USD 8,000,000 TERM LOAN FACILITY AGREEMENT for Seapowet Trading Ltd. as Borrower and Nordea Bank Norge ASA as Lender
Exhibit 4.4(b)
Execution copy
9
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ADDENDUM
NO. 1
AND
WAIVER
AGREEMENT
to
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USD
8,000,000
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Seapowet
Trading Ltd.
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and
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Nordea Bank Norge
ASA
as
Lender
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17
July 2009
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THIS ADDENDUM
NO. 1 AND WAIVER
AGREEMENT (the
“Addendum”) is dated
17 July 2009
and made between:
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(1)
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Seapowet Trading Ltd.,
of Xxxxxxxx Islands with its business address at 0xx
Xxxxx Xxx Xx Xxxxx, 14 Par La Ville Road, Xxxxxxxx XX 08 Bermuda as
borrower (the “Borrower”);
and
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(2)
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Nordea Bank Norge ASA of
Xxxxxxxxxxxxxxx 00, X-0000 Xxxx, Xxxxxx, organisation number 911 044 110,
as lender (the “Lender”).
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WHEREAS:
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(A)
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This
Addendum is supplemental to the USD 8,000,000 Term Loan Facility Agreement
dated 5 September 2006 (the “Original Facility
Agreement”) and made between the Borrower and the Lender (together
the “Parties” and
each of them a “Party”) relating to a
certain term loan facility for an aggregate amount of USD
8,000,000;
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(B)
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The
Borrower has asked for a waiver or amendments (as the case may be) of
certain of the provisions of the Original Facility Agreement;
and
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(C)
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The
Parties have agreed to supplement and amend the Original Facility
Agreement by entering into this Addendum to reflect the agreement reached
between the Parties with respect to, amongst others, the temporary waiver
of the provisions in Clause 20.2.1 (Minimum Value Adjusted Equity
Ratio) of the Original Facility
Agreement.
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NOW IT IS HEREBY AGREED
as follows:
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1
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CONSTRUCTION
AND INTERPRETATION
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1.1
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References
to this Agreement
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References
in the Original Facility Agreement to “this Agreement” shall, with
effect from the Effective Date be read and interpreted as references to the
Original Facility Agreement as amended by this Addendum (the “Amended Facility
Agreement”).
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1.2
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Construction
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In this
Addendum, unless the context otherwise requires:
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a)
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words
denoting the singular number shall include the plural and vice
versa;
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b)
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references
to Clauses and Appendices are references, respectively, to the Clauses and
Appendices of this Addendum;
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c)
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references
to a provision of law is a reference to that provision as it may be
amended or re-enacted, and to any regulations made by the appropriate
authority pursuant to such law;
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d)
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clause
headings are inserted for convenience of reference only and shall be
ignored in the interpretation of this Addendum;
and
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e)
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capitalized
terms shall, unless otherwise provided herein, have the meaning attributed
to them in the Original Facility
Agreement.
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2
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CONDITIONS
PRECEDENT
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The
Borrower shall deliver the documents and other evidence listed in Appendix 1 (Conditions precedent) hereto
to Lender as soon as possible and in any event within 10 August 2009 at the
latest (all such documents and evidence to be in form and substance acceptable
to the Lender).
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3
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AMENDMENTS
TO THE ORIGINAL FACILITY AGREEMENT
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3.1
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General
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The
Original Facility Agreement shall, with effect from 30 June 2009 (the “Effective Date”), be amended
as set out in this Clause 3 and will continue to be binding upon each of the
Parties thereto in accordance with its terms as hereby amended.
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3.2
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Amendments
to Clause 1.1 (Definitions) of the Original Facility
Agreement
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a)
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The
definitions of the following terms in Clause 1.1 (Definitions) of the
Original Facility Agreement shall be deleted in their entirety and
replaced by the following
definitions:
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“Finance Documents” means,
collectively, this Agreement, the Addendum No. 1, any Security Document and any
other documents designated as such by the Lender and the Borrower.”
“Margin” means three point zero
per cent (3.0%) per annum.”
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b)
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The
following new definitions shall be inserted in Clause 1.1 (Definitions) of the
Original Facility Agreement:
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“Addendum No. 1” means the
addendum no. 1 and waiver agreement to this Agreement dated 17
July
2009 and made between the Borrower and the Lender.”
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4
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AMENDMENTS
TO THE SECURITY DOCUMENTS
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The
Security Documents shall (if required by the Lender) be amended (in such form as
approved by the Lender) and/or new Security Documents shall be issued so as to
ensure that the amendments as set out in this Addendum will apply to the
Security Documents and so that the Security Interest created under the Security
Documents shall extend to the obligations of the Borrower under the Amended
Facility Agreement.
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5
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TEMPORARY
WAIVER
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5.1
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Temporary
waiver
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Subject
to the conditions set out in Clause 5.2 (Conditions for temporary
waiver) below, the Lender has agreed to the temporary waiver of the
following provisions of the Amended Facility Agreement in the period from 31
December 2008 and up until 1 January 2010 (the “Waiver Period”):
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a)
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Clause
20.2.1 (Minimum Value
Adjusted Equity Ratio) of the Amended Facility Agreement so that
the minimum Value Adjusted Equity Ratio of the Guarantor (on a
consolidated basis) shall be of minimum twenty per cent (20%) in the
Waiver Period.
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5.2
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Conditions
for temporary waiver under Clause
5.1
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The
temporary waiver granted to the Obligors as set out in Clause 5.1 (Temporary waiver) above is
subject to:
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a)
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the
payment by the Borrower of a waiver fee of USD 10,000, payable to the
Lender payable at the date of this
Addendum;
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b)
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the
delivery by the Borrower of the documents and other evidence listed in
Appendix
1 (Conditions
precedent) hereto to the Lender as soon as possible and in any
event within 10 August 2009 at the latest;
and
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c)
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save
as set out in this Clause 5, the Lender reserves all its rights to take
any action available to it under the Finance Documents which shall not be
diminished in any way by the issue of the temporary waiver set out in this
Clause 5 or be interpreted in any way as an approval, surrender or consent
to any Event of Default.
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6
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CONTINUED
FORCE AND EFFECT
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a)
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The
provisions of the Original Facility Agreement and the other Finance
Documents shall, save as amended by this Addendum (and/or separate
amendments to any of the Security Documents (if any)), continue in full
force and effect between the Parties and the Original Facility Agreement
and this Addendum shall be read and construed as one
instrument.
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b)
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The
Security Interest created by the Security Documents to which any of the
Obligors is a party shall extend to the liabilities and obligations of the
Obligors under the Amended Facility Agreement and the obligations arising
under or in connection with the Amended Facility Agreement and the
Security Documents constitute obligations secured under the Security
Documents.
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7
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GOVERNING
LAW AND ENFORCEMENT
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7.1
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Governing
law
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This
Addendum shall be governed by Norwegian law.
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7.2
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Jurisdiction
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a)
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The
Lender and the Borrower agree that the courts of Oslo, Norway, have
jurisdiction to settle any disputes arising out of or in connection with
the Finance Documents including a dispute regarding the existence,
validity or termination of this Addendum, and the Borrower accordingly
submits to the non-exclusive jurisdiction of the Oslo District Court
(Oslo
tingrett).
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b)
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Nothing
in this Clause 7.2 shall limit the right of the Lender to commence
proceedings against the Borrower in any other court of competent
jurisdiction. To the extent permitted by law, the Lender may take
concurrent proceedings in any number of
jurisdictions.
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7.3
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Service
of process
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Without
prejudice to any other mode of service, the Borrower:
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a)
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irrevocably
appoints Wikborg Rein & Co., Kronprinsesse Märthas xxxxx 1, X.X. Xxx
0000 Xxxx, X-0000 Xxxx, Xxxxxx as its agent for service of process in
relation to any proceedings before Norwegian courts in connection with any
Finance Document; and
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b)
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agrees
that failure by its process agent to notify it of the process will not
invalidate the proceedings
concerned.
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8
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COUNTERPARTS
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This
Addendum may be executed in counterparts.
***
APPENDIX
1
CONDITION
PRECEDENT DOCUMENTS
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1
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CORPORATE
AUTHORISATION – IN RESPECT OF THE
BORROWER
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a)
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Certificate
of Incorporation/Certificate of Registration (or
similar);
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b)
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Memorandum
and Articles of Association/Bye-laws (or
similar);
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c)
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Resolutions
passed at a board meeting
evidencing:
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(i)
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the
approval of the terms of, and the transactions contemplated by, this
Addendum; and
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(ii)
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the
authorisation of its appropriate officer or officers or other
representatives to execute this Addendum and any other documents necessary
for the transactions contemplated by this Addendum, on its
behalf;
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d)
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Power
of Attorney;
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e)
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Updated
Good Standing Certificate/Certificate of
Compliance;
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f)
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Secretary’s
Certificate (notarised);
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g)
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A
specimen of the signature of each person authorised by the resolution
referred to in paragraph (c) above;
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2
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FINANCE
DOCUMENTS
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a)
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This
Addendum.
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b)
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Any
amendments to the Security Documents or new Security Documents (and any
perfection acts).
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3
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MISCELLANEOUS
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a)
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Evidence
that the fee referred to in paragraph a) of Clause 5.2 (Conditions for temporary
waiver under Clause 5.1) of this Addendum, has or will be paid on
its due date;
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b)
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Documentary
evidence that the agent for service of process named in Clause 7.2 (Service of Process) of
the Addendum, has accepted its appointment;
and
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c)
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Any
other documents as reasonably requested by the
Lender.
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4
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LEGAL
OPINIONS
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a)
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A
legal opinion from Xxxxxx & Xxxxxx LLP relating to Xxxxxxxx Islands
law issues;
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b)
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A
legal opinion from Xxxxxx & Xxxxxx LLP relating to Liberian law
issues; and
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c)
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Any
such favourable legal opinions in form and substance satisfactory to the
Lender from lawyers appointed by the Lender on matters concerning all
relevant jurisdictions.
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***
SIGNATORIES
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The
Borrower:
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Seapowet
Trading Ltd.
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Nordea
Bank Norge ASA
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By:
_________________________________
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By:
__________________________________
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Name:
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Name:
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Title:
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Title:
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17 July
2009
We, B+H
Ocean Carriers Ltd., agree to the above and confirm that the Guarantee shall
continue to be in full force and effect and guarantee the obligations of the
Borrower under the Amended Facility Agreement.
We
confirm that the Security Interest created by the Security Documents to which
the Guarantor is a party extend to the liabilities and obligations of the
Borrower under the Amended Facility Agreement and the obligations arising under
or in connection with the Amended Facility Agreement and the Security Documents
constitute obligations secured under the Security Documents.
B+H
Ocean Carriers Ltd.
By:
_______________________
Name:
Title:
3371819/3
