Dated 25 November 2014 ROSETTA NAVIGATION CORP. LIMITED TRITON SHIPPING LIMITED
Exhibit 4.72
Dated 25 November 2014
ROSETTA NAVIGATION CORP. LIMITED
TRITON SHIPPING LIMITED
as joint and several Borrowers
and
as Guarantor
and
THE BANKS AND FINANCIAL INSTITUTIONS
Listed in Schedule 1
as Lenders
and
ABN AMRO BANK N.V.
as Agent, Underwriter, Swap Bank and as Security Trustee
relating to a loan facility of
(originally) up to US$25,000,000
Xxxxxx, Xxxxxx & Xxxxxxxx
Index
| Clause | Page | |
|
1
|
Interpretation
|
2
|
|
2
|
Agreement of all parties to the Amendment of the Loan Agreement, the Corporate Guarantee and the other Finance Documents
|
2
|
|
3
|
Conditions Precedent
|
2
|
|
4
|
Representations and Warranties
|
3
|
|
5
|
Amendment of Loan Agreement
|
3
|
|
6
|
Further Assurances
|
5
|
|
7
|
Expenses
|
6
|
|
8
|
Notices
|
6
|
|
9
|
Supplemental
|
6
|
|
10
|
Law and Jurisdiction
|
6
|
|
Schedule 1 Lenders
|
8
|
|
|
Schedule 2 Conditions Precedent Documents
|
9
|
|
|
Execution Page
|
10
|
|
THIS SECOND SUPPLEMENTAL AGREEMENT is made on 25 November 2014
BETWEEN
| (1) | ROSETTA NAVIGATION CORP. LIMITED and TRITON SHIPPING LIMITED, each a company incorporated in Hong Kong whose registered office is at Suite 801, Singga Commercial Centre, 000-000, Xxxxxxxxx Xxxx Xxxx, Xxxx Xxxx (each a "Borrower" and, together, the "Borrowers"); |
| (2) | BOX SHIPS INC. a corporation incorporated in the Republic of the Xxxxxxxx Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH96960 as Corporate Guarantor; |
| (3) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1, as Lenders; and |
| (4) | ABN AMRO BANK N.V. acting through its office at 93 Coolsingel, 3012 ae, Rotterdam, The Netherlands, as Agent, Swap Bank, Underwriter and Security Trustee. |
BACKGROUND
| (A) | By a loan agreement dated 27 June 2012 (as amended and supplemented by a supplemental agreement dated 9 August 2013) and made between (i) the Borrowers as joint and several borrowers, (ii) the Lenders and (iv) ABN Amro Bank N.V. (as Agent, Swap Bank, Underwriter and Security Trustee) (the "Loan Agreement"), the Lenders have made available to the Borrowers a loan facility in an amount of (originally) up to US$25,000,000, of which an amount of US$13,750,000 is outstanding by way of principal on the date hereof. |
| (B) | By an agency and trust deed (the "Agency and Trust Deed") entered into pursuant to the Loan Agreement, it was agreed that the Security Trustee would hold the Trust Property on trust for the Lenders and the Swap Bank. |
| (C) | By a master agreement (the "Master Agreement") (on the 2002 ISDA (Multicurrency Crossborder) form together with the schedule attached thereto (as amended)) dated 27 June 2012 and made between (i) the Borrowers and (ii) the Swap Bank, it was agreed that the Swap Bank would enter into Designated Transactions with the Borrowers from time to time. |
| (D) | By a corporate guarantee dated 27 June 2012 (as amended and supplemented from time to time) and made between (i) the Corporate Guarantor and (ii) the Security Trustee, the Corporate Guarantor has guaranteed the obligations of the Borrowers under the Loan Agreement and the Master Agreement. |
| (E) | The Borrowers and the Corporate Guarantor have requested to: |
| (i) | relax certain financial covenants set out in clause 12.3 (b) and (d) of the Corporate Guarantee (the "Corporate Guarantee Amendments") during the Second Waiver Period (as defined below); |
| (ii) | amend the application of the security cover requirements set out in clause 15.1 of the Loan Agreement (the "Security Cover Amendments") during the Second Waiver Period (as defined below); |
| (iii) | waive the application of the requirements under Clause 11.20 of the Loan Agreement ( the "Employment Amendments") during the Second Waiver Period (as defined below); and |
| (iv) | the consequential amendments (the "Consequential Amendments" and, together with the Corporate Guarantee Amendments, the Security Cover Amendments and |
| the Employment Amendments, the "Amendments" and each an "Amendment") to the Loan Agreement, the Corporate Guarantee and the other Finance Documents in connection with those others. |
| (F) | This Second Supplemental Agreement sets out the terms and conditions on which the parties agree, with effect on and from the Effective Date, to the Amendments of the Loan Agreement and the Finance Documents in connection with those matters. |
IT IS AGREED as follows:
| 1 | INTERPRETATION |
| 1.1 | Defined expressions |
Words and expressions defined in the Loan Agreement shall have the same meanings when used in this Second Supplemental Agreement unless the context otherwise requires.
| 1.2 | Definitions |
In this Second Supplemental Agreement, unless the contrary intention appears:
"Corporate Guarantee" means the guarantee (as amended and supplemented from time to time) as referred to in Recital (D);
"Effective Date" means the date on which the Agent notifies the Borrowers and the Creditor Parties that the conditions precedent in Clause 3 have been fulfilled;
"Loan Agreement" means the loan agreement (as amended, supplemented and/or restated form time to time) as referred to in Recital (A);
"Master Agreement" means the Master Agreement as referred to in Recital (C); and
"Second Waiver Period" means the period commencing on 1 April 2014 (inclusive) and ending on 29 June 2015 (inclusive).
| 1.3 | Application of construction and interpretation provisions of Loan Agreement |
Clauses 1.2 and 1.5 of the Loan Agreement apply, with any necessary modifications, to this Second Supplemental Agreement.
| 2 | AGREEMENT OF ALL PARTIES TO THE AMENDMENT OF THE LOAN AGREEMENT, THE CORPORATE GUARANTEE AND THE OTHER FINANCE DOCUMENTS |
| 2.1 | Agreement of the parties to this Second Supplemental Agreement |
The parties to this Second Supplemental Agreement agree, subject to and upon the terms and conditions of this Second Supplemental Agreement, to the amendment of the Loan Agreement, the Corporate Guarantee and the other Finance Documents to be made pursuant to Clauses 5.1 to 5.3. The agreement of the parties to this Second Supplemental Agreement contained in Clause 2.1 shall have effect on and from the Effective Date.
| 3 | CONDITIONS PRECEDENT |
| 3.1 | General |
The agreement of the parties to this Second Supplemental Agreement contained in Clause 2.1 is subject to the fulfilment of the conditions precedent in Clause 3.2.
2
| 3.2 | Conditions precedent |
The conditions referred to in Clause 2.1 are that the Agent shall have received the documents and evidence referred to in Schedule 2 in all respects in form and substance satisfactory to the Agent and its lawyers on or before the date of this Second Supplemental Agreement or such later date as the Agent may agree with the Creditor Parties and the Borrowers.
| 4 | REPRESENTATIONS AND WARRANTIES |
| 4.1 | Repetition of Loan Agreement representations and warranties |
Each Borrower represents and warrants to the Agent that the representations and warranties in clause 10 of the Loan Agreement, as amended by this Second Supplemental Agreement and updated with appropriate modifications to refer to this Second Supplemental Agreement and, where appropriate, each other Finance Document which is being amended by this Second Supplemental Agreement, remain true and not misleading if repeated on the date of this Second Supplemental Agreement with reference to the circumstances now existing.
| 4.2 | Repetition of Corporate Guarantee representations and warranties |
The Corporate Guarantor represents and warrants to the Lender that the representations and warranties in clause 10 of the Corporate Guarantee, as amended by this Second Supplemental Agreement and updated with appropriate modifications to refer to this Second Supplemental Agreement and, where appropriate, each other Finance Document which is being amended by this Second Supplemental Agreement, remain true and not misleading if repeated on the date of this Second Supplemental Agreement with reference to the circumstances now existing.
| 5 | AMENDMENT OF LOAN AGREEMENT |
| 5.1 | Amendments to Loan Agreement |
| (a) | With effect on and from the Effective Date the Loan Agreement shall be, and shall be deemed by this Second Supplemental Agreement to be, amended as follows: |
| (i) | the following definitions shall be included in clause 1.1 of the Loan Agreement in the requisite alphabetical order: |
"Group" means the Corporate Guarantor and any of its subsidiaries and "any member of the Group" shall be construed accordingly;
"Second Waiver Period" means the period commencing on 1 April 2014 (inclusive) and ending on 29 June 2015 (inclusive);
| (ii) | the definition of "Margin" in clause 1.1 of the Loan Agreement shall be deleted and replaced as follows: |
"Margin" means:
| (a) | during the Waiver Period and the Second Waiver Period, 4.10 per cent. per annum; and |
| (b) | at all other times, 3.75 per cent. per annum;"; |
| (iii) | the definition of "Relevant Percentage" in the last paragraph of clause 15.1 of the Loan Agreement shall be deleted and replaced as follows: |
3
"In this Clause 15.1 "Relevant Percentage" means:
| (a) | during the Waiver Period, 110 per cent. per annum; |
| (b) | during the Second Waiver Period, 120 per cent. per annum; and |
| (c) | at all other times, 140 per cent. per annum."; |
| (iv) | the words "(other than during the Second Waiver Period)" shall be included after the words "The Borrowers shall ensure that throughout the Security Period" in clause 11.20 of the Loan Agreement; and |
| (b) | as so amended pursuant to (a) above, the Loan Agreement shall continue to be binding on each of the parties to it in accordance with its terms as so amended. |
| 5.2 | Amendments to Corporate Guarantee |
| (a) | With effect on and from the Effective Date, the Corporate Guarantee shall be, and shall be deemed by this Second Supplemental Agreement to be, amended as follows: |
| (i) | the following definition shall be included in clause 1.2 of the Corporate Guarantee in the requisite alphabetical order: |
"Second Waiver Period" means the period commencing on 1 April 2014 (inclusive) and ending on 29 June 2015 (inclusive);
| (ii) | clause 12.3(b) of the Corporate Guarantee shall be deleted and replaced as follows: |
| "(b) | the Market Value Adjusted Net Worth of the Group shall not be less than: |
| (i) | $50,000,000 during the Second Waiver Period; and |
| (iii) | $100,000,000 at all other times;"; |
| (iv) | clause 12.3(d) of the Corporate Guarantee shall be deleted and replaced as follows: |
| "(d) | the Leverage Ratio shall not exceed: |
| (i) | during the Waiver Period and the Second Wavier Period, 0.85:1; and |
| (ii) | at all other times, 0.65:1."; and |
| (v) | clause 12.2 (a) of the Corporate Guarantee shall be deleted and replaced as follows: |
| "(a) | pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if an Event of Default has occurred and has not been remedied or an Event of Default will result from the payment of a dividend or the making of any other form of distribution Provided that the Guarantor may only pay dividends or make any other form of distribution in each financial quarter in an amount of up to, in the case of the Waiver Period, $0.15 and, in the case of the Second Waiver Period, $0.05 per common share outstanding; or"; and |
| (b) | as so amended pursuant to (a) above, the Corporate Guarantee shall continue to be binding on each of the parties to it in accordance with its terms as so amended. |
| 5.3 | Amendments to Finance Documents |
4
With effect on and from the Effective Date each of the Finance Documents, shall be, and shall be deemed by this Second Supplemental Agreement to be, amended as follows:
| (a) | the definition of, and references throughout each of the Finance Documents to, the Master Agreement, the Loan Agreement and any of the other Finance Documents shall be construed as if the same referred to the Master Agreement, the Loan Agreement and those Finance Documents as amended by this Second Supplemental Agreement; and |
| (b) | by construing references throughout each of the Finance Documents to "this Agreement", "this Deed", "hereunder" and other like expressions as if the same referred to such Finance Documents as amended and supplemented by this Second Supplemental Agreement. |
| 5.4 | The Finance Documents to remain in full force and effect |
The Finance Documents shall remain in full force and effect, as amended by:
| (a) | the amendments contained or referred to in Clauses 5.1, 5.2 and 5.3; and |
| (b) | such further or consequential modifications as may be necessary to give full effect to the terms of this Second Supplemental Agreement. |
| 6 | FURTHER ASSURANCES |
| 6.1 | Borrowers' and Corporate Guarantor's obligations to execute further documents etc. |
Each Borrower and the Corporate Guarantor shall:
| (a) | execute and deliver to the Agent (or as it may direct) any assignment, mortgage, power of attorney, proxy or other document, governed by the law of England or such other country as the Agent may, in any particular case, specify; and |
| (b) | effect any registration or notarisation, give any notice or take any other step, |
which the Agent may, by notice to the Borrowers or the Corporate Guarantor specify for any of the purposes described in Clause 6.2 or for any similar or related purpose.
| 6.2 | Purposes of further assurances |
Those purposes are:
| (a) | validly and effectively to create any Security Interest or right of any kind which the Agent intended should be created by or pursuant to the Loan Agreement or any other Finance Document, each as amended or supplemented by this Second Supplemental Agreement; and |
| (b) | implementing the terms and provisions of this Second Supplemental Agreement. |
| 6.3 | Terms of further assurances |
The Agent may specify the terms of any document to be executed by the Borrowers or, as the case may be, the Corporate Guarantor, under Clause 6.1, and those terms may include any covenants, powers and provisions which the Agent considers appropriate to protect its interests.
| 6.4 | Obligation to comply with notice |
The Borrowers and the Corporate Guarantor shall comply with a notice under Clause 6.1 by the date specified in the notice.
5
| 6.5 | Additional corporate action |
At the same time as the Borrowers or the Corporate Guarantor deliver to the Agent any document executed under Clause 6.1(a), the Borrowers and the Corporate Guarantor shall also deliver to the Agent a certificate signed by 2 of the directors or, if applicable, the sole director of each Borrower or, in the case of the Corporate Guarantor, an officer of the Corporate Guarantor, which shall:
| (a) | set out the text of a resolution of that Borrower's or the Corporate Guarantor's director specifically authorising the execution of the document specified by the Agent unless the execution of the relevant document is authorised by the existing resolutions and general power of attorney of that Borrower or, as the case maybe, the Corporate Guarantor; and |
| (b) | state that either the resolution was duly passed by the sole director validly convened and held throughout and is valid under that Borrower's or the Corporate Guarantor's, as the case may be, articles of association or other constitutional documents. |
| 7 | EXPENSES |
| 7.1 | Reimbursement of expenses |
The Borrowers shall reimburse to the Agent on demand all reasonable costs, fees and expenses (including, but not limited to, legal fees and expenses) and taxes thereon incurred by the Agent or any other Creditor Party in connection with the negotiation, preparation and execution of this Second Supplemental Agreement and any other documents required thereunder.
| 8 | NOTICES |
| 8.1 | General |
The provisions of clause 28 (Notices) of the Loan Agreement, as amended by this Second Supplemental Agreement, shall apply to this Second Supplemental Agreement as if they were expressly incorporated in this Second Supplemental Agreement with any necessary modifications.
| 9 | SUPPLEMENTAL |
| 9.1 | Counterparts |
This Second Supplemental Agreement may be executed in any number of counterparts.
| 9.2 | Third party rights |
Other than a Creditor Party, no person who is not a party to this Second Supplemental Agreement has any right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any term of this Second Supplemental Agreement.
| 10 | LAW AND JURISDICTION |
| 10.1 | Governing law |
This Second Supplemental Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
| 10.2 | Incorporation of the Loan Agreement provisions |
6
The provisions of clause 31 (Law and Jurisdiction) of the Loan Agreement, as amended by this Second Supplemental Agreement, shall apply to this Second Supplemental Agreement as if they were expressly incorporated in this Second Supplemental Agreement with any necessary modifications.
This Second Supplemental Agreement has been duly executed as a Deed on the date stated at the beginning of this Second Supplemental Agreement.
7
SCHEDULE 1
LENDERS
LENDERS
|
Lender
|
Lending Office
|
|
ABN AMRO Bank X.X.
|
00 Xxxxxxxxxx
0000 XX
Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00000 0000
|
8
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
CONDITIONS PRECEDENT DOCUMENTS
The following are the documents referred to in Clause 3.2:
| 1 | In relation to each Borrower, or as the case may be, the Corporate Guarantor, documents of the kind specified in paragraphs 2, 3, 4 and 5 of Schedule 3, Part A of the Loan Agreement with appropriate modifications to refer to this Second Supplemental Agreement (as applicable). |
| 2 | A duly executed original of this Second Supplemental Agreement and any documents required pursuant thereto. |
| 3 | Documentary evidence that the agent for service of process named in clause 31 of the Loan Agreement has accepted its appointment in respect of this Second Supplemental Agreement. |
| 4 | 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 Second Supplemental Agreement (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Agent deems appropriate. |
| 5 | Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of Xxxxxxxx Islands, Hong Kong and such other relevant jurisdictions as the Agent may require. |
| 6 | Any further opinions, consents, agreements and documents in connection with this Second Supplemental Agreement, the Finance Documents and this Second Supplemental Agreement which the Agent may request by notice to the Borrowers prior to the Effective Date. |
9
EXECUTION PAGE
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BORROWERS
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SIGNED, SEALED and DELIVERED
|
)
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for and on behalf of
|
)
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ROSETTA NAVIGATION CORP. LIMITED
|
)
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||
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byRobert Perri
|
)
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/s/ Xxxxxx Xxxxx
|
|
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as Attorney-in-Fact
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)
|
||
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pursuant to a Power of Attorney dated 18 November 2014
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)
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||
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in the presence of:
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Xxxxxxxxx Xxxxxxxxxxxx
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)
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/s/ Xxxxxxxxx Xxxxxxxxxxxx
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Solicitor
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Xxxxxx, Xxxxxx & Xxxxxxxx
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000 Xxxxxxx Xxxxxx
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000 00 Xxxxxxxxx
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Xxxxxx-Xxxxxx
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SIGNED, SEALED and DELIVERED
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)
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for and on behalf of
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)
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TRITON SHIPPING LIMITED
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)
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byRobert Perri
|
)
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/s/ Xxxxxx Xxxxx
|
|
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as Attorney-in-Fact
|
)
|
||
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pursuant to a Power of Attorney dated 18 November 2014
|
)
|
||
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in the presence of:
|
Xxxxxxxxx Xxxxxxxxxxxx
|
)
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/s/ Xxxxxxxxx Xxxxxxxxxxxx
|
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Solicitor
|
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Xxxxxx, Xxxxxx & Xxxxxxxx
|
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000 Xxxxxxx Xxxxxx
|
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000 00 Xxxxxxxxx
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Xxxxxx-Xxxxxx
|
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CORPORATE GUARANTOR
|
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SIGNED byRobert Perri
|
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Xxxxxxxxxx Xxxxxx
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)
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for and on behalf of
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)
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)
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Witnessed by:
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Xxxxxxxxx Xxxxxxxxxxxx
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/s/ Xxxxxxxxx Xxxxxxxxxxxx
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Solicitor
|
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Xxxxxx, Xxxxxx & Xxxxxxxx
|
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000 Xxxxxxx Xxxxxx
|
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000 00 Xxxxxxxxx
|
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Xxxxxx-Xxxxxx
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LENDERS
|
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SIGNED byNadine Arleh
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)
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/s/ Xxxxxx Arleh
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for and on behalf of
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)
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ABN AMRO BANK N.V.
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)
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Witnessed by:
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Xxxxxxxxx Xxxxxxxxxxxx
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/s/ Xxxxxxxxx Xxxxxxxxxxxx
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Solicitor
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Xxxxxx, Xxxxxx & Xxxxxxxx
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000 Xxxxxxx Xxxxxx
|
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176 74 Kallithea
|
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Athens-Greece
|
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10
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AGENT
|
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SIGNED byNadine Arleh
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)
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/s/ Xxxxxx Arleh
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for and on behalf of
|
)
|
||
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ABN AMRO BANK N.V.
|
)
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Witnessed by:
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Xxxxxxxxx Xxxxxxxxxxxx
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/s/ Xxxxxxxxx Xxxxxxxxxxxx
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Solicitor
|
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Xxxxxx, Xxxxxx & Xxxxxxxx
|
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000 Xxxxxxx Xxxxxx
|
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000 00 Xxxxxxxxx
|
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Xxxxxx-Xxxxxx
|
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SECURITY TRUSTEE
|
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SIGNED byNadine Arleh
|
)
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/s/ Xxxxxx Arleh
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for and on behalf of
|
)
|
||
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ABN AMRO BANK N.V.
|
)
|
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Witnessed by:
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Xxxxxxxxx Xxxxxxxxxxxx
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/s/ Xxxxxxxxx Xxxxxxxxxxxx
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Solicitor
|
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Xxxxxx, Xxxxxx & Xxxxxxxx
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000 Xxxxxxx Xxxxxx
|
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000 00 Xxxxxxxxx
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Xxxxxx-Xxxxxx
|
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SWAP BANK
|
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SIGNED byNadine Arleh
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)
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/s/ Xxxxxx Arleh
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for and on behalf of
|
)
|
||
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ABN AMRO BANK N.V.
|
)
|
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Witnessed by:
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Xxxxxxxxx Xxxxxxxxxxxx
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/s/ Xxxxxxxxx Xxxxxxxxxxxx
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Solicitor
|
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Xxxxxx, Xxxxxx & Xxxxxxxx
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000 Xxxxxxx Xxxxxx
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000 00 Xxxxxxxxx
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Xxxxxx-Xxxxxx
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UNDERWRITER
|
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SIGNED byNadine Arleh
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)
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/s/ Xxxxxx Arleh
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for and on behalf of
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)
|
||
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ABN AMRO BANK N.V.
|
)
|
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Witnessed by:
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Xxxxxxxxx Xxxxxxxxxxxx
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/s/ Xxxxxxxxx Xxxxxxxxxxxx
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Solicitor
|
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Xxxxxx, Xxxxxx & Xxxxxxxx
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000 Xxxxxxx Xxxxxx
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000 00 Xxxxxxxxx
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Xxxxxx-Xxxxxx
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11
