1.6 |
Laws of Marshall Islands/Liberia: opinion
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| 3.1.7 |
London agent
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| 3.1.8 |
Endorsement
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| 3.1.9 |
Amendment fee
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| 3.1.10 |
Further opinions, etc.
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| 3.2 |
Conditions Subsequent. The Borrower shall deliver or cause to be delivered to the Lender on,
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| 3.2.1 |
the process agent acceptance letter referred to in Clause 3.1.7, duly executed; and
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| 3.2.2 |
any further opinions, consents, agreements and documents in connection with this Supplemental Agreement which the Lender may reasonably request referred to in Clause 3.1.10.
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| 4 |
REPRESENTATIONS AND WARRANTIES
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| 5 |
AMENDMENTS TO LOAN AGREEMENT AND OTHER SECURITY DOCUMENTS
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| 5.1 |
Specific amendments to Loan Agreement. With effect on and from the Effective Date the Loan Agreement shall be, and shall be deemed by this Supplemental Agreement to be, amended as follows:
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| 5.1.1 |
by adding in Clause 1.2 thereof the definition of “Mortgage Addendum” contained in Clause 1.3 of this Supplemental Agreement;
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| 5.1.2 |
by deleting the definition of “FATCA Application Date” in clause 1.2 thereof;
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| 5.1.3 |
by adding in Clause 1.2 thereof the following new definitions in alphabetical order:
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| (a) |
formally designated, nominated or recommended as the replacement for a Screen Rate by:
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| (i) |
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or
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| (ii) |
any Relevant Nominating Body,
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| (b) |
in the opinion of the Lender and the Borrower, generally accepted in the international loan markets as the appropriate successor to a Screen Rate; or
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| (c) |
in the opinion of the Lender and the Borrower, an appropriate successor to a Screen Rate;
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| (a) |
the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Lender and the Borrower, materially changed;
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| (A) |
the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or
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| (B) |
information is published in any order, decree, notice, petition or filing, however described, or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of that Screen Rate is insolvent,
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| (ii) |
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen
Rate;
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| (iii) |
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or
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| (iv) |
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or
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| (c) |
in the opinion of the Lender and the Borrower, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Supplemental Agreement; and
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| 5.1.4 |
by deleting in Clause 1.2 thereof the definition of “LIBOR” and replacing it with the following:
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| (a) |
the applicable Screen Rate at or about 11.45 a.m. (London time) on the Interest Rate Determination Date for Dollars and for a period equal in length to the Interest Period then applicable to the Loan or that part of the Loan; or
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| (b) |
in case of Screen Rate Replacement Event, the Replacement Benchmark on the Interest Rate Determination Date for Dollars and for a period equal in length to the Interest Period then applicable to the Loan or that part of the Loan,
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| 5.1.5 |
by adding in Clause 1.2 thereof in the definition of “Security Documents” the Mortgage Addendum;
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| 5.1.6 |
by deleting Clause 3.5 thereof in its entirety and replacing it with the following:
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| “3.5 |
Market disruption; non-availability
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| 3.5.1 |
Market Disruption Event: If and whenever, at any time prior to the commencement of any Interest Period, the Lender (in its discretion) shall have determined (which determination shall be conclusive in the absence of manifest
error) that a Market Disruption Event has occurred in relation to the Loan for any such Interest Period, then the Lender shall forthwith give notice thereof (a “Determination Notice”) to the Borrower
and the rate of interest on the Loan (or the relevant part thereof) for that Interest Period shall be the percentage rate per annum which is the sum of
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| (a) |
the Margin; and
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| (b) |
the rate which expresses as a percentage rate per annum the cost to the Lender of funding the Loan (or the relevant part thereof) from whatever source it may select.
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| 3.5.2 |
Suspension of drawdown: If the Determination Notice is given before the Commitment (or a part thereof) is advanced, the Lender’s obligation to make the Commitment (or a part thereof) available shall be suspended while the
circumstances referred to in the Determination Notice continue.
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| 3.5.3 |
Meaning of “Market Disruption Event”: In this Supplemental Agreement “Market Disruption Event” means:
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| (a) |
at or about noon on the Interest Rate Determination Date for the relevant Interest Period no Screen Rate is available for Dollars or Replacement Benchmark; and/or
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| (b) |
before close of business on the Interest Rate Determination Date for the relevant Interest Period, the Lender determines (in its sole discretion) that the cost to it of obtaining matching deposits in the London Interbank Market or the
international market relevant to the Replacement Benchmark (as the case may be) to fund the Loan (or the relevant part thereof) for such Interest Period would be in excess of the Screen Rate or, as the case may be, the Replacement Benchmark
for that Interest Period; and/or
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| (c) |
before close of business on the Interest Rate Determination Date for the relevant Interest Period, deposits in Dollars are not available to the Lender in the London Interbank Market or the international market relevant to the Replacement
Benchmark (as the case may be) in the ordinary course of business in sufficient amounts to fund the Loan (or the relevant part thereof) for that Interest Period.
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| 3.5.4 |
Alternative basis of interest or funding
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| (a) |
If a Market Disruption Event occurs and the Lender or the Borrower so require, the Lender and the Borrower shall enter into negotiations (for a period of not more than twenty (20) days (the “Negotiation
Period”)) after the giving of the relevant Determination Notice with a view to agreeing a substitute basis for determining the rate of interest.
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| (b) |
Any alternative basis agreed pursuant to paragraph (a) above shall be binding on the Lender and all Security Parties.
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| 3.5.5 |
Alternative basis of interest in absence of agreement: If the Lender and the Borrower will not enter into negotiations as provided in Clause 3.5.4 (Alternative basis of interest or funding) or if an alternative interest rate or
alternative basis is not agreed within the Negotiation Period, and the relevant circumstances are continuing at the end of the Negotiation Period, then the Lender shall set the following Interest Period and an interest rate representing the
cost of funding of the Lender in Dollars of the Loan (or the relevant part thereof) plus the Margin for such Interest Period; if the relevant circumstances are continuing at the end of the Interest Period so set by the Lender, the Lender
shall continue to set the following Interest Period and an interest rate representing its cost of funding in Dollars of the Loan (or the relevant part thereof) plus the Margin for such Interest Period.
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| 3.5.6 |
Notice of prepayment: If the Borrower does not agree with an interest rate set by the Lender under Clause 3.5.5 (Alternative basis of interest in absence of agreement), the Borrower may give the Lender not less than 5 Banking
Days’ notice of its intention to prepay the Loan at the end of the interest period set by the Lender.
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| 3.5.7 |
Prepayment; termination of Commitment: A notice under Clause 3.5.6 (Notice of prepayment) shall be irrevocable; and on the last Banking Day of the interest period set by the Lender the Borrower shall prepay (without premium or
penalty) the Loan, together with accrued interest thereon at the applicable rate plus the Margin and the balance of all other amounts payable under this Supplemental Agreement and the other Security Documents or, if the Commitment has not
been advanced, the Commitment shall be reduced to zero and the Loan shall not be made to the Borrower under this Supplemental Agreement thereafter.
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| 3.5.8 |
Application of prepayment: The provisions of Clause 4 (Repayment and Prepayment)
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| 5.1.7 |
by adding thereof the following new Clause 3.6, as follows:
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| “3.6 |
Replacement of Screen Rate
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| (a) |
providing for the use of a Replacement Benchmark in relation to that currency in place of that Screen Rate; and
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| (i) |
aligning any provision of any Security Document to the use of that Replacement Benchmark;
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| (ii) |
enabling that Replacement Benchmark to be used for the calculation of interest under this Supplemental Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the
purposes of this Supplemental Agreement);
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| (iii) |
implementing market conventions applicable to that Replacement Benchmark;
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| (iv) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or
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| (v) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one party hereto to another as a result of the application of that Replacement Benchmark (and if any adjustment or
method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
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| 5.1.8 |
by adding thereof the following new Clause 3.7, as follows:
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| 5.1.9 |
by deleting Clause 4.1.1 thereof and replacing it with the following:
|
| (a) |
nine (9) quarterly instalments, the first two (2) such repayment instalments each in the amount of USD80,000 and the subsequent seven (7) instalments each in the amount of USD160,460; and
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| (b) |
an instalment (the “Balloon Instalment”) of USD1,903,080,
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| 5.1.10 |
by adding a new Clause 4.7 thereof as follows:
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| “4.7 |
Deferral Option
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| 4.7.1 |
The Borrower shall have the option to defer payment of the Repayment Instalment in the amount of USD80,000 due on 31 October 2020 (such amount actually deferred called, the “Deferred Repayment Amount”),
provided that:
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| (a) |
the average net charter rate of the Vessel for the period between 01 July 2020 and 30 September 2020 (both dates inclusive) is less than USD8,000 daily;
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| (b) |
the Borrower must submit a request in writing for such deferral to the Lender at least five (5) Banking Days prior to the Repayment Date on which the relevant Repayment Instalment is due in accordance with Clause 4.1.1; and
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| (c) |
no Event of Default has occurred which is continuing.
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| 4.7.2 |
It is further agreed that, save as hereinafter provided, the Deferred Repayment Amount shall be added to the Balloon Instalment and shall be due and payable on the last Repayment Date.”;
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| 5.1.11 |
by adding a new Clause 4.8 thereof as follows:
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| 5.1.12 |
by deleting in the last line of Clause 7.1.8 thereof the words “money laundering” and replacing them with the words “Money Laundering”;
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| 5.1.13 |
by deleting Clause 8.1.23 thereof and replacing with the following:
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| 5.1.14 |
by deleting Clause 10.1.26 thereof and replacing it with the following:
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| 5.1.15 |
by adding in Clause 16.2.1 thereof in line 3 after the words “and/or the fax number” the words “and/or email address” and in line 4 after the words “or fax number” the words “or email address”;
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| 5.1.16 |
by adding in Clause 16.2.2 thereof in line 4 after the words “or fax number” the words “or email address”;
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| 5.1.17 |
by adding in Clause 16.2.3 thereof in line 3 after the words “and/or the fax number” the words “and/or email address” and in line 3 after the words “or fax number” the words “or email address”;
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| 5.1.18 |
by adding in Clause 16.2.4 thereof in line 2 after the words “and/or fax number” the words “and/or email address” and in line 3 after the words “or fax number” the words “or email address”;
|
| 5.1.19 |
by adding the following sub-clauses in Clause 16.3 thereof as follows:
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| (a) |
the unencrypted information is transported over an open, publicly accessible network and can, in principle, be viewed by others, thereby allowing conclusions to be drawn about a banking relationship;
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| (b) |
the information can be changed and manipulated by a third party;
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| (c) |
the sender’s identity (sender of the e-mail) can be assumed or otherwise manipulated;
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| (d) |
the exchange of information can be delayed or disrupted due to transmission errors, technical faults, disruptions, malfunctions, illegal interventions, network overload, the malicious blocking of electronic access by third parties, or
other shortcomings on the part of the network provider. In certain situations, time-critical orders and instructions might not be processed on time;
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| (e) |
the Lender assumes no liability for any loss incurred as a result of manipulation of the e-mail address or content nor is it liable for any loss incurred by the Borrower and any other Security Party due to interruptions and delays in
transmission caused by technical problems.
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| 5.1.20 |
by construing references throughout to “this Supplemental Agreement”, “hereunder” and other like expressions as if the same referred to the Loan Agreement as amended and supplemented by this Supplemental Agreement.
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| 5.2 |
Amendments to Security Documents. With effect on and from the date hereof each of the Security Documents other than the Loan Agreement, shall be, and shall be deemed by this Supplemental Agreement
to be, amended as follows:
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| (a) |
the definition of, and references throughout each of the Security Documents to, the Loan Agreement and any of the other Security Documents shall be construed as if the same referred to the Loan Agreement and those Security Documents as
amended and supplemented by this Supplemental Agreement; and
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| (b) |
by construing references throughout each of the Security Documents to “this Agreement”, “this Deed”, “hereunder” and other like expressions as if the same referred to such Security Documents as amended and supplemented by this
Supplemental Agreement.
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| 5.3 |
Security Documents to remain in full force and effect. The Security Documents shall remain in full force and effect as amended and supplemented by:
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| (a) |
the amendments to the Security Documents contained or referred to in Clauses 5.1 and 5.2; and
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| (b) |
such further or consequential modifications as may be necessary to give full effect to the terms of this Supplemental Agreement.
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| 6 |
FURTHER ASSURANCES
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| 6.1 |
Borrower to execute further documents etc. The Borrower shall, and shall procure that any other party to any Security Document shall:
|
| (a) |
execute and deliver to the Lender (or as it may direct) any assignment, mortgage, power of attorney, proxy or other document, governed by the law of England or such other country as the Lender may, in any particular case, specify; and
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| (b) |
effect any registration or notarisation, give any notice or take any other step, which the Lender may, by notice to the Borrower or other party, specify
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| 6.2 |
Purposes of further assurances. Those purposes are:
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| (a) |
validly and effectively to create any Encumbrance or right of any kind which the Lender intended should be created by or pursuant to the Loan Agreement or any other Security Document, each as amended and supplemented by this Supplemental
Agreement; and
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| (b) |
implementing the terms and provisions of this Supplemental Agreement.
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| 6.3 |
Terms of further assurances. The Lender may specify the terms of any document to be executed by the Borrower or any other party under Clause 6.1, and those terms may include any covenants, powers
and provisions which the Lender considers appropriate to protect its interests.
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| 6.4 |
Obligation to comply with notice. The Borrower shall comply with a notice under Clause 6.1 by the date specified in the notice.
|
| 6.5 |
Additional corporate action. At the same time as the Borrower or any other party deliver to the Lender any document executed under Clause 6.1(a), the Borrower or such other party shall also
deliver to the Lender a certificate signed by the Borrower’s directors, or 2 of that other party’s directors which shall:
|
| (a) |
set out the text of resolutions of the Borrower or that other party’s directors specifically authorising the execution of the document specified by the Lender; and
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| (b) |
state that either the resolution was duly passed at a meeting of the directors validly convened and held throughout which a quorum of directors entitled to vote on the resolution was present or that the resolution has been signed by all
the directors and is valid under the Borrower’s or that other party’s articles of association or other constitutional documents.
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| 7 |
FEES AND EXPENSES
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| 7.1 |
Amendment Fee.The Borrower shall pay to the Lender a non-refundable amendment fee of USD2,500 on the date of this Supplemental Agreement.
|
| 7.2 |
Fees and Expenses. The provisions of Clause 5 (Fees and expenses) of the Loan Agreement shall apply to this Supplemental Agreement as if they were
expressly incorporated in this Supplemental Agreement with any necessary modifications.
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| 8 |
NOTICES
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| 9 |
SUPPLEMENTAL
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| 9.1 |
Counterparts. This Supplemental Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of the
Supplemental Agreement.
|
| 9.2 |
Third party rights. A person who is not a party to this Supplemental Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term
of this Supplemental Agreement.
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| 10 |
LAW AND JURISDICTION
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THE BORROWER
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||||
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SIGNED by Eirini Synefia
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)
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|||
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for and on behalf of
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)
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/s/ Eirini Synefia |
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DIAMANTIS SHIPOWNERS LTD.
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)
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Witnessed by:
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||||
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Signature /s/ Panagiotis Fokas
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Name: Panagiotis Fokas
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Address: Akti Miaouli 47-49
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| Piraeus 185 36 Greece |
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THE LENDER
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SIGNED by Olga Voutsa
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)
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/s/ Olga Voutsa |
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and by Evgenia Kouvara
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)
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/s/ Evgenia Kouvara |
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for and on behalf of
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)
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|||
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PIRAEUS BANK S.A.
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)
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Witnessed by:
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Signature /s/ Panagiotis Fokas
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Name: Panagiotis Fokas
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Address: Akti Miaouli 47-49
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| Piraeus 185 36 Greece | ||||
| /s/ Eirini Synefia | ||
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Eirini Synefia
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duly authorised on behalf of
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EUROSEAS LTD.
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| /s/ Eirini Synefia | ||
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Eirini Synefia
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duly authorised on behalf of
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EUROBULK LTD.
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| /s/ Eirini Synefia | ||
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Eirini Synefia
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duly authorised on behalf of
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||
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EUROCON LTD.
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