First Supplemental Agreement to Secured Loan Facility Agreement dated 25 June 2014
Exhibit 10.22
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First Supplemental Agreement to Secured Loan Facility Agreement dated 25 June 2014
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Dated November 2015
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(1)
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Eirini Shipping Ltd
Eleni Shipping Limited (as joint and several borrowers) |
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(2)
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Euroseas Ltd
(as Guarantor) |
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(3)
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HSBC Bank plc
(as Lender) |
Contents
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Page
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1
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Interpretation
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1
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2
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Conditions precedent and subsequent
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4
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3
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Representations and Warranties
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8
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4
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Amendments to Loan Agreement
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8
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5
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Confirmation and Undertaking
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11
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6
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Communications, Law and Jurisdiction
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12
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Schedule 1
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Effective Date Confirmation
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13
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Supplemental Agreement
Dated November 2015
Between:
Supplemental to a secured loan agreement dated 25 June 2014 (the "Loan Agreement") made between the Borrowers and the Lender, on the terms and subject to the conditions of which the Lender has made available to the Borrowers a loan facility of up to sixteen million five hundred thousand Dollars ($16,500,000).
Whereas:
| (B) |
The Lender is willing to accede to the Borrowers' Request on the terms and subject to the conditions contained in this Supplemental Agreement.
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It is agreed as follows:
"Additional Documents" means this Supplemental Agreement and the Additional Security Documents and "Additional Document" means any one of them;
"Additional Security Documents" means the Collateral Guarantees, the Collateral Mortgages, the Collateral Assignments, the Collateral Manager's Undertakings, the Cash Collateral Account Charge 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 and "Additional Security Document" means any one of them;
"Cash Collateral" means the amount of seven hundred thousand Dollars ($700,000);
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"Cash Collateral Account" means an interest bearing bank account opened or to be opened in the name of the Borrowers with the Lender and designated "HSBC Bank plc – Re: Eirini/Eleni";
"Cash Collateral Account Charge" means a first priority charge over the Cash Collateral Account and all amounts from time to time standing to the credit of the Cash Collateral Account, to be executed by the Borrowers in favour of the Lender, as additional security for the payment of the Indebtedness up to the Release Date, in such form and containing such terms and conditions as the Lender shall require;
"Collateral Assignments" means the second priority assignments of the Insurances, the Earnings, any Charter and the Requisition Compensation (as each such term is defined therein) in respect of the Collateral Vessels to be granted by the relevant Collateral Owners in favour of the Lender, in such form and containing such terms and conditions as the Lender shall require and "Collateral Assignment" means any one of them;
"Collateral Guarantees" means the guarantees and indemnities to be executed by the Collateral Owners in favour of the Lender, in such form and containing such terms and conditions as the Lender shall require and "Collateral Guarantee" means any one of them;
"Collateral Loan Agreements" means the Xingang/Xxxxxx Loan Agreement and the Pantelis Loan Agreement and "Collateral Loan Agreement" means either of them;
"Collateral Manager's Undertakings" means the manager's undertakings in respect of the Collateral Vessels to be executed by the Manager in favour of the Lender, in such form and containing such terms and conditions as the Lender shall require and "Collateral Manager's Undertaking" means any one of them;
"Collateral Mortgages" means the second preferred Liberian mortgages in respect of the Collateral Vessels to be granted by the relevant Collateral Owners in favour of the Lender, in such form and containing such terms and conditions as the Lender shall require and "Collateral Mortgage" means any one of them;
"Collateral Owners" means the Xingang Collateral Owner, the Xxxxxx Collateral Owner and the Pantelis Collateral Owner and "Collateral Owner" means any one of them;
"Collateral Vessels" means the Marinos Collateral Vessel, the Xxxxxx Collateral Vessel and the Pantelis Collateral Vessel and "Collateral Vessel" means any one of them;
"Effective Date" means the date on which the Lender confirms to the Borrowers in writing substantially in the form set out in Schedule 1 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 Event of Default shall have occurred and be continuing;
"Xxxxxx Collateral Owner" means Xxxxxx Maritime Ltd, a company incorporated under the laws of the Republic of Liberia, having its registered address at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx;
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"Xxxxxx Collateral Vessel" means the motor vessel named "XXXXXX" with IMO no. 9204477 built in Poland in 1999, currently registered under the flag of the Republic of Liberia in the ownership of the Xxxxxx Collateral Owner and everything now or in the future belonging to her on board and ashore;
"Marinos Collateral Vessel" means the motor vessel named "MARINOS" with IMO no. 9053232 built in Germany in 1993, currently registered under the flag of the Republic of Liberia in the ownership of the Xingang Collateral Owner and everything now or in the future belonging to her on board and ashore;
"Pantelis Collateral Owner" means Pantelis Shipping Corp., a company incorporated under the laws of the Republic of Liberia, having its registered address at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx;
"Pantelis Collateral Vessel" means the bulk carrier vessel named "PANTELIS" with IMO no. 0000000 built in Japan in 2000, currently registered in the ownership of the Pantelis Collateral Owner under the flag of the Republic of Liberia and everything now or in the future belonging to her on board and ashore;
"Pantelis Loan Agreement" means the loan agreement dated 15 December 2009 (as amended and supplemented form time to time) made between the Pantelis Collateral Owner (as borrower) and the Lender (as lender) for the purposes and pursuant to the terms and conditions contained therein;
"Release Date" means the date of actual release of the Cash Collateral Account Charge to be released by the Lender in accordance with Clause 27.8 of the Loan Agreement and the terms and conditions contained in such Cash Collateral Account Charge;
"Security Parties" all parties to this Supplemental Agreement and the Collateral Owners, other than the Lender and "Security Party" means any one of them;
"Supplemental Agreement" means the first supplemental agreement herein contained;
"Xingang Collateral Owner" means Xingang Shipping Ltd, a company incorporated under the laws of the Republic of Liberia, having its registered address at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx; and
"Xingang/Xxxxxx Loan Agreement" means the loan agreement dated November 2015 made between the Xingang Collateral Owner and the Xxxxxx Collateral Owner (as joint and several borrowers) and the Lender (as lender) for the purposes and pursuant to the terms and conditions contained therein.
| 1.3 |
All obligations, representations, warranties, covenants and undertakings of the Borrowers under or pursuant to this Supplemental Agreement shall, unless otherwise expressly provided, be entered into, made or given by them jointly and severally.
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| 2 |
Conditions precedent and subsequent
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As conditions for the agreement of the Lender to the request specified in Recital (A) above and for the effectiveness of clause 4, the Borrowers shall deliver or cause to be delivered to or to the order of the Lender the following documents and evidence:
A certificate from a duly authorised officer of each of the Borrowers, the Guarantor and the Manager confirming that none of the constitutional documents delivered to the Lender pursuant to Clause 19.1.5 of the Loan Agreement have been amended or modified in any way since the date of their delivery to the Lender, or attaching copies, certified by a duly authorised officer of each Borrower, the Guarantor or the Manager (as the case may be) as true, complete, accurate and neither amended nor revoked of any of the constitutional documents which have been amended or revoked and certifying that each copy document relating to it specified in Clauses 2.1.4, 2.1.5 and 2.1.6 is correct, complete and in full force and effect and setting out the names of the directors, officers and shareholders of the Borrower, the Guarantor and the Manager (as applicable) and the proportion of shares held by each shareholder.
Copies of the constitutional documents of each Collateral Owner together with such evidence as the Lender may reasonably require that the relevant Collateral Owner is duly incorporated in its country of incorporation and remains in existence with power to enter into, and perform its obligations under, the Additional Security Documents to which it is or is to become a party.
A certificate of good standing in respect of each Security Party.
A copy of a resolution of the board of directors of each Security Party:
| (b) |
authorising a specified person or persons to execute the Additional Documents (and all documents and notices to be signed and/or dispatched under the Additional Documents) on its behalf.
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A copy of a resolution signed by all the holders of the issued shares in each Security Party (other than the Guarantor), approving the terms of, and the transactions contemplated by, the Additional Documents.
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| 2.1.6 |
Power of attorney
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The legalised power of attorney of each Security Party under which the Additional Documents are to be executed or transactions undertaken by the Security Parties.
| 2.1.8 |
Additional Documents
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The Additional Documents duly executed together with all other documents required by any of them, including, without limitation, all notices of assignment and/or charge and evidence that those notices will be duly acknowledged by the recipients.
Photocopies, certified as true, accurate and complete by a director or the secretary or a legal adviser of the relevant Collateral Owner, of:
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any charterparty or other contract of employment of a Collateral Vessel which will be in force on the Effective Date;
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| (b) |
each Management Agreement (as defined in the relevant Collateral Loan Agreement) in respect of the Collateral Vessels;
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| (c) |
each Collateral Vessel's Safety Construction, Safety Equipment, Safety Radio, Load Line and International Oil Pollution Prevention Certificates;
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| (d) |
each Collateral Vessel's Certificate of Financial Responsibility issued pursuant to the United States Oil Pollution Xxx 0000;
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| (g) |
each Collateral Vessel's current international ship security certificate under the ISPS Code (ISSC);
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| (h) |
each Collateral Vessel's current international air pollution prevention certificate for the Vessel issued under Annex VI (IAPPC);
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in each case together with all addenda, amendments or supplements.
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| 2.1.10 |
Evidence of Collateral Owner's title
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Certificate of ownership and encumbrance (or equivalent) issued by the Registrar of Ships (or equivalent official) of the flag of the Republic of Liberia confirming that (a) each Collateral Vessel is permanently registered under that flag in the ownership of the relevant Collateral Owner, (b) each Collateral Mortgage has been registered with second priority against the relevant Collateral Vessel and (c) there are no further Encumbrances registered against each Collateral Vessel (other a first preferred mortgage in favour of the Lender as security under the relevant Collateral Loan Agreement).
Evidence that each Collateral Vessel is insured in the manner required by the Additional Security Documents and that letters of undertaking will be issued in the manner required by the Additional Security Documents, together with (if required by the Lender) the written approval of each Collateral Vessel's Insurances (as such term is defined in the relevant Collateral Loan Agreement) by an insurance adviser appointed by the Lender.
In respect of each Collateral Vessel, a Certificate of Confirmation of Class for hull and machinery confirming that the relevant Collateral Vessel is classed with the highest class applicable to vessels of her type with such other classification society as may be acceptable to the Lender free of recommendations affecting class.
A valuation of each Collateral Vessel addressed to the Lender from a broker acceptable to the Lender certifying the market value for each Collateral Vessel, acceptable to the Lender.
Legal opinion(s) of the legal advisers to the Lender in each relevant jurisdiction, other than England and Wales, substantially in the form required by the Lender, prior to the signing of this Supplemental Agreement or confirmation satisfactory to the Lender that such an opinion will be given.
Evidence that the process agent referred to in Clause 41.4 of the Loan Agreement and any process agent appointed under any other Finance Document has accepted its appointment as agent for service of process in relation to any proceedings before the English Courts in connection with the Additional Documents.
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| 2.1.16 |
Account mandates
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Such duly signed forms of mandate, and/or other evidence of the opening of the Cash Collateral Account, as the Lender may require.
Evidence in form and substance acceptable to the Lender that the Cash Collateral has been credited in to the Cash Collateral Account and secured in favour of the Lender as additional security for the payment of the Indebtedness up to the Release Date, free of Encumbrances (other than in favour of the Lender).
A copy of any other consent, licence, approval, authorisation or other document, opinion or assurance which the Lender, reasonably considers to be necessary or desirable (if it has notified the Borrowers accordingly) in connection with the entry into and performance of the transactions contemplated by any of the Additional Documents or for the validity and enforceability of any of the Additional Documents.
The Borrowers undertake to deliver or to cause to be delivered to or to the order of the Lender on the Effective Date or at the date specified by the Lender:
Acknowledgements of all notices of assignment and/or charge given pursuant to any of the Additional Security Documents received by the Lender pursuant to clause 2.1
Such of the legal opinions specified in clause 2.1 as have not already been provided to the Lender.
Letters of undertaking in respect of each Collateral Vessel as required by the relevant Additional Security Documents in form and substance acceptable to the Lender.
Evidence of payment of the legal costs and expenses incurred by the Lender in connection with the preparation, negotiation, execution of the Additional Documents and any other document in connection with any of them.
If any of the documents and evidence required by clause 2.1 have not been delivered to or to the order of the Lender in accordance therewith, the Borrowers undertake to deliver all outstanding documents and evidence to or to the order of the Lender no later than the date specified by the Lender after the Effective Date, and delivery on such later date shall not be taken as a waiver of the Lender's right to require production of all the documents and evidence required by clause 2.1.
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| 2.4 |
Form and content
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All documents and evidence delivered to the Lender pursuant to this clause shall:
| 2.4.2 |
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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| 2.4.3 |
if required by the Lender, be certified, notarised, legalised or attested in a manner acceptable to the Lender.
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Each of the representations and warranties contained in Clause 17 of the Loan Agreement and Clause 3 of the Guarantee (respectively), shall be deemed repeated by each of the Security Parties (as applicable) 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 and the other Additional Documents.
With effect from the Effective Date:
"'Applicable Margin" means three point seventy five per cent (3.75%) per annum";
| 4.5 |
the definition of "Classification Society" of Clause 2.01 of the Loan Agreement shall be deleted and restated as follows:
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"'Classification Society' means in respect of (a) the Eirini Ship, Bureau Veritas, (b) the Eleni Ship, NIPPON KAIJ1 KYOKAI, (c) the Xxxxxx Collateral Vessel, DNV-GL, (d) the Marinos Collateral Vessel, DNV-GL and (e) the Pantelis Collateral Vessel, Rina or such other classification society member of the IACS as may be as may be acceptable to the Lender.";
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| 4.7 |
""Management Agreement" means in relation to a Ship, the management agreement in respect of that Ship made by and between (i) the Owner or a Collateral Owner thereof (as the case may be) and (ii) the Manager on terms acceptable to the Lender, as the same may from time to time be amended, varied or supplemented and, in "Management Agreements" means any of them";
""Mortgaged Ship" means at any relevant time a Ship, which is, at such time, subject to a Mortgage or a Collateral Mortgage (as the case may be) and the Earnings, Insurances and Requisition Compensation of which are subject to an Encumbrance and, "Mortgaged Ships" means any Ship";
"'Supplemental Agreement' means the agreement dated November 2015 made between the Borrowers (as joint and several borrowers), the Guarantor (as guarantor) and the Lender (as lender) for the purposes and pursuant to the terms and conditions contained therein";
""Security Requirement" means the amount in Dollars (as certified by the Lender whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrowers and the Lender) which is at least equal to one hundred and thirty per cent (130%) of the Facility at any relevant time";
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| "17.02 |
The Borrowers hereby further represent and warrant to the Lender that on the Drawdown Date in respect of the Eirini Ship and the Eleni Ship and on the Effective Date in respect of the Collateral Vessels and throughout the Security Period in respect of the Ships the following matters will be true and shall remain true in all material respects:";
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| "17.02.5 |
the Mortgage in respect of each of the Eirini Ship and the Eleni Ship has been duly recorded against such Ship as a valid first priority ship mortgage and the Collateral Mortgage in respect of each of the Xxxxxx Collateral Vessel, the Marinos Collateral Vessel and the Pantelis Collateral Vessel has been duly recorded against such Collateral Vessel as a valid second priority ship mortgage, in each case in favour of the Lender in accordance with the laws of her flag;";
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| "18.1 |
The Borrowers hereby agree that the Security Documents shall secure with first priority in respect of each of the Eirini Ship and the Eleni Ship and with second priority in respect of the Collateral Vessels the due payment of the Indebtedness.";
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| "24.1.4 |
any other Financial Indebtedness of a Borrower, including without limitation any Indebtedness (as defined in a Collateral Loan Agreement) exceeding in aggregate One million Dollars ($1,000,000) becomes due and payable or, with the giving of notice or lapse of time or any other condition or a combination thereof, capable of being declared due and payable prior to its stated maturity by reason of any circumstance entitling the creditors) thereof to declare such indebtedness due and payable and such indebtedness is not paid within fourteen (14) Banking Days therefrom;";
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| 4.21 |
"27.08 The Borrowers shall ensure that at all times during the Security Period up to the Release Date the Cash Collateral is credited and maintained in the Cash Collateral Account, free of Encumbrances and rights of set off other than those created by or under the Finance Documents.
Following a request in writing by the Borrowers, the Lender shall, as soon as reasonably practicable, release the Borrowers from their obligations under and pursuant to the Cash Collateral Account Charge provided that:
| 27.8.2 |
no Event of Default has occurred; and
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| 27.8.3 |
where such release would not result in the occurrence of an Event of Default."
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All other terms and conditions of the Loan Agreement shall remain unaltered and in full force and effect.
The provisions of Clauses 31 (Confidentiality), 39 (Notices), 40 (Supplemental) and 41 (Law and Jurisdiction) 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 or the Finance Documents were references to this Supplemental Agreement.
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| To: |
Eirini Shipping Ltd
00 Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx |
Eleni Shipping Limited
00 Xxxxx Xxxxxx
Xxxxxxxx
Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxxxxx
Xxxxxxx
We, HSBC Bank plc, refer to the first supplemental agreement dated November 2015 (the "Supplemental Agreement") relating to a secured loan agreement dated 25 June 2014 (the "Loan Agreement") made between you, as the Borrowers, and ourselves, as the Lender in respect of a loan to you from us of up to sixteen million five hundred Dollars ($16,500,000).
We hereby confirm that all conditions precedent referred to in Clause 2.1 of the Supplemental Agreement have been satisfied. In accordance with Clauses 1.1 and 4 of the Supplemental Agreement, the Effective Date is the date of this confirmation and the amendments to the Loan Agreement are now effective.
Dated: 2015
Signed: _________________
For and on behalf of
HSBC Bank plc
For and on behalf of
HSBC Bank plc
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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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its duly authorised attorney-in-fact
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for and on behalf of
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Eirini Shipping Ltd
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in the presence of:
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Witness signature:…………………………………………
Name:
Address:
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Signed and delivered as
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a deed by
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its duly authorised attorney-in-fact
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for and on behalf of
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Eleni Shipping Limited
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in the presence of:
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Witness signature:…………………………………………
Name:
Address:
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Signed and delivered as
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a deed by
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its duly authorised attorney-in-fact
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for and on behalf of
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Euroseas Ltd.
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in the presence of:
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Witness signature:…………………………………………
Name:
Address:
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Signed and delivered as
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a deed by
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its duly authorised attorney-in-fact
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for and on behalf of
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HSBC Bank plc
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in the presence of:
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Witness signature:…………………………………………
Name:
Address:
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