Exhibit 4.55
DATED 16 JUNE 2006
SUPPLEMENTAL AGREEMENT
relating to a memorandum of agreement dated 14 March 2006
in relation to m.v. Spotless
Contents
Clause Page
1 Definitions...............................................................1
2 Consent of Original Owner.................................................2
3 Assumption of liability and obligations...................................3
4 Amendments to Original MOA................................................3
5 Conditions................................................................4
6 Counterparts..............................................................4
7 Applicable law............................................................4
THIS SUPPLEMENTAL AGREEMENT is dated 16 June 2006 and made BETWEEN:
(1) IDI Shipping Company Limited, a company incorporated in the Republic of
Liberia with its registered office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
(the "Original Owner");
(2) ▇▇▇▇ Maritime S.A., a company incorporated in the Republic of Liberia with
its registered office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Current
Owner"); and
(3) ICON Spotless, LLC, a limited liability company formed under the laws of
the State of Delaware, United States of America with its registered office
at 2711 Centerville Road, Suite 400, Wilmington, New ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America (the "New Owner").
WHEREAS:
(A) this Agreement is supplemental to a "NSF93" memorandum of agreement dated
14 March 2006 (the "Original MOA") made between the Original Owner (therein
referred to as the "Sellers") and the Current Owner (therein referred to as
the "Buyers") relating to the sale by the Original Owner and the purchase
by the Current Owner of m.v. Spotless (the "Ship"), currently registered in
the name of the Current Owner under Liberian flag with official number
9361;
(B) the Current Owner has taken delivery of the Ship pursuant to the terms of
the Original MOA and has paid to the Original Owner the Cash Part of the
Purchase Price (as such term is defined in clause 17 of the Original MOA);
(C) pursuant to clause 17 of the Original MOA it has been agreed between the
Original Owner and the Current Owner that part of the Purchase Price (as
defined therein) amounting to US$2,420,000 (the "Sellers' Credit") will not
be paid by the Current Owner to the Original Owner on the delivery and
acceptance of the Ship under the Original MOA and that payment the Sellers'
Credit shall be made in the manner and at the time provided in clause 17 of
the Original MOA;
(D) the Original Owner and the Current Owner have entered into a "Barecon 2001"
bareboat charter dated 14 March 2006 (the "Charter") whereby the Current
Owner has let and the Original Owner has taken on demise charter the Ship
on the terms contained therein;
(E) the Current Owner wishes to transfer the ownership of the Ship to ▇▇▇▇▇▇
Enterprises Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro, ▇▇▇▇▇▇▇▇ Islands MH96960 (the "Intermediate Owner") pursuant to a
memorandum of agreement dated 14 March 2006 and made between the Current
Owner and Oceanbulk Maritime S.A. who at a later date nominated as buyers
the Intermediate Owner (the "First MOA") who in turn wishes to transfer the
ownership of the Ship to the New Owner pursuant to a memorandum of
agreement dated 14 March 2006 and made between the Intermediate Owner and
the New Owner;
(F) the Current Owner and the New Owner wish to novate the Charter in favour of
the New Owner to enable the New Owner to charter the Ship to the Original
Owner following the transfer of the Ship to the New Owner; and
(G) this Agreement sets out the consent of the Original Owner, at the request
of the Current Owner, to (i) the transfer of ownership of the Ship from the
Current Owner to the Intermediate Owner and from the Intermediate Owner to
the New Owner and (H) the said novation of the Charter.
NOW IT IS HEREBY AGREED as follows:
1 Definitions
1.1 Defined expressions
Words and expressions defined in the Original MOA shall unless the context
otherwise requires or unless otherwise defined herein, have the same
meanings when used in this Agreement.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"Effective Date" means the date on which the Ship is delivered and accepted
by the Intermediate Owner under the First MOA;
"Existing Mortgage" means the third preferred mortgage dated 16 March 2006
executed by the Current Owner in favour of the Original Owner in respect of
the Ship; and
"Existing Register" means the register of ships of the Republic of Liberia.
1.3 Original MOA References in the Original MOA to "this Agreement" shall,
with effect from the Effective Date and unless the context otherwise
requires, be references to the Original MOA as amended by this Agreement
and words such as "herein", "hereof', "hereunder", "hereafter", "hereby"
and "hereto", where they appear in the Original MOA, shall be construed
accordingly.
1.4 Headings
Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this
Agreement.
1.5 Construction of certain terms
In this Agreement, unless the context otherwise requires:
1.5.1 references to clauses and schedules are to be construed as
references to clauses of, and schedules to, this Agreement and
references to this Agreement includes its schedules;
1.5.2 references to (or to any specified provision of) this Agreement or
any other document shall be construed as references to this
Agreement, that provision or that document as in force for the time
being and as amended in accordance with terms thereof, or, as the
case may be, with the agreement of the relevant parties;
1.5.3 words importing the plural shall include the singular and vice
versa;
1.5.4 references to a person shall be construed as references to an
individual, firm, company, corporation, unincorporated body of
persons or any government entity; and
1.5.5 references to a "guarantee" include references to an indemnity or
other assurance against financial loss including, without
limitation, an obligation to purchase assets or services as a
consequence of a default by any other person to pay any Indebtedness
and "guaranteed" shall be construed accordingly.
2 Consent of Original Owner
2.1 Consent
The Original Owner agrees with the Current Owner and the New Owner that as
of the date of this Agreement the Original Owner consents to:
2.1.1 the transfer of the Ship by the Current Owner to the Intermediate
Owner and by the Intermediate Owner to the New Owner; and
2.1.2 the novation of the Charter by the Current Owner in favour of the
New Owner.
2.2 Discharge of Mortgage
The Original Owner hereby agrees that it shall, simultaneously with the
delivery of the Vessel to the Intermediate Owner under the First MOA,
execute and thereafter register at the Existing Register, a deed of
discharge in respect of the Existing Mortgage.
3 Assumption of liability and obligations
3.1 Substitution
It is hereby agreed that, as and with effect from the Effective Date, the
New Owner shall be, and is hereby made, a party to the Original MOA in
respect of the provisions of clause 17 of the MOA and in substitution for
the Current Owner as regards the provisions of clause 17 of the Original
MOA and the Original MOA shall henceforth be construed and treated in all
respect as if the New Owner was named in clause 17 instead of the Current
Owner from the time the Original MOA was executed by the Original Owner and
the Current Owner.
3.2 Assumption of liability
The New Owner hereby agrees with the Original Owner that, as and with
effect from the Effective Date, it shall be indebted to the Original Owner
for the full amount of the Sellers' Credit and all other sums which may be
or become due to the Original Owner pursuant to clause 17 of the Original
MOA and the New Owner further agrees that it shall duly and punctually
perform all the liabilities and obligations whatsoever from time to time to
be performed or discharged by the Original Owner under clause 17 of the
Original MOA and shall be bound by the terms of the Original MOA as if the
New Owner had at all times been named therein as the Buyer.
3.3 Release
The Original Owner hereby agrees that, as and with effect from the
Effective Date, it shall release and discharge the Current Owner from all
liabilities, obligations, claims and demands whatsoever touching or
concerning clause 17 of the Original MOA and in respect of anything done or
omitted to be done under or in connection therewith but without prejudice
to the rights of the Original Owner and the New Owner against each other in
respect of any such liabilities, obligations, claims and demands.
4 Amendments to Original MOA
4.1 Amendments
Clause 17 of the Original MOA shall, with effect on and from the Effective
Date, be (and it is hereby) deleted and the following new clause inserted
in its place (and the Original MOA (as so amended) will continue to be
binding upon the Original Owner, the Current Owner and the New Owner upon
such terms as so amended):
"a) At the time stipulated in Clause 3, the Buyers shall pay to the Sellers
part of the Purchase Price amounting to United States Dollars Twenty-one
million seven hundred and eighty thousand (US$21,780,000) (the "Cash Part
of the Purchase Price") while the balance amounting to United States
Dollars Two million four hundred and twenty thousand (US$2,420,000) shall
be credited (the "Sellers' Credit") and shall be payable by ICON Spotless,
LLC of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Delaware 19808, United States of America (the "New Buyers") to the Sellers
in accordance with the terms of this Clause 17.
b) Subject to the provisions of Clause 17(c) hereinbelow, the Sellers'
Credit shall be payable by the New Buyers to the Sellers in one instalment,
free of interest, immediately upon either expiration of the "Barecon 2001"
form demise charter dated 14 March 2006 made between the Sellers and the
Buyers (the "Original Charter") as novated in favour of the New Buyers and
amended pursuant to a novation agreement dated 16 June 2006 made between
the Sellers, the Buyers and the New Buyers (the "Novation Agreement" and
together with the Original Charter the "Bareboat Charter) by effluxion of
time or the sale of the Vessel to another party (the "buying party") as
described in Clause 22(b) of the Bareboat Charter provided however that
such sale is on terms that the buying party shall pay to the New Buyers the
relevant acquisition price in cash and in full at the time of delivery and
acceptance of the Vessel by the buying party. IT IS HEREBY FURTHER AGREED
THAT in the event that the New Buyers sell the Vessel on terms providing
that the buying party shall pay for the acquisition of the Vessel by, inter
alia, agreeing to take over the New Buyers' obligation under this Clause 17
to repay the Sellers' Credit to the Sellers, then (1) the Seller's Credit
shall not be repayable upon such sale being agreed or the relevant delivery
and acceptance of the Vessel thereunder taking place (since the sale
consideration is not payable in cash and in full on delivery and acceptance
of the Vessel) and (2) the Sellers shall execute any such document and take
any such action as the New Buyers may consider necessary or desirable for
the buying party to (i) take the place of the New Buyers under this Clause
17 and under the Bareboat Charter and (ii) receive the benefit of any of
the securities provided under the Bareboat Charter and, in particular but
without limitation to the foregoing, clauses 32Aa, 32Ab and 32C thereof
c) In the event that the Bareboat Charter be terminated because of any of
the reasons provided in Clause 28(a) of the Bareboat Charter and/or any
other reason attributable to the Sellers as charterers under the Bareboat
Charter, then upon such termination taking place, the Purchase Price shall
be automatically reduced by an amount (such amount referred to as the
"Purchase Price Reduction Amount") which is equal to the lesser of (i) the
Seller's Credit and (ii) the total amount of hire that would have been paid
to the New Buyers under the terms of the Bareboat Charter had the Bareboat
Charter continued uninterrupted for its full duration up to 14 March 2011
and such reduction shall have as a result the reduction of the Sellers'
Credit by an amount equal to the Purchase Price Reduction Amount.
As security for the payment of the Sellers' Credit, as hereinabove, the New
Buyers shall provide the Sellers with a second preferred Mortgage over the
Vessel, being subordinate to a first preferred Mortgage over the Vessel in
favour of Fortis Bank NV/SA, as more particularly described in the Bareboat
Charter."
4.2 Continued force and effect
Save as clauses 16 and 17 have been amended by this Agreement, no other
provision of the Original MOA shall be amended by this Agreement and the
Original MOA and this Agreement shall be read and construed as one
instrument.
5 Conditions
The consent of the Original Owner referred to in clause 2 shall be subject
to the conditions precedent contained in schedule 1 being satisfied.
6 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.
7 Applicable law
7.1 Law
This Agreement is governed by, and shall be construed in accordance with,
English law.
7.2 Arbitration
The provisions of clause 16 of the Original Agreement shall be deemed
incorporated in this Agreement and the terms of the said clause shall apply
herein mutatis mutandis, provided however that if each party to this
Agreement appoints its own arbitrator it will not be required for an umpire
to be appointed and any decision to be taken in relation to any such
arbitration shall be taken by the panel of the three appointed arbitrators.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed as a deed on the date first above written.
EXECUTED as a DEED by
IDI SHIPPING COMPANY LIMITED
by Eirini Alexandropoulou /s/ Eirini Alexandropoulou
its duly authorised attorney-in-fact --------------------------
pursuant to a power of attorney dated 13 June 2006 Attorney-in-fact
in the presence of
Witness Name: ▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇▇▇▇ ▇▇▇▇
Occupation: Piraeus
EXECUTED as a DEED by
ICON SPOTLESS, LLC
by ▇▇▇▇ ▇▇▇▇▇
its duly authorised attorney-in-fact /s/ ▇▇▇▇ ▇▇▇▇▇
pursuant to a power of attorney dated 15 June 2006 --------------------------
in the presence of
Witness Name: ▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇▇▇▇ ▇▇▇▇
Occupation: Piraeus
EXECUTED as a DEED by
▇▇▇▇ MARITIME S.A.
by Alexandra Tatagia
its duly authorised attorney-in-fact /s/ Alexandra Tatagia
pursuant to a power of attorney dated 14 June 2006 ---------------------------
in the presence of
Witness Name: ▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇▇▇▇ ▇▇▇▇
Occupation: Piraeus