Dated: 9th March, 2009
Exhibit 99.5
Dated: 9th March, 2009
FBB
- FIRST BUSINESS BANK S.A.
(as
Bank)
- and
-
(as
borrower)
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-
and -
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▇▇▇▇▇▇▇
NAVIGATION S.A.
(as
corporate guarantor)
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-
and -
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ALLSEAS
MARINE S.A.
(as
manager)
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FIRST
SUPPLEMENTAL AGREEMENT
in
relation to a Credit Agreement
for
a revolving credit facility of up to
US$30,000,000
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1
THIS
AGREEMENT is
made this 9th day
of March, 2009 made BETWEEN:
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(1)
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FBB - FIRST BUSINESS BANK
S.A., a bank incorporated in the Republic of Greece with its head
office at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, acting, except
otherwise herein provided, through its office at 62, Notara & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (the “Bank”);
and
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2.
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PARAGON
SHIPPING INC., a company duly incorporated under the laws of the
Republic of The ▇▇▇▇▇▇▇▇ Islands having its registered office at Trust
Company Complex, Ajeltake Island, Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ and
listed in the Nasdaq Global Select Market, as Borrower, hereinafter called
the “Borrower”);
and
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3.
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▇▇▇▇▇▇▇ NAVIGATION
S.A., a company duly
incorporated under the laws of the Republic of The ▇▇▇▇▇▇▇▇ Islands having
its registered office at Trust Company Complex, Ajeltake Island, Majuro,
▇▇▇▇▇▇▇▇ Islands MH 96960, as corporate guarantor (hereinafter called the
“Corporate
Guarantor”); and
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4.
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ALLSEAS MARINE S.A.,
a company duly
incorporated under the laws of Liberia, having its registered office at
▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and an office established in Greece
(15 ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇) pursuant to the Greek laws
378/68, 27/75 and 814/79 (as amended) as manager (hereinafter called the
“Manager”),
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IS
SUPPLEMENTAL to a Credit Agreement dated 16th April,
2008 made between (i) the Bank, as lender, (ii) the Borrower, as borrower and
(iii) the Corporate Guarantor, as corporate guarantor (the said loan agreement
hereinafter called the “Principal Agreement”) on the
terms and conditions of which the Bank has agreed to advance to the Borrower a
secured floating interest rate revolving credit facility in the amount
$30,000,000 (United States Dollars Thirty Million) (the “Loan”) for the purpose therein
specified (the Principal Agreement as hereby amended and/or supplemented and as
the same may hereinafter be amended and/or supplemented called the “Loan
Agreement”).
W
H E R E A S:
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(A)
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The
Borrower and the Corporate Guarantor hereby jointly and severally
acknowledge and confirm that (a) the Bank has advanced to the Borrower the
full amount of the Loan and (b) as the date hereof the principal amount of
$27,450,000 (US Dollars twenty seven
million four hundred fifty thousand) remains
outstanding.
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(B)
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Pursuant
to a Guarantee incorporated in Clause 13 of the Principal Agreement (the
“Corporate
Guarantee”) the Corporate Guarantor irrevocably and unconditionally
guaranteed the punctual repayment of the Loan and interest and default
interest accrued thereon and the due and timely performance of all the
obligations of the Borrower under the Loan Agreement and the Security
Documents executed in accordance
thereto;
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(C)
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Pursuant
to a Manager’s Undertaking dated 18th
April 2008 executed by the Manager, the Manager has
subordinated any and all claims it may have against the Corporate
Guarantor and/or the Vessel to the claims of the Bank hereunder and the
Security Documents(the “Manager’s
Undertaking”);
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(D)
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The
Borrower and the Corporate Guarantor have requested the Bank to consent
to:
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2
| (a) | non compliance by the Borrower of its covenants under Clause 8.5(c) and 8.2 (c) (d) and (e) for the whole Deferral Period (as hereinafter defined); |
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(b)
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the
amendment of the Margin; and
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(e)
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the
amendment of the Principal Agreement as set out in Clause 5
hereof,
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and the
Bank has agreed so to do conditionally upon terms that (inter alia) the
Principal Agreement shall be amended in the manner hereinafter set
out.
NOW
THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
| 1. | Definition |
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1.1
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Words
and expressions defined in the Principal Agreement and not otherwise
defined herein (including the Preamble and Recitals hereto) shall have the
same meanings when used in this
Agreement.
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“Additional Documents” means
together the Cash Collateral Account Agreement and the Deed of Covenant
Amendment;
“Deferral Period” means a
period starting on the Effective Date and terminating on the 1st January
2010;
"Effective Date" means the
date hereof or such earlier of later date as the Bank may agree upon which
all the conditions contained in Clause 5 shall have been satisfied and this
Agreement shall become effective;
“Cash Collateral Account”
means an interest bearing Dollar account of the Borrower opened or (as the
context may require) to be opened by the Borrower with the Lending Branch of the
Bank and includes any sub-accounts thereof and any other account designated in
writing by the Bank to be a Cash Collateral Account for the purposes of this
Agreement;
“Cash Collateral Account Pledge
Agreement” means the pledge agreement executed or (as the context may
require) to be executed by the Borrower in favour of the Bank, in respect of the
Cash Collateral Account, in such form as the Bank may require in its sole
discretion;
“Loan Agreement” means the
Principal Agreement as hereby amended as the same may from time to time be
further amended and/or supplemented;
“Deed of Covenant
Amendment” means the Amendment No.
1 to the Deed of Covenant, supplemental to a First Priority Cayman Islands
Mortgage both dated 18th April,
2008 and registered over the Vessel in favour of the Bank, whereby the said Deed
of Covenant shall be amended, executed or (as the context may require) to be
executed by the Corporate Guarantor in favour of the Bank in form satisfactory
to the Bank;
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1.2
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In
this Agreement the term “Security Documents” shall be construed as to
include the Security Documents as defined in the Principal Agreement as
amended and/or supplemented by this Agreement and the Additional
Documents.
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3
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1.3
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(a)
where the context so admits words importing the singular number only shall
include the plural and vice versa and words importing persons shall
include firms and corporations, (b) clause headings are inserted for
convenience of reference only and shall be ignored in construing this
Agreement, (c) references to Clauses are to clauses of this Agreement save
as may be otherwise expressly provided in this Agreement and (d) all
capitalised terms used herein and not otherwise defined herein shall have
the meanings ascribed to them in the Loan
Agreement.
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| 2. | Representations and Warranties |
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2.1
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Each
corporate Security Party hereby jointly and severally represent and
warrant to the Bank as at the date hereof that the representations and
warranties set forth in the Principal Agreement and the Security Documents
(updated mutatis mutandis to the date of this Agreement) are (and will be
on the Effective Date) true and correct as if all references therein to
"this Agreement" were references to the Principal Agreement as amended and
supplemented by this
Agreement.
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2.2
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In
addition to the above, the Borrower and the Corporate Guarantor hereby
jointly and severally represent and warrant to the Bank as at the date of
this Agreement that:
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(a)
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each
of the corporate Security Parties is duly formed, is validly existing and
in good standing under the laws of the place of its incorporation has full
power to carry on its business as it is now being conducted and to enter
into and perform its obligations under the Principal Agreement, this
Agreement and the Additional Documents and has complied with all statutory
and other requirements relative to its
business;
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(b)
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all
necessary licences, consents and authorities, governmental or otherwise
under this Agreement, the Principal Agreement and the Additional Documents
have been obtained and, as of the date of this Agreement, no further
consents or authorities are necessary for any of the Security Parties to
enter into this Agreement or otherwise perform its obligations
hereunder;
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(c)
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this
Agreement constitutes and the Additional Documents on the execution
thereof will constitute, the legal, valid and binding obligations of the
Security Parties thereto enforceable in accordance with their respective
terms;
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(d)
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the
execution and delivery of, and the performance of the provisions of this
Agreement and the Additional Documents do not, and will not contravene any
applicable law or regulation existing at the date hereof or any
contractual restriction binding on any of the Security Parties or its
respective constitutional
documents;
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(e)
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no
action, suit or proceeding is pending or threatened against any of the
Borrower and the other Security Parties or their assets before any court,
board of arbitration or administrative agency which could or might result
in any material adverse change in the business or condition (financial or
otherwise) of such Borrower or such Security Party;
and
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(f)
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none
of the Borrower and the other Security Parties is and at the Effective
Date will be in default under any agreement by which it is or will be at
the Effective Date bound or in respect of any financial commitment, or
obligation.
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4
| 3. | Conditions |
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3.1
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The
agreement of the Bank contained in Clause 4 shall be expressly subject to
the fulfilment of the conditions set out in Clause 7 of the Principal
Agreement and further subject to the condition that the Bank shall have
received on or before the date hereof in form and substance satisfactory
to the Bank and its legal
advisers:
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(a)
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a
recent certificate of incumbency of the Borrower and the Corporate
Guarantor signed by the secretary or a director thereof, stating the
officers and the directors and the shareholders of each of them duly
legalized by the appropriate authorities of its place of
incorporation;
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(b)
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certified
and duly legalised copies of resolutions passed at a meeting of the Board
of Directors of the Borrower and the Corporate Guarantor evidencing
approval of this Agreement and any of the Additional Documents to which it
is a party and authorising appropriate officers or attorneys to execute
the same and to sign all notices required to be given under this Agreement
on its behalf or other evidence of such approvals and authorisations as
shall be acceptable to the Bank, duly legalized by the appropriate
authorities of their respective place of
incorporation;
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(c)
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the
original of any power(s) of attorney issued in favour of any person
executing this Agreement or the Additional Documents to which it is a
party on behalf of the Borrower and the Corporate Guarantor duly legalized
by the appropriate authorities of their respective place of
incorporation;
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(d)
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the
Additional Documents duly executed by the respective parties
thereto;
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(e)
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any
other documents or recent certificates or other evidence which would be
required by the Bank in relation to any corporate Security Party
evidencing that the relevant Security Party has been properly established,
continues to exist validly and to be in good
standing;
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(f)
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evidence
that the Cash Collateral Account has been duly opened and all mandate
forms, signature cards and authorities have been duly delivered;
and
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(g)
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evidence
that the Borrower shall no later than the Effective Date deposited with
the Cash Collateral Account the amount of Dollars three million four
hundred thousand
($3,400,000).
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| 4. | Agreement of the Bank |
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The
Bank, relying upon each of the representations and warranties set out in
Clause 2 hereby agrees with the Borrower, subject to and upon the terms
and conditions of this Agreement and in particular, but without
limitation, subject to the fulfilment of the conditions precedent set out
in Clause 3, to consent to the amendment of the Loan Agreement as set out
in Clause 5 hereof.
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| 5. | Variations to the Loan Agreement |
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The Borrower
hereby agree with the Bank, subject to the Bank’s consent and further
subject to and upon the terms and conditions contained in this Agreement,
that the provisions
of the Principal Agreement shall be and are hereby agreed to be varied
and/or amended and/or supplemented as
follows:
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5
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5.1
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As
from the Effective Date, the following new definitions, shall be added to
Clause 1.2 of the Principal Agreement reading as
follows:
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“Cash Collateral Account” means an interest bearing Dollar account of
the Borrower opened or (as the context may require) to be opened by the
Borrower with the Lending Branch of the Bank and includes any
sub-accounts thereof and any
other account designated in writing by the Bank to be a Cash Collateral
Account for the purposes of this
Agreement;
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“Cash Collateral Account Pledge
Agreement” means the pledge
agreement executed or (as the context may require) to be executed by the
Borrower in favour of the Bank, in respect of the Cash Collateral Account,
in such form as the Bank may require in its sole
discretion;
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“Deed of Covenant
Amendment” means the Amendment No. 1 to the Deed of
Covenant, supplemental to a First Priority Cayman Islands Mortgage both
dated 18th
April, 2008 and registered over the Vessel in favour of the Bank, whereby
the said Deed of Covenant shall be amended, executed or (as the context
may require) to be executed by the Corporate Guarantor in favour of the
Bank in form satisfactory to the
Bank;
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“First Supplemental Agreement”
means
the First Supplemental Agreement dated 9th
March, 2009 supplemental to this Agreement executed or (as the context may
require) made between the Borrower, the Corporate Guarantor and the Bank
in such form as the Bank may
require;
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“Margin Calculation Date”
means the next Interest Payment Date ie
20th
March 2009
and each date falling every three (3) months thereafter;
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“Margin Period” means each period commencing on a Margin
Calculation Date and ending on the day prior to the subsequent Margin
Calculation Date and “Margin Periods” means
any or all of
them;
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“Quotation Date” means, in respect of any period in respect of
which LIBOR falls to be determined under this Agreement, the second
Banking Day before the first day of such
period;
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5.2
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With
effect as from the Effective Date, the following definitions set out in
Clause 1.2 of the Principal Agreement shall be deleted and shall be
replaced as
follows:
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“Margin” means, in relation to each Margin
Period:
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(a)
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in
the event that on the Margin Calculation Date relevant to such Margin
Period the Market Value of the Vessel as most recently determined in
accordance with Clause 8.5 (b) is less than one hundred forty per cent
(140%) of the Loan, two per cent (2%);
and
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6
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(b)
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in
the event that on the Margin Calculation Date relevant to such Margin
Period the Market Value of the Vessel as most recently determined in
accordance with Clause 8.5(b) is equal to or higher than one hundred forty
per cent (140%) of the Loan, one point two per cent
(1.2%);
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“Mortgage” in relation to the
Vessel means the first priority statutory ship mortgage and the Deed of covenant
supplemental thereto both dated 18th April,
2008 executed by the Corporate Guarantor in favour of the Bank as amended and/or
supplemented by the Deed of Covenant Amendment;
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5.3
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With
effect from the date hereof, Clause 3.6 (Market disruption-Non
Availability) of the Principal Agreement shall be deleted in its
entirety and shall be substituted by the
following:
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“(a)
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Market
disruption:
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If
and whenever, at any time prior to the commencement of any Interest Period, the
Bank (in its reasonable discretion) shall have determined (which determination
shall be conclusive) that a Market Disruption Event has occurred in relation to
the Loan for any such Interest Period, then the Bank shall forthwith give notice
(a “Determination
Notice”) thereof to the Borrower and the rate of interest on the Loan (or
the relevant part thereof) for that Interest Period shall be the percentage rate
per annum which is the sum of:
(aa) the
applicable Margin; and
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(bb)
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the
rate which expresses as a percentage rate per annum the cost to the Bank
of funding the Loan (or the relevant part thereof) from whatever source it
may reasonably select.
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(b) In
this Agreement “Market
Disruption Event” means:
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(i)
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at
or about noon on the Quotation Date for the relevant Interest Period the
LIBOR is not available; or
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(ii)
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before
close of business in London on the Quotation Date for the relevant
Interest Period, the Bank determines (in its reasonable discretion) that
the cost to it of obtaining matching deposits in the London Interbank
Market to fund the Loan (or the relevant part thereof) for such Interest
Period would be in excess of LIBOR;
or
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(iii)
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before
close of business in London on the Quotation Date for the relevant
Interest Period, deposits in Dollars are not available to the Bank in the
London Interbank Market in the ordinary course of business in sufficient
amounts to fund the Loan (or the relevant part thereof) for such Interest
Period.
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7
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(c)
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Alternative basis of
interest or funding
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(i)
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If
a Market Disruption Event occurs and the Bank or the Borrower so
require(s), the Bank and the Borrower shall enter into negotiations (for a
period of not more than ten (10) days (the “Negotiation Period”))
after the giving of the relevant Determination Notice with a view to
agreeing a substitute basis for determining the rate of
interest.
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(ii)
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Any
alternative basis agreed pursuant to paragraph (i) above shall be binding
on the Bank and all Security
Parties.
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(d)
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Alternative basis of
interest in absence of agreement: If the Bank
and the Borrower will not enter into negotiations as provided in clause
3.6(c)(i) or if an alternative interest rate or alternative basis is not
agreed within the Negotiation Period, and the
relevant circumstances are continuing at the end of the
Negotiation Period, then the Bank shall determine the next Interest Period
and an interest rate representing the cost of funding of the Bank in
Dollars of the Loan (or the relevant part thereof) plus the applicable
Margin for such Interest Period; if the relevant circumstances are
continuing at the end of the Interest Period so set by the Bank, the Bank
shall continue to determine the next Interest Period and an interest rate
representing its cost of funding in Dollars of the Loan (or the relevant
part thereof) plus the applicable Margin for such Interest
Period.
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(e)
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Notice of
prepayment: If the
Borrower does not agree with an interest rate set by the Bank under Clause
3.6(d), the Borrower may give the Bank not less than 15 Banking Days’
notice of its intention to prepay the Loan at the end of the interest
period set by the Bank.
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(f)
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Prepayment;
termination of Commitments: A notice
under Clause 3.6(e) shall be irrevocable; and on the last Banking Day of
the interest period set by the Bank, the Borrower shall prepay (without
premium or penalty) the Loan, together with accrued interest thereon up to
the date of prepayment at the applicable rate plus the applicable Margin
and any balance of the Outstanding
Indebtedness.
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(g)
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Application of
prepayment: The provisions of Clause 4 shall apply in relation to
the prepayment.”
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5.4
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With
effect from the Effective Date the following shall be added at the end
of:
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(i)
each of the sub-paras (c), (d) and (e) of Clause 8.2 (Banking
Operations-Liquidity); and
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(ii)
sub-para (c) of Clause
8.5 (Security Value to
Security Requirement-Additional Security):
“Provided
however that subject to no Default then existing, this covenant shall not be
applicable to the Borrower throughout the Deferral Period.”
8
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5.5
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With effect
from the Effective Date a new sub-para (g) shall be added in Clause 8.2 (Banking
Operations-Liquidity) reading as
follows:
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“(g)
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ensure
that the amount of Dollars three million four hundred thousand
($3,400,000) standing to the credit of the Cash Collateral Account be
applied by the Bank (and the Borrower hereby irrevocably and
unconditionally authorises and instructs the Bank to make the relevant
transfers) towards payment of the Reductions/Repayment Instalments
specified in Clause 4.1(b) falling due and payable on
the Reduction/Repayment Dates of the year 2010 on their
respective due date of payment ”
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5.6
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With
effect from the date of execution of the Principal Agreement the following
fax number and PIC of notices to be sent to any Security Party under
clause 14.9 of the Principal Agreement shall be added at sub para 14.9
(iii):
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“Fax
No.: ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇
ATTN:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇”
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5.7
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With effect from the date
of execution of the Principal Agreement a new sub para (d) shall be added
in Clause
14.8 (Language and genuineness of documents) reading as
follows:
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(d)
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“Third Party
Rights No term of this Agreement is enforceable under
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ by a person who is not a
party to this Agreement.”
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5.8
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With
effect from the Effective Date, the definition "Security Documents"
shall be deemed to include the Security Documents as amended and/or
supplemented in pursuance to the terms hereof as well as the Cash
Collateral Account Pledge Agreement and any document or documents
(including if the context requires the Loan Agreement) that may now or
hereafter be executed as security for the repayment of the Loan, interest
thereon and any other moneys payable by the Bank under the Principal
Agreement and the Security Documents (as herein defined) as well as for
the performance by the Borrower and the other Security Parties (as herein
defined) of all obligations, covenants and agreements pursuant to the
Principal Agreement this Agreement and/or the Security
Documents;
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5.9
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With
effect from the Effective Date hereof, the definition and all references
in the Principal Agreement and in the Security Documents to the “Mortgage” as references
to the Mortgage as amended and supplemented by the Deed of Covenant
Amendment.
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5.10
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With
effect from the Effective Date hereof, the definition and all references
in the Principal Agreement and in the Security Documents to “this Agreement”, “hereunder” and the like
and in the Security Documents to the “Loan Agreement” shall
be construed as references to the Principal Agreement as amended and/or
supplemented by this
Agreement.
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9
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6.
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Continuance of
Principal Agreement and the Security
Documents
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Save
for the alterations to the Principal Agreement made or deemed to be made
pursuant to this Agreement and such further modifications (if any) thereto
as may be necessary to make the same consistent with the terms of this
Agreement, the Principal Agreement shall remain in full force and effect
and the security constituted by the Security Documents executed by the
Borrower and the other Security Parties shall continue and remain valid
and enforceable and each of the Borrower hereby reconfirms its obligations
under the Principal Agreement as hereby amended and under the Security
Documents to which it
is party.
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7.
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Reconfirmation of the
Corporate Guarantee and the Manager’s
Undertaking
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Notwithstanding
the variation to the Loan Agreement contained herein (a) the Corporate
Guarantee (which the Corporate Guarantor hereby reconfirms) and (b) the
Manager’s Undertaking dated shall remain in full force and
effect as guarantee and/or security of the obligations of the Borrower
under the Principal Agreement, this Agreement and the Security Documents
(as hereby amended), and in respect of all outstanding balance of the Loan
and other sums due to the Bank under the Loan Agreement and the Security
Documents.
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7.
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ENTIRE
AGREEMENT AND AMENDMENT; EFFECT ON PRINCIPAL AGREEMENT-WAIVERS
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7.1
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The
Principal Agreement, the Security Documents and this Agreement represent
the entire agreement among the parties hereto with respect to the subject
matter hereof and supersede any prior expressions of intent or
understanding with respect to this transaction and may be amended only by
an instrument in writing executed by the party or parties to be bound or
burdened thereby.
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7.2
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Except
to the extent that the Principal Agreement is expressly amended or
supplemented by this Agreement, all terms and conditions of the Principal
Agreement remain in full force and effect. This Agreement is
supplementary to and incorporated in the Principal Agreement, all terms
and conditions whereof, including, but not limited to, provisions on
payments, calculation of interest and Events of Default, shall apply to
the performance and interpretation of this
Agreement.
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7.3
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No
waiver of any such right, remedy or power, or any consent to
any departure from the strict application of the provisions of this
Agreement, the Loan Agreement or of any other Security Document shall in
any way prejudice or affect the powers conferred upon the Bank under this
Agreement, the Loan Agreement and the other Security Documents or the
right of the Bank thereafter to act strictly in accordance with the terms
of this Agreement, the Loan Agreement and the other Security Documents nor
shall, any delay or omission by the Bank to exercise any right, remedy or
power vested in the Bank under this Agreement, the Loan Agreement and/or
the other Security Documents or by law, impair such right or power, or be
construed as a waiver of, or as an acquiescence in any default by the
Borrower and/or any other Security Party, nor shall any single or partial
exercise by the Bank of any power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or
remedy.
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8.
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Fees
and Expenses
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10
| (a) | As an inducement for the Bank to enter into this Agreement, the Borrower shall pay on the date hereof a non-refundable restructuring fee in the amount of fifty thousand Dollars ($50,000) payable on the date hereof. |
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(b)
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The
Borrower and the Corporate Guarantor, jointly and severally, agree to pay
to the Bank all costs, charges and expenses (including legal fees)
incurred by the Bank in connection with the negotiation, preparation,
execution and enforcement or attempted enforcement of this Agreement and
any document executed pursuant thereto and/or in preserving or protecting
or attempting to preserve or protect the security created hereunder and/or
under the Security Documents.
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|
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(c)
|
The
Borrower and the Corporate Guarantor, jointly and severally, covenant and
agree to pay and discharge any and all stamp duties, registration and
recording fees and charges and any other charges whatsoever and
wheresoever payable or due in respect of this Agreement and/or any
document executed pursuant hereto.
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9.
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NOTICES
|
The
provisions of clause 14.9 of the Principal Agreement as hereby amended shall
extend and apply to the giving or making of notices or demands hereunder as if
the same were expressly stated herein save that notices or demands hereunder as
regards the Borrower should be sent to such address or facsimile number as the
Borrower have advised in writing to the Bank on the date of the Principal
Agreement.
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10.
|
APPLICABLE
LAW AND JURISDICTION
AND MISCELLANEOUS
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|
(a)
|
This
Supplemental Agreement shall be governed by and construed in accordance
with English law. The provisions of Clause 15.1 and 15.2 (Law and
Jurisdiction) of the Principal Agreement shall extend and apply to this
Supplemental Agreement as if the same were (mutatis mutandis) herein
expressly set forth.
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(b)
|
For
the purposes of enforcement in Greece, it is hereby expressly agreed that
English law as the governing law of this Agreement will be proved by an
affidavit of a solicitor from an English law firm to be appointed by the
Bank and the said affidavit shall constitute full and conclusive evidence
binding on the Borrower, the Manager and the Corporate Guarantor but the
Borrower, the Manager and the Corporate Guarantor shall be allowed to
rebut such evidence save for witness.
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| (c) | ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an attorney-at-law, presently of ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, is hereby appointed by the Borrower, the Corporate Guarantor and the Manager as agent to accept service (hereinafter the “Process Agent”) upon whom any judicial or extrajudicial process may be served (including but without limitation any documents initiating legal proceedings) and any notice, request, demand payment order, announcement of claim, any enforcement process or other communication under the Principal Agreement, this Agreement or any of the Security Documents. In the event that the Process Agent (or any substitute process agent notified to the Bank in accordance with the foregoing) cannot be found at the address specified above (or, as the case may be, notified to the Bank), which will be conclusively proved by the affidavit of a process server to that effect, the authority of the Process Agent as agent to accept service shall be deemed to have ceased and service of documents may be effected in accordance with the procedure provided by the relevant provisions on service of process provided by the Hellenic Procedural Code. In case, however, that such Process Agent is found at any other address, the Bank shall have the right to serve the documents either on the Process Agent at such address or in accordance with the procedure provided by the relevant law. |
11
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(d)
|
No
term of this Agreement is enforceable under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ by a person who is not a party to this
Agreement
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IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed the day and year first above written.
THE
BORROWER
Executed
as a
Deed
)
for and
on behalf
of
)
of The
▇▇▇▇▇▇▇▇
Islands
)
by ▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and
)
▇▇.
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ )
its duly
authorised
Attorney-in-fact ) _______________________________
in the
presence
of:
)
Witness:
________________________
Name: ▇▇▇▇▇▇
Arcadis
Address: ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇
Occupation:
Attorney-at-law
THE CORPORATE
GUARANTOR
Executed
as a
Deed )
for and
on behalf
of )
▇▇▇▇▇▇▇ NAVIGATION S.A., )
of The
▇▇▇▇▇▇▇▇
Islands )
by ▇▇▇.
▇▇▇▇▇
▇▇▇▇▇▇▇▇ )
its duly
authorised
Attorney-in-fact ) _______________________________
in the
presence
of:
)
Witness:
__________________________
Name:
▇▇▇▇▇▇ Arcadis
Address: Defteras
▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇,
▇▇▇▇▇▇
Occupation: Attorney-at-law
12
THE
MANAGER
Executed
as a
Deed )
for and
on behalf
of )
ALLSEAS MARINE S.A., )
of The
▇▇▇▇▇▇▇▇
Islands )
by ▇▇▇.
▇▇▇▇▇
▇▇▇▇▇▇▇▇ )
its duly
authorised
Attorney-in-fact ) _______________________________
in the
presence
of:
)
Witness:
__________________________
Name: ▇▇▇▇▇▇
Arcadis
Address: Defteras
▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇,
▇▇▇▇▇▇
Occupation: Attorney-at-law
SIGNED
)
for and
on behalf
of
)
FBB-FIRST BUSINESS BANK
S.A. )
by ▇▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
)
its duly
authorised
Attorney-in-fact ) __________________________
in the
presence
of: ) Attorney-in-Fact
Witness:
_____________________________
Name: ▇▇▇▇▇▇
Arcadis
Address: ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇
Occupation:
Attorney-at-law
13