Contract
Exhibit 4.80
F28.054
DATED
3 APRIL 2009
XXXXXXXXXXXX
SHIPPING COMPANY LIMITED
(as
borrower)
-and-
JAPAN
III SHIPPING COMPANY LIMITED
(as
collateral guarantor)
-and-
ALPHA
BANK A.E.
(as
lender)
__________________________________________________________________________
SECOND
SUPPLEMENTAL AGREEMENT TO SECURED
LOAN
FACILITY AGREEMENT DATED 18 AUGUST 2008 AS
AMENDED
AND
SUPPLEMENTED
BY A SUPPLEMENTAL AGREEMENT DATED 23 FEBRUARY
2009
__________________________________________________________________________
XXXXXXXXXX
XXXXXXX
Xxx,
Xx. Xxxx'x Xxxxxxxxxx
Xxxxxx
XX0X 0XX
Tel:
x00 (0)00 0000 0000
Fax:
x00 (0)00 0000 0000
Ref:
F28.054
CONTENTS
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Page
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1
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Interpretation
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3
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2
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Conditions
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3
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3
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Representations
and Warranties
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7
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4
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Amendments
to Loan Agreement
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7
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5
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Confirmation
and Undertaking
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10
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6
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Communications,
Law and Jurisdiction
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10
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SUPPLEMENTAL
AGREEMENT
Dated: 3
April 2009
BETWEEN:
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(1)
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XXXXXXXXXXXX
SHIPPING COMPANY LIMITED, a company incorporated under the laws of
the Republic of Liberia whose registered office is at 00, Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx (the "Borrower");
and
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(2)
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JAPAN
III SHIPPING COMPANY LIMITED, a company incorporated under the laws
of the Republic of Liberia whose registered office is at 00, Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx (the "Collateral
Guarantor");
and
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(3)
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ALPHA
BANK A.E., acting through its office at 00 Xxxx Xxxxxxx, XX 000 00
Xxxxxxx, Xxxxxx (the "Lender").
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SUPPLEMENTAL
TO a secured loan agreement dated 18 August 2008 as amended and
supplemented by a first supplemental agreement dated 23 February 2009 (together
the "Loan
Agreement") both made between,
among others, the Borrower, as borrower and the Lender, as lender on the terms
and subject to the conditions of which the Lender has agreed to advance to the
Borrower an aggregate amount not exceeding thirty nine million Dollars
($39,000,000) (the "Loan").
WHEREAS:
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(A)
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The
Collateral Guarantor and the Lender have entered into a secured loan
agreement dated 17 December 2007 (the "Japan
Loan Agreement") made
between the Collateral Guarantor, as borrower and the Lender, as lender on
the terms and subject to the conditions of which the Lender has agreed to
advance to the Collateral Guarantor an aggregate amount not exceeding
forty eight million Dollars ($48,000,000) (the "Japan
Loan"). As security for
the obligations of the Collateral Guarantor under the Japan Loan
Agreement, the Collateral Guarantor executed, delivered and registered
(where applicable) in favour of the Lender, as first mortgagee and
assignee, a first preferred Liberian mortgage over the Collateral Vessel
together with a first priority assignment of the Collateral Vessel's
Insurances, Earnings and Requisition
Compensation.
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(B)
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As
security for the obligations of the Borrower under the Loan Agreement the
Lender has requested and the Collateral Guarantor agreed to execute,
deliver and register (where applicable) in favour of the Lender a
guarantee and indemnity, a second preferred Liberian mortgage over the
Collateral Vessel and a second priority deed of assignment of the
Insurances, Earnings and Requisition Compensation in respect of the
Collateral Vessel.
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1
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(C)
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The
aggregate of the Market Value of the Vessel pursuant to clause 10.12 of
the Loan Agreement is less than one hundred and thirty per cent (130%) of
the Loan.
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(D)
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Pursuant
to the provisions of clauses 10.12.1 to 10.12.3 of the Loan Agreement, the
Borrower has an obligation to take certain action following the occurrence
of the event set out in Recital (C)
above.
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(E)
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The
Borrower has requested that the Lender agrees to waive the provisions of
clauses 10.12.1 to 10.12.3 and 12.2.2 of the Loan Agreement with effect
from the Effective Date until and including 31 March
2010.
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(F)
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Pursuant
to the provisions of clause 12.2.1 of the Loan Agreement, the Borrower
would procure that the Guarantor shall at all times during the Facility
Period on a consolidated basis commencing from the date of the Loan
Agreement maintain a Minimum Liquidity of not less than twenty five
million Dollars ($25,000,000).
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(G)
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The
Borrower has requested that the Lender agrees to reduce the amount of the
Minimum Liquidity referred to in clause 12.2.1 of the Loan Agreement to an
amount not less than fifteen million Dollars ($15,000,000) with effect
from the Effective Date up to and including 31 March 2010, whereupon and
for the remaining of the Facility Period the amount of the Minimum
Liquidity will be increased again to an amount of not less than twenty
five million Dollars ($25,000,000).
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(H)
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The
Lender is willing to agree to all the foregoing requests and amend the
Loan Agreement and the Security Documents subject to the terms and
conditions set forth in this Second Supplemental
Agreement.
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(I)
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At
the date of this Second Supplemental Agreement the outstanding amount of
the Loan is thirty nine million Dollars
($39,000,000).
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2
IT
IS AGREED THAT:
1 Interpretation
1.1 In
this Second Supplemental Agreement:
"Bareboat
Charterer" means Daelim Corporation. of 10F KCCI Xxxx, 00 0xx
Xxxxxxxxxxx. Xxxx xx Xxxxx, Xxxxxxxx of South Korea.
"Bareboat
Charterer's Deed of Confirmation" means a notarially attested and
legalised (in respect of the Bareboat Charterer) deed of confirmation to be
executed by the Borrower and the Bareboat Chatrterer in favour of the Lender in
form and substance acceptable to the Lender in all
respects.
"Effective
Date" means the date of this Second Supplemental
Agreement.
"Collateral
Assignment" means a second priority deed of assignment of the Insurances,
Earnings and Requisition Compensation in respect of the Collateral Vessel to be
granted by the Collateral Guarantor, as owner of the Collateral Vessel in favour
of the Lender in form and substance acceptable to the Lender in all
respects.
"Collateral
Guarantee" means a guarantee and indemnity to be executed by the
Collateral Guarantor in favour of the Lender in form and substance acceptable to
the Lender in all respects.
"Collateral
Manager's Confirmation" means a managers' confirmation to be executed by
each of Top Tanker Management Inc., of the Republic of the Xxxxxxxx Islands and
Interorient Maritime Enterprises Inc., of the Republic of Liberia, as managers
of the Collateral Vessel in favour of the Lender in form and substance
acceptable to the Lender in all respects.
"Collateral
Mortgage" means a second preferred Liberian mortgage over the Collateral
Vessel to be granted by the Collateral Guarantor, as owner of the Collateral
Vessel in favour of the Lender in form and substance acceptable to the Lender in
all respects.
3
"Collateral
Vessel" means the motor vessel "CYCLADES" registered in the ownership of
the Owner under the flag of the Republic of Liberia with Official Number 13719,
together with all her engines, machinery, boats, tackle, outfit, fuels, spares,
consumable and other stores, belongings and appurtenances, whether on board or
ashore, including any which may in the future be put on board or may in the
future be intended to be used for the Collateral Vessel if on
shore.
"Deed
of Confirmation" means a deed of confirmation to be executed by Top Ships
Inc., of the Republic of the Xxxxxxxx Islands in favour of the Lender in form
and substance acceptable to the Lender in all
respects.
"New
Security Documents" means this Second Supplemental Agreement, the
Collateral Guarantee, the Collateral Mortgage, the Collateral Assignment, the
Collateral Manager's Confirmation, the Bareboat Charterer's Deed of
Confirmation, the Deed of Confirmation and any other agreement or document which
may at any time be executed by any person as additional security for the payment
of all or any part of the Indebtedness.
"Security
Parties" means all parties to this Second Supplemental Agreement other
than the Lender.
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1.2
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Unless
otherwise defined, all words and expressions defined in the Loan Agreement
shall have the same meaning when used in this Second Supplemental
Agreement unless the context otherwise requires, and clause 1.2 of the
Loan Agreement shall apply to the interpretation of this Second
Supplemental Agreement as if it was set out in
full.
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2
Conditions
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2.1
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As
conditions for the agreement of the Lender to the requests specified in
Recitals (E) and (G) above, the Borrower shall deliver or cause to be
delivered to or to the order of the Lender the following documents and
evidence:
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2.1.1
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a
certificate from a duly authorised officer of each of the Borrower and the
Guarantor confirming that none of the documents delivered to the Lender
pursuant to clauses 3.1 and 3.5 of the Loan Agreement have been amended or
modified in any way since the date of their delivery to the Lender, or
copies, certified by a duly authorised officer of each of the Borrower and
the Guarantor as true, complete, accurate and neither amended nor revoked,
of any documents which have been amended or
modified;
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4
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2.1.2
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copies
of the constitutional documents of the Collateral Guarantor together with
such other evidence as the Lender may reasonably require that the
Collateral Guarantor is duly incorporated in its country of incorporation
and remains in existence with power to enter into, and perform its
obligations under, the New Security Documents to which it is or is to
become a party;
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2.1.3
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the
original resolution of the directors and the shareholders of each of the
Security Parties and the Guarantor (together, where appropriate, with
signed waivers of notice of any directors' or shareholders' meetings)
approving, and authorising or ratifying the execution of, the New Security
Documents and any document to be executed by each of the Security Parties
and the Guarantor pursuant to the New Security Documents;
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2.1.4
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a
notarially attested and legalised power of attorney of each of the
Security Parties and the Guarantor under which the New Security Documents
and any documents required pursuant to them are to be executed by each of
the Security Parties and the Guarantor;
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2.1.5
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a
certificate of good standing in respect of each of the Security Parties
and the Guarantor;
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2.1.6
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the
New Security Documents, together with all other documents required by any
of them, including, without limitation, all other notices of assignment
and/or charge duly executed and registered (where applicable) and evidence
that those notices will be duly acknowledged by the recipients and in the
case of the Collateral Mortgage registered with second priority at the
Ship's Registry (or equivalent office) of the Collateral Vessel's current
flag;
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2.1.7
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a
certificate of ownership and encumbrance (or equivalent) issued by the
Registrar of Ships (or equivalent official) of the Collateral Vessel's
current flag confirming that the Collateral Vessel is permanently
registered under the flag of the Republic of Liberia in the ownership of
the Collateral Guarantor and that the Collateral Mortgage in respect of
the Collateral Vessel has been registered with second priority and that
there are no further encumbrances registered apart from a first preferred
Liberian mortgage over the Collateral Vessel dated 19 December 2007
executed by the Collateral Guarantor in favour of the
Lender;
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5
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2.1.8
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evidence
that the Collateral Vessel is insured in the manner required by the New
Security Documents and that letters of undertaking will be issued in the
manner required by the New Security Documents together with copies of the
relevant policies or cover notes or entry certificates duly endorsed with
the interest of the Lender as second mortgagee and assignee, together with
(if required by the Lender) the written approval of the Insurances by an
insurance adviser appointed by the Lender;
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2.1.9
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if
required by the Lender, the written confirmation of the Managers that,
throughout the Facility Period unless otherwise agreed by the Lender, they
will remain the commercial and technical managers of the Collateral Vessel
and that they will not, without the prior written consent of the Lender
sub-contract or delegate the commercial or technical management of the
Collateral Vessel to any third party and confirming in terms acceptable to
the Lender that, following the occurrence of an Event of Default, all
claims against the Borrower shall be subordinated to the claims of the
Lender under the Finance Documents;
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2.1.10
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confirmation
satisfactory to the Lender that all legal opinions required by the Lender
will be given substantially in the form required by the
Lender;
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2.1.11
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evidence
that any process agent referred to in clause 21.5 of the Loan Agreement
and any process agent appointed under any New Security Document has
accepted its appointment;
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6
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2.1.12
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a
copy of any other consent, licence, approval, authorisation or other
document, opinion or assurance which the Lender considers to be necessary
or desirable (if it has notified the Borrower and/or the Collateral
Guarantor accordingly) in connection with the entry into and performance
of the transactions contemplated by this Second Supplemental Agreement and
the other New Security Documents or for the validity and enforceability of
this Second Supplemental Agreement and the other New Security
Documents.
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2.2
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If
the Lender agrees, in its sole discretion, to waive any conditions under
Clause 2.1 prior to the Effective Date, the Borrower undertakes to deliver
all outstanding documents and evidence to or to the order of the Lender no
later than the date specified by the Lender, which however, shall not be
taken as a waiver of the Lender's right to require production of all the
documents and evidence required by Clause 2.1.
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2.3
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All
documents and evidence delivered to the Lender pursuant to this Clause
shall:
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2.3.1
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be
in form and substance acceptable to the Lender;
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2.3.2
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be
accompanied, if required by the Lender, by translations into the English
language, certified in a manner acceptable to the Lender; and
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2.3.3
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if
required by the Lender, be certified, notarised, legalised or attested in
a manner acceptable to the Lender.
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3 Representations
and Warranties
Each of
the representations and warranties contained in clause 11 of the Loan Agreement
shall be deemed repeated by the Borrower at the Effective Date, by reference to
the facts and circumstances then pertaining, as if references to the Security
Documents included this Second Supplemental Agreement.
7
4 Amendments
to Loan Agreement
With
effect from the Effective Date:
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4.1
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the
definitions contained in Clause 1.1 (other than the definition of "Effective
Date") of this Second
Supplemental Agreement shall be added to clause 1.1 of the Loan
Agreement;
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4.2
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the
definition of "Collateral
Guarantor" contained in Recital 2 was added in clause 1.1 of the
Loan Agreement;
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4.3
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the
definition of the term "Margin",
as is set out in clause 1.1 of the Loan Agreement shall be
substituted as follows:-
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""Margin"
means two point twenty five per cent (2.25%) per
annum.";
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4.4
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where
the context so admits, all references to the term "Mortgage"
(however defined) in the Loan Agreement and the Security Documents,
shall be read and construed as including the plural of such term or as
referring to each "Mortgage",
as if they were references to the Mortgage in respect of the Vessel
and to the Collateral Mortgage in respect of the Collateral
Vessel;
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4.5
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the
definition of "Security
Documents" set forth in clause 1.1 of the Loan Agreement was
construed to include the New Security Documents;
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4.6
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the
definition of "Security
Parties" set forth in clause 1.1 of the Loan Agreement was
construed to include the Collateral Guarantor;
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4.7
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where
the context so admits, all references to the term "Vessel"
(however defined) in the Loan Agreement, including but not limited
to references in clauses 1.1, 10, 12 and 13 of the Loan Agreement, and the
Security Documents, shall be read and construed as including the plural of
such term or as referring to each "Vessel"
respectively, as if they were references to the Vessel in relation
to the Borrower and to the Collateral Vessel in relation to the Collateral
Guarantor;
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4.8
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the
Lender agrees to waive the breach of the covenant contained in clause
10.12 of the Loan Agreement only until 31 March
2010;
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8
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4.9
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clause
6.3 of the Loan Agreement was deleted and replaced with the following
clause 6.3:
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"6.3
Mandatory
Prepayment on sale or Total Loss If the Vessel is sold by the Borrower or
becomes a Total Loss, the Borrower shall, simultaneously with any such sale or
within one hundred and fifty (150) days after any such Total Loss, prepay the
whole of the Loan. If the Collateral Vessel is sold by the Collateral Guarantor
or becomes a Total Loss, the Borrower shall, simultaneously with any such sale
or within one hundred and fifty (150) days after any such Total Loss, within
thirty (30) days of the Lender's request, at the Borrower's option:
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6.3.1
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pay
to the Lender or to its nominee a cash deposit to be secured in favour of
the Lender as additional security for the payment of the Indebtedness;
or
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6.3.2
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give
to the Lender other additional security in amount and form acceptable to
the Lender in its discretion; or
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6.3.3
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prepay
an amount of the Indebtedness,
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which, in
each case, will ensure that the aggregate of the market value of the Vessel (as
determined pursuant to Clause 10.12) and the value of any such additional
security is not less than the ratio of the market value of the Vessel and the
Collateral Vessel as was immediately prior to the sale or Total Loss of the
Collateral Vessel."
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4.10
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clause
12.2 of the Loan Agreement was deleted and replaced with the following
clause 12.2:
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"12.2
Financial
covenants
The
Borrower shall procure that the Guarantor shall at all times during the Facility
Period on a consolidated basis (assessed semi-annually and certified in
accordance with Clause 12.1.2 (a)) commencing from the date of this
Agreement:-
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12.2.1
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maintain
a Minimum Liquidity of not less than twenty five million Dollars
($25,000,000), but of not less than fifteen million Dollars ($15,000,000)
from the Effective Date until 31 March 2010 whereupon and for the
remaining of the Facility Period the amount of the Minimum Liquidity will
be increased again to an amount of not less than twenty five million
Dollars ($25,000,000); and
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9
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12.2.2
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maintain
a Minimum Adjusted Net Worth of not less than two hundred and fifty
million Dollars ($250,000,000) with the exception of the period between
the Effective Date and 31 March 2010; and
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| 12.2.3 |
maintain
Minimum Equity of not less than one hundred million Dollars
($100,000,000).";
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4.11
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clause
13.1. I 8 of the Loan Agreement was deleted and replaced with the
following clause 13.1.18:-
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"13.1.18
Notice
of termination The Guarantor or the Collateral Guarantor gives
notice to the Lender to determine its obligations under the Guarantee or
the Collateral Guarantee."; and
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4.12
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clause
10.1 of the Loan Agreement shall be read and construed as including the
New Security Documents.
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For the
avoidance of doubt, the Lender hereby consents to and permits the creation of
additional Encumbrance over the Collateral Vessel by virtue of the New Security
Documents. All other terms and conditions of the Loan Agreement shall remain
unaltered and in full force and effect.
5 Confirmation
and Undertaking
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5.1
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The
Borrower confirms that all of its respective obligations under or pursuant
to each of the Security Documents to which it is a party remain in full
force and effect, despite the amendments to the Loan Agreement made in
this Second Supplemental Agreement, as if all references in any of the
Security Documents to the Loan Agreement (however described) were
references to the Loan Agreement as amended and supplemented by this
Second Supplemental Agreement.
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5.2
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The
definition of any term defined in any of the Security Documents shall, to
the extent necessary, be modified to reflect the amendments to the Loan
Agreement made in this Second Supplemental
Agreement.
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6 Notices,
Law and Jurisdiction
The
provisions of clauses 17 and 21 of the Loan Agreement shall apply to this Second
Supplemental Agreement as if they were set out in full and as if references to
the Loan Agreement were references to this Second Supplemental Agreement and
references to the Borrower were references to the Security
Parties.
10
IN
WITNESS of which the parties to this Second Supplemental Agreement have
executed this Second Supplemental Agreement as a deed the day and year first
before written.
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SIGNED and DELIVERED as a DEED
by
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)
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XXXXXXXXXXXX
SHIPPING COMPANY LIMITED
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)
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acting
by Xxxxxxx Xxxxx
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) /s/Xxxxxxx
Xxxxx
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its
duly authorised attorney-in-fact
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)
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in
the presence of:
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)
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| /s/Xxxxxxxxxx Xxxxxxx | |
| XXXXXXXXXX XXXXXXX | |
| ARISTON BUILDING | |
| 2 FILELL NON STR & AKTI MIA XXXX | |
| XXXXXXX 000 00 XXXXXX | |
| VAT NO 000000000 | |
| TEL 000 00 00 000 |
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SIGNED and DELIVERED as a DEED
by
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)
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JAPAN
III SHIPPING COMPANY LIMITED
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)
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acting
by Xxxxxxx Xxxxx
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) /s/Xxxxxxx
Xxxxx
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its
duly authorised attorney-in-fact
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)
|
|
in
the presence of:
|
)
|
| /s/Xxxxxxxxxx Xxxxxxx | |
| XXXXXXXXXX XXXXXXX | |
| ARISTON BUILDING | |
| 2 FILELL NON STR & AKTI MIA XXXX | |
| XXXXXXX 000 00 XXXXXX | |
| VAT NO 000000000 | |
| TEL 000 00 00 000 |
|
SIGNED and DELIVERED as a DEED
by
|
)
|
|
ALPHA
BANK A.E.
|
)
|
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acting
by Xxxxxxxxxxxx Xxxxxx
|
) /s/Xxxxxxxxxxxx
Xxxxxx
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|
and
by Xxxxxxxxx Xxxxxxxx
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) /s/Xxxxxxxxx
Xxxxxxxx
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its
duly authorized attorneys-in-fact
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)
|
|
in
the presence of:
|
)
|
| /s/Xxxxxxxxxx Xxxxxxx | |
| XXXXXXXXXX XXXXXXX | |
| ARISTON BUILDING | |
| 2 FILELL NON STR & AKTI MIA XXXX | |
| XXXXXXX 000 00 XXXXXX | |
| VAT NO 000000000 | |
| TEL 000 00 00 000 |
11
