Dated 25 February 2009 SUPPLEMENTAL AGREEMENT relating to a secured credit facility of up to (originally) US$100,000,000 to PARAGON SHIPPING INC. as Borrower provided by THE BANKS AND FINANCIAL INSTITUTIONS listed in schedule 1 as Lenders Arranger,...
Contents
Clause Page
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1
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Definitions
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1
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2
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Consent
of the Creditor Parties
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2
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3
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Amendments
to Principal Agreement
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3
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4
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Representations
and warranties
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3
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5
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Conditions
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4
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6
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Relevant
Parties' confirmations
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5
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7
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Expenses
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5
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8
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Miscellaneous
and notices
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5
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9
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Applicable
law
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6
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Schedule
1 Names and lending offices of the Lenders
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7
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Schedule
2 The Owners
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8
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Schedule
3 The Relevant Ships and their details
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9
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Schedule
4 Documents and evidence required as conditions precedent
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10
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Schedule
5 Form of Amended and Restated Loan Agreement
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12
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THIS SUPPLEMENTAL AGREEMENT is
dated 25 February 2009 and made BETWEEN:
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(1)
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PARAGON SHIPPING INC., a
corporation incorporated in the Xxxxxxxx Islands whose registered office
is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro,
Xxxxxxxx Islands MH96960 (the “Borrower”);
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(2)
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THE BANKS AND FINANCIAL
INSTITUTIONS listed in schedule 1 as Lenders (together the “Lenders”);
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(3)
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BAYERISCHE HYPO UND-
VEREINSBANK AG as Agent (the “Agent”);
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(4)
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BAYERISCHE HYPO UND-
VEREINSBANK AG as Arranger (the “Arranger”);
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(5)
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BAYERISCHE HYPO UND-
VEREINSBANK AG as Security Trustee (the “Security
Trustee”);
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(6)
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BAYERISCHE HYPO UND-
VEREINSBANK AG as Swap Bank (the “Swap
Bank”);
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(7)
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THE COMPANIES listed in
schedule 2 as Owners (together the “Owners” and each an
“Owner”);
and
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(8)
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ALLSEAS MARINE S.A., a
corporation organised and existing under the laws of the Republic of
Liberia, having its registered office at 00 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx and maintaining a ship management office at 00, Xxxxxxxxx Xxxxxx,
000 00 Xxxxx, Xxxxxx (the “Approved
Manager”).
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WHEREAS:
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(A)
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this
Agreement is supplemental to a loan agreement dated 19 November 2007 (the
“Principal
Agreement”) made between (1) the Borrower as borrower, (2) the
Lenders, (3) the Agent, (4) the Arranger, (5) the Security Trustee and (6)
the Swap Bank relating to a secured credit facility of up to One hundred
million Dollars ($100,000,000), of which the principal amount outstanding
at the date hereof is Ninety million Dollars ($90,000,000), made available
by the Lenders to the Borrower upon the terms and conditions set out
therein; and
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(B)
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the
Borrower has requested that (inter alia) (a) the undrawn amount of the
Total Commitments (being $10,000,000) is irrevocably cancelled and (b) the
terms for repayment of the Loan be revised and this Agreement sets out
(inter alia) the terms and conditions upon which the Creditor Parties
shall, at the request of the Borrower, agree to such
revision.
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1
NOW IT IS HEREBY AGREED as
follows:
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Definitions
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1.1
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Defined
expressions
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Words
and expressions defined in the Principal Agreement shall unless the context
otherwise requires or unless otherwise defined herein, have the same meanings
when used in this Agreement.
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1.2
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Definitions
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In
this Agreement, unless the context otherwise requires:
“Cash Collateral Account” means
the interest bearing Dollar account of the Borrower opened or (as the context
may require) to be opened by the Borrower with the Agent and includes any
sub-account as may be specified by the Agent to be a “Cash Collateral Account”
for the purposes of this Agreement and the Loan Agreement;
“Cash Collateral Account
Pledge” means the pledge agreement in respect of the Cash Collateral
Account executed or (as the context may require) to be executed by the Borrower
in favour of the Agent, the Lenders and the Swap Bank in such form as the
Lenders may require;
“Creditor Parties” means the
Agent, the Arranger, the Security Trustee, any Lender and the Swap Bank and
“Creditor Party” means
any of them;
“Effective Date” means the
date, no later than 26 February 2009, on which the Agent notifies the Borrower
in writing that the Agent has received the documents and evidence specified in
clause 5 and schedule 4 in a form and substance
satisfactory to it;
“Loan Agreement” means the
Principal Agreement as amended and restated by this Agreement;
“Mortgage Addendum” means, in
relation to a Relevant Ship, the addendum executed or (as the context may
require) to be executed by the relevant Owner of that Relevant Ship in favour of the
Security Trustee in the form required by the Agent in its sole discretion and
supplemental to the Mortgage dated 20 November 2007 executed by such Owner of
such Relevant Ship in favour of the
Security Trustee and “Mortgage
Addenda” means both of them;
“New Finance Documents” means,
together, the Mortgage Addenda and the Cash Collateral Account
Pledge;
“Relevant Documents” means this
Agreement and the New Finance Documents;
“Relevant Parties” means the
Borrower, the Owners and the Approved Manager or, where the context so requires
or permits, means any or all of them; and
“Relevant Ship” means each of
the two (2) motor vessels listed in schedule 3 (being two (2) of the Ships
referred to in the Principal Agreement).
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1.3
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Principal
Agreement
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References
in the Principal Agreement to “this Agreement” shall, with
effect from the Effective Date and unless the context otherwise requires, be
references to the Principal Agreement as amended by this Agreement and words
such as “herein”, “hereof”, “hereunder”, “hereafter”, “hereby” and “hereto”, where they appear in
the Principal Agreement, shall be construed accordingly.
2
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1.4
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Headings
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Clause headings
and the table of contents are inserted for convenience of reference only and
shall be ignored in the interpretation of this Agreement.
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1.5
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Construction
of certain terms
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Clauses
1.2 to 1.5 (inclusive) of the Principal Agreement shall apply to this agreement
(mutatis mutandis) as if set out herein and as if references therein to “this Agreement” were
references to this Agreement.
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2
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Consent
of the Creditor Parties;
Cancellation
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2.1
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The
Creditor Parties, relying upon the representations and warranties made by
each of the Relevant Parties in clause 4, agree with the Borrower
that, subject to the terms and conditions of this Agreement and in
particular, but without prejudice to the generality of the foregoing,
fulfilment on or before 26 February 2009 of the conditions contained in
clause 5 and schedule 4, the Creditor Parties agree to the
amendment of the Principal Agreement on the terms set out in
clause 3.
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2.2
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The
Creditor Parties and the Relevant Parties hereby agree that, with effect
on the date of this Agreement, the Borrower irrevocably and
unconditionally cancels the undrawn amount of the Total Commitments (being
$10,000,000).
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|
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3
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Amendments
to Principal Agreement
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3.1
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Amendments
to Principal Agreement
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The
Principal Agreement shall, with effect on and from the Effective Date, be (and
it is hereby) amended so as to read in accordance with the form of the amended
and restated Loan Agreement set out in schedule 5 and (as so amended) will
continue to be binding upon the Creditor Parties and the Borrower in accordance
with its terms as so amended and restated.
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3.2
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Continued
force and effect
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Save
as amended by this Agreement, the provisions of the Principal Agreement shall
continue in full force and effect and the Principal Agreement and this Agreement
shall be read and construed as one instrument.
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4
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Representations
and warranties
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4.1
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Primary
representations and warranties
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Each
of the Relevant Parties represents and warrants to the Creditor Parties
that:
3
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4.1.1
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Existing
representations and warranties
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the
representations and warranties set out in clause 10 of the Principal Agreement
and clause 10 of each Guarantee were true and correct on the date of the
Principal Agreement and are true and correct, including to the extent that they
may have been or shall be amended by this Agreement, as if made on the date of
this Agreement with reference to the facts and circumstances existing on such
date;
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4.1.2
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Corporate
power
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each
of the Relevant Parties has power to execute, deliver and perform its
obligations under the Relevant Documents to which it is or is to be a party; all
necessary corporate, shareholder and other action has been taken by each of the
Relevant Parties to authorise the execution, delivery and performance of the
Relevant Documents to which it is or is to be a party;
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4.1.3
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Binding
obligations
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the
Relevant Documents to which it is or is to be a party constitute valid and
legally binding obligations of each of the Relevant Parties enforceable in
accordance with their terms;
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4.1.4
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No
conflict with other obligations
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the
execution, delivery and performance of the Relevant Documents to which it is or
is to be a party by each of the Relevant Parties will not (i) contravene any
existing law, statute, rule or regulation or any judgment, decree or permit to
which any of the Relevant Parties is subject, (ii) conflict with, or result
in any breach of any of the terms of, or constitute a default under, any
agreement or other instrument to which any of the Relevant Parties is a party or
is subject or by which it or any of its property is bound or
(iii) contravene or conflict with any provision of the constitutional
documents of any of the Relevant Parties or (iv) result in the creation or
imposition of or oblige any of the Relevant Parties to create any Security
Interest (other than a Permitted Security Interest) on any of the undertaking,
assets, rights or revenues of any of the Relevant Parties;
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4.1.5
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No
filings required
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save
for the registration of the Mortgage Addenda with the relevant ship registry, it
is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of any of the Relevant Documents that they or any
other instrument be notarised, filed, recorded, registered or enrolled in any
court, public office or elsewhere in any Pertinent Jurisdiction or that any
stamp, registration or similar tax or charge be paid in any Pertinent
Jurisdiction on or in relation to the Relevant Documents and each of the
Relevant Documents is in proper form for its enforcement in the courts of each
Pertinent Jurisdiction;
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4.1.6
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Choice
of law
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the
choice of English law to govern the Relevant Documents (other than the Mortgage
Addenda and the Cash Collateral Account Pledge), the choice of Greek law to
govern the Cash Collateral Account Pledge, the choice of the Xxxxxxxx Islands
4
law
to govern the Mortgage Addendum in respect of m.v. “CALM SEAS” and the choice of
Liberian law to govern the Mortgage Addendum in respect of m.v. “CRYSTAL SEAS”,
and the submissions by the Relevant Parties to the non-exclusive jurisdiction of
the English courts are valid and binding; and
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4.1.7
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Consents
obtained
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every
consent, authorisation, licence or approval of, or registration or declaration
to, governmental or public bodies or authorities or courts required by any of
the Relevant Parties in connection with the execution, delivery, validity,
enforceability or admissibility in evidence of the Relevant Documents to which
it is or will become a party or the performance by any of the Relevant Parties
of their respective obligations under such documents has been obtained or made
and is in full force and effect and there has been no default in the observance
of any conditions or restrictions (if any) imposed in, or in connection with,
any of the same.
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4.2
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Repetition
of representations and warranties
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Each
of the representations and warranties contained in clause 4.1 of this
Agreement and clause 10 of the form of the amended and restated Loan Agreement
set out in schedule 5 shall be deemed to be repeated by the Relevant Parties on
the Effective Date as if made with reference to the facts and circumstances
existing on such day.
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5
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Conditions
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5.1
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Documents
and evidence
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The
consent of the Creditor Parties referred to in clause 2 shall be subject to the receipt by the Agent or its
duly authorised representative of the documents and evidence specified in
schedule 4 in form and substance satisfactory to the Agent.
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5.2
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General
conditions precedent
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The
consent of the Creditor Parties referred to in clause 2 shall be further subject to:
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5.2.1
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the
representations and warranties in clause 4 being true and correct on
the Effective Date as if each was made with respect to the facts and
circumstances existing at such time;
and
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5.2.2
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no
Event of Default having occurred and continuing at the time of the
Effective Date.
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5.3
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Waiver
of conditions precedent
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The
conditions specified in this clause 5 are inserted solely for the benefit
of the Lenders and the Agent and may be waived by the Agent (acting on the
instructions of the Majority Lenders) in whole or in part with or without
conditions.
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6
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Relevant
Parties' confirmations
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Each
of the Relevant Parties hereby confirms its consent to the amendments to the
Principal Agreement contained in this Agreement and agrees that:
5
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6.1
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each
of the Finance Documents (including any Guarantee) to which it is a party,
and its obligations thereunder, shall remain in full force and effect
notwithstanding the amendments made to the Principal Agreement by this
Agreement;
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6.2
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its
obligations under the relevant Finance Documents (including any Guarantee)
to which it is a party includes any and all amounts owing by the Borrower
under the Principal Agreement as amended and restated by this Agreement;
and
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6.3
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with
effect from the Effective Date, references to “the Agreement” or the
“the Loan Agreement” in any
of the Finance Documents (including any Guarantee) to which it is a party
shall henceforth be references to the Principal Agreement as amended and
restated by this Agreement and as from time to time hereafter
amended.
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7
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Expenses
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7.1
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Expenses
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The
Borrower agrees to pay to the Agent on a full indemnity basis on demand all
expenses (including legal and out-of-pocket expenses) incurred by the Creditor
Parties or any of them:
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7.1.1
|
in
connection with the negotiation, preparation, execution and, where
relevant, registration of this Agreement and the New Finance Documents and
of any amendment or extension of or the granting of any waiver or consent
under this Agreement or the New Finance Documents;
and
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7.1.2
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in
contemplation of, or otherwise in connection with, the enforcement of, or
preservation of any rights under this Agreement or the New Finance
Documents or otherwise in respect of the monies owing and obligations
incurred under this Agreement and the New Finance
Documents,
|
together
with interest at the rate and in the manner referred to in clause 7 of the
Principal Agreement from the date on which such expenses were incurred to the
date of payment (as well after as before judgment).
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7.2
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Value
Added Tax
|
All
expenses payable pursuant to this clause 7 shall be paid together with value
added tax or any similar tax (if any) properly chargeable
thereon. Any value added tax chargeable in respect of any services
supplied by the Creditor Parties or any of them under this Agreement shall, on
delivery of the value added tax invoice, be paid in addition to any sum agreed
to be paid hereunder.
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7.3
|
Stamp
and other duties
|
The
Borrower agrees to pay to the Agent on demand all stamp, documentary,
registration or other like duties or taxes (including any duties or taxes
payable by the Creditor Parties or any of them) imposed on or in connection with
this Agreement and the New Finance Documents and shall indemnify the Creditor
Parties against any liability arising by reason of any delay or omission by the
Borrower to pay such duties or taxes.
6
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8
|
Miscellaneous
and notices
|
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8.1
|
Notices
|
The
provisions of clause 28 of the Principal Agreement shall extend and apply to the
giving or making of notices or demands hereunder as if the same were expressly
stated herein and for this purpose any notices to be sent to the Relevant
Parties or any of them hereunder shall be sent to the same address as the
address indicated for the “Borrower” in the said clause 28.
|
8.2
|
Counterparts
|
This
Agreement may be executed in any number of counterparts and by the different
parties on separate counterparts, each of which when so executed and delivered
shall be an original but all counterparts shall together constitute one and the
same instrument.
|
|
9
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Applicable
law
|
|
9.1
|
Law
|
This
Agreement and any non-contractual obligations in connection with this Agreement
are governed by and shall be construed in accordance with English
law.
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9.2
|
Submission
to jurisdiction
|
Each
of the Relevant Parties agrees, for the benefit of the Creditor Parties, that
any legal action or proceedings arising out of or in connection with this
Agreement (including any non-contractual obligations connected with this
Agreement) against any of the Relevant Parties or any of its assets may be
brought in the English courts. Each of the Relevant Parties
irrevocably and unconditionally submits to the jurisdiction of such courts and
irrevocably designates, appoints and empowers Hill Xxxxxxxxx Services (London)
Limited at present of Xxxxxxxx Xxxxx, Xxxx’x Xxxxx, Xxxxxx XX0X 0XX, Xxxxxxx to
receive for it and on its behalf, service of process issued out of the English
courts in any such legal action or proceedings. The submission to
such jurisdiction shall not (and shall not be construed so as to) limit the
right of the Creditor Parties or any of them to take proceedings against any of
the Relevant Parties in the courts of any other competent jurisdiction nor shall
the taking of proceedings in any one or more jurisdictions preclude the taking
of proceedings in any other jurisdiction, whether concurrently or
not. The parties further agree that only the Courts of England and
not those of any other State shall have jurisdiction to determine any claim
which any of the Relevant Parties may have against the Creditor Parties or any
of them arising out of or in connection with this Agreement (including any
non-contractual obligations connected with this Agreement).
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9.3
|
Contracts
(Rights of Third Parties) Xxx 0000
|
No
term of this Agreement is enforceable under the Contracts (Rights of Third
Parties) Xxx 0000 by a person who is not a party to this Agreement.
IN WITNESS whereof the parties
to this Agreement have caused this Agreement to be duly executed on the date
first above written.
7
Schedule 1
Names
and lending offices of the Lenders
|
Lender
|
Lending
Office
|
|
Bayerische
Hypo- und Vereinsbank AG
|
00
Xxxxxx Xxxxxx
000
00 Xxxxxxx
Xxxxxx
|
8
Schedule 2
The
Owners
Frontline
Marine Company
Trade
Force Shipping S.A.
Opera
Navigation Co.
9
Schedule 3
The
Relevant Ships and their details
|
(1)
Name
|
(2)
IMO
No.
|
(3)
Owner
|
|
|
1
|
“CALM
SEAS”
|
9184835
|
Frontline
Marine Company
|
|
2
|
“CRYSTAL
SEAS”
|
9114153
|
Opera
Navigation
Co.
|
10
Schedule 4
Documents
and evidence required as conditions precedent
(referred
to in clause 5.1)
|
|
1
|
Corporate
authorisation
|
In
relation to each of the Relevant Parties (other than the Approved
Manager):
|
|
(a)
|
Constitutional
documents
|
copies
certified by an officer of each of the Relevant Parties, as a true, complete and
up to date copies, of all documents which contain or establish or relate to the
constitution of that party or a secretary's certificate confirming that there
have been no changes or amendments to the constitutional documents certified
copies of which were previously delivered to the Agent pursuant to the Principal
Agreement;
|
|
(b)
|
Resolutions
|
copies
of resolutions of each of its board of directors and, if required, its
shareholders/stockholders approving such of the Relevant Documents to which it
is or is to be a party and the terms and conditions hereof and thereof and
authorising the signature, delivery and performance of each such party's
obligations thereunder, certified (in a certificate dated no earlier than five
(5) Banking Days prior to the date of this Agreement) by an officer of the
Relevant Parties as:
|
|
(i)
|
being
true and correct;
|
|
|
(ii)
|
being
duly passed at meetings of the directors of such Relevant Party and of the
shareholders/stockholders of such Relevant Party, each duly convened and
held;
|
|
|
(iii)
|
not
having been amended, modified or revoked;
and
|
|
|
(iv)
|
being
in full force and effect,
|
together
with originals or certified copies of any powers of attorney issued by such
Relevant Party pursuant to such resolutions; and
|
|
(c)
|
Certificate
of incumbency
|
a
list of directors and officers of each Relevant Party specifying the names and
positions of such persons, certified (in a certificate dated no earlier than
five (5) Banking Days prior to the date of this Agreement) by an officer of such
Relevant Party to be true, complete and up to date;
11
|
|
2
|
New
Finance Documents
|
the
Mortgage Addenda and the Cash Collateral Account Pledge each duly executed by
the relevant Relevant Party;
|
|
3
|
Consents
|
a
certificate (dated no earlier than five (5) Banking Days prior to the date of
this Agreement) from an officer of each of the Relevant Parties (other than the
Approved Manager) stating that no consents, authorisations, licences or
approvals are necessary for such Relevant Party to authorise, or are required by
each of the Relevant Parties or any other party (other than the Creditor
Parties) in connection with, the execution, delivery, and performance of the
Relevant Documents to which they are or will be a party;
|
|
4
|
Legal
opinions
|
such
legal opinions in relation to the laws of the Cayman Islands, Greece, Liberia
and the Xxxxxxxx Islands and any other legal opinions as the Agent shall in its
reasonable discretion deem appropriate; and
|
|
5
|
Process
agent
|
an
original or certified true copy of a letter from each Relevant Party’s agent for
receipt of service of proceedings accepting its appointment under this Agreement
and each of the New Finance Documents in which it is or is to be appointed as
such Relevant Party’s agent.
12
Schedule 5
Form
of Amended and Restated Loan Agreement
13
|
Borrower
|
||
|
EXECUTED as a DEED by
|
)
|
|
|
for
and on behalf of each of
|
)
|
……………………….………..
|
|
)
|
Attorney-in-fact
|
|
|
as
Borrower
|
)
|
|
|
in
the presence of:
|
)
|
|
|
………………………
|
||
|
Witness
|
||
|
Name:
|
||
|
Address:
|
||
|
Occupation:
|
|
Lenders
|
||
|
SIGNED
by
|
)
|
|
|
and
by
|
)
|
|
|
for
and on behalf of
|
)
|
………………………………
|
|
BAYERISCHE
HYPO- UND VEREINSBANK AG
|
)
|
Attorneys-in-fact
|
|
as
Lender
|
)
|
|
|
Agent
|
||
|
SIGNED
by
|
)
|
|
|
and
by
|
)
|
|
|
for
and on behalf of
|
)
|
……………………………….
|
|
BAYERISCHE
HYPO- UND VEREINSBANK AG
|
)
|
Attorneys-in-fact
|
|
as
Agent
|
)
|
|
|
Arranger
|
||
|
SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
……………………….………...
|
|
BAYERISCHE
HYPO- UND VEREINSBANK AG
|
)
|
Attorneys-in-fact
|
|
as
Arranger
|
)
|
|
|
Swap
Bank
|
||
|
SIGNED
by
|
)
|
|
|
and
by
|
)
|
|
|
for
and on behalf of
|
)
|
……………………….………...
|
|
BAYERISCHE
HYPO- UND VEREINSBANK AG
|
)
|
Attorneys-in-fact
|
|
as
Swap Bank
|
)
|
14