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Clause
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Page
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1
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Definitions and Interpretation
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2
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2
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Agreement of the Finance Parties
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3
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3
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Conditions Precedent
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3
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4
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Representations
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3
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5
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Amendments to Facility Agreement and other Finance Documents
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4
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6
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Further Assurance
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7
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7
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Costs and Expenses
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7
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8
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Notices
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7
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9
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Counterparts
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7
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10
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Governing Law
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8
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11
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Enforcement
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8
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Schedules
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Schedule 1 The Lenders
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9
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Schedule 2 Conditions Precedent
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10
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Execution
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Execution Pages
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11
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| (1) |
PARTNER SHIPPING CO. LIMITED, a company incorporated in the Republic of Malta whose registered address is at 147/1 St. Lucia Street, Valletta, VLT
1185, Malta as borrower (the "Borrower");
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| (2) |
SEANERGY MARITIME HOLDINGS CORP., a corporation incorporated in the Republic of the Marshall Islands whose registered office is at the Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro, MH 96960, Marshall Islands as corporate guarantor (the "Corporate Guarantor");
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| (3) |
AMSTERDAM TRADE BANK N.V. as arranger (the "Arranger");
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| (4) |
THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Parties) as lenders (the "Original
Lenders");
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| (5) |
AMSTERDAM TRADE BANK N.V. as agent of the other Finance Parties (the "Facility Agent"); and
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| (6) |
AMSTERDAM TRADE BANK N.V. as security agent for the Secured Parties (the "Security Agent").
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| (A) |
By the Facility Agreement, the Lenders agreed to make available to the Borrower a facility of up to $20,890,000.
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| (B) |
The Borrower has already drawn down the following Advances:
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| (i) |
an Advance under Tranche A in the amount of $16,390,000;
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| (ii) |
an Advance under Tranche B in the amount of $563,635; and
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| (iii) |
an Advance under Tranche C in the amount of $563,635,
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| (C) |
The Obligors have requested that the Lenders and the other Finance Parties give their consent to:
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| (i) |
relax the financial covenants of the Corporate Guarantor under paragraphs (b) and (c) of clause 20.2 (Other financial covenants) of the Facility Agreement;
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| (ii) |
add the Luxembourg flag, the Cypriot flag and the Maltese flag as an Approved Flag in clause 1.1 (Definitions)
of the Facility Agreement; and
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| (iii) |
approve a one-off non-cash dividend distribution in respect of the financial results of the Borrower for the period from 25 May 2018 to 31 December 2018, as a set-off against certain amounts due to related
parties,
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| (D) |
This Agreement sets out the terms and conditions on which the Lenders and the other Finance Parties agree, with effect on and from the Effective Date, at the request of the Obligors, to the Request and to the
consequential amendment of the Facility Agreement and the other Finance Documents in connection with those matters.
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| 1 |
DEFINITIONS AND INTERPRETATION
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| 1.1 |
Definitions
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| 1.2 |
Defined expressions
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| 1.3 |
Application of construction and interpretation provisions of Facility Agreement
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| 1.4 |
Agreed forms of new, and supplements to, Finance Documents
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| (a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent); or
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| (b) |
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of the Majority Lenders or, where clause 42.3 (other exceptions) of the Facility Agreement applies, all the Lenders.
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| 1.5 |
Designation as a Finance Document
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| 1.6 |
Third party rights
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| 2 |
AGREEMENT OF THE FINANCE PARTIES
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| 2.1 |
Agreement of the Lenders
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| (a) |
the Request; and
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| (b) |
the consequential amendments to the Facility Agreement and the other Finance Documents.
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| 2.2 |
Agreement of the Finance Parties
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| 2.3 |
Effective Date
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| 3 |
CONDITIONS PRECEDENT
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| (a) |
no Default continuing on the date of this Agreement and the Effective Date or resulting from the occurrence of the Effective Date;
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| (b) |
the Repeating Representations to be made by each Obligor being true on the date of this Agreement and the Effective Date; and
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| (c) |
the Facility Agent having received all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent on or before the Effective Date or such later date as the Facility Agent may agree with the Borrower.
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| 4 |
REPRESENTATIONS
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| 4.1 |
Facility Agreement representations
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| 4.2 |
Finance Document representations
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| 5 |
AMENDMENTS TO FACILITY AGREEMENT AND OTHER FINANCE DOCUMENTS
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| 5.1 |
Specific amendments to the Facility Agreement
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| (a) |
by inserting the words "Luxembourg, Cypriot and Maltese" after the words "Marshall Islands" in the definition of "Approved Flag" in clause 1.1 thereof;
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| (b) |
by inserting a new definition of "Article 55 BRRD" in clause 1.1 thereof as follows:
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| (c) |
by deleting the words "Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms" in paragraph (a) of the definition "Bail-In
Legislation" in clause 1.1 thereof and replacing them with the words "Article 55 BRRD";
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| (d) |
by deleting paragraph (b) of the definition of "Bail-In Legislation" in clause 1.1 thereof in its entirety and replacing it with the following new paragraph (b):
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| "(b) |
in relation to any other state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to
time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.";
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| (e) |
by inserting a new definition of "Effective Date" in clause 1.1 thereof as follows:
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| (f) |
by inserting a new definition of "Supplemental Agreement" in clause 1.1 thereof as follows:
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| (g) |
by inserting a new definition of "UK Bail-In Legislation" in clause 1.1 thereof as follows:
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| (h) |
by inserting a new paragraph (c) in the definition of "Write-down and Conversion Powers" in clause 1.1 thereof as follows:
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"(c)
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in relation to any UK Bail-In Legislation:
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| (i) |
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or
other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or
obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers
under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and
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(ii)
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any similar or analogous powers under that UK Bail-In Legislation.";
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| (i) |
by deleting clause 19.3 thereof in its entirety and replacing it with the following:
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| (a) |
The Corporate Guarantor shall supply to the Facility Agent, quarterly (for the first three quarters, within 90 days after the end of such quarter and, for the fourth quarter, within 120 days after the year-end),
a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clauses 20 (Financial Covenants) and 24 (Security Cover) as at the date as at which those financial statements were drawn up.
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| (b) |
Each Compliance Certificate shall be signed by a director of the Borrower and, if required to be delivered with the financial statements delivered pursuant to paragraphs (a) and (b) of Clause 19.2 (Financial
statements).
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| (j) |
by inserting the words "(in relation to paragraph (b) below, other than the period commencing on the Effective Date of the Supplemental Agreement and ending on 31 December 2019)" at the end of the first line of
clause 20.2;
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| (k) |
by deleting paragraphs (b) and (c) of clause 20.2 thereof in their entirety and replacing them with the following paragraphs (b) and (c):
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"(b)
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the EBITDA to Net Interest Expense Ratio is at least equal to:
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| (i) |
from the date of this Agreement until the Effective Date of the Supplemental Agreement, 1.2:1;
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| (ii) |
from 1 January 2020 until 31 March 2020 (inclusive), 1:1; and
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| (iii) |
from 1 April 2020 and for the remainder of the Security Period, 2:1; and
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| (c) |
the Leverage Ratio does not exceed:
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| (i) |
from the date of this Agreement until 31 March 2020 (inclusive), 85 per cent.; and
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| (ii) |
from 1 April 2020 and for the remainder of the Security Period, 75 per cent.";
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| (l) |
by adding the following paragraph at the end of paragraph (b) of clause 21.18 thereof:
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| (m) |
by inserting new clause 21.24 in clause 21 thereof as follows:
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"21.24
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Maintenance of Required Amount
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| (n) |
by inserting new paragraphs 2.3 and 2.4 in Part C (Conditions Precedent to the Utilisation of an Advance under Tranche B or Tranche C) of Schedule 2 thereof as follows:
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| "2.3 |
The unaudited financial statements of the Borrower and the Corporate Guarantor for the financial quarter ending on:
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(a)
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in respect of the Advance to be utilised in or around June 2019, 31 March 2019; and
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(b)
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in respect of the Advance to be utilised in or around August 2019, 30 June 2019,
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| (a) |
a Compliance Certificate evidencing that no Default is continuing or would result from the utilisation of the proposed Advance; and
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| (b) |
budgets and projections for the next 12-month period in form and substance satisfactory to the Facility Agent, evidencing, to the satisfaction of the Facility Agent, that the Borrower and the Corporate Guarantor
are, and will remain, cash flow positive (after debt service)."
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| (o) |
the definition of, and references throughout to, each Finance Document shall be construed as if the same referred to that Finance Document as amended and supplemented by this Agreement; and
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| (p) |
by construing references throughout to "this Agreement" and other like expressions as if the same referred to the Facility Agreement as amended and supplemented by this Agreement.
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| 5.2 |
Amendments to Finance Documents
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| (a) |
the definition of, and references throughout each of the Finance Documents to, the Facility Agreement and any of the other Finance Documents shall be construed as if the same referred to the Facility Agreement
and those Finance Documents as amended and supplemented by this Agreement; and
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| (b) |
by construing references throughout each of the Finance Documents to "this Agreement", "this Deed" and other like expressions as if the same referred to such Finance Documents as amended and supplemented by this
Agreement.
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| 5.3 |
Finance Documents to remain in full force and effect
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| (a) |
the amendments to the Finance Documents contained or referred to in Clause 5.1 (Specific amendments to the Facility Agreement) and Clause 5.2 (Amendments to Finance Documents); and
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| (b) |
such further or consequential modifications as may be necessary to give full effect to the terms of this Agreement.
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| 6 |
FURTHER ASSURANCE
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| 7 |
COSTS AND EXPENSES
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| 8 |
NOTICES
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| 9 |
COUNTERPARTS
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| 10 |
GOVERNING LAW
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| 11 |
ENFORCEMENT
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| 11.1 |
Jurisdiction
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| (a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement
or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
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| (b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
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| (c) |
This Clause 11.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
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| 11.2 |
Service of process
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| (a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
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| (i) |
irrevocably appoints Messrs E. J. C. Album Solicitors, presently of Landmark House, 190 Willifield Way, London NW11 6YA, England (attention: Mr Edward Album, tel: +44 208 455 7653, fax: +44 208 457 5558
and email: ejca@mitgr.com) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
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| (ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
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| (b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within
5 days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
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Name of Original Lender Commitment
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Address for Communication
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Commitment
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Amsterdam Trade Bank N.V.
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Non-Administrative Matters
- Address:
World Trade Center
Tower I, Level 6
Strawinskylaan 1939
1077 XX, Amsterdam
The Netherlands
Attention: Marianthi Milopoulou /
Vassilis Kolovos
Email:
To: m.milopoulou@atbank.nl /
v.kolovos@atbank.nl
Cc: shipping.finance@atbank.nl
Telephone No.: +31 (0) 205 209 271 /
+31 (0) 205 209 204
Administrative Matters
Address:
World Trade Center
Tower I, Level 6
Strawinskylaan 1939
1077 XX, Amsterdam
The Netherlands
Attention: Liujun Zhou
Email:
To: shipping.finance@atbank.nl
Cc: m.milopoulou@atbank.nl/
v.kolovos@atbank.nl
Telephone No.: +31 (0) 205 209 248 /
+31 (0) 205 209 271 /
+31 (0) 205 209 204
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$20,890,000
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| 1 |
Obligors
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| 2 |
Documents
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| 2.1 |
A duly executed original of this Agreement.
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| 3 |
Legal opinion
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| 4 |
Other documents and evidence
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| 4.1 |
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the
entry into and performance of the transactions contemplated by this Agreement or for the validity and enforceability of any Finance Document as amended and supplemented by this Agreement.
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| 4.2 |
Evidence that the Borrower maintains an amount of $200,000 (in addition to the Minimum Liquidity Amount) in the Operating Account.
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| 4.3 |
Evidence that the costs and expenses then due from the Borrower pursuant to Clause 7 (Costs and Expenses) have
been paid or will be paid by the Effective Date.
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SIGNED by Stavros Gyftakis
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)
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duly authorised
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)
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/s/ Stavros Gyftakis
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for and on behalf of
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)
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PARTNER SHIPPING CO. LIMITED
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name: Maria Moschopoulou
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)
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/s/ Maria Moschopoulou
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Witness' address: 154 Vouliagmenis Avenue
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166 74 Glyfada
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Athens, Greece
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)
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SIGNED by Stavros Gyftakis
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)
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duly authorised
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)
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/s/ Stavros Gyftakis
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for and on behalf of
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)
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SEANERGY MARITIME HOLDINGS CORP.
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name: Maria Moschopoulou
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)
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/s/ Maria Moschopoulou
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Witness' address: 154 Vouliagmenis Avenue
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166 74 Glyfada
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Athens, Greece
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)
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SIGNED by Andreas Giakoumelos
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)
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)
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duly authorised
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)
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/s/ Andreas Giakoumelos
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for and on behalf of
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)
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AMSTERDAM TRADE BANK N.V.
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name: Tamara Ristic
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)
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/s/ Tamara Ristic
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Witness' address: 348 Syngrou Avenue
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Kallithea 176 74
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Athens, Greece
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)
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SIGNED by Andreas Giakoumelos
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)
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)
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duly authorised
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)
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/s/ Andreas Giakoumelos
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for and on behalf of
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)
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AMSTERDAM TRADE BANK N.V.
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name: Tamara Ristic
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)
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/s/ Tamara Ristic
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Witness' address: 348 Syngrou Avenue
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Kallithea 176 74
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Athens, Greece
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)
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SIGNED by Andreas Giakoumelos
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)
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)
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duly authorised
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)
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/s/ Andreas Giakoumelos
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for and on behalf of
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)
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AMSTERDAM TRADE BANK N.V.
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name: Tamara Ristic
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)
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/s/ Tamara Ristic
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Witness' address: 348 Syngrou Avenue
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Kallithea 176 74
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Athens, Greece
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)
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SIGNED by Andreas Giakoumelos
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)
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)
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duly authorised
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)
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/s/ Andreas Giakoumelos
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for and on behalf of
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)
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AMSTERDAM TRADE BANK N.V.
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)
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in the presence of:
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)
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Witness' signature:
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)
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Witness' name: Tamara Ristic
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)
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/s/ Tamara Ristic
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Witness' address: 348 Syngrou Avenue
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Kallithea 176 74
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Athens, Greece
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)
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