PARAGON SHIPPING INC.
Exhibit 4.73
Dated 30 September 2014
as Borrower
-and-
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1
as Lenders
-and-
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 2
as Swap Banks
-and-
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
as Arranger, Agent and Security Trustee
THIRD SUPPLEMENTAL AGREEMENT
in relation to a Loan Agreement dated 30 March 2009 (as amended)
for a term loan facility of up to US$30,000,000
secured against m.v. "KIND SEAS"
CONSTANT & CONSTANT
2, Defteras Xxxxxxxxxx
000 00 Xxxxxxx
Xxxxxx
INDEX
| Clause | Page | |
|
1
|
DEFINITIONS
|
1
|
|
2
|
REPRESENTATIONS AND WARRANTIES
|
1
|
|
3
|
AGREEMENT OF THE CREDITOR PARTIES
|
2
|
|
4
|
CONDITIONS
|
2
|
|
5
|
VARIATIONS TO LOAN AGREEMENT
|
4
|
|
6
|
CONTINUANCE OF LOAN AGREEMENT AND FINANCE DOCUMENTS
|
4
|
|
7
|
FEES AND EXPENSES
|
4
|
|
8
|
NOTICES
|
5
|
|
9
|
APPLICABLE LAW
|
5
|
|
10
|
THIRD PARTY RIGHTS
|
5
|
|
EXECUTION PAGES
|
6
|
|
|
SCHEDULE 1 LENDERS AND COMMITMENTS
|
8
|
|
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SCHEDULE 2 SWAP BANKS
|
9
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SCHEDULE 3 FORM OF CONFIRMATION
|
10
|
|
THIS THIRD SUPPLEMENTAL AGREEMENT dated September 2014 and made
BETWEEN:
| (1) | PARAGON SHIPPING INC. as Borrower; |
| (2) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders; |
| (3) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 2 as Swap Banks; and |
| (4) | THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND as Arranger, Agent and Security Trustee, |
IS SUPPLEMENTAL to a Loan Agreement dated 30 March 2009 as amended by a first supplemental agreement dated 23 March 2010, three side letters dated 23 December 2011, 27 September 2012 and 25 July 2014 respectively, and a second supplemental agreement dated 28 November 2012 (together, the "Loan Agreement") made between (i) the Borrower, (ii) the Lenders, (iii) the Swap Banks, (iv) the Arranger, (v) the Agent and (vi) the Security Trustee pursuant to which the Lenders made available to the Borrower a term loan facility of up to Thirty Million United States Dollars ($30,000,000) upon the terms and for the purposes therein specified. The current amount of the Loan outstanding is $12,700,000.
WHEREAS the Lenders, the Swap Banks, the Arranger, the Agent and the Security Trustee have agreed to give their consent, subject to the terms and conditions herein contained, to amongst other things, the rescheduling of the remaining repayment instalments of the Loan.
NOW THEREFORE IT IS HEREBY AGREED
| 1 | DEFINITIONS |
| 1.1 | Words and expressions defined in the Loan Agreement (as hereby amended) and the recitals hereto and not otherwise defined herein shall have the same meanings when used in this Third Supplemental Agreement. |
| 1.2 | In this Third Supplemental Agreement, unless the context otherwise requires: |
"Third Mortgage Addendum" means the addendum to the first preferred Xxxxxxxx Islands mortgage over m.v. "KIND SEAS" dated 31 March 2009, as amended by the first mortgage addendum dated 23 March 2010 and the second mortgage addendum dated 28 November 2012, executed by the Corporate Guarantor as owner, in favour of the Security Trustee.
| 1.3 | 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. Clause headings are inserted for convenience of reference only and shall be ignored in construing this Third Supplemental Agreement. References to Clauses are to clauses of this Third Supplemental Agreement save as may be otherwise expressly provided in this Third Supplemental Agreement. |
| 2 | REPRESENTATIONS AND WARRANTIES |
| 2.1 | The Borrower hereby represents and warrants to the Creditor Parties that, as at the date of this Third Supplemental Agreement, the representations and warranties set forth in clause 10 of the Loan Agreement (updated mutatis mutandis to the date of this Third Supplemental Agreement) are true and correct as if all references therein to "this Agreement" were references to the Loan Agreement as further amended by this Third Supplemental Agreement. |
| 2.2 | The Borrower hereby further represents and warrants to the Creditor Parties that as at the date of this Third Supplemental Agreement: |
| (a) | it is duly formed and validly existing and in goodstanding under the laws of the country of its incorporation and has full power to enter into and perform its obligations under this Third Supplemental Agreement to which it is a party and has complied with all statutory and other requirements relative to its business; |
| (b) | all necessary governmental or other official consents, authorisations, approvals, licences, consents or waivers for the execution, delivery, performance, validity and/or enforceability of this Third Supplemental Agreement, the Third Mortgage Addendum and all other documents to be executed in connection with the amendments to the Loan Agreement as contemplated hereby have been obtained and will be maintained in full force and effect throughout the Security Period; |
| (c) | it has taken all necessary corporate and other action to authorise the execution, delivery and performance of its obligations under this Third Supplemental Agreement and this Third Supplemental Agreement constitutes the valid and binding obligations of the Borrower enforceable in accordance with its terms; |
| (d) | the execution, delivery and performance of this Third Supplemental Agreement, the Third Mortgage Addendum and all such other documents as contemplated hereby does not and will not during the Security Period constitute a breach of any contractual restriction or any existing applicable law, regulation, consent or authorisation binding on the Borrower or on any of its respective property or assets and will not result in the creation or imposition of any security interest, lien, charge or encumbrance (other than under the Finance Documents) on any of such property or assets; |
| (e) | it has fully disclosed in writing to the Creditor Parties all facts which it knows or which it should reasonably know and which are material for disclosure to the Creditor Parties in the context of this Third Supplemental Agreement and all information furnished by the Borrower or on its behalf relating to its business and affairs in connection with this Third Supplemental Agreement was and remains true, correct and complete in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading; and |
| (f) | no Event of Default (save for any Event of Default which may exist under Clause 19.1(f) of the Loan Agreement with regard however only to any Financial Indebtedness of a Relevant Person to any person other than the Creditor Parties pursuant to the Finance Documents) has occurred and continues as at date of this Third Supplemental Agreement. |
| 3 | AGREEMENT OF THE CREDITOR PARTIES |
| 3.1 | The Creditor Parties, relying upon each of the representations and warranties set out in Clauses 2.1 and 2.2 of this Third Supplemental Agreement, hereby agree with the Borrower subject to and upon the terms and conditions of this Third Supplemental Agreement and in particular, but without limitation, subject to and with effect from the fulfillment of the conditions precedent set out in Clause 4, to the rescheduling of the remaining instalments of the Loan in accordance with Clause 5. |
| 3.2 | The Borrower confirms that it will continue to remain liable to perform its obligations under the Loan Agreement (as hereby amended) and the Finance Documents to which it is a party. |
| 4 | CONDITIONS |
| 4.1 | The agreement of the Creditor Parties contained in Clause 3.1 of this Third Supplemental Agreement shall be subject to the following condition that the Creditor Parties shall have |
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received in form and substance satisfactory to the Security Trustee on behalf of the Lenders and their legal advisers on or before the signature hereof:
| (a) | a certificate of a Director of the Borrower confirming the names and offices of all the Directors and/or Officers of the Borrower, and confirming that the Borrower's incorporation and constitutional documents have not been altered or amended since 23 March 2009; |
| (b) | true and complete copies of the resolutions passed at a meeting of the Board of Directors of the Borrower, authorising and approving the execution of this Third Supplemental Agreement and any other document or action to which the Borrower is a party, and authorising its appropriate officer or officers or other representatives to execute the same on its behalf; |
| (c) | the original of any power of attorney issued by the Borrower pursuant to such resolutions aforesaid; |
| (d) | true and complete copies of the resolutions passed at a meeting of the Board of Directors of the Corporate Guarantor, authorising and approving the execution of the Third Mortgage Addendum and any other document or action to which the Corporate Guarantor is a party, and authorising its appropriate officer or officers or other representatives to execute the same on its behalf; |
| (e) | the original of any power of attorney issued by the Corporate Guarantor pursuant to such resolutions aforesaid; |
| (f) | certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, approvals or consents with respect to this Third Supplemental Agreement and the Third Mortgage Addendum (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Security Trustee deems appropriate; |
| (g) | a duly executed original of this Third Supplemental Agreement and the Third Mortgage Addendum, together with evidence that the Third Mortgage Addendum has been duly registered against the Ship in accordance with the laws of the Republic of The Xxxxxxxx Islands; |
| (h) | such legal opinions as the Security Trustee may require in respect of the matters contained in this Third Supplemental Agreement and the Third Mortgage Addendum; |
| (i) | a duly executed confirmation from each Security Party in the form of Schedule 3 hereto, confirming that (notwithstanding the amendments made to the Loan Agreement pursuant to this Agreement) the Finance Documents to which it is a party and its obligations thereunder remain valid and binding; |
| (j) | receipt by the Lenders of the sum of $4,000,000 by way of prepayment of the Loan, to be applied in accordance with Clause 8 of the Loan Agreement; and |
| (k) | receipt by the Lenders of the expenses referred to in Clause 7.1. |
| 4.2 | The agreement of the Creditor Parties contained in Clause 3.1 of this Third Supplemental Agreement shall be further subject to the condition that the Creditor Parties shall receive evidence satisfactory to the Agent of the agreement of the relevant banks and financial institutions to similar amendments (as set out in Clause 5 hereof) to the other loan facilities currently in place with Paragon Shipping Inc. as borrower within 90 days from the date of this Third Supplemental Agreement. |
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| 5 | VARIATIONS TO LOAN AGREEMENT |
| 5.1 | In consideration of the agreement of the Creditor Parties contained in Clause 3.1 of this Third Supplemental Agreement, the Borrower hereby agrees with the Creditor Parties that the provisions of the Loan Agreement shall as of the date on which the conditions precedent set out in Clause 4 have been complied with to the satisfaction of the Creditor Parties be varied and/or amended and/or supplemented as follows: |
| (a) | by construing all references therein to "this Agreement" where the context admits as being references to "this Agreement as the same is amended and supplemented by the Third Supplemental Agreement dated September 2014 and as the same may from time to time be further supplemented and/or amended"; |
| (b) | by inserting in clause 1.1 thereof the definition set out in Clause 1.2 hereof; and |
| (c) | by construing the definition of "Finance Documents" set out in clause 1.1 of the Loan Agreement to include the Third Mortgage Addendum defined in Clause 1.2 hereof. |
| 5.2 | The Borrower undertakes to prepay the sum of $4,000,000 to the Lenders prior to 30 September 2014, to be applied in reduction of the outstanding amount of the Loan, such prepayment to be funded by (a) the release of the sum of $1,000,000 from the cash collateral held by the Borrower with the Agent and (b) a cash injection of $3,000,000 by the Borrower (the "Rescheduled Instalment"). Following the Rescheduled Instalment the outstanding amount shall be $8,700,000 (the "Remaining Amount"). |
| 5.3 | The Lender agrees that, following receipt of the prepayment of $4,000,000 referred to in Clause 5.2 above, with effect from and including the repayment instalment due on 30 September 2014, the Remaining Amount of the Loan shall be repaid by eleven (11) consecutive quarterly instalments, the first four (4) of which shall be in the amount of $350,000 each, the next four (4) of which shall be in the amount of $400,000 each and the final three (3) of which shall be in the amount of $1,000,000 each and by a balloon payment in the amount of $2,700,000 payable together with the final quarterly instalment. Clause 8.1 of the Loan Agreement shall be construed accordingly. |
| 5.4 | For the avoidance of doubt, the amendments referred to in Clauses 5.1 and 5.3 shall only become effective upon receipt by the Lenders of the prepayment of $4,000,000 referred to in Clause 5.2. |
| 6 | CONTINUANCE OF LOAN AGREEMENT AND FINANCE DOCUMENTS |
| 6.1 | Save for the alterations to the Loan Agreement made or to be made pursuant to this Third Supplemental Agreement and such further modifications (if any) thereto as may be necessary to make the same consistent with the terms of this Third Supplemental Agreement, the Loan Agreement shall remain in full force and effect and the security constituted by the Finance Documents shall continue and remain valid and enforceable in all respects. |
| 7 | FEES AND EXPENSES |
| 7.1 | The Borrower agrees to pay to the Creditor Parties upon demand and from time to time all costs, charges and expenses (including legal fees and VAT, if applicable) incurred by the Creditor Parties in connection with the preparation, negotiation, execution and (if required) registration of, or preservation of rights under or the enforcement or attempted enforcement of, the Loan Agreement, the Finance Documents, this Third Supplemental Agreement or otherwise in connection with the Loan or any part thereof. |
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| 8 | NOTICES |
| 8.1 | The provisions of clause 28 (Notices) of the Loan Agreement shall apply to this Third Supplemental Agreement as if the same were set out herein in full. |
| 9 | APPLICABLE LAW |
| 9.1 | This Third Supplemental Agreement (and any non contractual obligations connected with it) shall be governed by and construed in accordance with English law. |
| 9.2 | Subject to Clause 9.3, the courts of England shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Third Supplemental Agreement. |
| 9.3 | Clause 9.2 is for the exclusive benefit of the Creditor Parties which reserve the right: |
| (a) | to commence proceedings in relation to any matter which arises out of or in connection with this Third Supplemental Agreement in the courts of any country other than England and which have or claim jurisdiction to that matter; and |
| (b) | to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England. |
The Borrower shall not commence any proceedings in any country other than England in relation to a matter which arises out of or in connection with this Third Supplemental Agreement.
| 9.4 | The Borrower irrevocably appoints Hill Xxxxxxxxx Services (London) Limited at its office for the time being, presently at The Xxxxxxxxx Xxxxx 00, Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with this Third Supplemental Agreement. |
| 9.5 | Nothing in this Clause 9 shall exclude or limit any right which the Creditor Parties may have (whether under the law of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction. |
| 9.6 | In this Clause 9, "proceedings" means proceedings of any kind, including an application for a provisional or protective measure. |
| 10 | THIRD PARTY RIGHTS |
| 10.1 | A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any term of this Third Supplemental Agreement. |
IN WITNESS WHEREOF the parties hereto have caused this Third Supplemental Agreement to be duly executed the day and year first above written.
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EXECUTION PAGES
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BORROWER
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SIGNED by
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Xxxxxx Xxxxx
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)
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/s/ Xxxxxx Xxxxx
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Xxxxxxxx Xxxxxx
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)
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/s/ Xxxxxxxx Xxxxxx
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for and on behalf of
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)
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)
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in the presence of:
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Xxxxx Xxxxxxxx
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/s/Xxxxx Xxxxxxxx
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LENDERS
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SIGNED by Xxxxxx Xxxxxx
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)
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/s/ Xxxxxx Xxxxxx
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for and on behalf of
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THE GOVERNOR AND
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)
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COMPANY OF THE BANK OF
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)
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IRELAND
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)
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in the presence of:
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Xxxxx Xxxxxxxx
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/s/Xxxxx Xxxxxxxx
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ARRANGER
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SIGNED by Xxxxxx Xxxxxx
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)
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/s/ Xxxxxx Xxxxxx
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for and on behalf of
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THE GOVERNOR AND
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)
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COMPANY OF THE BANK OF
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)
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IRELAND
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)
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in the presence of:
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Xxxxx Xxxxxxxx
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/s/Xxxxx Xxxxxxxx
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AGENT
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SIGNED by Xxxxxx Xxxxxx
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)
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/s/ Xxxxxx Xxxxxx
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for and on behalf of
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)
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THE GOVERNOR AND
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)
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COMPANY OF THE BANK OF
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)
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IRELAND
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)
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in the presence of:
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Xxxxx Xxxxxxxx
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/s/Xxxxx Xxxxxxxx
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6
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SECURITY TRUSTEE
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SIGNED by Xxxxxx Xxxxxx
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)
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/s/ Xxxxxx Xxxxxx
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for and on behalf of
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)
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THE GOVERNOR AND
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)
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COMPANY OF THE BANK OF
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)
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IRELAND
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)
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in the presence of:
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Xxxxx Xxxxxxxx
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/s/Xxxxx Xxxxxxxx
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7
SCHEDULE 1
LENDERS AND COMMITMENTS
LENDERS AND COMMITMENTS
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Lender
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Lending Office
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Commitment
|
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The Governor and Company of the Bank of Ireland
|
Head Office
00 Xxxxxx Xxxx
Xxxxxx 0
Xxxxxxx
|
$30,000,000 (originally)
|
8
SCHEDULE 2
SWAP BANKS
SWAP BANKS
|
Swap Bank
|
Booking Office
|
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The Governor and Company
|
Colvill House
|
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of the Bank of Ireland
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Xxxxxx Xxxxxx
|
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Xxxxxx 0
|
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Xxxxxxx
|
9
SCHEDULE 3
FORM OF CONFIRMATION
FORM OF CONFIRMATION
[ ] 2014
We hereby confirm and acknowledge we have read and understood the terms and conditions of the Third Supplemental Agreement dated [ ] 2014 (the "Third Supplemental Agreement") to the Loan Agreement dated 30 March 2009 as amended by a first supplemental agreement dated 23 March 2010, three side letters dated 23 December 2011, 27 September 2012 and 25 July 2014 respectively, and a second supplemental agreement dated 28 November 2012 (together, the "Loan Agreement") made between (i) Paragon Shipping Inc. as borrower (the "Borrower"), (ii) the banks and financial institutions listed in schedule 1 therein as lenders, (iii) the banks and financial institutions listed in schedule 2 therein as swap banks and (iv) The Governor and Company of the Bank of Ireland as arranger, agent and security trustee, and agree in all respects to the same and confirm that the Finance Documents (as defined in the Loan Agreement) to which we are a party shall remain in full force and effect and shall continue to stand as security for the obligations of the Borrower under the Loan Agreement (as amended by the Third Supplemental Agreement).
____________________
[ ]
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