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THIRD SUPPLEMENTAL AGREEMENT
in relation to a Loan Agreement dated
4th November, 2015
for a loan facility of (initially) up to US$33,750,173
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| TABLE OF CONTENTS | ||
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CLAUSE
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HEADINGS
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PAGE
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1.
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Definitions
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2
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2.
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Borrower’s Acknowledgment of Indebtedness
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3
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3.
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Representations and warranties
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3
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4.
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Agreement of the Lender
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5 |
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5.
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Conditions
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5 |
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6.
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Variations to the Principal Agreement
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6 |
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7.
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Waiver of certain covenants
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11 |
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8.
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Continuance of Principal Agreement and the Security Documents
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11 |
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9.
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Entire agreement and amendment
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11 |
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10.
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Fees and expenses
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12 |
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11.
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Miscellaneous
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12 |
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12.
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Applicable law and jurisdiction
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12 |
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(1)
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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);
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(2)
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SQUIRE OCEAN NAVIGATION CO., a company duly incorporated and validly existing under the laws of the Republic of Liberia having its
registered office at 80 Broad Street, Monrovia, Republic of Liberia (hereinafter called the “Borrower”, which expression
shall include its successors); and
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(3)
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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 “Collateral Owner”, which
expression shall include its successors);
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| (A) |
the Borrower and the Collateral Owner hereby acknowledge and confirm that (a) the Lender has advanced to the Borrower, the full amount of the Loan in the principal amount of United States Dollars Thirty three million seven hundred
fifty thousand one hundred seventy three ($33,750,173) and (b) as of the Effective Date the principal amount of United States Dollars Twenty Eight Million Six Hundred Eighty Seven Thousand Six Hundred Eight and Fifty cents ($28,687,608.50 ) in respect of the Loan remains outstanding;
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| (B) |
pursuant to a Guarantee dated 4th November 2015 as amended and/or supplemented by a first deed of amendment of guarantee dated 28th July, 2016 (the “First Amendment”) and a second deed of amendment of guarantee dated 29th June 2018 (the “Second Amendment”) (the said Guarantee as amended and/or supplemented by the First Amendment and the
Second Amendment is hereinafter called the “Guarantee”), Seanergy Maritime Holdings Corp., of the Marshall Islands (the “Guarantor”) irrevocably and unconditionally guaranteed the due and timely repayment of the Loan, and the 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;
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| (C) |
the Borrower and the other Security Parties have requested the Lender to grant its consent to (inter alia):
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| (a) |
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 Guarantor or the Group;
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| (b) |
the amendment of the repayment schedule set out in Clause 4.1 (Repayment) of the Principal Agreement;
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| (c) |
the amendment of the Leverage covenant and the EBITDA covenant provided in Clause 8.6 (Additional Financial Covenants – Compliance Certificate) of the Principal Agreement; and
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| (d) |
the amendment of the Security Requirement set out in Clause 1.2 (Definitions) of the Principal Agreement,
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1.
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DEFINITIONS
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1.1
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Defined terms and expressions
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1.2
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Additional definitions
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1.3
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Construction
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(a)
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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;
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(b)
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clause headings are inserted for convenience of reference only and shall be ignored in construing this Agreement;
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(c)
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references to Clauses are to clauses of this Agreement save as may be otherwise expressly provided in this Agreement; and
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(d)
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all capitalised terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement.
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2.
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BORROWER’S ACKNOWLEDGMENT OF INDEBTEDNESS
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3.
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REPRESENTATIONS AND WARRANTIES
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3.1
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Representations and warranties under the Principal Agreement
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3.2
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Additional representations and warranties
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a.
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each of the Security Parties 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;
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b.
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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;
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c.
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this Agreement constitutes the legal, valid and binding obligations of the Security Parties thereto enforceable in accordance with its terms;
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d.
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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;
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e.
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no action, suit or proceeding is pending or threatened against the Borrower and the Collateral Owner 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;
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f.
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none of the Security Parties 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;
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g.
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the Guarantor maintains Corporate Liquidity (including any contractually 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;
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h.
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No US Tax Obligor: None of the Security Parties is a US Tax Obligor; and
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i.
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Sanctions:
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(i)
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None of the Security Parties is a Prohibited Person nor is controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person and none of the Borrower, the Collateral
Owner or the Guarantor controls a Prohibited Person; and
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(ii)
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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.
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3.3
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Survival
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4.
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AGREEMENT OF THE LENDER
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5.
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CONDITIONS
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5.1
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Conditions precedent
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a.
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a 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, the Collateral Owner and the
Guarantor;
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b.
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duly legalised resolutions duly passed by the Board of Directors of the Borrower, the Collateral Owner and the Guarantor and duly legalised resolutions passed at a meeting of the shareholders of the
Borrower, the Collateral Owner and the Guarantor (and of any corporate shareholder thereof), if applicable, evidencing approval of this Agreement and/or the Collateral Security Documents and/or the Guarantee
Deed of Amendment No. 3 (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;
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c.
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all documents evidencing any other necessary action or approvals or consents with respect to this Agreement, including, but not limited to, certified and duly legalised Certificates of Incumbency issued
by any of the Directors of the Borrower, the Collateral Owner and the Guarantor evidencing approval of this Agreement and/or the Guarantee Deed of Amendment No. 3 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;
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d.
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the original of any power(s) of attorney issued in favour of any person executing this Agreement and/or the Guarantee Deed of Amendment No. 3 on behalf of the Borrower, the Collateral Owner, and the
Guarantor;
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e.
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all documents evidencing any other necessary action or approvals or consents with respect to this Agreement;
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f.
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such favourable legal opinions from lawyers acceptable to the Lender and its legal advisors as the Lender shall require;
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g.
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duly executed originals of the ST Charterparty Assignment, the Guarantee Deed of Amendment No. 3 and, where appropriate, duly registered in favour of the
Lender; and
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h.
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evidence satisfactory to the Lender that the Guarantor maintains Liquidity in an amount equal to $500,000 per Fleet Vessel.
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6.
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VARIATIONS TO THE PRINCIPAL AGREEMENT
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6.1
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Amendments
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a.
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with effect as from the 25th February 2019, the following new definition shall be added to Clause 1.2 (Definitions) of the Principal Agreement reading as follows:
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b.
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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:
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c.
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with effect as from the Effective Date, Clause 4.1 (Repayment) of the Principal Agreement shall be deleted and replaced to read as follows:
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| “4.1 |
Repayment. The Borrower shall and it is expressly undertaken by the Borrower to repay the Loan by (a) eleven (11) consecutive quarterly Repayment Instalments (the “Repayment Instalments”) to be repaid on each of the Repayment Dates so that the first be repaid on 13th
May 2019 and each of the subsequent ones consecutively falling due for payment on each of the dates falling three (3) months after the immediately preceding Repayment Date with the last (the 11th) of such Repayment Instalments
falling due for payment on the Final Maturity Date and (b) the Balloon Instalment , payable on the Final Maturity Date; subject to the provisions of this Agreement, the
amount of each such instalment shall be as follows:
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| (a) |
1st to 3th (both incl.) United States Dollars Eight hundred forty three thousand seven hundred sixty and seventy five cents ($843,760.75) each;
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(b)
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4th to 11th (both incl.) United States Dollars Nine hundred eighteen thousand seven hundred sixty and seventy five cents ($918,760.75) each;
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d.
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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:
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e.
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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:
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f.
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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:
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g.
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with effect as from the 25th February 2019, Schedule 3 of the Principal Agreement shall be deleted and replaced to read as follows:
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| To: |
ALPHA BANK A.E.
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| From: |
SQUIRE OCEAN NAVIGATION CO.,
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Dated: [●], 2018
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| RE: |
Loan Agreement dated [●] November, 2015 made between (1) the Borrower and (2) the Lender, in respect of a loan facility of up to US$33,750,000 (the “Loan Agreement”).
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1.
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Financial Covenants:
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| 2. |
Default:
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6.2
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Security Documents
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6.3
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Construction
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7.
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WAIVER OF CERTAIN COVENANTS
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8.
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CONTINUANCE OF PRINCIPAL AGREEMENT AND THE SECURITY DOCUMENTS
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9.
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ENTIRE AGREEMENT AND AMENDMENT
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9.1
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Entire Agreement
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9.2
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Supplemental – Effect on Principal Agreement
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10.
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FEES AND EXPENSES
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10.1
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Up-front fee
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10.2
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Indemnity
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10.3
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Stamp duty etc.
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11.
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MISCELLANEOUS
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12.
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LAW AND JURISDICTION
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| 12.1 |
Governing Law
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| 12.2 |
Third Party Rights
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THE BORROWER
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SIGNED by
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)
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Mrs. Maria Moschopoulou
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for and on behalf of
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/s/ Maria Moschopoulou
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SQUIRE OCEAN NAVIGATION CO.
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)
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of Liberia, in the presence of:
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Attorney-in-fact
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Witness:
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/s/ Lilian Kouleri
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Name:
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Lilian Kouleri
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Address:
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13 Defteras Merarchias Str.,
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Piraeus, Greece
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Occupation:
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Attorney-at-law
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SIGNED by
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)
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Mrs. Maria Moschopoulou
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)
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for and on behalf of
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/s/ Maria Moschopoulou
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LEADER SHIPPING CO.
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)
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of Marshall Islands, in the presence of:
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Attorney-in-fact
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Witness:
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/s/ Lilian Kouleri
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Name:
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Lilian Kouleri
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Address:
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13 Defteras Merarchias Str.,
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Piraeus, Greece
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Occupation:
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Attorney-at-law
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SIGNED by
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)
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Mr. Konstantinos Flokos
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)
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/s/ Konstantinos Flokos
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and Mrs. Chrysanthi Papathanasopoulou
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)
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Attorney-in-fact
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for and on behalf of
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)
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ALPHA BANK A.E.
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)
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in the presence of:
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)
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/s/ Chrysanthi Papathanasopoulou
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Attorney-in-fact
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Witness:
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/s/ Lilian Kouleri
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Name:
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Lilian Kouleri
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Address:
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13 Defteras Merarchias Str.,
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Piraeus, Greece
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Occupation:
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Attorney-at-law
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