DATED 23 FEBRUARY 2009 LICHTENSTEIN SHIPPING COMPANY LIMITED
Exhibit
4.79
DATED 23
FEBRUARY 2009
XXXXXXXXXXXX
SHIPPING COMPANY LIMITED
(as
borrower)
and-
(as
guarantor)
-and-
ALPHA
BANK A.E.
(as
lender)
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FIRST
SUPPLEMENTAL AGREEMENT TO A SECURED
LOAN
FACILITY AGREEMENT DATED 18 AUGUST 2008
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XXXXXXXXXX
XXXXXXX
Xxx,
Xx. Xxxx'x Xxxxxxxxxx
Xxxxxx
XX0X 0XX
Tel:
x00 (0)00 0000 0000
Fax:
x00 (0)00 0000 0000
Ref:
28.045
CONTENTS
Page
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1
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Interpretation
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3
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2
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Conditions
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4
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3
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Representations
and Warranties
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5
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4
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Amendments
to Loan Agreement
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6
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5
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Confirmation
and Undertaking
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7
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6
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Expenses
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7
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7
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Miscellaneous
Provisions
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8
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8
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Notices,
Law and Jurisdiction
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8
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SUPPLEMENTAL
AGREEMENT
Dated:
23 February 2009
BETWEEN:
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(1)
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XXXXXXXXXXXX SHIPPING COMPANY
LIMITED, a company incorporated under the laws of the Republic of
Liberia whose registered office is at 00, Xxxxx Xxxxxx Xxxxxxxx, Xxxxxxx
(the "Borrower");
and
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(2)
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TOP SHIPS INC., a
company incorporated according to the law of the Xxxxxxxx Islands whose
registered office is at the Trust Company Complex, Ajeltake Road, Ajeltake
Islands, Majuro, Xxxxxxxx Islands MH96960 (the "Guarantor");
and
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(3)
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ALPHA BANK A.E., acting
through its office at 00 Xxxx Xxxxxxx, XX 000 00 Xxxxxxx, Xxxxxx (the
"Lender").
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SUPPLEMENTAL
TO:-
A secured
loan agreement dated 18 August 2008 (the "Loan Agreement") made between
the Borrower and the Lender, on the terms and subject to the conditions of which
the Lender agreed to advance to the Borrower an aggregate amount not exceeding
thirty nine million Dollars ($39,000,000) (the "Loan").
WHEREAS:
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(A)
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DAELIM H&L CO., LTD., of 1lth Floor,
The Korea Chamber Of Commerce & Industry Xxxxxxxx #00, 0-Xx,
Xxxxxxxxx-Xx, Xxxx-Xx. Xxxxx, Xxxxx 100-743 (the "Original Bareboat Charterer") has ceased
to exist with all the rights, interests, obligations and liabilities of
the Original Bareboat Charterer having been assigned to and/or novated to
and/or absorbed by (as appropriate) DAELLM
CORPORATION, of 1OF KCCI Xxxx, 00 0xx Xxxxxxxxxxxx, Xxxx xx Xxxxx,
Xxxxx (the "Replacement Bareboat
Charterer"). The Replacement Bareboat Charterer has assumed all of
the Original Bareboat Charterer's rights, obligations and liabilities
under the Bareboat Charter pursuant to Addendum No.2 to the Bareboat
Charter dated 21 November 2008 made between the Borrower, the Original
Bareboat Charterer and the Replacement Bareboat
Charterer.
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(B)
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The
Borrower has requested the Lender to agree to the replacement of the
Original Bareboat Charterer by the Replacement Bareboat Charterer in the
Loan Agreement and the Tripartite Deed be cancelled and replaced by the
New Tripartite Deed and all references to the Bareboat Charter and the
Bareboat Charterer in the Loan Agreement and the Security Documents are
amended as more particularly described in this Supplemental
Agreement.
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2
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(C)
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The
parties to this Supplemental Agreement have agreed to amend the Loan
Agreement on the terms and subject to the conditions contained in this
Supplemental Agreement.
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IT
IS AGREED THAT:
1 Interpretation
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1.1
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In
this Supplemental Agreement:-
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"Additional Security Documents"
means this Supplemental Agreement, the New
Tripartite Deed and any other agreement or document which may at
any time be executed by any person as additional security for the payment of all
or any part of the Indebtedness.
"Effective Date" means the
date on which the Lender confirms to the Borrower that all of the conditions
referred to in Clause 2.1 have been satisfied, which confirmation the Lender
shall be under no obligation to give if a Default shall have
occurred.
"New Tripartite Deed" means
the deed of assignment of Insurances, Earnings, Charter Rights and Requisition
Compensation in respect of the Charter from the Borrower and the Replacement
Bareboat Charterer in form and substance satisfactory in all respect to the
Lender in its discretion.
"Tripartite Deed" means the
deed of assignment of Insurances, Earnings, Charter Rights and Requisition
Compensation in respect of the Charter from the Borrower and the Original
Bareboat Charterer dated 20 August 2008.
"Security Parties" means all
parties to this Supplemental Agreement other than the Lender.
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1.2
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All
words and expressions defined in the Loan Agreement shall have the same
meaning when used in this Supplemental Agreement unless the context
otherwise requires, and clause 1.2 of the Loan Agreement shall apply to
the interpretation of this Supplemental Agreement as if it was set out in
full.
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3
2 Conditions
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2.1
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As
conditions for the agreement of the Lender to the request specified in
Recital (B) above and for the effectiveness of Clause 4, the Borrower
shall deliver or cause to be delivered to or to the order of the Lender
the following documents and
evidence:
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2.1.1
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a
certificate from a duly authorised officer of each of the Security Parties
confirming that none of the documents delivered to the Lender pursuant to
Clause 3.1 of the Loan Agreement have been amended or modified in any way
since the date of their delivery to the Lender, or copies, certified by a
duly authorised officer of the Security Party in question as true,
complete, accurate and neither amended nor revoked, of any which have been
amended or modified;
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2.1.2
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a
copy, certified by a director or the secretary of the Security Party in
question as true, complete and accurate and neither amended nor revoked,
of a resolution of the directors and a resolution of the shareholders of
each Security Party (together, where appropriate, with signed waivers of
notice of any directors' or shareholders' meetings) approving, and
authorising or ratifying the execution of, this Supplemental Agreement and
any document to be executed by that Security Party pursuant to the
Additional Security Documents; and
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2.1.3
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a
notarially attested and legalised power of attorney of each of the
Security Parties under which the Additional Security Documents and any
documents required pursuant to it are to be executed by that Security
Party; and
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2.1.4
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if
a Security Party is incorporated in a jurisdiction other than England and
Wales, a legal opinion of the legal advisers to the Lender in each
relevant jurisdiction, substantially in the form or forms provided to the
Lender prior to signing the Additional Security Documents or confirmation
satisfactory to the Lender that such an opinion will be
given;
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4
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2.1.5
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evidence
in form and substance satisfactory to the Lender in its discretion of the
merger between the Original Bareboat Charterer and the Replacement
Bareboat Charterer; and
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2.1.6
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the
Additional Security Documents, together with all notices and other
documents required by any of them, duly
executed;
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2.2
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All
documents and evidence delivered to the Lender pursuant to this Clause
shall:
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2.2.1
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be
in form and substance acceptable to the
Lender;
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2.2.1
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be
accompanied, if required by the Lender, by translations into the English
language, certified in a manner acceptable to the Lender;
and
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2.2.3
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if
required by the Lender, be certified, notarised, legalised or attested in
a manner acceptable to the Lender.
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3 Representations
and Warranties
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3.1
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Each
of the representations and warranties contained in clause 11 of the
Loan Agreement shall be deemed repeated by the Borrower at the date of
this Supplemental Agreement and at the Effective Date, by reference to the
facts and circumstances then pertaining, as if references to the Finance
Documents included this Supplemental
Agreement.
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3.2
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Each
Security Party further represents and warrants to the Lender
that:
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3.2.1
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it
is a body corporate duly constituted and existing and (where applicable)
in good standing under the law of its country of incorporation, in each
case with the power to xxx and be sued, to own its assets and to carry on
its business, and all of its corporate shareholders are duly constituted
and existing under the laws of their countries of incorporation with
perpetual corporate existence and the power to xxx and be sued, to own
their assets and to carry on their
business;
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3.2.2
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it
has the power to enter into and perform this Supplemental Agreement, the
documentation and the transactions contemplated hereby and has taken all
necessary action to authorise the entry into and performance of this
Supplemental Agreement and such documentation and
transactions;
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5
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3.2.3
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this
Supplemental Agreement constitutes legal, valid and binding obligations of
that Security Party enforceable in accordance with its terms;
and
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3.2.4
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the
entry into and performance of this Supplemental Agreement and the
documentation and transactions contemplated hereby do not and will not
conflict with (i) any law or regulation or any official or judicial order,
or (ii) the constitutional documents of that Security Party, or (iii) any
agreement or document to which that Security Party is a party or which is
binding on it or any of its assets, nor result in the creation or
imposition of any encumbrance on any of its
assets.
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4 Amendments
to Loan Agreement
With
effect from the Effective Date:
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4.1
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the
definition of "Tripartite
Deed" set forth in clause 1.1 of the Loan Agreement was deleted and
replaced with the definition of ''New Tripartite Deed"
contained in Clause 1.1 and it was moved
accordingly;
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4.2
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the
definition of "Security
Documents" set out in clause 1.1 of the Loan Agreement was amended
to include the Additional Security Documents and exclude the Tripartite
Deed.
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4.3
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the
definition of "Bareboat
Charter" set out in clause 1.1 of the Loan Agreement was deleted
and replaced as follows:
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""Bareboat Charter" means the
bareboat charter dated 8 April 2008, as amended and supplemented by Addendum
No.I dated 20 August 2008 and as further amended and supplemented by Addendum
No.2 dated 21 November 2008, on the terms and subject to the conditions of which
the Borrower will bareboat charter the Vessel to the Bareboat Charterer, for a
duration of ten (10) years at a minimum net daily rate of hire of fourteen
thousand five hundred and fifty Dollars ($14,550).";
6
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4.4
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the
definition of "Bareboat
Charterer" set out in clause 1.1 of the Loan Agreement was deleted
and replaced as follows:
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""Bareboat Charterer" means
Daelim Corporation of 10F KCCI Xxxx, 00 0xx Xxxxxxxxxxx, Xxxx xx Xxxxx,
Xxxxx";
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4.5
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clause
10.1.5 of the Loan Agreement was deleted and replaced as
follows:-
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"10.1.5 a
first priority deed or deeds of assignment of the Insurances, Earnings, Bareboat
Charter and Requisition Compensation of the Vessel from the Borrower and the
Bareboat Charterer, including (in the case of the Bareboat Charterer) an
agreement whereby its interests under the Bareboat Charter are subordinated to
the interests of the Lender under the Mortgage." ; and
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4.6
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schedule
1, Part I, 2, (a) (iv) was deleted and schedule 1, Part I, 2, (a) shall he
renumbered accordingly.
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All other
terms and conditions of the Loan Agreement shall remain unaltered and in full
force and effect.
5 Confirmation
and Undertaking
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5.1
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Each
of the Security Parties confirms that all of its respective obligations
under or pursuant to each of the Security Documents to which it is a party
remain in full force and effect, despite the amendments to the Loan
Agreement made in this Supplemental Agreement, as if all references in any
of the Security Documents to the Loan Agreement were references to the
Loan Agreement as amended, supplemented and novated by this Supplemental
Agreement.
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5.2
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The
definition of any term defined in any of the Security Documents shall, to
the extent necessary, be modified to reflect the amendments to the Loan
Agreement made in this Supplemental
Agreement.
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6 Expenses
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6.1
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The
Borrower undertakes to indemnify the Lender, within fourteen days of the
Lender's written demand, in respect of all costs, charges and expenses
(together with value added tax or any similar tax thereon and including
without limitation the fees and expenses of legal advisers) incurred by
the Lender in connection with the negotiation, preparation, printing,
execution and registration of this Supplemental Agreement, and the
completion of the transactions herein
contemplated.
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7
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6.2
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The
Borrower undertakes to indemnify the Lender, within fourteen days of the
Lender's written demand against all stamp. registration and similar taxes
which may be payable in connection with the entry into, performance and
enforcement of this Supplemental
Agreement.
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7 Miscellaneous
Provisions
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7.1
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This
Supplemental Agreement may be executed in any number of counterparts, each
of which, when so executed, shall be deemed to be an original, but such
counterparts shall together constitute one and the same
instrument.
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7.2
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With
effect from the Effective Date, this Supplemental Agreement shall be
construed with and shall constitute an instrument supplemental to the Loan
Agreement. Save as otherwise provided herein and as hereby expressly
varied and supplemented, the Loan Agreement shall remain valid and binding
and in full force and effect after the Effective
Date.
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8 Notices,
Law and jurisdiction
The
provisions of clauses 17 and 21 of the Loan Agreement shall apply to this
Supplemental Agreement as if they were set out in full and as if references to
the Loan Agreement were references to this Supplemental Agreement and references
to the Borrower were references to the Security Parties.
8
IN WITNESS of which the
parties to this Supplemental Agreement have executed this Supplemental Agreement
as a deed the day and year first before written.
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SIGNED and DELIVERED
as
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A
DEED
by
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XXXXXXXXXXXX
SHIPPING COMPANY
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)
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LIMITED
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acting
by
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Xxxxxxx
Xxxxx
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)
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/s/
Xxxxxxx Xxxxx
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its
duly authorised attorney-in-fact
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in
the presence of:
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)
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Constantinos
Karachallos
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)
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SIGNED and DELIVERED
as
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A
DEED
by
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acting
by
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Xxxxxxx
Xxxxx
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)
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/s/
Xxxxxxx Xxxxx
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its
duly authorised attorney-in-fact
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)
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in
the presence of:
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)
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Constantinos
Karachallos
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)
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SIGNED and DELIVERED
as
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)
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A
DEED
by
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)
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ALPHA
BANK A.E.
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)
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acting
by
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Xxxxxxxxx
X. Xxxxxxxx
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)
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/s/
Xxxxxxxxx X. Xxxxxxxx
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Xxxxxxxxxxxx
X. Xxxxxx
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)
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/s/
Xxxxxxxxxxxx X. Xxxxxx
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its
duly authorised attorney-in-fact
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)
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in
the presence of:
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)
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Constantinos
Karachallos
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)
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SK 23116
0005 1007460
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