FIRST SUPPLEMENTAL AGREEMENT
in relation to a Loan Agreement dated 9 August, 2021
for a loan facility of US $44,120,000
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CLAUSE
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HEADINGS
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PAGE
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1.
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DEFINITIONS
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2
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2.
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REPRESENTATIONS AND WARRANTIES
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4
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3.
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AGREEMENT OF THE LENDER
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5
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4.
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CONDITIONS
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5
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5.
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VARIATIONS TO THE PRINCIPAL AGREEMENT
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6
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6.
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CONTINUANCE OF PRINCIPAL AGREEMENT AND THE SECURITY DOCUMENTS
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9
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7.
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ENTIRE AGREEMENT AND AMENDMENT
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10
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8.
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FEES AND EXPENSES
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10
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9.
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MISCELLANEOUS
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11
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10.
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LAW AND JURISDICTION
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11
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(1) |
ALPHA BANK S.A., a banking société anonyme incorporated in and pursuant to the laws of the Hellenic Republic with its head
office at 40 Stadiou Street, Athens GR 102 52, Greece, acting through its office at 93 Akti Miaouli, Piraeus, Greece (the “Lender”); and
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(2) | (a) | FRIEND OCEAN NAVIGATION CO., a company duly incorporated and validly existing under the laws of the Republic of Liberia having its registered office at 80 Broad Street, Monrovia, Republic of Liberia (and includes its successors) (the “Friend Borrower”); |
(b) |
LORD OCEAN NAVIGATION CO., a company duly incorporated and validly existing under the laws of the Republic of Liberia having its registered office at 80 Broad Street,
Monrovia, Republic of Liberia (and includes its successors (the “Lord Borrower); and
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(c) |
SQUIRE OCEAN NAVIGATION CO., a company duly incorporated and validly existing under the laws of the Republic of Liberia having its registered office at 80 Broad
Street, Monrovia, Republic of Liberia (and includes its successors) (the “Squire Borrower” )
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(A) |
The Existing Corporate Guarantor has executed an irrevocable and unconditional Corporate Guarantee dated 9 August, 2021 in favour of the Lender by way of security for all monies now or hereafter due or payable by the Borrowers to the
Lender under or pursuant to the Loan Agreement and the other Finance Documents (the “Existing Corporate Guarantee”);
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(B) |
the Borrowers and the Corporate Guarantors hereby acknowledge and confirm that (a) the Lender, as lender, has advanced to the Borrowers, as joint and several borrowers, the full amount of the Commitment in the principal amount of United
States Dollars forty four million one hundred twenty thousand Dollars ($44,120,000) and (b) as the date hereof the principal amount of United States Dollars thirty
seven million twenty thousand (US$37,020,000) in respect of the Loan remains outstanding; and
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(C) |
the Collateral Owner has entered into a Loan Agreement with the Lender dated 21 June 2021 (the "Associated Loan Agreement”) whereby the Lender has made available to the
Collateral Owner subject to the terms set forth therein a secured floating interest loan facility in the principal amount of United States Dollars Twenty one million ($21,000,000) (the "Associated
Loan”) for the purpose set forth therein which has been secured by (inter alia) a first priority mortgage on the Collateral Vessel; and
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(D) |
it has been a condition precedent for the Lender to make the Associated Loan available to the Collateral Owner that:
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(i) |
the Collateral Owner shall execute the Collateral Corporate Guarantee which shall be secured by the Collateral Mortgage, the Collateral Account Pledge Agreement, the Collateral General Assignment and the Collateral Manager’s
Undertakings; and
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(ii) |
that the Principal Agreement shall be amended in the manner hereinafter set out in Clause 5 (Variations to the Principal Agreement) of this Supplemental Agreement.
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1.1 |
Defined terms and expressions
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1.2 |
Additional definitions
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2.1 |
Representations and warranties of the Principal Agreement
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2.2 |
Additional Representations and warranties
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a. |
Due Incorporation/Valid Existence: 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, the Additional Security Documents and the Security Documents to
which each is or is to be a party and has complied with all statutory and other requirements relative to its business;
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b. |
Licences/Authorisation: all necessary licences, consents and authorisations, governmental or otherwise under this Agreement, the Principal Agreement, the Additional Security Documents have been obtained and, as of the date of
this Agreement, no further consents or authorisations are necessary for any of the Security Parties to enter into this Agreement or otherwise perform its obligations hereunder;
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c. |
Validity and Binding effect: this Agreement constitutes and each of the Additional Security Documents on the execution thereof will constitute, the legal, valid and binding obligations of the Security Parties thereto enforceable
in accordance with its terms;
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d. |
No conflict with law and other obligations: the execution and delivery of and the performance of the provisions of this Agreement and the Additional Security 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. |
No litigation: no action, suit or proceeding is pending or threatened against any of the Security Parties or their respective 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 Security Party; and
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f. |
No default: none of the Security Parties is and at the Effective Date will be in default under any agreement relating to Financial Indebtedness by which it is or will be at the Effective Date bound;
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g. |
No US Tax Obligor: Neither the Borrowers nor any other Security Party is a US Tax Obligor; and
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h. |
Sanctions:
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(a) |
neither the Borrowers nor any other Security Party is a Sanctions Restricted Person and neither of them are owned or controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Sanctions Restricted Person and
none of the Borrowers and the other Security Parties own or control a Sanctions Restricted Person; and
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(b) |
no proceeds of the Loan have been made available, directly or to the knowledge of the Borrowers or indirectly, to or for the benefit of a Sanctions Restricted Person contrary to Sanctions or otherwise shall be, directly or indirectly,
applied in a manner or for a purpose prohibited by applicable Sanctions
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2.3 |
The representations and warranties of the Security Parties in this Agreement shall survive the execution of this Agreement and shall be deemed to be repeated at the commencement of each Interest Period.
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4.1 |
Conditions
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a. |
a certificate of good standing or equivalent document issued by the competent authorities of the place of its incorporation in respect of each of the Borrowers and the Corporate Guarantors;
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b. |
a recent certificate of incumbency of each Borrower and each Corporate Guarantor issued by the appropriate authority or, as appropriate, signed by the secretary or a director thereof, stating the officers and the directors of each of
them;
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c. |
if required by the Lender, resolutions duly passed by the Board of Directors, of the Collateral Owner and resolutions passed at a meeting of the shareholders of the Collateral Owner evidencing approval of this Supplemental Agreement and
the Additional Security Documents to which the Collateral Owner is or is to be a party and authorising appropriate officers or attorneys to execute the same and to sign all notices required to be given under this Supplemental Agreement and
the Additional Security Documents, as applicable, on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the Lender;
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d. |
all documents evidencing any other necessary action or approvals or consents with respect to this Supplemental Agreement and the Additional Security Documents, as applicable, evidencing approval of this Supplemental Agreement and the
Additional Security Documents, as applicable, and authorising appropriate officers or attorneys to execute the same and to sign all notices required to be given under this Supplemental Agreement and the Additional Security Documents, as
applicable, on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the Lender;
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e. |
if required by the Lender, the original of any power(s) of attorney issued by the Collateral Owner in favour of any person executing this Supplemental Agreement and the Additional Security Documents, as applicable;
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f. |
all documents evidencing any other necessary action or approvals or consents with respect to this Supplemental Agreement and the Additional Security Documents, as applicable;
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g. |
such favourable legal opinions from lawyers acceptable to the Lender and its legal advisors in this Supplemental Agreement as the Lender shall require;
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h. |
the Additional Security Documents;
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i. |
evidence satisfactory to the Lender that the Collateral Vessel is duly registered under the laws and flag of the Marshall Islands at the Ships Registry of the port of Majuro in the ownership of the Collateral Owner;
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j. |
evidence that the Collateral Vessel is fully classed with the highest classification available with a classification society for vessels of the same type that is a full member of IACS without overdue recommendations or notations
affecting class (other than those notified in writing to the Lender and accepted by the Lender in writing) and with all trading and other class certificates, national and international, valid and in full force and effect;
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k. |
evidence satisfactory to the Lender that the Collateral Mortgage has been duly registered on the Collateral Vessel in favour of the Lender in accordance with the laws of the Marshall Islands;
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l. |
all necessary confirmation by the Collateral Vessel’s insurers that they will issue their letters of undertaking and endorse notices of assignment and loss payable clauses on the insurances, satisfactory to the Lender in its discretion;
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m. |
evidence that the Collateral Vessel and its Operator are in compliance with the terms of the ISM Code and the ISPS Code
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n. |
evidence that the Collateral Vessel is managed by the relevant Approved Manager together with a true and complete copy of each Management Agreement and made between the relevant Approved Manager, as the commercial or, as the case may be,
technical manager of the Collateral Vessel and the Collateral Owner as owner of such Vessel;
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5.1 |
Amendments
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a. |
with effect as from the Effective Date, the following new definitions shall be added to Clause 1.2 (Definitions) of the Principal Agreement
reading as follows:
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b. |
with effect as from the Effective Date, the following definitions shall be amended to read as follows:
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c. |
with effect from the date hereof all obligations undertaken by the Owners in Clause 8 of the Loan Agreement in respect of the respective Vessel owned by it shall be binding by the Collateral Owner as owner of the Collateral Vessel;
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d. |
with effect from the date hereof the definitions and all references in the Principal Agreement and the Security Documents to “Corporate Guarantors”, “Security Parties” and “Owners” shall be deemed to include the ‘Collateral Owner’, as herein defined, as
the context may require and as may be applicable;
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e. |
with effect from the date hereof the definitions and all references in the Principal Agreement and the Security Documents to “Corporate Guarantee(s)”, shall be deemed to include the ‘Collateral Corporate Guarantee’,
as herein defined, as the context may require;
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f. |
with effect from the date hereof the definition and all references in the Principal Agreement and the Security Documents to “Mortgage” or “Mortgages” shall be deemed to include the ‘Collateral Mortgage’, as the context may require;
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g. |
with effect from the date hereof the definition and all references in the Principal Agreement and the Security Documents to “General Assignment” or “General Assignments” shall
be deemed to include the ‘Collateral General Assignment’ as the context may require;
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h. |
with effect from the date hereof the definition and all references in the Principal Agreement and the Security Documents to “Manager’s Undertakings” shall be deemed to include the ‘Collateral Manager’s Undertakings’ as the context may
require;
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i. |
with effect from the date hereof the definition and all references in the Principal Agreement and the Security Documents to “this Supplemental Agreement”, “hereunder” and the like in the Principal Agreement and “the Loan Agreement”
in the Security Documents shall be construed as references to the Principal Agreement as amended and/or supplemented by this Supplemental Agreement; and
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j. |
with effect from the date hereof the definition and all references in the Principal Agreement and the Security Documents to “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 Additional Security Documents 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 Outstanding Indebtedness payable to the Lender under the Principal Agreement (as
hereby amended) and the Security Documents (as herein defined) as well as for the performance by the Borrowers and the other Security Parties of all obligations, covenants and agreements pursuant to the Principal Agreement, this
Supplemental Agreement and/or the other Finance Documents.
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6.1 |
Reconfirmation of obligations
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6.2 |
Acknowledgement
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7. |
CONTINUANCE OF PRINCIPAL AGREEMENT AND THE SECURITY DOCUMENTS
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(a) |
Save for the alterations to the Principal Agreement made or deemed to be made pursuant to this Supplemental Agreement and such further modifications (if any) thereto as may be necessary to make the same consistent with the terms of this
Supplemental Agreement all the terms and conditions of the Principal Agreement shall continue in full force and effect and apply to this Supplemental Agreement as well, as if repeated in extenso
herein and the security constituted by the Security Documents executed by the Borrowers and the other Security Parties shall continue and remain valid and enforceable;
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(b) |
(c) |
the other Security Documents as may be amended by any consequential modification - as may be necessary to give full effect to the terms of this Supplemental Agreement - are and shall remain in full force and
effect and binding on their respective parties in accordance with their respective terms as security of the obligations of the Borrowers under the Principal Agreement, as amended the above First Supplemental Agreement, and in
respect of all sums due to the Lender under the Principal Agreement (as so amended) and each such Security Party shall remain liable under the Security Document(s) to which is a party for all obligations and liabilities assumed by it
thereunder
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8.1 |
Entire Agreement
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8.2 |
Supplemental Agreement - Application of Principal Agreement provisions
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10. |
FEES AND EXPENSES
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10.2 |
Stamp Duty
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12. |
MISCELLANEOUS
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12.1 |
Incorporation of Loan Agreement provisions
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11.2 |
Counterparts
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13.1 |
Governing Law
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13.2 |
Third Party Rights
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)
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Mrs. Theodora Mitropetrou
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)
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for and on behalf of
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)
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FRIEND OCEAN NAVIGATION CO.,
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)
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/s/ Theodora Mitropetrou
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of Liberia, in the presence of:
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)
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Attorney-in-fact
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SIGNED by
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)
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Mrs. Theodora Mitropetrou
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)
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for and on behalf of
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)
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LORD OCEAN NAVIGATION CO.
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)
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of Liberia,
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)
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/s/ Theodora Mitropetrou
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in the presence of:
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)
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Attorney-in-fact
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SIGNED by
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)
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Mrs. Theodora Mitropetrou
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)
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for and on behalf of
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)
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SQUIRE OCEAN NAVIGATION CO.
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)
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/s/ Theodora Mitropetrou
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of Liberia, in the presence of:
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)
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Attorney-in-fact
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THE CORPORATE GUARANTORS
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EXECUTED and DELIVERED as a DEED
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)
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Mrs. Theodora Mitropetrou
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)
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for and on behalf of
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)
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SEANERGY MARITIME HOLDINGS CORP.
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)
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of the Marshall Islands,
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)
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/s/ Theodora Mitropetrou
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in the presence of:
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)
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Attorney-in-fact
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SIGNED by
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)
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Mrs. Theodora Mitropetrou
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)
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for and on behalf of
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)
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DUKE SHIPPING CO.,
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)
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/s/ Theodora Mitropetrou
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of the Marshall Islands, in the presence of:
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)
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Attorney-in-fact
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Witness to all above signatures:
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/s/ Ioannis Kotronias
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Name: Ioannis Kotronias
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Address: 13 Defteras Merarchias
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Piraeus, Greece
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Occupation: Attorney-at-Law
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SIGNED by
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)
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Mr. Konstantinos Flokos
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)
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/s/ C.V. Flokos
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Mrs. Evangelia Makri
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)
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Attorney-in-fact
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for and on behalf of
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)
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/s/ E.D. Makri
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ALPHA BANK S.A.,
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)
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Attorney-in-fact
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of Greece,
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)
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in the presence of:
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)
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Witness:
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/s/ Ioannis Kotronias
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Name:
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Ioannis Kotronias
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Address:
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Defteras Merarchias 13
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Piraeus, Greece
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Occupation:
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Attorney-at-law
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