EX-10.2 3 y04923exv10w2.htm EX-10.2 exv10w2
Exhibit 10.2
Date 31 May 2011
NAVIOS MARITIME PARTNERS L.P.
as Borrower
COMMERZBANK AG and DVB BANK SE
as Lenders
DVB BANK SE
as Swap Bank, Joint-Arranger, Agent,
and Security Trustee
and
COMMERZBANK AG
as Joint-Arranger, Payment Agent,
Account Bank and Swap Bank
 
SEVENTH SUPPLEMENTAL AGREEMENT
 
in relation to a Facility Agreement dated 15 November 2007,
as amended by supplemental agreements dated 25 June 2008,
30 January 2009, 11 January 2010,
30 March 2010, 1 June 2010 and
13 December 2010
INCE & CO
PIRAEUS

 

 

         
Index    
 
Clause   Page No
1 INTERPRETATION
    3  
2 UNDERTAKINGS
    4  
3 REPRESENTATIONS AND WARRANTIES
    5  
4 AMENDMENTS TO FACILITY AGREEMENT AND OTHER SECURITY DOCUMENTS
    5  
5 FURTHER ASSURANCES
    6  
6 NOTICES
    6  
7 SUPPLEMENTAL
    6  
8 LAW AND JURISDICTION
    7  

2

 

THIS AGREEMENT is made on 31 May 2011
BETWEEN
(1)   NAVIOS MARITIME PARTNERS L.P. as Borrower;
 
(2)   COMMERZBANK AG and DVB BANK SE as Lenders;
 
(3)   DVB BANK SE as Swap Bank, Joint-Arranger, Agent and Security Trustee; and
 
(4)   COMMERZBANK AG as Joint-Arranger, Payment Agent, Account Bank and Swap Bank.
BACKGROUND
(A)   By a Facility Agreement dated 15 November 2007 as amended by supplemental agreements dated 25 June 2008, 30 January 2009, 11 January 2010, 30 March 2010, 1 June 2010 and 13 December 2010 and made between the parties hereto the Lenders have made available to the Borrower a loan of up to USD434,000,000.
 
(B)   The Borrower has made a request to the Lenders that they agree to amend certain terms of the Facility Agreement, and this Agreement sets out the terms and conditions on which the Lenders agree thereto.
IT IS AGREED as follows:
1   INTERPRETATION
 
1.1   Defined expressions. Words and expressions defined in the Facility Agreement and the other Security Documents shall have the same meanings when used in this Agreement unless the context otherwise requires.
 
1.2   Definitions. In this Agreement, unless the contrary intention appears:
 
    “Facility Agreement” means the Facility Agreement dated 15 November 2007 (as amended) referred to in Recital (A);
 
    “Kohylia” means Kohylia Shipmanagement S.A., a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;
 
    “KO Guarantees” means each of the guarantee of the obligations of the Borrower under the Facility Agreement to be made by the KO Guarantors in favour of the Security Trustee in such form as the Agent and the Majority Lenders may in their sole discretion require and, in the singular, means either of them;
 
    “KO Guarantors” means, together, Kohylia and Orbiter; and
 
    “Orbiter” means Orbiter Shipping Corp., a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960.
 
1.3   Application of construction and Interpretation provisions of Facility Agreement. Clauses 1.3 to 1.6 (inclusive) of the Facility Agreement apply, with any necessary modifications, to this Agreement.

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2   UNDERTAKINGS
 
2.1   Undertakings
  2.1.1.   The Borrower shall forthwith deliver to the Agent:     
 
  (a)   Corporate documents
 
      Certified Copies of all documents which evidence or relate to the constitution of the Borrower and each KO Guarantor and its current corporate existence;
 
  (b)   Corporate authorities
  (i)   Certified Copies of resolutions of the directors of the Borrower and each KO Guarantor approving such of this Agreement and each of the KO Guarantee to which it is a party and authorising the execution and delivery thereof and performance of its obligations thereunder, additionally certified by an officer of the Borrower and such KO Guarantor as having been duly passed at a duly convened meeting of the directors of the Borrower and such KO Guarantor and not having been amended, modified or revoked and being in full force and effect; and
 
  (ii)   originals of any powers of attorney issued by the Borrower and each KO Guarantors pursuant to such resolutions;
  (c)   Required Authorisations
 
      a certificate that there are no Required Authorisations or that there are no Required Authorisations except those described in such certificate and Certified Copies of which as duly executed (including any conditions and/or documents ancillary thereto) are appended thereto.
 
  (d)   Certificate of incumbency
 
      a list of directors and officers of the Borrower and each KO Guarantor specifying the names and positions of such persons, certified by an officer of the Borrower and such KO Guarantor to be true, complete and up to date;
 
  (e)   KO Guarantees
 
      the KO Guarantees duly executed and delivered;
 
  (f)   Laws of the Marshall Islands: opinion
 
      an opinion of Reeder Simpson, special legal adviser to the Lenders on Marshall Islands law;
 
  (g)   Endorsement
 
      the endorsement at the end of this Agreement signed by each Security Party (other than the Borrower and the KO Guarantors);
 
  (h)   London agent

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      documentary evidence that the agent for service of process named in Clause 19 of the Facility Agreement has accepted its appointment; and
 
  (i)   Further opinions, etc
 
      any further opinions, consents, agreements and documents in connection with this Agreement and the Security Documents which the Agent may request by notice to the Borrower.
3   REPRESENTATIONS AND WARRANTIES
 
3.1   Repetition of Facility Agreement representations and warranties. The Borrower represents and warrants to each Lender that the representations and warranties in Clause 7 of the Facility Agreement, as amended and supplemented by this Agreement and updated with appropriate modifications to refer to this Agreement, remain true and not misleading if repeated on the date of this Agreement with reference to the circumstances now existing.
 
4   AMENDMENTS TO FACILITY AGREEMENT AND OTHER SECURITY DOCUMENTS
 
4.1   Specific amendments to Facility Agreement. With effect on and from the date of this Agreement, the Facility Agreement shall be, and shall be deemed by this Agreement to be, amended as follows:
 
(a)   by adding in Clause 1.2 thereof each of the definitions in Clause 1.2 (other than the definition of “Facility Agreement”);
 
(b)   by adding as new items (n) and (o) in the list of companies in the definition of “Guarantors” in Clause 1.2 the words “(p) Kohylia and (q) Orbiter”;
 
(c)   by adding after the words “the Advance H Security Documents” in the definition of “Security Documents” in Clause 1.2 the words “, the KO Guarantees”;
 
(d)   by construing references throughout to “this Agreement”, “hereunder” and other like expressions as if the same referred to the Facility Agreement as amended and supplemented by this Agreement.
 
4.2   Amendments to Security Documents. With effect on and from the date of this Agreement each of the Security Documents other than the Facility Agreement, shall be, and shall be deemed by this Agreement to be, amended so that the definition of, and references throughout each of the Security Documents to, the Facility Agreement shall be construed as if the same referred to the Facility Agreement as amended and supplemented by this Agreement or the relevant KO Guarantee.
 
4.3   Security Documents to remain in full force and effect.
 
    The Security Documents shall remain in full force and effect as amended and supplemented by:
  (a)   the amendments to the Security Documents contained or referred to in Clauses 4.1 and 4.2; and
 
  (b)   such further or consequential modifications as may be necessary to give full effect to the terms of this Agreement.

5

 

5   FURTHER ASSURANCES
 
5.1   Borrower’s obligation to execute further documents etc. The Borrower shall, and shall procure that any other party to any Security Document shall:
  (a)   execute and deliver to the Agent (or as it may direct) any assignment, mortgage, power of attorney, proxy or other document, governed by the law of England or such other country as the Agent may, in any particular case, specify,
 
  (b)   effect any registration or notarisation, give any notice or take any other step, which the Agent may, by notice to the Borrower or other party, reasonably specify for any of the purposes described in Clause 5.2 or for any similar or related purpose.
5.2   Purposes of further assurances. Those purposes are:
  (a)   validly and effectively to create any Security Interest or right of any kind which the Lenders intended should be created by or pursuant to the Facility Agreement or any other Security Document, each as amended and supplemented by this Agreement; and
 
  (b)   implementing the terms and provisions of this Agreement.
5.3   Terms of further assurances. The Agent may specify the terms of any document to be executed by the Borrower or any other party under Clause 5.1, and those terms may include any covenants, powers and provisions which the Agent reasonably considers appropriate to protect its interests.
 
5.4   Obligation to comply with notice. The Borrower shall comply with a notice under Clause 5.1 by the date specified in the notice.
 
5.5   Additional corporate action. At the same time as the Borrower or any other party delivers to the Agent any document executed under Clause 5.1(a), the Borrower or such other party shall also deliver to the Agent a certificate signed by 2 of the Borrower’s or that other party’s directors which shall:
  (a)   set out the text of a resolution of the Borrower’s or that other party’s directors specifically authorising the execution of the document specified by the Agent, and
 
  (b)   state that either the resolution was duly passed at a meeting of the directors validly convened and held throughout which a quorum of directors entitled to vote on the resolution was present or that the resolution has been signed by all the directors and is valid under the Borrower’s or that other party’s articles of association or other constitutional documents.
6   NOTICES
 
6.1   General. The provisions of clause 17 (Notices and other matters) of the Facility Agreement, as amended and supplemented by this Agreement, shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary modifications.
 
7   SUPPLEMENTAL
 
7.1   Counterparts. This Agreement may be executed in any number of counterparts.

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7.2   Third party rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
 
8   LAW AND JURISDICTION
 
8.1   Governing law. This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
 
8.2   Incorporation of the Facility Agreement provisions. The provisions of Clauses 18 and 19 (Governing Law and Jurisdiction) of the Facility Agreement, as amended and supplemented by this Agreement, shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary modifications.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed on the date first above written.
             
SIGNED as a deed by  Vasiliki Papaefthymiou
    )      
for and on behalf of
    )     /s/ Vasiliki Papaefthymiou
NAVIOS MARITIME PARTNERS L.P.
    )      
(as Borrower under and pursuant to
    )      
a power of attorney dated
    )      
25th May 2011)
    )      
 
            
SIGNED by Robin Parry
    )      
for and on behalf of
COMMERZBANK AG
    )
)		     /s/ Robin Parry 
(as a Lender)
    )      
 
            
SIGNED by Robin Parry
    )      
for and on behalf of
    )     /s/ Robin Parry 
DVB BANK SE
    )      
(as a Lender)
    )      
 
            
SIGNED by Robin Parry
    )      
for and on behalf of
    )     /s/ Robin Parry 
DVB BANK SE
    )      
(as Joint-Arranger, Agent, Swap
    )      
Bank and Security Trustee)
    )      
 
            
SIGNED by Robin Parry
    )      
for and on behalf of
    )     /s/ Robin Parry 
COMMERZBANK AG
    )      
(as Joint-Arranger, Account Bank,
    )      
Payment Agent and Swap Bank)
    )      
 
            
Witness to all the above
    )     /s/ Victoria Liaou
Signatures: /s/ Victoria Liaou
    )      
Name: Victoria Liaou
            
Address:
            
47-49 Akti Miaouli
            
Piraeus, Greece
            

7

 

We on this 31st day of May 2011 hereby confirm and acknowledge that we have read and understood the terms and conditions of the above Supplemental Agreement and agree in all respects to the same and confirm that the Security Documents to which we are respectively a party shall remain in full force and effect and shall continue to stand as security for the obligations of the Borrower under the Facility Agreement (as amended by the Supplemental Agreement) and shall, without limitation, secure the Loan (as increased or to be increased by the amount of Advance H).
     
/s/ Vasiliki Papaefthymiou
  /s/ Vasiliki Papaefthymiou
 
   
VASILIKI PAPAEFTHYMIOU
  VASILIKI PAPAEFTHYMIOU
For and on behalf of
  For and on behalf of
NAVIOS MARITIME OPERATING L.L.C.
  NAVIOS SHIPMANAGEMENT INC.
 
    
/s/ Vasiliki Papaefthymiou
  /s/ Vasiliki Papaefthymiou
 
   
VASILIKI PAPAEFTHYMIOU
  VASILIKI PAPAEFTHYMIOU
For and on behalf of
  For and on behalf of
LIBRA SHIPPING ENTERPRISES
CORPORATION
  ALEGRIA SHIPPING CORPORATION
 
    
/s/ Vasiliki Papaefthymiou
  /s/ Vasiliki Papaefthymiou
 
   
VASILIKI PAPAEFTHYMIOU
  VASILIKI PAPAEFTHYMIOU
For and on behalf of
  For and on behalf of
FANTASTIKS SHIPPING CORPORATION
  FELICITY SHIPPING CORPORATION
 
    
/s/ Vasiliki Papaefthymiou
  /s/ Vasiliki Papaefthymiou
 
   
VASILIKI PAPAEFTHYMIOU
  VASILIKI PAPAEFTHYMIOU
For and on behalf of
  For and on behalf of
GALAXY SHIPPING CORPORATION
  GEMINI SHIPPING CORPORATION
 
    
/s/ Vasiliki Papaefthymiou
  /s/ Vasiliki Papaefthymiou
 
   
VASILIKI PAPAEFTHYMIOU
  VASILIKI PAPAEFTHYMIOU
For and on behalf of
  For and on behalf of
AURORA SHIPPING ENTERPRISES LTD.
  HYPERION ENTERPRISES INC.
 
    
/s/ Vasiliki Papaefthymiou
  /s/ Vasiliki Papaefthymiou
 
   
VASILIKI PAPAEFTHYMIOU
  VASILIKI PAPAEFTHYMIOU
For and on behalf of
  For and on behalf of
SAGITTARIUS SHIPPING CORPORATION
  PALERMO SHIPPING S.A.
 
    
/s/ Vasiliki Papaefthymiou
  /s/ Vasiliki Papaefthymiou
 
   
VASILIKI PAPAEFTHYMIOU
  VASILIKI PAPAEFTHYMIOU
For and on behalf of
  For and on behalf of
CHILALI CORP.
  SURF MARITIME CO.

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/s/ Vasiliki Papaefthymiou  
  /s/ Vasiliki Papaefthymiou 
VASILIKI PAPAEFTHYMIOU
  VASILIKI PAPAEFTHYMIOU
For and on behalf of
  For and on behalf of
ALDEBARAN SHIPPING CORPORATION
  PROSPERITY SHIPPING CORPORATION
 
    
/s/ Vasiliki Papaefthymiou 
  /s/ Vasiliki Papaefthymiou 
VASILIKI PAPAEFTHYMIOU
  VASILIKI PAPAEFTHYMIOU
For and on behalf of
  For and on behalf of
CUSTOMIZED DEVELOPMENT S.A.
  PANDORA MARINE INC.

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