|
FOURTH SUPPLEMENTAL AGREEMENT
in relation to a Loan Agreement dated 6th March, 2015
for a loan facility of (initially) up to US$8,750,000
|
|
CLAUSE
|
HEADINGS
|
PAGE
|
|
1.
|
DEFINITIONS
|
2
|
|
2.
|
BORROWER’S ACKNOWLEDGMENT OF INDEBTEDNESS
|
3
|
|
3.
|
REPRESENTATIONS AND WARRANTIES
|
3
|
|
4.
|
AGREEMENT OF THE LENDER
|
5
|
|
5.
|
CONDITIONS
|
5
|
|
6.
|
VARIATIONS TO THE PRINCIPAL AGREEMENT
|
6
|
|
7.
|
WAIVER OF CERTAIN COVENANTS
|
9
|
|
8.
|
CONTINUANCE OF PRINCIPAL AGREEMENT AND THE SECURITY DOCUMENTS
|
10
|
|
9.
|
ENTIRE AGREEMENT AND AMENDMENT
|
10
|
|
10.
|
FEES AND EXPENSES
|
10
|
|
11.
|
MISCELLANEOUS
|
11
|
|
12.
|
LAW AND JURISDICTION
|
11
|
| (1) |
ALPHA BANK A.E., a banking société anonyme incorporated in and pursuant to the laws of the Hellenic Republic with its head office at 40 Stadiou Street, Athens GR 102 52, Greece, acting, except as
otherwise herein provided through its office at 93 Akti Miaouli, Piraeus, Greece (hereinafter called the “Lender”, which expression shall include its successors and assigns); and
|
| (2) |
LEADER SHIPPING CO., a company duly incorporated and validly existing under the laws of the Republic of the Marshall Islands having its registered office at
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (hereinafter called the “Borrower”, which expression shall
include its successors);
|
| (A) |
the Borrower hereby acknowledges and confirms that (a) the Lender has advanced to the Borrower the full amount of the Loan in the principal amount of United States Dollars Eight million seven hundred fifty thousand Dollars (US$8,750,000) and (b) as of the Effective Date the principal amount of United States Dollars Five Million Five Hundred Two Thousand Nine Hundred Fifty Three and six cents ($5,502,953.06) in respect of the Loan remains outstanding;
|
| (B) |
pursuant to a guarantee dated 17th March 2015 as amended and/or supplemented by (a) a deed of amendment of guarantee
dated 23rd December, 2015 (the “Guarantee
Deed of Amendment No. 1”), (b) a second deed of amendment of guarantee dated 28th July, 2016 (the “Guarantee Deed of Amendment No. 2”) and (b) a third deed of amendment of guarantee dated
29th June, 2018 (the “Guarantee
Deed of Amendment No. 3”) (the said guarantee as amended and/or supplemented by the Guarantee Deed of Amendment No. 1, the Guarantee Deed of Amendment No. 2 and the Guarantee Deed of Amendment No. 3 is hereinafter called the “Corporate Guarantee”) Seanergy Maritime Holdings Corp., of the
Marshall Islands (the “Corporate Guarantor”) irrevocably and unconditionally guaranteed the due and timely repayment of the Loan and interest and default interest accrued thereon and the performance
of all the obligations of the Borrower under the Loan Agreement and the Security Documents executed in accordance thereto;
|
| (C) |
the Borrower and the other Security Parties have requested the Lender to grant its consent to (inter alia):
|
| (a) |
the waiver of the excess earnings mechanism set out in Clause 13.2 (Earnings Account) of the Principal
Agreement for the Financial Years ending 31 December 2018 and 31 December 2019;
|
| (b) |
the temporary waiver (from 1st January 2019 until the 31st of December
2019) of the minimum liquidity covenant set out in Clause 8.1(j) (Liquidity) of the Principal Agreement; For
the avoidance of doubt, the minimum liquidity covenant is only waived in relation to the Earnings Account of the Borrower and not in relation to any other account of the Borrower or the Corporate Guarantor or the Group;
|
| (c) |
the amendment of the repayment schedule set out in Clause 4.1 (Repayment) of the Principal Agreement;
|
| (d) |
the amendment of the Leverage covenant and the EBITDA covenant provided in Clause 8.6 (Additional Financial Covenants – Compliance Certificate) of the Principal Agreement,
|
| 1.1 |
Defined terms and expressions
|
| 1.2 |
Additional definitions
|
| 1.3 |
Construction
|
| (a) |
Where the context so admits words importing the singular number only shall include the plural and vice versa and words importing persons shall include firms and corporations;
|
| (b) |
clause headings are inserted for convenience of reference only and shall be ignored in construing this Agreement;
|
| (c) |
references to Clauses are to clauses of this Agreement save as may be otherwise expressly provided in this Agreement; and
|
| (d) |
all capitalised terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement.
|
|
2.
|
BORROWER’S ACKNOWLEDGMENT OF INDEBTEDNESS
|
| 3.2 |
Additional representations and warranties
|
| a. |
the Borrower is duly formed, is validly existing and in good standing under the laws of the place of its incorporation and has full power to carry on its business as it is now being conducted and to enter into and perform its obligations
under the Principal Agreement and this Agreement and has complied with all statutory and other requirements relative to its business and does not have an established place of business in any part of the United Kingdom or the USA;
|
| b. |
all necessary licences, consents and authorities, governmental or otherwise under this Agreement and the Principal Agreement have been obtained and, as of the date of this Agreement, no further consents or authorities are necessary for
any of the Security Parties to enter into this Agreement or otherwise perform its obligations hereunder;
|
| c. |
this Agreement constitutes the legal, valid and binding obligations of the Security Parties thereto enforceable in accordance with its terms;
|
| d. |
the execution and delivery of, and the performance of the provisions of this Agreement do not, and will not contravene any applicable law or regulation existing at the date hereof or any contractual restriction binding on any of the
Security Parties or its respective constitutional documents;
|
| e. |
no action, suit or proceeding is pending or threatened against the Borrower or its assets before any court, board of arbitration or administrative agency which could or might result in any material adverse change in the business or
condition (financial or otherwise) of any of the Borrower or the other Security Parties;
|
| f. |
the Borrower is not and at the Effective Date will not be in default under any agreement by which it is or will be at the Effective Date bound or in respect of any financial commitment, or obligation;
|
| g. |
the Corporate Guarantor maintains Corporate Liquidity (including any contractually committed but undrawn parts of the Notes) in an amount equal to $500,000 per Fleet Vessel and an amount equal to
$500,000 for the Vessel is maintained in the Earnings Account outside of the waiver period as aforementioned;
|
| h. |
No US Tax Obligor: Neither the Borrower nor the Corporate Guarantor is a US Tax Obligor; and
|
| i. |
Sanctions:
|
| (i) |
neither the Borrower nor the Corporate Guarantor is a Prohibited Person nor is owned or controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person and none of the Borrower or the Corporate
Guarantor owns nor controls a Prohibited Person; and
|
| (ii) |
no proceeds of the Loan have been made available, directly or indirectly, to or for the benefit of a Prohibited Person or otherwise shall be, directly or indirectly, applied in a manner or for a purpose prohibited by Applicable
Sanctions; and
|
| 3.3 |
Survival
|
| a. |
a certified true copy of the certificate of good standing or other equivalent document issued by the competent authorities of the place of its incorporation in respect of each of the Borrower and the Corporate Guarantor;
|
| b. |
duly legalised resolutions duly passed by the Board of Directors of the Borrower and the Corporate Guarantor and duly legalised resolutions passed at a meeting of the shareholders of the Borrower and the Corporate Guarantor (and of any
corporate shareholder thereof), if applicable, evidencing approval of this Agreement or the Guarantee Deed of Amendment No. 4 and/or the DOC Amendment 2 as defined hereinbelow (as the case may be) and
authorising appropriate officers or attorneys–in-fact to execute the same and to sign all notices required to be given under this Agreement on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the
Lender;
|
| c. |
all documents evidencing any other necessary action or approvals or consents with respect to this Agreement or the Guarantee Deed of Amendment No. 4, including, but not limited to, certified and
duly legalised Certificates of Incumbency issued by any of the Directors of the Borrower and the Corporate Guarantor evidencing approval of this Agreement or the Guarantee Deed of Amendment No. 4 and/or
the DOC Amendment 2 as defined hereinbelow (and authorising appropriate officers or attorneys-in-fact to execute the same and to sign all notices required to be given under this Agreement on its behalf or other evidence of such
approvals and authorisations as shall be acceptable to the Lender;
|
| d. |
the original of any power(s) of attorney issued in favour of any person executing this Agreement or the Guarantee Deed of Amendment No. 4 and/or the DOC
Amendment 2 as defined hereinbelow on behalf of the Borrower and the Corporate Guarantor;
|
| e. |
all documents evidencing any other necessary action or approvals or consents with respect to this Agreement; evidence satisfactory to the Lender that the Corporate Guarantor maintains Liquidity in an amount equal to $500,000 per Fleet
Vessel; and
|
| f. |
such favourable legal opinions from lawyers acceptable to the Lender and its legal advisors as the Lender shall require.
|
| 5.2 |
Benefit
|
| b. |
with effect as from the 25th February 2019, the following definitions of Clause 1.2 (Definitions) of the Principal Agreement shall be amended so as
to read as follows:
|
| c. |
with effect as from the 25th February 2019, Clause 4.1 (Repayment) of the Principal Agreement shall be
deleted and replaced to read as follows:
|
| (a) |
1st to 4th(both incl.) United States Dollars
One hundred thousand ($100,000)each; and
|
| (b) |
5th United States Dollars Two hundred fifty thousand ($250,000);
|
| d. |
with effect as from the 25th February 2019, Clause 8.1 (j) (Liquidity) of the Principal Agreement shall be
deleted and replaced to read as follows:
|
| e. |
with effect as from the 25th February 2019, sub-clause (b) (Leverage) of Clause 8.6 (Additional Financial Covenants – Compliance Certificate) of the Principal Agreement shall be deleted and replaced to read as follows:
|
| f. |
with effect as from the 25th February 2019, sub-clause (c) (EBITDA) of Clause 8.6 (Additional Financial Covenants – Compliance Certificate) of the Principal Agreement shall be deleted and replaced to read as follows:
|
| g. |
with effect as from the 25th February 2019, Schedule 3 of the Principal Agreement shall be deleted and replaced to read as follows:
|
|
To:
|
ALPHA BANK A.E.
|
|
93 Akti Miaouli,
|
|
|
Piraeus, Greece
|
|
|
(the “Lender”)
|
|
|
From:
|
LEADER SHIPPING CO.,
|
|
of the Marshall Islands
|
|
|
(the “Borrower”)
|
|
|
Dated: [●], 20[●]
|
| RE: |
Loan Agreement dated [●] March, 2015 made between (1) the Borrower and (2) the Lender, in respect of a loan facility of up to US$8,750,000 (the “Loan Agreement”).
|
|
1.
|
Financial Covenants:
|
| (a) |
the Leverage Ratio has not been and at the date hereof is not higher than 0.85:1 (applicable for the time period beginning on 1st
January 2019 and ending on 31st March 2020) OR the Leverage Ratio has not been and at the date hereof is not higher than 0.75:1 (applicable for all other periods ) ; and
|
| (b) |
the consolidated interest cover ratio (EBITDA to Net Interest Expense) is not lower than 1:1 commencing on 1st January 2019
(applicable for the time period beginning on 1st January 2019and ending on 31st March 2020) OR the consolidated interest cover ratio (EBITDA to Net Interest Expense) is not lower than 2:1 (applicable for all other periods); and
|
|
2.
|
Default:
|
| Signed: |
|
Name: [………………………….]
|
|
Title: Chief Financial Officer”
|
| 7.2 |
Excess earnings mechanism
|
| 9.1 |
Entire Agreement
|
| 9.2 |
Supplemental – Effect on Principal Agreement
|
| 10. |
FEES AND EXPENSES
|
| 10.1 |
Up-front fee
|
| 10.2 |
Indemnity
|
| 10.3 |
Stamp duty etc.
|
| 11. |
MISCELLANEOUS
|
| 12. |
LAW AND JURISDICTION
|
| 12.1 |
Governing Law
|
|
THE BORROWER
|
|||
|
SIGNED by
|
)
|
||
|
Mrs. Maria Moschopoulou
|
)
|
||
|
for and on behalf of
|
)
|
/s/ Maria Moschopoulou
|
|
|
LEADER SHIPPING CO.
|
)
|
||
|
of the Marshall Islands, in the presence of:
|
)
|
Attorney-in-fact
|
|
Witness:
|
/s/ Lilian Kouleri |
|
Name
|
Lilian Kouleri
|
|
|
Address:
|
13 Defteras Merarchias Str.,
|
|
|
Piraeus, Greece
|
||
|
Occupation:
|
Attorney-at-law
|
|
SIGNED by
|
)
|
/s/ Konstantinos Flokos
|
|
|
Mr. Konstantinos Flokos
|
)
|
||
|
and Mrs. Chrysanthi Papathanasopoulou
|
)
|
Attorney-in-fact
|
|
|
for and on behalf of
|
)
|
||
|
ALPHA BANK A.E.
|
)
|
/s/ Chrysanthi Papathanasopoulou
|
|
|
in the presence of:
|
)
|
||
|
Attorney-in-fact
|
|
Witness:
|
/s/ Lilian Kouleri |
|
Name:
|
Lilian Kouleri
|
|
|
Address:
|
13 Defteras Merarchias Str.,
|
|
| Piraeus, Greece | ||
|
Occupation:
|
Attorney-at-law
|