Republic of the Marshall Islands
|
4412
|
N.A.
|
(State or other jurisdiction of
incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification No.) |
Title of Each Class of Securities to be Registered
(1)
|
Proposed Maximum
Aggregate Offering Price (2) |
Amount of
Registration Fee |
||||
Units consisting of:
|
||||||
(i) Common shares, par value $0.0001 per share
|
$
|
17,250,000
|
||||
(ii) Class B Warrants to purchase common shares, par value $0.0001 per share(3)(4)
|
-
|
|||||
(iii) Class C Warrants to purchase common shares, par value $0.0001 per share(3)
|
-
|
|||||
Pre-funded warrants to purchase common shares(3)(5)(6)
|
-
|
|||||
Common shares, par value $0.0001 per share, underlying Class B Warrants and Class C Warrants(4)(8)
|
$
|
37,950,000
|
||||
Common shares, par value $0.0001 per share, underlying pre-funded warrants(5)
|
-
|
|||||
Representative
’
s common share purchase warrant(7)
|
-
|
|||||
Common shares underlying representative’s common share purchase warrant(8)
|
$
|
1,078,125
|
||||
Total
|
$56,278,125
|
$6,821
|
(9)
|
(1)
|
Includes common shares, Class B Warrants and Class C Warrants the underwriter has the option to purchase to cover over-allotments, if
any. Pursuant to Rule 416, there are also being registered such indeterminable additional securities as may be issued to prevent dilution as a result of stock splits, stock dividends or similar transactions.
|
(2)
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) of the Securities Act of 1933, as amended.
|
(3)
|
In accordance with Rule 457(i) under the Securities Act, no separate registration fee is required with respect to the warrants
registered hereby.
|
(4)
|
Based on a per-share exercise price for the Class B Warrants and Class C Warrants of 110% of the public offering price per unit in this
offering. Includes shares issuable under certain circumstances upon full exercise of the Class C Warrants pursuant to the cashless exercise provision therein.
|
(5)
|
The proposed maximum aggregate offering price of the common shares proposed to be sold in the offering will be reduced on a
dollar-for-dollar basis on the offering price of any pre-funded warrants offered and sold in the offering, and as such the proposed maximum offering price of the common shares and pre-funded warrants (including the common shares issuable
upon exercise of the pre-funded warrants) if any, is $17,250,000.
|
(6)
|
The registrant may issue pre-funded warrants to purchase common shares in the offering. The purchase price of each pre-funded warrant
will equal the price per share at which shares of common shares are being sold to the public in this offering, minus $0.01, which constitutes the pre-funded portion of the exercise price, and the remaining unpaid exercise price of the
pre-funded warrant will equal $0.01 per share (subject to adjustment as provided for therein).
|
(7)
|
No fee pursuant to Rule 457(g) under the Securities Act.
|
(8)
|
Based on a per-share exercise price of 110% of the unit price for the Class B Warrants, 110% of the unit price for the Class C Warrants,
and 125% of the unit price for the Representative’s common share purchase warrant.
|
(9)
|
$2,863.50 of this amount was previously paid in connection with the initial filing of this Form F-1 on October 20, 2017.
|
Per Unit
|
Total
|
|||||||
Public offering price
|
$
|
$
|
||||||
Underwriters fees and commissions
(1)
|
$
|
$
|
||||||
Proceeds to the Company, before expenses
|
$
|
$
|
||||||
Maxim Group LLC
|
Page
|
|
ABOUT THIS PROSPECTUS
|
i
|
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
|
i
|
ENFORCEABILITY OF CIVIL LIABILITIES
|
iii
|
PROSPECTUS SUMMARY
|
1
|
THE OFFERING
|
9
|
SUMMARY HISTORICAL CONSOLIDATED FINANCIAL DATA
|
11
|
RISK FACTORS
|
15
|
USE OF PROCEEDS
|
37
|
DIVIDEND POLICY
|
38
|
CAPITALIZATION
|
39
|
DILUTION
|
40
|
BUSINESS
|
41
|
THE INTERNATIONAL DRYBULK INDUSTRY
|
58
|
MANAGEMENT
|
86
|
EXECUTIVE COMPENSATION
|
89
|
SHARE OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
|
90
|
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
|
91
|
DESCRIPTION OF CAPITAL STOCK
|
93
|
CERTAIN MARSHALL ISLANDS COMPANY CONSIDERATIONS
|
98
|
TAX CONSIDERATIONS
|
101
|
UNDERWRITING
|
110
|
EXPENSES RELATING TO THIS OFFERING
|
118
|
LEGAL MATTERS
|
118
|
EXPERTS
|
118
|
WHERE YOU CAN FIND MORE INFORMATION
|
118
|
DOCUMENTS INCORPORATED BY REFERENCE
|
119
|
|
· |
changes in shipping industry trends, including charter rates, vessel values and factors affecting vessel supply and demand;
|
|
· |
changes in seaborne and other transportation patterns;
|
|
· |
changes in the supply of or demand for drybulk commodities, including drybulk commodities carried by sea, generally or in particular regions;
|
|
· |
changes in the number of newbuildings under construction in the drybulk shipping industry;
|
|
· |
changes in the useful lives and the value of our vessels and the related impact on our compliance with loan covenants;
|
|
· |
the aging of our fleet and increases in operating costs;
|
|
· |
changes in our ability to complete future, pending or recent acquisitions or dispositions;
|
|
· |
our ability to achieve successful utilization of our expanded fleet;
|
|
· |
changes to our financial condition and liquidity, including our ability to pay amounts that we owe and obtain additional financing to fund capital
expenditures, acquisitions and other general corporate activities;
|
|
· |
risks related to our business strategy, areas of possible expansion or expected capital spending or operating expenses;
|
|
· |
changes in the availability of crew, number of off-hire days, classification survey requirements and insurance costs for the vessels in our fleet;
|
|
· |
changes in our ability to leverage the relationships and reputation in the drybulk shipping industry of V.Ships Limited, or V.Ships, our technical manager,
and Fidelity Marine Inc., or Fidelity, our commercial manager;
|
|
· |
changes in our relationships with our contract counterparties, including the failure of any of our contract counterparties to comply with their agreements
with us;
|
|
· |
loss of our customers, charters or vessels;
|
|
· |
damage to our vessels;
|
|
· |
potential liability from future litigation and incidents involving our vessels;
|
|
· |
our future operating or financial results;
|
|
· |
acts of terrorism and other hostilities;
|
|
· |
changes in global and regional economic and political conditions;
|
|
· |
changes in governmental rules and regulations or actions taken by regulatory authorities, particularly with respect to the drybulk shipping industry;
|
|
· |
our ability to continue as a going concern; and
|
|
· |
other factors listed from time to time in registration statements, reports or other materials that we have filed with or furnished to the U.S. Securities and
Exchange Commission, or the Commission, including our most recent annual report on Form 20-F, which is incorporated by reference into this prospectus.
|
PROSPECTUS SUMMARY
This summary highlights certain information that appears elsewhere
in this prospectus or in documents incorporated by reference herein, and this summary is qualified in its entirety by that more detailed information. This summary may not contain all of the information that may be important to you. We
urge you to carefully read this entire prospectus and the documents incorporated by reference herein. As an investor or prospective investor, you should also review carefully the sections entitled "Cautionary Statement Regarding
Forward-Looking Statements" and "Risk Factors" in this prospectus and in our Annual Report on Form 20-F for the year ended December 31, 2018.
Unless the context otherwise requires, as used in this prospectus,
the terms "Company", "Seanergy", "we", "us" and "our" refer to Seanergy Maritime Holdings Corp. and all of its subsidiaries, and "Seanergy Maritime Holdings Corp." refers only to Seanergy Maritime Holdings Corp. and not to its
subsidiaries. We use the term deadweight ton, or dwt, in describing the size of our vessels. Dwt, expressed in metric tons, each of which is equivalent to 1,000 kilograms, refers to the maximum weight of cargo and supplies that a
vessel can carry. Unless otherwise indicated, all references in this prospectus to "$" or "dollars" are to U.S. dollars, and financial information presented in this prospectus is derived from the financial statements incorporated by
reference in this prospectus that were prepared in accordance with accounting principles generally accepted in the United States, or U.S. GAAP.
Overview
We are Seanergy Maritime Holdings Corp., an international shipping company specializing
in the worldwide seaborne transportation of drybulk commodities, primarily iron ore and coal. We believe we have established a reputation in the international drybulk shipping industry for operating and maintaining vessels with high
standards of performance, reliability and safety. Our management team is comprised of executives with extensive experience operating large and diversified fleets, who have strong relationships to a growing number of international
charterers.
Our fleet was acquired at a historically low point in the shipping cycle. In 2015, we
acquired eight modern drybulk vessels (six Capesize and two Supramax vessels). In 2016 and 2017, we acquired three additional Capesize drybulk vessels. In October and November 2018, we sold our two Supramax vessels and purchased an
additional Capesize vessel and we became the only pure-play Capesize shipping company publicly listed in the U.S. capital markets. We refer to the ten vessels that we presently operate as our “Fleet”. Since March 2015, we have
invested approximately $300 million to acquire our Fleet.
We manage our vessels' operations, insurances, claims and bunkering and have the
general supervision of our third-party technical and commercial managers. Pursuant to technical management agreements with our vessel owning subsidiaries, V.Ships, an independent third party, provides technical management for our
vessels that includes general administrative and support services, such as crewing and other technical management, accounting related to vessels and provisions. Fidelity, an independent third party, provides exclusive commercial
management services for all of the vessels in our fleet pursuant to a commercial management agreement with Seanergy Management Corp., or Seanergy Management, our wholly-owned ship managing subsidiary. Seanergy Management provides us
with certain other management services.
Our Fleet
As of the date of this prospectus, we operate a fleet of ten Capesize drybulk vessels
with a cargo-carrying capacity of approximately 1,748,581 dwt and an average age of approximately 10 years. The following table lists the vessels in our fleet as of the date of this prospectus:
|
Vessel Name
|
Year Built
|
Dwt
|
Flag
|
Yard
|
Type of Employment
|
Fellowship
|
2010
|
179,701
|
MI
|
Daewoo
|
Spot
|
Championship (1)
|
2011
|
179,238
|
MI
|
Sungdong
|
Time Charter, (or T/C), Index Linked (2)
|
Partnership
|
2012
|
179,213
|
MI
|
Hyundai
|
T/C Index Linked(3)
|
Knightship
(4)
|
2010
|
178,978
|
LIB
|
Hyundai
|
Spot
|
Lordship
|
2010
|
178,838
|
LIB
|
Hyundai
|
T/C Index Linked(5)
|
Gloriuship
|
2004
|
171,314
|
MI
|
Hyundai
|
Spot
|
Leadership
|
2001
|
171,199
|
BA
|
Koyo-Imabari
|
Spot
|
Geniuship
|
2010
|
170,058
|
MI
|
Sungdong
|
Spot
|
Premiership
|
2010
|
170,024
|
IoM
|
Sungdong
|
Spot
|
Squireship
|
2010
|
170,018
|
LIB
|
Sungdong
|
Spot
|
Average Age/Total dwt:
|
10 years
|
1,748,581
|
(1) |
In November 2018, we entered into a financing arrangement with Cargill International SA, or Cargill, according to which this vessel was sold and
leased back on a bareboat basis for a five-year period. We have a purchase obligation at the end of the five-year period and we further have the option to repurchase the vessel at any time during the bareboat charter.
|
(2) |
This vessel is being chartered by Cargill. The vessel was delivered to the charterer on November 7, 2018 for a period of employment of 60 months,
with an additional period of about 16 to about 18 months at the charterer’s option. The net daily charter hire is calculated at an index linked rate based on the five T/C routes of the Baltic Capesize Index, or the BCI TCE.
In addition, the time charter provides us with the option to convert the index linked rate to a fixed rate for a period of between 3 and 12 months priced at the then prevailing Capesize forward freight agreement rate, or
FFA, for the selected period.
|
(3) |
This vessel is being chartered by Uniper Global Commodities SE, or Uniper, and was delivered to the charterer on December 11, 2018 in direct
continuation of the vessel's previous time charter, for a minimum of five months to a maximum of eight months. The net daily charter hire is calculated at an index linked rate based on the BCI TCE. In addition, the time
charter provides us an option for any period of time, no less than three months, during the hire to be converted into a fixed rate time charter, with a rate corresponding to the prevailing value of the respective Capesize
FFA.
|
(4) |
In June 2018, we entered into a financing arrangement with AVIC International Leasing Co., Ltd., or AVIC, according to which this vessel was sold
and leased back on a bareboat basis from AVIC’s affiliate, Hanchen Limited, or Hanchen, for an eight-year period. We have a purchase obligation at the end of the eight-year period and we further have the option to repurchase
the vessel at any time following the second anniversary of delivery under the bareboat charter.
|
(5) |
This vessel is being chartered by Oldendorff Carriers GmbH & Co. KG, or Oldendorff, and was delivered to the charterer on June 28, 2017, in
direct continuation of the vessel's previous time charter, for a period of about 18 months to about 22 months. The net daily charter hire is calculated at an index linked rate based on the BCI TCE. In addition, the time
charter provides us with the option to convert the index linked rate to a fixed rate for a period of between 3 and 12 months priced at the then prevailing Capesize FFA for the selected period.
|
|
· |
drybulk fleet growth has declined every year from 2011 to 2016, while in 2018 fleet growth was 2.80%, one of the lowest growth rates in the last two
decades. Given that the vessel orderbook is currently at a low level and the long lead-time involved in new vessel orders, fleet growth is expected to remain at historically low levels, typically below 3%
per annum
until 2021;
|
|
· |
global economic activity and industrial production continues to rely on raw materials and commodity consumption. World drybulk trade increased by 2.5%
in 2018 and is expected to increase by 2.4% in 2019;
|
|
· |
in 2018 and year-to-date 2019, there has been a noticeable rise in vessel prices compared to the price levels seen in 2016. Prices for 5-year and
10-year old 180,000 dwt Capesize vessels averaged approximately $24.5 and $13.8 million, respectively, in 2016, while prices at the end of February 2019 stood at $32.5 million and $24.5 million, respectively. As a matter of
comparison, the fifteen-year average for 5-year and 10-year-old Capesize vessels stand at $43 million and $31 million respectively, even when excluding years 2006-2008, considered years of a super-cycle. Despite the significant
increase of 80%, which allows for an exit strategy and sale of the vessels, we believe there is upside potential since current asset prices are materially below the fifteen-year historical average;
|
|
· |
as of February 28, 2019, the average of the BCI TCE, the generally agreed-upon index for spot Capesize shipping rates, was $5,290 per day, 14% higher
than the average level in 2016; the fifteen-year average for short-term Capesize vessel time-charters was approximately $37,200 per day, or $25,500 per day when the years of the 2006-2008 super-cycle are excluded. The present
Capesize freight market is materially lower than the historical average and we believe there is further upside potential for the market "reverting to the mean";
|
|
· |
the regulations enacted by the International Maritime Organization, or IMO, mandating higher maintenance standards of vessels, installation of ballast
water management systems, and gradually lower emissions will require material capital investments that will render older drybulk vessels uneconomical for retrofitting and will expedite their demolition; and
|
|
· |
charterers' concerns about environmental and safety standards are shifting their preference toward modern vessels that are owned and operated by
reputable and financially stable shipowners.
|
Common shares presently outstanding
|
2,809,223 common shares(1)
|
|
Securities offered by us
|
3,370,786 units, each unit consisting of (i) one common share or pre-funded warrant, (ii) one Class B Warrant to purchase one common
share and (iii) one Class C Warrant to purchase one common share.
Each Class B Warrant will have an exercise price of $
per share, will be exercisable upon issuance and will expire three years from issuance. Each Class C Warrant will have an exercise price of $ per share, will be exercisable upon issuance, and will expire six months from issuance.
Beginning 30 days after issuance, each Class C Warrant will be exercisable
on a cashless basis under certain circumstances
for a number of common shares
calculated according to a formula based on the market price at the time of exercise.
We are also offering to each purchaser, with respect to the purchase of units that would otherwise result in the purchaser’s
beneficial ownership exceeding 4.99% of our outstanding common shares immediately following the consummation of this offering, the opportunity to purchase units including one pre-funded warrants in lieu of one common share in the unit.
Subject to limited exceptions, a holder of pre-funded warrants will not have the right to exercise any portion of its pre-funded warrant if the holder, together with its affiliates, would beneficially own in excess of 4.99% (or, at the
election of the holder, such limit may be increased to up to 9.99%) of the number of common shares outstanding immediately after giving effect to such exercise. Each pre-funded warrant will be exercisable for one common share. The purchase
price of each unit including a pre-funded warrant will be equal to the price per unit including one common share, minus $0.01, and the remaining exercise price of each pre-funded warrant will equal $0.01 per share. The pre-funded warrants
will be immediately exercisable and may be exercised at any time until all of the pre-funded warrants are exercised in full. For each unit including a pre-funded warrant we sell (without regard to any limitation on exercise set forth
therein), the number of common shares in the units we are offering will be decreased on a one-for-one basis. Each pre-funded warrant is being sold in a unit with a Class B Warrant and a Class C Warrant, each with the same terms as the Class
B Warrants and Class C Warrants accompanying the common shares. Because one Class B Warrant and one Class C Warrant are being sold together in this offering with each common share or, in the alternative, with each pre-funded warrant to
purchase one common share, the number of Class B Warrants and Class C Warrants sold in this offering will not change as a result of a change in the mix of our common shares and pre-funded warrants sold.
|
|
Common shares to be outstanding immediately after this offering(2)
|
6,180,009 common shares (6,685,626 common shares if the underwriters exercise their option to purchase additional units in full),
assuming no issuance of pre-funded warrants in this offering and no exercise of the Class B Warrants, Class C Warrants or Representative’s Warrant(3)
|
|
Underwriters’ Over-Allotment Option(2)
|
We have granted the underwriters an option for a period of up to 45 days to purchase up to 505,617 additional common shares or
pre-funded warrants, 505,617 Class B Warrants and/or 505,617 Class C Warrants.
|
Use of proceeds
|
We estimate that we will receive net proceeds of approximately $million, and approximately $ million if the underwriters exercise
their option to purchase additional units in full, after deducting underwriting discounts and commissions and estimated expenses payable by us.
We intend to use all of the net proceeds of this offering for general corporate purposes, which may include, among other things,
prepaying debt or partially funding the acquisition of modern Capesize drybulk vessels in accordance with our growth strategy. However, we do not currently have definitive plans for any debt prepayments nor have we identified any potential
acquisitions, and we can provide no assurance that we will be able to complete any debt prepayment or the acquisition of any vessel that we are able to identify. See "Use of Proceeds".
|
|
Risk factors
|
Investing in our securities involves a high degree of risk. See "Risk Factors" below, beginning on page [●], and in our Annual Report
on Form 20-F for the year ended December 31, 2018, which is incorporated by reference herein, to read about the risks you should consider before investing in our common shares.
|
|
Listing
|
Our common shares and Class A Warrants are listed on the Nasdaq Capital Market under the symbols "SHIP" and "SHIPW", respectively. We
intend to apply to list the Class B Warrants offered hereunder on the Nasdaq Capital Market under the symbol , but the Class C Warrants and pre-funded warrants will not be listed. The common shares and pre-funded warrants, if any, can
each be purchased only with the accompanying Class B Warrants and Class C Warrants (other than pursuant to the underwriters’ over-allotment option), but will be issued separately, and will be immediately separable upon issuance.
|
|
Lock-up agreements
|
Subject to certain exceptions, we, all of our executive officers and directors, and certain affiliates have entered into lock-up
agreements with the underwriters. Under these agreements, we and each of these persons may not, without the prior written approval of Maxim Group LLC, as representative of the underwriters, offer, sell, contract to sell or otherwise dispose
of or hedge common shares or securities convertible into or exchangeable for common shares. These restrictions will be in effect for a period of 120 days after the date of the closing of this offering.
|
(1) |
Excludes 2,867,776 shares issuable upon exercise of convertible notes comprised of:
|
|
· |
281,481 common shares issuable upon exercise of a conversion option pursuant to the convertible note, dated March 12, 2015, as amended, that we issued to
Jelco,
|
|
· |
1,567,777 common shares issuable upon exercise of a conversion option pursuant to the revolving convertible note, dated September 7, 2015, as amended, that we
issued to Jelco, and
|
|
· |
1,018,518 common shares issuable upon exercise of a conversion option pursuant to the convertible note, dated September 27, 2017, as amended, that we issued
to Jelco.
|
|
· |
$3.8 million outstanding under the convertible note, dated March 12, 2015,
|
|
· |
$21.17 million outstanding under the revolving convertible note dated September 7, 2015 and
|
|
· |
$13.75 million outstanding under the convertible note, dated September 27, 2017.
|
(2) |
The number of units offered hereby, including pursuant to the underwriters’ option to purchase additional securities, assumes an offering price per unit of
$4.45, the last reported sale price per share of our common shares on the Nasdaq Capital Market on April 4, 2019.
|
(3) |
The number of common shares that will be outstanding after this offering excludes:
|
|
· |
766,666 common shares issuable upon the exercise of outstanding Class A Warrants at an exercise price of $30.00 per share;
|
|
· |
37,666 common shares issuable upon the exercise of two outstanding warrants previously issued to the Representative at an exercise price of $28.13 per share;
|
|
· |
common shares issuable upon exercise of the warrants to be issued to the investors and the Representative in connection with this offering; and
|
|
· |
common shares issuable upon exercise of the underwriter’s option to purchase additional securities to cover over-allotments.
|
Year Ended December 31,
|
||||||||||||||||||||
2018
|
2017
|
2016
|
2015
|
2014
|
||||||||||||||||
Statement of Income Data:
|
||||||||||||||||||||
Vessel revenue, net
|
91,520
|
74,834
|
34,662
|
11,223
|
2,010
|
|||||||||||||||
Voyage expenses
|
(40,184
|
)
|
(34,949
|
)
|
(21,008
|
)
|
(7,496
|
)
|
(1,274
|
)
|
||||||||||
Vessel operating expenses
|
(20,742
|
)
|
(19,598
|
)
|
(14,251
|
)
|
(5,639
|
)
|
(1,006
|
)
|
||||||||||
Voyage expenses - related party
|
-
|
-
|
-
|
-
|
(24
|
)
|
||||||||||||||
Management fees - related party
|
-
|
-
|
-
|
-
|
(122
|
)
|
||||||||||||||
Management fees
|
(1,042
|
)
|
(1,016
|
)
|
(895
|
)
|
(336
|
)
|
-
|
|||||||||||
General and administration expenses
|
(6,500
|
)
|
(5,081
|
)
|
(4,134
|
)
|
(2,804
|
)
|
(2,987
|
)
|
||||||||||
General and administration expenses - related party
|
-
|
-
|
-
|
(70
|
)
|
(309
|
)
|
|||||||||||||
Loss on bad debts
|
-
|
-
|
-
|
(30
|
)
|
(38
|
)
|
|||||||||||||
Amortization of deferred dry-docking costs
|
(634
|
)
|
(870
|
)
|
(556
|
)
|
(38
|
)
|
-
|
|||||||||||
Depreciation
|
(10,876
|
)
|
(10,518
|
)
|
(8,531
|
)
|
(1,865
|
)
|
(3
|
)
|
||||||||||
Impairment loss
|
(7,267
|
)
|
-
|
-
|
-
|
-
|
||||||||||||||
Gain on restructuring
|
-
|
-
|
-
|
-
|
85,563
|
|||||||||||||||
Operating income / (loss)
|
4,275
|
2,802
|
(14,713
|
)
|
(7,055
|
)
|
81,810
|
|||||||||||||
Interest and finance costs
|
(16,415
|
)
|
(12,277
|
)
|
(7,235
|
)
|
(1,460
|
)
|
(1,463
|
)
|
||||||||||
Interest and finance costs - related party
|
(8,881
|
)
|
(5,122
|
)
|
(2,616
|
)
|
(399
|
)
|
-
|
|||||||||||
Gain on debt refinancing
|
-
|
11,392
|
-
|
-
|
-
|
|||||||||||||||
Interest and other income
|
83
|
47
|
20
|
-
|
14
|
|||||||||||||||
Foreign currency exchange losses, net
|
(104
|
)
|
(77
|
)
|
(45
|
)
|
(42
|
)
|
(13
|
)
|
||||||||||
Total other expenses, net
|
(25,317
|
)
|
(6,037
|
)
|
(9,876
|
)
|
(1,901
|
)
|
(1,462
|
)
|
||||||||||
Net (loss) / income before taxes
|
(21,042
|
)
|
(3,235
|
)
|
(24,589
|
)
|
(8,956
|
)
|
80,348
|
|||||||||||
Income taxes
|
(16
|
)
|
-
|
(34
|
)
|
-
|
-
|
|||||||||||||
Net (loss) / income
|
(21,058
|
)
|
(3,235
|
)
|
(24,623
|
)
|
(8,956
|
)
|
80,348
|
|||||||||||
Net (loss) / income per common share
|
||||||||||||||||||||
Basic
|
(8.40
|
)
|
(1.35
|
)
|
(17.97
|
)
|
(12.47
|
)
|
450.90
|
|||||||||||
Weighted average common shares outstanding
|
||||||||||||||||||||
Basic
|
2,507,087
|
2,389,719
|
1,370,200
|
718,226
|
178,196
|
|||||||||||||||
As of December 31,
|
||||||||||||||||||||
2018
|
2017
|
2016
|
2015
|
2014
|
||||||||||||||||
Balance Sheet Data:
|
||||||||||||||||||||
Cash and cash equivalents and restricted cash
|
$
|
7,444
|
$
|
11,039
|
$
|
15,908
|
$
|
3,354
|
$
|
2,873
|
||||||||||
Total current assets
|
16,883
|
19,498
|
22,329
|
8,278
|
3,207
|
|||||||||||||||
Vessels, net
|
243,214
|
254,730
|
232,109
|
199,840
|
-
|
|||||||||||||||
Total assets
|
267,562
|
275,705
|
257,534
|
209,352
|
3,268
|
|||||||||||||||
Total current liabilities
|
36,263
|
34,460
|
21,230
|
9,250
|
592
|
|||||||||||||||
Long-term debt and other financial liabilities, net of current portion and deferred finance costs
|
179,026
|
175,805
|
198,497
|
176,787
|
-
|
|||||||||||||||
Due to related parties, noncurrent
|
19,349
|
17,342
|
5,878
|
-
|
-
|
|||||||||||||||
Long-term portion of convertible notes
|
11,124
|
6,785
|
1,097
|
31
|
-
|
|||||||||||||||
Total Shareholders’ equity / (deficit)
|
$
|
21,303
|
$
|
41,313
|
$
|
30,832
|
$
|
23,284
|
$
|
2,676
|
Year Ended December 31,
|
||||||||||||||||||||
2018
|
2017
|
2016
|
2015
|
2014
|
||||||||||||||||
Cash Flow Data:
|
||||||||||||||||||||
Net cash provided by / (used in) operating activities
|
$
|
5,723
|
$
|
2,782
|
$
|
(15,339
|
)
|
$
|
(4,737
|
)
|
$
|
(14,858
|
)
|
|||||||
Net cash (used in) / provided by investing activities
|
(8,827
|
)
|
(32,992
|
)
|
(40,779
|
)
|
(201,684
|
)
|
105,895
|
|||||||||||
Net cash provided by / (used in) financing activities
|
(491
|
)
|
25,341
|
68,672
|
206,902
|
(91,239
|
)
|
|||||||||||||
Net (decrease) / increase in cash and cash equivalents and restricted cash
|
(3,595
|
)
|
(4,869
|
)
|
12,554
|
481
|
(202
|
)
|
Year Ended December 31,
|
||||||||||||
Fleet Data:
|
2018
|
2017
|
2016
|
|||||||||
Ownership days(1)
|
3,931
|
3,864
|
2,978
|
|||||||||
Available days(2)
|
3,918
|
3,851
|
2,755
|
|||||||||
Operating days(3)
|
3,902
|
3,837
|
2,745
|
|||||||||
Fleet utilization(4)
|
99
|
%
|
99
|
%
|
92
|
%
|
||||||
Fleet utilization excluding dry-docking off hire days
|
100
|
%
|
100
|
%
|
100
|
%
|
||||||
Average Daily Results:
|
||||||||||||
TCE rate(5)
|
$
|
13,156
|
$
|
10,395
|
$
|
4,974
|
||||||
Daily Vessel Operating Expenses(6)
|
$
|
5,198
|
$
|
4,985
|
$
|
4,618
|
1) |
Ownership days are the total number of calendar days in a period during which we owned or chartered in on bareboat basis each vessel in our fleet. Ownership
days are an indicator of the size of our fleet over a period and affect both the amount of revenues and the amount of expenses recorded during that period.
|
2) |
Available days are the number of ownership days less
the aggregate number of days that our vessels are off-hire due to major repairs, dry-dockings, lay-up or special or intermediate surveys. The shipping industry uses available days to measure the aggregate number of days in a period
during which vessels are available to generate revenues. During the year ended December 31, 2018, we incurred 16 off-hire days. During the year ended December 31, 2017, we incurred 13 off-hire days for one vessel drydocking. During
the year ended December 31, 2016, we incurred 173 off-hire days for a vessel lay-up and 64 off-hire days for two vessel surveys.
|
3) |
Operating days are the number of available days in a
period less the aggregate number of days that our vessels are off-hire due to unforeseen circumstances. Operating days include the days that our vessels are in ballast voyages without having fixed their next employment. The shipping
industry uses operating days to measure the aggregate number of days in a period during which vessels could actually generate revenues. During the year ended December 31, 2018, we incurred 16 off-hires days due to other unforeseen
circumstances. During the year ended December 31, 2017, we incurred 13 off-hires days due to other unforeseen circumstances.
|
4) |
Fleet utilization is the percentage of time that our vessels were generating revenues and is determined by dividing operating days by ownership days for the
relevant period.
|
5) |
Time Charter Equivalent, or TCE, rate is defined as
our net revenue less voyage expenses during a period divided by the number of our operating days during the period. Voyage expenses include port charges, bunker expenses, canal charges and other commissions.
We include TCE rate, a non-GAAP measure, as we believe it provides additional meaningful information in conjunction with
net revenues from vessels
, the most directly comparable U.S. GAAP measure, because it assists our management in making decisions regarding the deployment and use of our vessels and in
evaluating their financial performance. Our calculation of TCE rate may not be comparable to that reported by other companies. The following table reconciles our
net revenues
to TCE rate.
|
Year Ended December 31,
|
||||||||||||
(In thousands of US Dollars, except operating days and TCE rate)
|
2018
|
2017
|
2016
|
|||||||||
Net revenues from vessels
|
$
|
91,520
|
$
|
74,834
|
$
|
34,662
|
||||||
Voyage expenses
|
(40,184
|
)
|
(34,949
|
)
|
(21,008
|
)
|
||||||
Net operating revenues
|
$
|
51,336
|
$
|
39,885
|
$
|
13,654
|
||||||
Operating days
|
3,902
|
3,837
|
2,745
|
|||||||||
Daily time charter equivalent rate
|
$
|
13,156
|
$
|
10,395
|
$
|
4,974
|
6) |
Vessel operating expenses include crew costs, provisions, deck and engine stores, lubricants, insurance, maintenance and repairs. Daily
Vessel
Operating Expenses are calculated by dividing vessel operating expenses by ownership days for the relevant time periods.
We include Daily Vessel Operating Expenses, a non-GAAP measure, as we believe it provides additional meaningful information in conjunction with vessel operating expenses, the most
directly comparable U.S. GAAP measure, because it assists our management in making decisions regarding the deployment and use of our vessels and in evaluating their financial performance. Our calculation of Daily Vessel Operating
Expenses may not be comparable to that reported by other companies. The following table reconciles our vessel operating expenses to Daily Vessel Operating Expenses.
|
(In thousands of US Dollars, except ownership days and Daily Vessel Operating Expenses)
|
Year Ended December 31,
|
|||||||||||
2018
|
2017
|
2016
|
||||||||||
Vessel operating expenses
|
$
|
20,742
|
$
|
19,598
|
$
|
14,251
|
||||||
Less: Pre-delivery expenses
|
(309
|
)
|
(337
|
)
|
(499
|
)
|
||||||
Vessel operating expenses before pre-delivery expenses
|
$
|
20,433
|
$
|
19,261
|
$
|
13,752
|
||||||
Ownership days
|
3,931
|
3,864
|
2,978
|
|||||||||
Daily Vessel Operating Expenses
|
$
|
5,198
|
$
|
4,985
|
$
|
4,618
|
Year Ended December 31,
|
||||||||||||
2018
|
2017
|
2016
|
||||||||||
Net loss
|
$
|
(21,058
|
)
|
$
|
(3,235
|
)
|
$
|
(24,623
|
)
|
|||
Add: Net interest and finance cost
|
25,213
|
17,352
|
9,831
|
|||||||||
Add: Taxes
|
16
|
-
|
34
|
|||||||||
Add: Depreciation and amortization
|
11,510
|
11,388
|
9,087
|
|||||||||
EBITDA
|
15,681
|
25,505
|
(5,671
|
)
|
||||||||
Add: Impairment loss
|
7,267
|
-
|
-
|
|||||||||
Less: Gain on debt refinancing
|
-
|
11,392
|
-
|
|||||||||
Adjusted EBITDA
|
$
|
22,948
|
$
|
14,113
|
$
|
(5,671
|
)
|
1) |
Earnings before interest, taxes, depreciation and
amortization, or "EBITDA", represents the sum of net income/(loss), interest and finance costs, interest income, depreciation and amortization and, if any, income taxes during a period. EBITDA is not a recognized measurement under
U.S. GAAP. EBITDA is presented because we believe that this measure is useful to investors as a widely-used means of evaluating operating profitability. EBITDA as presented here may not be comparable to similarly-titled measures
presented by other companies. This non-GAAP measure should not be considered in isolation from, as a substitute for, or superior to, financial measures prepared in accordance with U.S. GAAP.
|
Year Ended December 31,
|
||||||||||||
2018
|
2017
|
2016
|
||||||||||
Net loss
|
$
|
(21,058
|
)
|
$
|
(3,235
|
)
|
$
|
(24,623
|
)
|
|||
Add: Impairment loss
|
7,267
|
-
|
-
|
|||||||||
Less: Gain on debt refinancing
|
-
|
11,392
|
-
|
|||||||||
Adjusted loss
|
$
|
(13,791
|
)
|
$
|
(14,627
|
)
|
$
|
(24,623
|
)
|
|||
|
· |
prevailing level of charter rates;
|
|
· |
general economic and market conditions affecting the shipping industry;
|
|
· |
types and sizes of vessels;
|
|
· |
supply and demand for vessels;
|
|
· |
other modes of transportation;
|
|
· |
cost of newbuildings;
|
|
· |
governmental and other regulations; and
|
|
· |
technological advances.
|
|
· |
decrease in available financing for vessels;
|
|
· |
no active secondhand market for the sale of vessels;
|
|
· |
charterers seeking to renegotiate the rates for existing time charters;
|
|
· |
widespread loan covenant defaults in the drybulk shipping industry due to the substantial decrease in vessel values; and
|
|
· |
declaration of bankruptcy by some operators, charterers and vessel owners.
|
|
· |
number of new vessel deliveries;
|
|
· |
scrapping rates of older vessels;
|
|
· |
vessel casualties;
|
|
· |
price of steel;
|
|
· |
number of vessels that are out of service;
|
|
· |
changes in environmental and other regulations that may limit the useful life of vessels; and
|
|
· |
port or canal congestion.
|
|
· |
crew strikes and/or boycotts;
|
|
· |
marine disaster;
|
|
· |
piracy;
|
|
· |
environmental accidents;
|
|
· |
cargo and property losses or damage; and
|
|
· |
business interruptions caused by mechanical failure, human error, war, terrorism, political action in various countries, labor strikes or adverse weather
conditions.
|
|
· |
generate excess cash flow so that we can invest without jeopardizing our ability to cover current and foreseeable working capital needs, including debt
service;
|
|
· |
finance our operations through equity offerings or otherwise, for our existing and new operations;
|
|
· |
locate and acquire suitable vessels;
|
|
· |
identify and consummate acquisitions or joint ventures;
|
|
· |
integrate any acquired businesses or vessels successfully with our existing operations;
|
|
· |
hire, train and retain qualified personnel and crew to manage and operate our growing business and fleet; and
|
|
· |
expand our customer base.
|
|
· |
our ability to obtain additional financing, if necessary, for working capital, capital expenditures, acquisitions or other purposes may be impaired or such
financing may be unavailable on favorable terms, or at all;
|
|
· |
we may need to use a substantial portion of our cash from operations to make principal and interest payments on our bank debt and financing liabilities,
reducing the funds that would otherwise be available for operations, future business opportunities and any future dividends to our shareholders;
|
|
· |
our debt level could make us more vulnerable to competitive pressures or a downturn in our business or the economy generally than our competitors with less
debt; and
|
|
· |
our debt level may limit our flexibility in responding to changing business and economic conditions
|
|
· |
renew existing charters upon their expiration;
|
|
· |
obtain new charters;
|
|
· |
obtain financing on commercially acceptable terms;
|
|
· |
maintain satisfactory relationships with our charterers and suppliers; and
|
|
· |
successfully execute our business strategies.
|
|
· |
quarterly variations in our results of operations;
|
|
· |
changes in market valuations of similar companies and stock market price and volume fluctuations generally;
|
|
· |
changes in earnings estimates or the publication of research reports by analysts;
|
|
· |
speculation in the press or investment community about our business or the shipping industry generally;
|
|
· |
strategic actions by us or our competitors such as acquisitions or restructurings;
|
|
· |
the thin trading market for our common shares, which makes it somewhat illiquid;
|
|
· |
regulatory developments;
|
|
· |
additions or departures of key personnel;
|
|
· |
general market conditions; and
|
|
· |
domestic and international economic, market and currency factors unrelated to our performance.
|
|
· |
authorize our board of directors to issue "blank check" preferred shares without shareholder approval;
|
|
· |
provide for a classified board of directors with staggered, three-year terms;
|
|
· |
require a super-majority vote in order to amend the provisions regarding our classified board of directors;
|
|
· |
permit the removal of any director from office at any time, with or without cause, at the request of the shareholder group entitled to designate such
director; and
|
|
· |
prevent our board of directors from dissolving the shipping committee or altering the duties or composition of the shipping committee without an affirmative
vote of not less than 80% of the board of directors.
|
|
· |
our existing shareholders' proportionate ownership interest in us would decrease;
|
|
· |
the proportionate amount of cash available for dividends payable on our common shares could decrease;
|
|
· |
the relative voting strength of each previously outstanding common share could be diminished; and
|
|
· |
the market price of our common shares could decline.
|
|
· |
on an actual basis;
|
|
· |
on an as adjusted basis, to give effect to (a) $4.3 million of installments paid under our facilities since December 31, 2018, of which:
(i) $3.4 million relates to our secured credit facilities maturing in the first quarter of 2019 and (ii) $0.9 million relates to our
other financial liabilities under the sale and leaseback transactions maturing in the first quarter of 2019, (b) $1.1 million drawdown under our ATB loan facility,
(c) $5 million drawdown for the new Jelco loan facility and (d)
the issuance of 144,000 restricted shares of common stock pursuant to our equity incentive plan; and
|
|
· |
on an as further adjusted basis to give effect to the sale of common shares in this offering.
|
(All figures in thousands of U.S. dollars, except for share amounts)
|
Actual
(audited)
|
As Adjusted
(unaudited) |
As Further Adjusted
(unaudited) |
|||||||||
Debt:
|
||||||||||||
Secured long-term debt, other financial liabilities and due to related parties, net of deferred finance costs
|
$
|
214,570
|
$
|
216,396
|
$
|
216,396
|
||||||
Unsecured convertible notes
|
11,124
|
11,124
|
11,124
|
|||||||||
Total Debt
|
$
|
225,694
|
$
|
227,520
|
$
|
227,520
|
||||||
Shareholders' equity:
|
||||||||||||
Preferred stock, $0.0001 par value; 25,000,000 shares authorized; none issued
|
-
|
-
|
-
|
|||||||||
Common shares, $0.0001 par value; 500,000,000 authorized shares as at December 31, 2018; 2,666,223 shares issued and outstanding as at
December 31, 2018; 2,809,223 shares issued and outstanding as adjusted
|
-
|
-
|
||||||||||
Additional paid-in capital (excluding shareholder's convertible notes)
|
$
|
350,492
|
$
|
350,492
|
$ | |||||||
Shareholder's convertible notes
|
35,354
|
35,354
|
35,354
|
|||||||||
Accumulated deficit
|
(364,543
|
)
|
(364,543
|
)
|
(364,543
|
)
|
||||||
Total Shareholders' equity
|
21,303
|
21,303
|
||||||||||
Total capitalization
|
$
|
246,997
|
$
|
248,823
|
$ |
Public offering price per common share
|
$ | |||
As adjusted
(1)
net tangible book value per share before this offering
|
$
|
3.85
|
||
Increase in as adjusted net tangible book value attributable to new investors in this offering
|
$ | |||
As further adjusted
(2)
net tangible book value per share after giving effect to this offering
|
$ | |||
Dilution per share to new investors
|
$ |
As Further Adjusted
Shares Outstanding (2) |
Total Consideration
|
|||||||||||||||||||
Number
|
Percent
|
Amount
(In USD Thousands) |
Percent
|
Average Price
Per
Share
|
||||||||||||||||
Existing shareholders
|
%
|
$
|
%
|
$
|
||||||||||||||||
New investors
(*)
|
%
|
$
|
%
|
$
|
||||||||||||||||
Total
|
%
|
$
|
%
|
$
|
(*) |
Before deducting estimated expenses of this offering of $ million.
|
(1) |
The "as adjusted" amounts include the adjustments described in the second bullet of the section entitled "Capitalization"
and the issuance of 281,481 common shares upon exercise of a conversion option pursuant to the convertible note, dated March 12, 2015, as amended, that we issued to Jelco, 1,567,777 common shares upon exercise of a conversion option
pursuant to the convertible note, dated September 7, 2015, as amended, that we issued to Jelco and 1,018,518 common shares upon exercise of a conversion option pursuant to the convertible note, dated September 27, 2017, that we issued
to Jelco. Under each of the convertible notes, Jelco, an entity affiliated with our Sponsor, may, at its option, convert the principal amount under each note at any time into common shares at a conversion price of $13.50 per share. As
of April 5, 2019, $3.8 million was outstanding under the convertible note dated March 12, 2015, as amended, $21.17 million was outstanding under the convertible note dated September 7, 2015, as amended, and $13.75 million was
outstanding under the convertible note dated September 27, 2017.
|
(2) |
The "as further adjusted" amounts include the adjustments described in (1) above and the adjustment described in the
third bullet of the section entitled "Capitalization".
|
|
· |
Focus on Capesize Vessels.
Our fleet currently
consists of ten modern-design Capesize vessels that are expected to be fully compliant with upcoming environmental and safety regulations We expect our focus on a single type of vessel within the drybulk space to result in superior
operational efficiency and commercial performance in this market. We believe that our focus on the Capesize market will attract a broad shareholder base aiming to gain direct exposure to the favorable fundamentals of iron ore and coal
transportation, while minimizing their exposure to the rest of the drybulk market that may be influenced from a much wider range of commodities. According to Karatzas Marine Advisors, seaborne transportation for iron ore and coal has
increased by 2.2% in 2016, 4.6% in 2017 and 1.5% in 2018. In addition, the newbuilding orderbook for Capesize vessels currently represents approximately 4.15% of the current fleet, a significant reduction from the average size of the
newbuilding orderbook of the fleet for the last 10 years.
|
|
· |
Focus on Quality and Commercially Competitive Tonnage.
Our
fleet consists of modern-design Capesize vessels with large cargo carrying capacity that are expected to be fully compliant with existing and upcoming environmental and safety regulations. We believe our modern-design vessels, which
were built at reputable Korean and Japanese shipyards, are preferred by charterers over older vessels, as since they require lower maintenance and typically have lower operating expenses than older vessels.
|
|
· |
Experienced Management.
Our Company's leadership has
considerable depth of shipping industry expertise. Mr. Tsantanis, our Chairman and Chief Executive Officer, brings more than 20 years of experience in shipping and finance and has held senior management positions in prominent shipping
companies prior to leading our Company. Mr. Gyftakis, our Chief Financial Officer, has more than 13 years of experience in senior positions in the shipping finance industry. The Company's Chief Operations Officer, Chief Technical
Officer and General Counsel have a combined experience of 54 years in senior positions.
|
|
· |
Access to off- market sale and purchase opportunities and
ability of prompt execution promptly.
Based on our successful past track record, the strength and expertise of our management team, our commercial expertise and reputation in the marketplace, as well as on our transparent and
public corporate structure, we believe that we are well-positioned to source off-market opportunities to acquire off-market secondhand vessels and to build on our strong track record of executing such transactions. As a result, our
Company may be able to acquire vessels on more favorable terms than what would be obtained without access to such opportunities.
|
|
· |
Access to Attractive Chartering Opportunities.
The
Company's senior management in combination with Fidelity, our commercial manager, has established strong global relationships with international miners, charterers and brokers. We believe that our relationships with these counterparties
should provide us with access to attractive chartering opportunities. Furthermore, we aim to maintain our fleet at a level that meets or exceeds stringent industry standards as we believe that owning a modern and well-maintained fleet
provides us with a competitive advantage in securing favorable time and spot charter employment. However, it is possible that the daily rates we receive on future time and spot charters may be lower depending on market fluctuations. As
a demonstration of our ability to source attractive employment opportunities, five of our vessels have entered into long-term T/Cs with durations of three to five years two of which have already commenced and the remaining three will
commence in the third and/or fourth quarter of 2019. As part of the agreements, the charterers have agreed to cover the costs of installing exhaust gas cleaning systems, or scrubbers, on our vessels in order to ensure compliance with
the IMO Sulphur limit Global Sulphur Cap rules that will be in effect after January 1, 2020. We believe that the willingness of our charterers to invest in our vessels is a testament to the attractive employment opportunities enjoyed by
our fleet. It should be noted that despite our management team’s deep industry expertise and high-quality fleet, we expect the daily rates obtained on future time and spot charters to still be subject to market fluctuations.
|
|
· |
Maintain Best in Class Fleet Management, without Related
Party Transactions.
We believe that high-quality technical and commercial management confer advantages in terms of reduced operating expenses and improved commercial prospects for our vessels. We currently outsource the
technical and commercial management of our fleet to V.Ships and Fidelity respectively, who are both reputable third-party service providers with proven track records. Our management team actively monitors, and controls vessel operating
expenses incurred by the independent technical managers, as well as prospective commercial opportunities for our vessels, by overseeing their activities.
|
|
· |
Assembling a Modern-design Capesize Fleet with Critical Mass
.
In today's competitive world, shipping companies with larger fleets can benefit from economies of scale by reducing operating expenses per vessel due to volume price discounting; larger fleets also command the preference of the
charterers as they can benefit from such economies of scale themselves. More importantly, shipping companies with larger fleets have greater access to financing on competitive terms from shipping banks and lessors, as well as from
institutional investors and the capital markets.
|
|
· |
Revenue Upside Potential through Spot Market Exposure
.
We believe our current fleet is positioned to capture increasing vessel revenues because of an expected upward trend in spot charter rates. Currently our entire fleet is employed in the spot market or under index-linked time charters
that allow us to benefit from market improvements. The BCI TCE has increased significantly in 2018 by 649% from a record low level of $2,166 per day during March 2016 to $16,213 per day in December 2018. Despite a seasonal softening
seen in earnings in the first quarter of 2019, it is expected that the positive trend established in the previous 3 years will continue going forward. The average daily BCI TCE of the last fifteen years from March 2004 until March 2019
is $37,200. As spot charter rates revert to long-term average levels, we may shift towards employing a greater proportion of our fleet under long term fixed-rate contracts in order to minimize downside risk. Because the spot market is
volatile, there can be no assurance that the recent improvements in the drybulk charter market will continue.
|
Vessel Name
|
Year Built
|
Dwt
|
Flag
|
Yard
|
Type of Employment
|
Fellowship
|
2010
|
179,701
|
MI
|
Daewoo
|
Spot
|
Championship (1)
|
2011
|
179,238
|
MI
|
Sungdong
|
T/C Index Linked(2)
|
Partnership
|
2012
|
179,213
|
MI
|
Hyundai
|
T/C Index Linked(3)
|
Knightship
(4)
|
2010
|
178,978
|
LIB
|
Hyundai
|
Spot
|
Lordship
|
2010
|
178,838
|
LIB
|
Hyundai
|
T/C Index Linked(5)
|
Gloriuship
|
2004
|
171,314
|
MI
|
Hyundai
|
Spot
|
Leadership
|
2001
|
171,199
|
BA
|
Koyo-Imabari
|
Spot
|
Geniuship
|
2010
|
170,058
|
MI
|
Sungdong
|
Spot
|
Premiership
|
2010
|
170,024
|
IoM
|
Sungdong
|
Spot
|
Squireship
|
2010
|
170,018
|
LIB
|
Sungdong
|
Spot
|
(1)
|
In November 2018, we entered into a financing arrangement with Cargill according to which this vessel was sold and leased back on a
bareboat basis for a five-year-period. We have a purchase obligation at the end of the five-year period and we further have the option to repurchase the vessel at any time during the bareboat charter.
|
(2)
|
This vessel is being chartered by Cargill. The vessel was delivered to the charterer on November 7, 2018 for a period of employment
of 60 months, with an additional period of about 16 to about 18 months at the charterer’s option. The net daily charter hire is calculated at an index linked rate based on the BCI TCE. In addition, the time charter provides us with the
option to convert the index linked rate to a fixed rate for a period of between 3 and 12 months priced at the then prevailing Capesize FFA for the selected period.
|
(3)
|
This vessel is being chartered by Uniper and was delivered to the charterer on December 11, 2018 in direct continuation of the
vessel's previous time charter, for a period of minimum five months to maximum eight months. The net daily charter hire is calculated at an index linked rate based on the BCI TCE. In addition, the time charter provides us an option for any
period of time, no less than three months, during the hire to be converted into a fixed rate time charter, with a rate corresponding to the prevailing value of the respective Capesize FFA.
|
(4)
|
In June 2018, we entered into a financing arrangement with AVIC according to which this vessel was sold and leased back on a bareboat
basis from AVIC's affiliate, Hanchen for an eight- year period. We have a purchase obligation at the end of the eight- year period and we further have the option to repurchase the vessel at any time following the second anniversary of the
bareboat charter.
|
(5)
|
This vessel is being chartered by Oldendorff and was delivered to the charterer on June 28, 2017, in direct continuation of the
vessel's previous time charter, for a period of about 18 months to about 22 months. The net daily charter hire is calculated at an index linked rate based on the BCI TCE. In addition, the time charter provides us with the option to convert
the index linked rate to a fixed rate for a period of between 3 and 12 months priced at the then prevailing Capesize FFA for the selected period.
|
Customer
|
2018
|
2017
|
2016
|
|||||||||
A
|
26
|
%
|
17
|
%
|
-
|
|||||||
B
|
21
|
%
|
-
|
18
|
%
|
|||||||
C
|
11
|
%
|
17
|
%
|
-
|
|||||||
D
|
-
|
-
|
12
|
%
|
Asset Class / Definition
|
Standard Deadweight Tonnage
|
Standar Trading Routes
|
Primary Cargoes
|
Capesize
|
165,000 – 190,000 dwt
|
Brazil to PRC
Australia to PRC
|
iron ore, coal
|
Panamax Bulker
|
65,000 – 100,000 dwt
|
US to Far East
|
grains, iron ore, coal
|
Supramax (Handymax, Supramax, Ultramax)
|
40,000 – 65,000 dwt
|
US to Europe
Various regional trades
|
grains, fertilizers, coal, break bulk
|
Vessel Type
|
Scheduled Delivery (in million dwt)
|
Present Fleet
|
Total Orderbook
|
|||
2019
|
2020
|
2021+
|
Total Orderbook
|
(as % of Present Fleet, mil dwt)
|
||
Capesize
|
3.0
|
3.2
|
1.6
|
7.8
|
187.4
|
4.16%
|
Panamax
|
11.5
|
9.5
|
3.2
|
24.2
|
207.8
|
11.65%
|
Supramax
|
7.8
|
6.1
|
2.9
|
16.8
|
201.4
|
8.34%
|
Overall
|
22.3
|
18.8
|
7.7
|
48.8
|
596.6
|
8.18%
|
In Million Tons
|
2015
|
2016
|
2017
|
2018
|
Iron Ore
|
1,364
|
1,417
|
1,474
|
1,474 |
Coal (Thermal and Metallurgical)
|
1,137
|
1,140
|
1,200
|
1,240
|
Total
|
2,501
|
2,557
|
2,674
|
2,714
|
Y-o-Y % Growth
|
2.2%
|
4.6%
|
1.5%
|
Name
|
Age
|
Position
|
Director Class
|
|||
Stamatios Tsantanis
|
47
|
Chairman, Chief Executive Officer and Director
|
A (term expires in 2019)
|
|||
Stavros Gyftakis
|
40
|
Chief Financial Officer
|
||||
Christina Anagnostara
|
48
|
Director
|
B (term expires in 2020)
|
|||
Elias Culucundis
|
76
|
Director*
|
A (term expires in 2019)
|
|||
Dimitrios Anagnostopoulos
|
72
|
Director*
|
C (term expires in 2021)
|
|||
Ioannis Kartsonas
|
47
|
Director*
|
C (term expires in 2021)
|
*
|
Independent Director
|
Identity of Person or Group
|
Number of
Shares Owned |
Percent of
Class
(2)
|
||||||
Claudia Restis
(1)
|
3,985,358
|
70.2
|
%
|
|||||
Stamatios Tsantanis
|
79,013
|
2.8
|
%
|
|||||
Stavros Gyftakis
|
—
|
*
|
||||||
Christina Anagnostara
|
—
|
*
|
||||||
Elias Culucundis
|
—
|
*
|
||||||
Dimitrios Anagnostopoulos
|
—
|
*
|
||||||
Ioannis Kartsonas
|
—
|
*
|
||||||
Directors and executive officers as a group (6 individuals)
|
157,946
|
5.6
|
%
|
*
|
Less than one percent.
|
(1)
|
Based on the Schedule 13D/A filed by Jelco, Comet and Claudia Restis on March 22, 2019, Claudia Restis may be deemed to
beneficially own 3,928,465 common shares through Jelco and 56,893 of our common shares through Comet, each through a revocable trust of which she is beneficiary. The shares she may be deemed to beneficially own through Jelco include (i)
281,481 common shares which Jelco may be deemed to beneficially own, issuable upon exercise of a conversion option pursuant to the Convertible Note dated March 12, 2015, that we issued to Jelco, (ii) 1,567,777 common shares which Jelco
may be deemed to beneficially own, issuable upon exercise of a conversion option pursuant to the Revolving Convertible Note dated September 7, 2015, as amended, that we issued to Jelco and (iii) 1,018,518 common shares which Jelco may
be deemed to beneficially own, issuable upon exercise of a conversion option pursuant to the Convertible Note dated September 27, 2017, that we issued to Jelco.
|
(2)
|
Based on 2,809,223 common shares outstanding as of April 5, 2019 and any additional shares that such person may be deemed to
beneficially own in accordance with Rule 13d-3 under the Exchange Act.
|
Where
|
A=
|
the number of warrants being exercised, and
|
B=
|
Warrant strike price, and
|
|
C=
|
The greater of 25% of the unit price in this offering, and the market price of a common share.
|
Market Price
|
Number of Common Shares Issued Upon Exercise
|
Marshall Islands
|
Delaware
|
|||
Shareholder Meetings
|
||||
Held at a time and place as designated in the bylaws.
|
May be held at such time or place as designated in the certificate of incorporation or the bylaws, or if not so designated, as
determined by the board of directors.
|
|||
Special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by
the articles of incorporation or by the bylaws.
|
Special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by
the certificate of incorporation or by the bylaws.
|
|||
May be held in or outside of the Marshall Islands.
|
May be held in or outside of Delaware.
|
|||
Notice
:
|
Notice
:
|
|||
Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall
state the place, date and hour of the meeting and, unless it is an annual meeting, indicate that it is being issued by or at the direction of the person calling the meeting.
|
Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall
state the place, if any, date and hour of the meeting, and the means of remote communication, if any.
|
|||
A copy of the notice of any meeting shall be given personally or sent by mail not less than 15 nor more than 60 days before the
meeting.
|
Written notice shall be given not less than 10 nor more than 60 days before the meeting.
|
|||
Shareholders' Voting Rights
|
||||
Any action required to be taken by a meeting of shareholders may be taken without a meeting if consent is in writing and is
signed by all the shareholders entitled to vote with respect to the subject matter thereof.
|
Any action required to be taken by a meeting of shareholders may be taken without a meeting if a consent for such action is in
writing and is signed by shareholders having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
|
Marshall Islands
|
Delaware
|
Any person authorized to vote may authorize another person or persons to act for him by proxy.
|
Any person authorized to vote may authorize another person or persons to act for him by proxy.
|
|||
Unless otherwise provided in the articles of incorporation or the bylaws, a majority of shares entitled to vote constitutes a
quorum. In no event shall a quorum consist of fewer than one-third of the common shares entitled to vote at a meeting.
|
For stock corporations, the certificate of incorporation or bylaws may specify the number of shares required to constitute a
quorum but in no event shall a quorum consist of less than one-third of shares entitled to vote at a meeting. In the absence of such specifications, a majority of shares entitled to vote shall constitute a quorum.
|
|||
When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders.
|
When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders.
|
|||
The articles of incorporation may provide for cumulative voting in the election of directors.
|
The certificate of incorporation may provide for cumulative voting in the election of directors.
|
|||
Removal
:
|
Removal
:
|
|||
If the articles of incorporation or the bylaws so provide, any or all of the directors may be removed without cause by vote of
the shareholders.
|
Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares entitled to vote
except: (1) unless the certificate of incorporation otherwise provides, in the case of a corporation whose board is classified, shareholders may effect such removal only for cause, or (2) if the corporation has cumulative voting, if
less than the entire board is to be removed, no director may be removed without cause if the votes cast against such director's removal would be sufficient to elect such director if then cumulatively voted at an election of the entire
board of directors, or, if there be classes of directors, at an election of the class of directors of which such director is a part.
|
|||
Any or all of the directors may be removed for cause by vote of the shareholders.
|
||||
Directors
|
||||
Number of board members can be changed by an amendment to the bylaws, by the shareholders, or by action of the board under the
specific provisions of a bylaw.
|
Number of board members shall be fixed by, or in a manner provided by, the bylaws, unless the certificate of incorporation fixes
the number of directors, in which case a change in the number shall be made only by amendment to the certificate of incorporation.
|
|||
The board of directors must consist of at least one member.
|
The board of directors must consist of at least one member.
|
|||
If the board of directors is authorized to change the number of directors, it can only do so by a majority of the entire board of
directors and so long as no decrease in the number shortens the term of any incumbent director.
|
Marshall Islands
|
Delaware
|
|||
Dissenter's Rights of Appraisal
|
||||
Shareholders have a right to dissent from any plan of merger, consolidation or sale of all or substantially all assets not made
in the usual course of business, and receive payment of the fair value of their shares. However, the right of a dissenting shareholder under the BCA to receive payment of the appraised fair value of his shares is not available for the
shares of any class or series of stock, which shares at the record date fixed to determine the shareholders entitled to receive notice of and to vote at the meeting of the shareholders to act upon the agreement of merger or
consolidation, were either (i) listed on a securities exchange or admitted for trading on an interdealer quotation system or (ii) held of record by more than 2,000 holders.
|
Appraisal rights shall be available for the shares of any class or series of stock of a corporation in a merger or consolidation,
subject to limited exceptions, such as a merger or consolidation of corporations listed on a national securities exchange in which listed shares are the offered consideration or if such shares are held of record by more than 2,000
holders.
|
|||
A holder of any adversely affected shares who does not vote on or consent in writing to an amendment to the articles of
incorporation has the right to dissent and to receive payment for such shares if the amendment:
|
||||
Alters or abolishes any preferential right of any outstanding shares having preference; or
|
||||
Creates, alters or abolishes any provision or right in respect to the redemption of any outstanding shares.
|
||||
Alters or abolishes any preemptive right of such holder to acquire shares or other securities; or
|
||||
Excludes or limits the right of such holder to vote on any matter, except as such right may be limited by the voting rights given
to new shares then being authorized of any existing or new class.
|
||||
Shareholders' Derivative Actions
|
||||
An action may be brought in the right of a corporation to procure a judgment in its favor, by a holder of shares or of voting
trust certificates or of a beneficial interest in such shares or certificates. It shall be made to appear that the plaintiff is such a holder at the time the action is brought and that he was such a holder at the time of the transaction
of which he complains, or that his shares or his interest therein devolved upon him by operation of law.
|
In any derivative suit instituted by a shareholder or a corporation, it shall be averred in the complaint that the plaintiff was
a shareholder of the corporation at the time of the transaction of which he complains or that such shareholder's stock thereafter devolved upon such shareholder by operation of law.
|
|||
A complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board
of directors or the reasons for not making such effort. Such action shall not be discontinued, compromised or settled without the approval of the High Court of the Republic of The Marshall Islands.
|
||||
Attorneys' fees may be awarded if the action is successful.
|
||||
A corporation may require a plaintiff bringing a derivative suit to give security for reasonable expenses if the plaintiff owns
less than 5% of any class of stock and the common shares have a value of less than $50,000.
|
|
· |
an individual citizen or resident of the United States;
|
|
· |
a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) that is created or
organized (or treated as created or organized) in or under the laws of the United States, any state thereof or the District of Columbia; or
|
|
· |
an estate whose income is includible in gross income for U.S. federal income tax purposes regardless of its source;
or a trust if (i) a U.S. court can exercise primary supervision over the trust's administration and one or more U.S. persons are authorized to control all substantial decisions of the trust, or (ii) it has a valid election in effect
under applicable U.S. Treasury regulations to be treated as a U.S. person.
|
|
· |
financial institutions or "financial services entities";
|
|
· |
broker-dealers;
|
|
· |
taxpayers who have elected mark-to-market accounting;
|
|
· |
tax-exempt entities;
|
|
· |
governments or agencies or instrumentalities thereof;
|
|
· |
insurance companies;
|
|
· |
regulated investment companies;
|
|
· |
real estate investment trusts;
|
|
· |
certain expatriates or former long-term residents of the United States;
|
|
· |
persons that actually or constructively own 10% or more of our shares;
|
|
· |
persons that hold our warrants;
|
|
· |
persons that hold our common shares as part of a straddle, constructive sale, hedging, conversion or other integrated
transaction;
|
|
· |
persons required to recognize income for U.S. federal income tax purposes no later than when such income is included
on an "applicable financial statement;" or
|
|
· |
persons whose functional currency is not the U.S. dollar.
|
|
· |
we are organized in a foreign country (our "country of organization") that grants an "equivalent exemption" to
corporations organized in the United States; and
|
|
· |
more than 50% of the value of our shares is owned, directly or indirectly, by "qualified shareholders," that are
persons (i) who are "residents" of our country of organization or of another foreign country that grants an "equivalent exemption" to corporations organized in the United States, and (ii) we satisfy certain substantiation
requirements, which we refer to as the "50% Ownership Test;" or
|
|
· |
our shares are "primarily" and "regularly" traded on one or more established securities markets in our country of
organization, in another country that grants an "equivalent exemption" to United States corporations, or in the United States, which we refer to as the "Publicly-Traded Test."
|
|
· |
we have, or are considered to have, a fixed place of business in the United States involved in the earning of shipping income; and
|
|
· |
substantially all of our U.S. source gross shipping income is attributable to regularly scheduled transportation, such as the operation of a vessel that
follows a published schedule with repeated sailings at regular intervals between the same points for voyages that begin or end in the United States.
|
|
· |
at least 75% of our gross income for such taxable year consists of passive income (e.g., dividends, interest, capital
gains and rents derived other than in the active conduct of a rental business); or
|
|
· |
at least 50% of the average value of the assets held by the corporation during such taxable year produce, or are held
for the production of, passive income.
|
|
· |
the excess distribution or gain would be allocated ratably over the Non-Electing Holders' aggregate holding period
for the common shares;
|
|
· |
the amount allocated to the current taxable year and any taxable year before we became a passive foreign investment company would be taxed as ordinary
income; and
|
|
· |
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer
for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
|
· |
fails to provide an accurate taxpayer identification number;
|
|
· |
is notified by the IRS that backup withholding is required; or
|
|
· |
fails in certain circumstances to comply with applicable certification requirements.
|
Number of
Units |
||||
Maxim Group LLC
|
Total
|
||||||||||||
Per Unit
|
Without
Option |
With
Option |
||||||||||
Public offering price
|
$
|
$
|
$
|
|||||||||
Underwriting discounts and commissions
|
$
|
$
|
$
|
|||||||||
Proceeds, before expenses, to us
|
$
|
$
|
$
|
|
· |
Stabilizing transactions permit bids to purchase securities so long as the stabilizing bids do not exceed a specified maximum, and are engaged in for the
purpose of preventing or retarding a decline in the market price of the securities while the offering is in progress.
|
|
· |
Over-allotment transactions involve sales by the underwriters of securities in excess of the number of securities the underwriters are obligated to
purchase. This creates a syndicate short position which may be either a covered short position or a naked short position. In a covered short position, the number of securities over-allotted by the underwriters is not greater than
the number of securities that they may purchase in the over-allotment option. In a naked short position, the number of securities involved is greater than the number of securities in the over-allotment option. The underwriters may
close out any short position by exercising their over-allotment option and/or purchasing securities in the open market.
|
|
· |
Syndicate covering transactions involve purchases of securities in the open market after the distribution has been completed in order to cover syndicate
short positions. In determining the source of the securities to close out the short position, the underwriters will consider, among other things, the price of securities available for purchase in the open market as compared with the
price at which they may purchase securities through exercise of the over-allotment option. If the underwriters sell more securities than could be covered by exercise of the over-allotment option and, therefore, have a naked short
position, the position can be closed out only by buying securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that after pricing there could be downward pressure on the
price of the securities in the open market that could adversely affect investors who purchase in the offering.
|
|
· |
Penalty bids permit the Representative to reclaim a selling concession from a syndicate member when the securities originally sold by that syndicate
member are purchased in stabilizing or syndicate covering transactions to cover syndicate short positions.
|
|
· |
to Italian qualified investors, as defined in Article 100 of Decree No. 58 by reference to Article 34-ter of CONSOB Regulation no. 11971 of 14 May 1999
(“Regulation no. 11971”) as amended (“Qualified Investors”); and
|
|
· |
in other circumstances that are exempt from the rules on public offer pursuant to Article 100 of Decree No. 58 and Article 34-ter of Regulation No. 11971
as amended.
|
|
· |
made by investment firms, banks or financial intermediaries permitted to conduct such activities in Italy in accordance with Legislative Decree No. 385 of
1 September 1993 (as amended), Decree No. 58, CONSOB Regulation No. 16190 of 29 October 2007 and any other applicable laws; and
|
|
· |
in compliance with all relevant Italian securities, tax and exchange controls and any other applicable laws.
|
Commission registration fee
|
$
|
4,609
|
||
Financial Industry Regulatory Authority Filing fee
|
6,575
|
|||
Printing expenses
|
90,000
|
|||
Legal fees and expenses
|
150,000
|
|||
Accounting fees and expenses
|
100,000
|
|||
Miscellaneous fees and expenses
|
98,816
|
|||
Total
|
$
|
450,000
|
|
· |
our Annual Report on Form 20-F for the year ended December 31, 2018, filed with the Commission on March 25, 2019.
|
PROSPECTUS
|
||
MAXIM GROUP LLC
|
||
Item 6. |
Indemnification of Directors and Officers
|
Item 7. |
Recent Sales of Unregistered Securities
|
Item 8. |
Exhibits and Financial Statement Schedules
|
Item 9. |
Undertakings
|
1.
|
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
|
(i)
|
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
|
(ii)
|
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
|
(iii)
|
To include any material information with respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration statement.
|
2.
|
For the purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
3.
|
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
|
4.
|
To file a post-effective amendment to the registration statement to include any financial statements required by "Item 8.A. of
Form 20-F" at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in
the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the
date of those financial statements.
|
5.
|
For the purpose of determining liability under the Securities Act of 1933 to any purchaser, if the registrant is relying on Rule
430B, each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
|
6.
|
For the purposes of determining liability under the Securities Act of 1933 to any purchaser in the initial distributions of the
securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to
such purchaser:
|
(i)
|
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to
Rule 424;
|
(ii)
|
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
|
(iii)
|
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
|
(iv)
|
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
(i)
|
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
|
(ii)
|
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
SEANERGY MARITIME HOLDINGS CORP.
|
|||
By:
|
/s/ Stamatios Tsantanis
|
||
Name:
|
Stamatios Tsantanis
|
||
Title:
|
Chief Executive Officer
|
Signature
|
Title
|
|
/s/ Stamatios Tsantanis
|
Director, Chief Executive Officer and Chairman of the Board
(Principal Executive Officer) |
|
Stamatios Tsantanis
|
||
/s/ Stavros Gyftakis
|
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
|
|
Stavros Gyftakis
|
||
/s/ Christina Anagnostara*
|
Director
|
|
Christina Anagnostara
|
||
/s/ Dimitrios Anagnostopoulos*
|
Director
|
|
Dimitrios Anagnostopoulos
|
||
/s/ Elias Culucundis*
|
Director
Director
|
|
Elias Culucundis
/s/ Ioannis Kartsonas*
|
||
Ioannis Kartsonas
|
By:
|
/s/ Stamatios Tsantanis
|
|
Stamatios Tsantanis
|
PUGLISI & ASSOCIATES
|
||
/s/
Donald J. Puglisi
|
||
Name:
|
Donald J. Puglisi
|
|
Title:
|
Managing Director
|
Exhibit Number
|
Description
|
1.1
|
Form of Underwriting Agreement**
|
1.2
|
Form of Warrant Agency Agreement**
|
3.1
|
|
3.2
|
|
3.3
|
|
3.4
|
|
3.5
|
|
3.6
|
|
3.7
|
|
3.8
|
|
4.1
|
|
4.2
|
Form of Class B Warrant to Purchase Common Shares**
|
4.3
|
Form of Class C Warrant to Purchase Common Shares**
|
4.4
|
Form of Pre-Funded Warrant to Purchase Common Shares**
|
4.5
|
Form of Representative’s Warrant**
|
5.1
|
Opinion of Seward & Kissel LLP as to the validity of the securities**
|
5.2
|
Opinion of Seward & Kissel LLP with respect to certain tax matters**
|
10.1
|
|
10.2
|
|
10.3
|
|
10.4
|
|
10.5
|
|
10.6
|
Amended and Restated 2011 Equity Incentive Plan of the registrant adopted on January 10, 2019
(15)
|
10.7
|
10.8
|
|
10.9
|
|
10.10
|
Amendment dated May 23, 2018 with respect to the
Partnership
, between Partner Shipping Co. and V.Ships Limited with respect to the Ship Technical Management Agreement dated May 15, 2017
(19)
|
10.11
|
Amendment dated May 23, 2018 with respect to the
Championship
, between Champion Ocean Navigation Co. Limited and V.Ships Limited with respect to the Ship Technical Management Agreement dated September 1, 2015
(20)
|
10.12
|
|
10.13
|
|
10.14
|
|
10.15
|
|
10.16
|
|
10.17
|
|
10.18
|
|
10.19
|
Amendment No. 4 dated June 28, 2018 between Seanergy Management Corp. and Fidelity Marine Inc. with respect to the Commercial
Management Agreement dated March 2, 2015
(28)
|
10.20
|
|
10.21
|
|
10.22
|
|
10.23
|
|
10.24
|
|
10.25
|
|
10.26
|
|
10.27
|
10.28
|
|
10.29
|
|
10.30
|
|
10.31
|
|
10.32
|
|
10.33
|
|
10.34
|
|
10.35
|
|
10.36
|
|
10.37
|
|
10.38
|
|
10.39
|
|
10.40
|
|
10.41
|
|
10.42
|
|
10.43
|
|
10.44
|
|
10.45
|
10.46
|
|
10.47
|
|
10.48
|
|
10.49
|
|
10.50
|
|
10.51
|
|
10.52
|
|
10.53
|
|
10.54
|
|
10.55
|
|
10.56
|
Amended and Restated Facility Agreement dated November 22, 2018 between Premier Marine Co., Fellow Shipping Co., the registrant and
UniCredit Bank AG with respect to the Facility Agreement dated September 11, 2015
(62)
|
10.57
|
|
10.58
|
|
10.59
|
|
10.60
|
|
10.61
|
Supplemental Agreement dated June 13, 2018 between the registrant, Knight Ocean Navigation Co. and Jelco Delta Holding Corp. with
respect to the Amended and Restated Loan Agreement dated November 28, 2016
(67)
|
10.62
|
Amended and Restated Loan Agreement dated February 13, 2019 between the registrant and Jelco Delta Holding Corp. with respect to the
Amended and Restated Facility Agreement dated November 28, 2016
(68)
|
10.63
|
|
10.64
|
|
10.65
|
|
10.66
|
|
10.67
|
|
10.68
|
Supplemental Agreement dated May 18, 2018 between the registrant, Partner Shipping Co. Limited (formerly known as Partner Shipping
Co.), Champion Ocean Navigation Co. Limited (formerly known as Champion Ocean Navigation Co.), and Amsterdam Trade Bank N.V, with respect to the Amended and Restated Loan Agreement dated September 25, 2017
(74)
|
10.69
|
|
10.70
|
Supplemental Agreement dated February 13, 2019 between the registrant and Jelco Delta Holding Corp. with respect to the Amended and
Restated Loan Agreement dated September 27, 2017
(76)
|
10.71
|
|
10.72
|
Amendment to Convertible Note dated February 13, 2019, between the registrant and Jelco Delta Holding Corp. with respect to the
Convertible Note dated September 27, 2017
(78)
|
10.73
|
|
10.74
|
|
10.75
|
|
10.76
|
Supplemental Letter dated January 31, 2019 between the registrant and Jelco Delta Holding Corp. with respect to the Amended and
Restated Loan Agreement dated June 13, 2018
(82)
|
10.77
|
|
10.78
|
|
10.79
|
|
10.80
|
Guarantee dated June 28, 2018 between the registrant and Hanchen Limited
(86)
|
10.81
|
10.82
|
|
10.83
|
|
10.84
|
|
10.85
|
|
10.86
|
|
10.87
|
|
10.88
|
|
10.89
|
|
10.90
|
|
10.91
|
|
10.92
|
|
10.93
|
|
10.94
|
Memorandum of Agreement dated November 5, 2018 between Champion Ocean Navigation Co. Limited, Seanergy Maritime Holdings Corp. and
Cargill International SA
(100)
|
10.95
|
Bareboat Charter Agreement dated November 7, 2018 between Cargill International SA and Champion Marine Co. for the
Championship
(101)
|
10.96
|
Registration Rights Agreement dated November 7, 2018 between the registrant and Cargill International SA
(102)
|
10.97
|
Guarantee and Indemnity dated November 7, 2018 between the registrant and Cargill International SA
(103)
|
10.98
|
Facility Agreement dated February 13, 2019 between Partner Shipping Co. Limited, the registrant, and Amsterdam Trade Bank N.V
(104)
|
10.99
|
21.1
|
List of Subsidiaries
(105)
|
23.1
|
|
23.2
|
|
23.3
|
Consent of Seward & Kissel LLP (included in its opinion filed as Exhibit 5.1)
|
23.4
|
Consent of Seward & Kissel LLP (included in its opinion filed as Exhibit 8.1)
|
24.1
|
Powers of Attorney (included in the signature pages hereto)
|
* |
Filed herewith
|
** |
To be filed by amendment
|
(1) |
Incorporated herein by reference to Annex M to Exhibit 99.1 to the registrant's report on Form 6-K filed with the Commission on July 31, 2008 (File No.
001-33690).
|
(2) |
Incorporated herein by reference to Exhibit 99.1 to the registrant's report on Form 6-K filed with the Commission on July 20, 2011.
|
(3) |
Incorporated herein by reference to Exhibit 3.3 to the registrant's registration statement on Form F-1MEF filed with the Commission on August 28, 2009
(File No. 333-161595).
|
(4) |
Incorporated herein by reference to Exhibit 3.4 to the registrant's report on Form 6-K filed with the Commission on September 16, 2010 (File No.
001-34848).
|
(5) |
Incorporated herein by reference to Exhibit 1 to the registrant's report on Form 6-K filed with the Commission on June 27, 2011.
|
(6) |
Incorporated herein by reference to Exhibit 1 to the registrant's report on Form 6-K filed with the Commission on August 5, 2011.
|
(7) |
Incorporated herein by reference to Exhibit 3.7 to the registrant's report on Form 6-K filed with the Commission on January 7, 2016.
|
(8) |
Incorporated herein by reference to Exhibit 3.8 to the registrant’s report on Form 6-K filed with the Commission on March 19, 2019.
|
(9) |
Incorporated herein by reference to Exhibit 4.1 to the registrant's report on Form 6-K filed with the Commission on March 19, 2019.
|
(10) |
Incorporated herein by reference to Exhibit 4.1 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(11) |
Incorporated herein by reference to Exhibit 4.2 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(12) |
Incorporated herein by reference to Exhibit C to the Schedule 13D/A related to the registrant filed by United Capital Investments Corp. with the
Commission on September 12, 2014.
|
(13) |
Incorporated herein by reference to Exhibit D to the Schedule 13D related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
March 12, 2015.
|
(14) |
Incorporated herein by reference to Exhibit 4.5 to the registrant's annual report on Form 20-F filed with the Commission on March 7, 2018.
|
(15) |
Incorporated herein by reference to Exhibit 4.6 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(16) |
Incorporated herein by reference to Exhibit 4.51 to the registrant's annual report on Form 20-F filed with the Commission on April 21, 2015.
|
(17) |
Incorporated herein by reference to Exhibit 4.10 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(18) |
Incorporated herein by reference to Exhibit 4.11 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(19) |
Incorporated herein by reference to Exhibit 4.10 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(20) |
Incorporated herein by reference to Exhibit 4.11 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(21) |
Incorporated herein by reference to Exhibit 10.9 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(22) |
Incorporated herein by reference to Exhibit 10.10 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(23) |
Incorporated herein by reference to Exhibit 4.12 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(24) |
Incorporated herein by reference to Exhibit 4.52 to the registrant's annual report on Form 20-F filed with the Commission on April 21, 2015.
|
(25) |
Incorporated herein by reference to Exhibit 4.14 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(26) |
Incorporated herein by reference to Exhibit 4.15 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(27) |
Incorporated herein by reference to Exhibit 4.13 to the registrant's annual report on Form 20-F filed with the Commission on March 7, 2018.
|
(28) |
Incorporated herein by reference to Exhibit 4.19 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(29) |
Incorporated herein by reference to Exhibit 4.53 to the registrant's annual report on Form 20-F filed with the Commission on April 21, 2015.
|
(30) |
Incorporated herein by reference to Exhibit 4.17 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(31) |
Incorporated herein by reference to Exhibit 10.18 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(32) |
Incorporated herein by reference to Exhibit 10.19 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(33) |
Incorporated herein by reference to Exhibit B to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
April 13, 2015.
|
(34) |
Incorporated herein by reference to Exhibit 10.17 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(35) |
Incorporated herein by reference to Exhibit 10.18 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(36) |
Incorporated herein by reference to Exhibit B to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
October 20, 2017.
|
(37) |
Incorporated herein by reference to Exhibit 4.57 to the registrant's annual report on Form 20-F filed with the Commission on April 21, 2015.
|
(38) |
Incorporated herein by reference to Exhibit 4.58 to the registrant's annual report on Form 20-F filed with the Commission on April 21, 2015.
|
(39) |
Incorporated herein by reference to Exhibit 4.38 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(40) |
Incorporated herein by reference to Exhibit 10.43 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(41) |
Incorporated herein by reference to Exhibit 4.43 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(42) |
Incorporated herein by reference to Exhibit 10.29 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(43) |
Incorporated herein by reference to Exhibit B to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
October 29, 2015.
|
(44) |
Incorporated herein by reference to Exhibit C to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
December 29, 2015.
|
(45) |
Incorporated herein by reference to Exhibit D to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
December 29, 2015.
|
(46) |
Incorporated herein by reference to Exhibit A to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
February 11, 2016.
|
(47) |
Incorporated herein by reference to Exhibit A to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
March 14, 2016.
|
(48) |
Incorporated herein by reference to Exhibit 10.1 to the registrant's report on Form 6-K filed with the Commission on August 5, 2016.
|
(49) |
Incorporated herein by reference to Exhibit 10.2 to the registrant's report on Form 6-K filed with the Commission on August 5, 2016.
|
(50) |
Incorporated herein by reference to Exhibit 10.3 to the registrant's report on Form 6-K filed with the Commission on August 5, 2016.
|
(51) |
Incorporated herein by reference to Exhibit A to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
April 7, 2017.
|
(52) |
Incorporated herein by reference to Exhibit 10.34 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(53) |
Incorporated herein by reference to Exhibit C to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
October 20, 2017.
|
(54) |
Incorporated herein by reference to Exhibit 10.41 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(55) |
Incorporated herein by reference to Exhibit 4.39 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(56) |
Incorporated herein by reference to Exhibit 10.45 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(57) |
Incorporated herein by reference to Exhibit 10.46 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(58) |
Incorporated herein by reference to Exhibit 4.47 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(59) |
Incorporated herein by reference to Exhibit 10.40 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(60) |
Incorporated herein by reference to Exhibit 10.47 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(61) |
Incorporated herein by reference to Exhibit 10.48 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(62) |
Incorporated herein by reference to Exhibit 4.53 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(63) |
Incorporated herein by reference to Exhibit 4.40 to the registrant's annual report on Form 20-F filed with the Commission on April 20, 2016.
|
(64) |
Incorporated herein by reference to Exhibit 10.48 to the registrant's registration statement on Form F-1 filed with the Commission on October 28, 2016.
|
(65) |
Incorporated herein by reference to Exhibit 10.51 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(66) |
Incorporated herein by reference to Exhibit 10.52 to the registrant's registration statement on Form F-1/A filed with the Commission on November 29, 2016.
|
(67) |
Incorporated herein by reference to Exhibit 4.58 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(68) |
Incorporated herein by reference to Exhibit 4.59 to the registrant’s annual report on Form 20-F filed with the Commission March 25, 2019.
|
(69) |
Incorporated herein by reference to Exhibit 4.56 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(70) |
Incorporated herein by reference to Exhibit 4.57 to the registrant's annual report on Form 20-F filed with the Commission on April 28, 2017.
|
(71) |
Incorporated herein by reference to Exhibit 10.57 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(72) |
Incorporated herein by reference to Exhibit 10.58 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(73) |
Incorporated herein by reference to Exhibit 10.59 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(74) |
Incorporated herein by reference to Exhibit 4.65 to the registrant’s registration statement on Form 20-F filed with the Commission on March 25, 2019.
|
(75) |
Incorporated herein by reference to Exhibit 10.60 to the registrant's registration statement on Form F-1 filed with the Commission on October 20, 2017.
|
(76) |
Incorporated herein by reference to Exhibit 4.67 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(77) |
Incorporated herein by reference to Exhibit A to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
October 20, 2017.
|
(78) |
Incorporated herein by reference to Exhibit 4.69 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(79) |
Incorporated herein by reference to Exhibit D to the Schedule 13D/A related to the registrant filed by Jelco Delta Holding Corp. with the Commission on
October 20, 2017.
|
(80) |
Incorporated herein by reference to Exhibit 10.79 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(81) |
Incorporated herein by reference to Exhibit 10.80 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(82) |
Incorporated herein by reference to Exhibit 4.73 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(83) |
Incorporated herein by reference to Exhibit 10.81 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(84) |
Incorporated herein by reference to Exhibit 10.82 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(85) |
Incorporated herein by reference to Exhibit 10.83 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(86) |
Incorporated herein by reference to Exhibit 4.77 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(87) |
Incorporated herein by reference to Exhibit 10.84 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(88) |
Incorporated herein by reference to Exhibit 10.85 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(89) |
Incorporated herein by reference to Exhibit 10.86 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(90) |
Incorporated herein by reference to Exhibit 10.87 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(91) |
Incorporated herein by reference to Exhibit 10.88 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(92) |
Incorporated herein by reference to Exhibit 10.89 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(93) |
Incorporated herein by reference to Exhibit 10.90 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(94) |
Incorporated herein by reference to Exhibit 10.91 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(95) |
Incorporated herein by reference to Exhibit 10.92 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(96) |
Incorporated herein by reference to Exhibit 10.93 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(97) |
Incorporated herein by reference to Exhibit 10.94 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(98) |
Incorporated herein by reference to Exhibit 10.95 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(99) |
Incorporated herein by reference to Exhibit 10.96 to the registrant's registration statement on Form F-1 filed with the Commission on November 8, 2018.
|
(100) |
Incorporated herein by reference to Exhibit 4.91 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(101) |
Incorporated herein by reference to Exhibit 4.92 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(102) |
Incorporated herein by reference to Exhibit 4.93 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(103) |
Incorporated herein by reference to Exhibit 4.94 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(104) |
Incorporated herein by reference to Exhibit 4.95 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
(105) |
Incorporated herein by reference to Exhibit 8.1 to the registrant’s annual report on Form 20-F filed with the Commission on March 25, 2019.
|
$4,000,000
|
Athens, Greece
|
March 26, 2019
|
THE MAKER:
|
||
SEANERGY MARITIME HOLDINGS CORP.
|
||
By:
|
/s/ Stamatios Tsantanis | |
Name:
|
Stamatios Tsantanis
|
|
Title:
|
Chief Executive Officer
|
|
THE HOLDER
:
|
||
JELCO DELTA HOLDING CORP.
|
||
By:
|
/s/ Alastair Macdonald | |
Name:
|
Alastair Macdonald
|
|
Title:
|
Director
|
|
Name and Address of Investor
|
Principal Amount Owned as of 26 March 2019
|
Jelco Delta Holding Corp.
c/o Western Isles
Jardine House, 4th Floor,
33-35 Reid Street
P.O. Box HM 1431
Hamilton HM FX, Bermuda
|
$3,800,000
|
Clause
|
Page
|
|
1
|
Definitions and Interpretation
|
2
|
2
|
Agreement of the Creditor Parties
|
3
|
3
|
Conditions Precedent
|
3
|
4
|
Representations
|
4
|
5
|
Amendments to Loan Agreement, Corporate Guarantee and other Finance Documents
|
4
|
6
|
Further Assurance
|
5
|
7
|
Fees
|
7
|
8
|
Expenses
|
7
|
9
|
Notices
|
7
|
10
|
Counterparts
|
7
|
11
|
Governing Law
|
7
|
12
|
Enforcement
|
7
|
Schedules
|
||
Schedule 1 The Lenders
|
9
|
|
Schedule 2 Conditions Precedent
|
10
|
|
Execution
|
||
Execution Pages
|
11
|
(1) |
SEA GLORIUS SHIPPING CO.
("
Sea Glorius
")
and
SEA GENIUS SHIPPING CO.
("
Sea Genius
"),
each a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake
Road, Ajeltake Island, Majuro, MH96960, the Marshall Islands, as joint and several
Borrowers
;
|
(2) |
SEANERGY MARITIME HOLDINGS CORP.
,
a corporation incorporated in the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro, MH96960, the Marshall Islands, as
Corporate Guarantor
;
|
(3) |
THE BANKS AND FINANCIAL INSTITUTIONS
listed
in Schedule 1, as
Lenders
;
|
(4) |
HAMBURG COMMERCIAL BANK AG (formerly known as
HSH NORDBANK AG),
acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, as
Agent
;
|
(5) |
HAMBURG COMMERCIAL BANK AG (formerly known as
HSH NORDBANK AG),
acting through its office is at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, as
Mandated Lead Arranger
;
|
(6) |
HAMBURG COMMERCIAL BANK AG (formerly known as
HSH NORDBANK AG),
acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, as
Security Trustee
;
and
|
(7) |
HAMBURG COMMERCIAL BANK AG (formerly known as
HSH NORDBANK AG),
acting through its office at Martensdamm 6, D-24103 Kiel, Germany, as
Swap Bank
.
|
(A) |
By the Loan Agreement, the Lenders agreed to make available to
the Borrowers a facility of (originally) up to $44,430,400, of which $
34,084,229
is outstanding at the date of this Agreement.
|
(B) |
By a guarantee dated 1 September 2015 (as amended and/or supplemented by a supplemental letter dated 23 February 2017 and as further amended
and/or supplemented by a supplemental agreement dated 28 March 2018) and made by the Corporate Guarantor in favour of the Security Trustee, the Corporate Guarantor guaranteed the obligations of the Borrowers under the Loan Agreement.
|
(C) |
The Obligors have requested that the Lenders and the other Creditor Parties give their consent to amend the financial covenants of the
Corporate Guarantor under paragraphs (a) and (b) of clause 11.15 (
Financial Covenants
) of the Corporate Guarantee to be read and
construed as follows:
|
|
(i) |
the Leverage Ratio shall not exceed:
|
|
(A) |
at any time during the period commencing on 1 January 2019 and ending on 31 March 2020 (inclusive), 85 per cent.; and
|
|
(B) |
from 1 April 2020 and at all times thereafter during the Security Period, 75 per cent.; and
|
|
(ii) |
the ratio of EBITDA to interest payments (less any earned interest) (in respect of the immediately prior twelve-month period ending on the
last day of the relevant Accounting Period ) shall not be less than:
|
|
(A) |
at any time during the period commencing on 31 December 2018 and ending on 31 March 2020 (inclusive), 1:1; and
|
|
(B) |
from 1 April 2020 and at all times thereafter during the Security Period, 2:1,
|
(D) |
The Lenders and the other Creditor Parties consent to the Request subject to, inter alia, the following conditions:
|
|
(i) |
execution of this Agreement by the Obligors and the Fee Letter by the Borrowers; and
|
|
(ii) |
payment of a non-refundable relaxation fee in the amounts and at the times agreed in the Fee Letter.
|
(E) |
This Agreement sets out the terms and conditions on which the Lenders and the other Creditor Parties agree, with effect on and from the
Effective Date, at the request of the Obligors, to the Request and to the consequential amendments of the Loan Agreement and the other Finance Documents in connection with those matters.
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
1.2 |
Defined expressions
|
1.3 |
Application of construction and interpretation provisions of Loan Agreement
|
1.4 |
Agreed forms of new, and supplements to, Finance Documents
|
(a) |
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrowers and the Agent); or
|
(b) |
in any other form agreed in writing between the Borrowers and the Agent acting with the authorisation of the Majority Lenders or, where clause
27.2 (
exceptions
) of the Loan Agreement applies, all the Lenders.
|
1.5 |
Designation as a Finance Document
|
1.6 |
Third party rights
|
2 |
AGREEMENT OF THE CREDITOR PARTIES
|
2.1 |
Agreement of the Creditor Parties
|
(a) |
the Request; and
|
(b) |
the consequential amendments to the Loan Agreement, the Corporate Guarantee and the other Finance Documents.
|
2.2 |
Effective Date
|
3 |
CONDITIONS PRECEDENT
|
(a) |
no Event of Default continuing on the date of this Agreement and the Effective Date or resulting from the occurrence of the Effective Date;
|
(b) |
any repeating representation under clause 10 (
Representations
and Warranties
) of the Loan Agreement and under clause 10 (
Representations and Warranties
) of the Corporate Guarantee to be
made by each Obligor being true on the date of this Agreement and the Effective Date; and
|
(c) |
the Agent having received all of the documents and other evidence listed in Schedule 2 (
Conditions Precedent
) in form and substance satisfactory to the Agent on or before the Effective Date.
|
4 |
REPRESENTATIONS
|
4.1 |
Loan Agreement representations
|
4.2 |
Finance Document representations
|
5 |
AMENDMENTS TO LOAN AGREEMENT, CORPORATE GUARANTEE AND OTHER FINANCE DOCUMENTS
|
5.1 |
Amendments to the Loan Agreement
|
(a) |
the definition of, and references throughout to, each Finance Document shall be construed as if the same referred to that Finance Document as
amended and/or supplemented by this Agreement; and
|
(b) |
by construing references throughout to "this Agreement" and other like expressions as if the same referred to the Loan Agreement as amended
and/or supplemented by this Agreement.
|
5.2 |
Specific amendments to Corporate Guarantee
|
(a) |
by deleting the sub-paragraph (a) in clause 11.15 thereof in its entirety and replacing it with the following sub-paragraph:
|
|
(i) |
at any time during the period commencing on 1 January 2019 and ending on 31 March 2020 (inclusive), 85 per cent.; and
|
|
(ii) |
from 1 April 2020 and at all times thereafter during the Security Period, 75 per cent.;";
|
(b) |
by deleting the sub-paragraph (b) in clause 11.15 thereof in its entirety and replacing it with the following sub-paragraph:
|
|
(i) |
at any time during the period commencing on 31 December 2018 and ending on 31 March 2020 (inclusive), 1:1; and
|
|
(ii) |
from 1 April 2020 and at all times thereafter during the Security Period, 2:1;";
|
(c) |
the definition of, and references throughout each of the Finance Documents to, the Corporate Guarantee shall be construed as if the same
referred to the Corporate Guarantee as amended and/or supplemented by this Agreement; and
|
(d) |
by construing references throughout the Corporate Guarantee to "this Guarantee", as if the same referred to the Corporate Guarantee as amended
and/or supplemented by this Agreement.
|
5.3 |
Amendments to Finance Documents
|
5.4 |
Finance Documents to remain in full force and effect
|
(a) |
the amendments to the Finance Documents contained or referred to in Clause 5.1 (
Specific amendments to the Loan Agreement
) and Clause 5.2 (
Specific amendments to the Corporate
Guarantee
); and
|
(b) |
such further or consequential modifications as may be necessary to give full effect to the terms of this Agreement.
|
6 |
FURTHER ASSURANCE
|
6.1 |
Further assurance
|
(a) |
Each Obligor shall promptly, and in any event within the time period specified by the Agent do all such acts (including procuring or arranging
any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgements, proxies
|
(b) |
Each Obligor shall promptly, and in any event within the time period specified by the Security Trustee do all such acts (including procuring
or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions,
acknowledgments, proxies and powers of attorney), as the Security Trustee may specify (and in such form as the Security Trustee may require in favour of the Security Trustee or its nominee(s)):
|
|
(i) |
to create, perfect, vest in favour of the Security Trustee or protect the priority of the Security Interest or any right or any kind created
or intended to be created under or evidenced by the Finance Documents as amended and/or supplemented by this Agreement (which may include the execution of a mortgage, charge, assignment) for the exercise of any rights, powers and
remedies of the Security Trustee, any receiver or any other Creditor Party provided by or pursuant to the Finance Documents as amended and/or supplemented by this Agreement or by law;
|
|
(ii) |
to confer on the Security Trustee or confer on the Creditor Parties Security Interest over any property and assets of that Obligor located in
any jurisdiction equivalent or similar to the Security Interest intended to be conferred by or pursuant to the Finance Documents as amended and/or supplemented by this Agreement;
|
|
(iii) |
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the
assets which are, or are intended to be, the property being assigned, charged or pledged (as the case may be) under any Finance Document or to exercise any power specified in any Finance Document as amended and/or supplemented by this
Agreement in respect of which the Security Interest has become enforceable; and/or
|
|
(iv) |
to enable or assist the Security Trustee to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other
action relating to any item of the property being assigned, charged or pledged (as the case may be) under any Finance Document.
|
(c) |
Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the
purpose of the creation, perfection, protection or maintenance of any Security Interest conferred or intended to be conferred on the Security Trustee or any other Creditor Party by or pursuant to the Finance Documents as amended and/or
supplemented by this Agreement.
|
6.2 |
Additional corporate action
|
(a) |
set out the text of a resolution of that Obligor's directors specifically authorising the execution of the document specified by the Agent or
the Security Trustee as applicable; 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 that Obligor's articles of association or other constitutional documents.
|
7 |
FEES
|
8 |
EXPENSES
|
9 |
NOTICES
|
10 |
COUNTERPARTS
|
11 |
GOVERNING LAW
|
12 |
ENFORCEMENT
|
12.1 |
Jurisdiction
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a
dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "
Dispute
").
|
(b) |
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor
will argue to the contrary.
|
(c) |
This Clause 12.1 (
Jurisdiction
) is for
the benefit of the Creditor Parties only. As a result, no Creditor Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Creditor Parties may
take concurrent proceedings in any number of jurisdictions.
|
12.2 |
Service of process
|
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and
Wales):
|
|
(i) |
irrevocably appoints Messrs E. J. C. Album Solicitors, presently of Landmark House, 190 Willifield Way, London NW11 6YA, England (attention:
Mr Edward Album, tel: +44 208 455 7653, fax: +44 208 457 5558 and email: ) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
|
(ii) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b) |
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrowers (on
behalf of all the Obligors) must immediately (and in any event within 5 days of such event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for this purpose.
|
Lender
|
Lending Office
|
Commitment
(US Dollars) |
HAMBURG COMMERCIAL BANK AG (formerly known as HSH NORDBANK AG)
|
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
|
44,430,400
|
1 |
Obligors
|
2 |
Documents
|
2.1 |
A duly executed original of this Agreement and the Fee Letter.
|
3 |
Other documents and evidence
|
3.1 |
A copy of any other authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has
notified the Borrowers accordingly) in connection with the entry into and performance of the transactions contemplated by this Agreement and the Fee Letter or for the validity and enforceability of any Finance Document as amended and/or
supplemented by this Agreement.
|
3.2 |
Evidence that the agent referred to in Clause 12.2 has accepted its appointment as agent for the service of process under this Agreement.
|
3.3 |
Evidence that any fees due and payable under the Fee Letter pursuant to Clause 7 (Fees) have been paid.
|
3.4 |
Evidence that any expenses then due from the Borrowers pursuant to Clause 8 (
Expenses
) have been paid.
|
BORROWERS
|
||
SIGNED
by Theodora Mitropetrou
|
)
|
|
duly authorised attorney-in-fact
|
)
|
/s/ Theodora Mitropetrou
|
for and on behalf of
|
)
|
|
SEA GLORIUS SHIPPING CO.
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Maria Haraka
|
Witness' name: Maria Haraka
|
)
|
|
Witness' address: 154 Vouliagmenis Avenue,
|
)
|
|
166 74, Glyfada, Greece
|
)
|
|
CORPORATE GUARANTOR
|
||
SIGNED
by Theodora Mitropetrou
|
)
|
|
duly authorised attorney-in-fact
|
)
|
/s/ Theodora Mitropetrou
|
for and on behalf of
|
)
|
|
SEANERGY MARITIME HOLDINGS CORP.
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Maria Haraka
|
Witness' name: Maria Haraka
|
)
|
|
Witness' address: 154 Vouliagmenis Avenue,
|
)
|
|
166 74, Glyfada, Greece
|
)
|
|
LENDERS
|
||
SIGNED
by Andreas Giakoumelos
|
)
|
|
duly authorised attorney-in-fact
|
)
|
/s/ Andreas Giakoumelos
|
for and on behalf of
|
)
|
|
by HAMBURG COMMERCIAL BANK AG
|
)
|
|
(formerly known as HSH NORDBANK AG)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Ilias Vassilios Tsigos
|
Witness' name: Ilias Vassilios Tsigos
|
)
|
|
Witness' address: 348 Syngrou Avenue
|
)
|
|
176 74 Kallithea, Athens, Greece
|
)
|
SWAP BANK
|
||
SIGNED
by
Andreas Giakoumelos
|
)
|
|
duly authorised attorney-in-fact
|
)
|
/s/ Andreas Giakoumelos
|
for and on behalf of
|
)
|
|
by
HAMBURG
COMMERCIAL BANK AG
|
)
|
|
(formerly known as HSH NORDBANK AG)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Ilias Vassilios Tsigos
|
Witness' name: Ilias Vassilios Tsigos
|
)
|
MANDATED LEAD ARRANGER
|
||
SIGNED
by
Andreas Giakoumelos
|
)
|
|
duly authorised attorney-in-fact
|
)
|
/s/ Andreas Giakoumelos
|
for and on behalf of
|
)
|
|
by
HAMBURG
COMMERCIAL BANK AG
|
)
|
|
(formerly known as HSH NORDBANK AG)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Ilias Vassilios Tsigos
|
Witness' name: Ilias Vassilios Tsigos
|
)
|
AGENT
|
||
SIGNED
by
Andreas Giakoumelos
|
)
|
|
duly authorised attorney-in-fact
|
)
|
/s/ Andreas Giakoumelos
|
for and on behalf of
|
)
|
|
by
HAMBURG
COMMERCIAL BANK AG
|
)
|
|
(formerly known as HSH NORDBANK AG)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Ilias Vassilios Tsigos
|
Witness' name: Ilias Vassilios Tsigos
|
|
|
|
SECURITY TRUSTEE
|
||
SIGNED
by
Andreas Giakoumelos
|
)
|
|
duly authorised attorney-in-fact
|
)
|
/s/ Andreas Giakoumelos
|
for and on behalf of
|
)
|
|
by
HAMBURG
COMMERCIAL BANK AG
|
)
|
|
(formerly known as HSH NORDBANK AG)
|
)
|
|
in the presence of:
|
)
|
|
Witness' signature:
|
)
|
/s/ Ilias Vassilios Tsigos
|
Witness' name: Ilias Vassilios Tsigos
|
)
|
(B) |
Section 7.3 of the Note is deleted in its entirety and is replaced with the following:
|
(C) |
Confirmation of Agreement
. Except as expressly set forth herein,
the Note is ratified and confirmed in all respects and shall remain in full force and effect in accordance with its terms, and each reference in the Note to “this Note” shall mean the Note as amended by this Eleventh Amendment.
|
(D) |
Counterparts; Effectiveness
. This
Eleventh
Amendment may be executed in any number of
counterparts (including by facsimile) and by different parties hereto in separate counterparts, with the same effect as if all parties had signed the same document. All such counterparts shall be deemed an original, shall be
construed together and shall constitute one and the same instrument. This
Eleventh
Amendment shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other parties hereto.
|
(E) |
Governing Law
. The laws of the State of New York
shall govern the enforceability and validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties, without regard to the principles of conflicts of laws thereof.
|
THE MAKER:
|
||
SEANERGY MARITIME HOLDINGS CORP.
|
||
By:
|
/s/ Stamatios Tsantanis
|
|
Name:
|
Stamatios Tsantanis
|
|
Title:
|
Chief Executive Officer
|
|
THE HOLDER
:
|
||
JELCO DELTA HOLDING CORP.
|
||
By:
|
/s/ Alastair Macdonald | |
Name:
|
Alastair Macdonald
|
|
Title:
|
Director
|
|
|
|
(i) the refinancing of the Existing Indebtedness and
|
|
|
(ii) general working capital purposes
|
Clause
|
Page
|
||
1
|
Purpose, Definitions and Construction of certain terms
|
1
|
|
2
|
The Loan
|
4
|
|
3
|
Interest
|
5
|
|
4
|
Repayment
|
5
|
|
5
|
Mandatory Prepayment
|
5
|
|
6
|
Representations and Warranties
|
6
|
|
7
|
Events of Default
|
7
|
|
8
|
Application of Receipts
|
8
|
|
9
|
Notices
|
9
|
|
10
|
Amendments and Waivers
|
9
|
|
11
|
Process Agent
|
9
|
|
12
|
Governing Law and Jurisdiction
|
9
|
|
13
|
Miscellaneous
|
9
|
|
Execution Page
|
10
|
||
Schedule 1 Form of Drawdown Notice
|
11
|
||
Schedule 2 Condition Precedent Documents
|
12
|
(1) |
JELCO DELTA HOLDING CORP.
, a corporation organised
under the laws of the Republic of the Marshall Islands whose registered office is at the Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands (the "
Lender
"); and
|
(2) |
SEANERGY MARITIME HOLDINGS CORP.
, a corporation
organised under the laws of the Republic of the Marshall Islands whose registered office is at the Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands (the "
Company
").
|
(A) |
The Lender and the Company have entered into a loan facility of $2,000,000 originally dated 10 April 2018, as amended and restated on 13 June 2018, as
supplemented on 11 August 2018 and on 31 January 2019 (the “
Existing Loan Agreement
”), which is guaranteed by Emperor.
|
(B) |
The Lender has agreed to make available to the Company a facility of $7,000,000 in a single advance as follows:
|
|
(i) |
$2,000,000 to be used for the purpose of refinancing the Existing Indebtedness; and
|
|
(ii) |
$5,000,000 to be used for general working capital purposes.
|
(C) |
The Lender, which as of the date hereof is holding 37.7% of the total issued share capital of the Company, is willing to make available the Loan to the
Company in accordance with the terms and conditions of this Loan Agreement.
|
1 |
PURPOSE, DEFINITIONS AND INTERPRETATION
|
1.1 |
Purpose
|
1.2 |
Definitions
|
|
(a) |
during the period commencing on the Drawdown Date and ending on the Final Repayment Date, 6 per cent. per annum;
|
|
(b) |
if the First Repayment Instalment is deferred to the Balloon Repayment Instalment pursuant to Clause 4.2 (
Deferral of First Repayment Instalment
), at all times thereafter, 8.5 per cent. per annum;
|
|
(a) |
18 months from the Drawdown Date; and
|
|
(b) |
30 September 2020;
|
|
(a) |
this Loan Agreement;
|
|
(b) |
the Emperor Guarantee;
|
|
(c) |
the First Jelco Loan Agreement;
|
|
(d) |
the Second Jelco Loan Agreement;
|
|
(e) |
the Notes; and
|
|
(f) |
any other document (whether creating a security interest or not) which is executed at any time by the Borrower or Emperor or any other person as security for,
or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lender under this Loan Agreement, the First Jelco Loan Agreement, the Second Jelco Loan Agreement, the Notes or any of the
other documents referred to in this definition and, in the singular, means any of them;
|
|
(a) |
moneys borrowed;
|
|
(b) |
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
|
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
|
(d) |
the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability;
|
|
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
|
(f) |
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this
definition having the commercial effect of a borrowing;
|
|
(g) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the
value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);
|
|
(h) |
any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank
or financial institution; and
|
|
(i) |
the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
1.3 |
Construction of certain terms
|
2 |
THE LOAN
|
2.1 |
Commitment to Lend
|
2.2 |
Conditions Precedent to Lend
|
(a) |
The documents and evidence described in Part A of Schedule 2 hereto on or prior to the date of the Loan Agreement;
|
(b) |
the Drawdown Notice in the form set out in
Schedule 1
on
the Drawdown Date; and
|
(c) |
the Emperor Guarantee duly executed by the Guarantor on the Drawdown Date.
|
3 |
INTEREST
|
3.1 |
Interest Period
|
3.2 |
Interest rate
|
3.3 |
Accrual and payment of interest
|
3.4 |
Default interest
|
3.5 |
In the event of a failure by the Borrower to pay any amount on the date on which such amount is due and payable pursuant to this Agreement and irrespective of
any notice by the Lender or any other person to the Borrower in respect of such failure, the Borrower shall pay interest on such amount on demand from the date of such default up to the date of actual payment as follows:
|
|
(i) |
During the period commencing on the Drawdown Date and ending on the Final Repayment Date, at the per annum rate which is the aggregate of: (a) two per cent
(2%); and (b) the applicable Interest Rate; and
|
|
(ii) |
If the First Repayment Instalment is deferred to the Balloon Repayment Instalment pursuant to Clause 4.2 (
Deferral of First Repayment Instalment
), at the per annum rate which is the aggregate of: (a) half per cent (0.5%); and (b) the applicable Interest Rate.
|
4 |
REPAYMENT
|
4.1 |
The Borrower shall repay the Loan as follows:
|
|
(i) |
By an instalment in the amount of $1,000,000 to be repaid on 5 January 2020 (the “
First Repayment Instalment
”); and
|
|
(ii) |
By a balloon instalment in the amount of $6,000,000 to be repaid on the Final Repayment Date (the “
Balloon Repayment Instalment
”).
|
4.2 |
Deferral of First Repayment Instalment
|
5 |
MANDATORY PREPAYMENT
|
6 |
REPRESENTATIONS AND WARRANTIES
|
6.1 |
Organisation
|
6.2 |
Enforceability
|
6.3 |
No Conflict
|
7 |
EVENTS OF DEFAULT
|
7.1 |
Non-payment
|
7.2 |
Misrepresentation
|
7.3 |
Breach of Undertakings
|
7.4 |
Security
|
7.5 |
Insolvency
|
7.6 |
Insolvency proceedings
|
(a) |
the suspension of payments, winding-up, dissolution, administration, bankruptcy or reorganisation (by way of voluntary arrangement, scheme of arrangement or
otherwise) of the Borrower or the Guarantor;
|
(b) |
a composition, compromise, assignment with any creditor of the Borrower or the Guarantor;
|
(c) |
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager, or trustee or other similar officer in respect of the
Borrower or the Guarantor or any of their respective assets; or any analogous procedure or step is taken in any jurisdiction.
|
7.7 |
Impossibility or illegality
|
7.8 |
Revocation or modification of authorisation
|
7.9 |
Material adverse change
|
7.10 |
Acceleration
|
(a) |
declare that the Loan, together with accrued interest, and all other amounts accrued or outstanding under this Loan Agreement are immediately due and payable,
whereupon they shall become immediately due and payable; and/or
|
(b) |
declare that the Loan is payable on demand, whereupon it shall immediately become payable on demand by the Lender; and/or
|
(c) |
take any other action which, as a result of the Event of Default or any notice served under paragraph (a) and (b), the Lender is entitled to take under any
Finance Document or any applicable law.
|
8 |
APPLICATION OF RECEIPTS
|
8.1 |
Normal order of application
|
(a) |
FIRST: in or towards payment pro rata of any unpaid fees, costs and expenses of the Lender under the Finance Documents;
|
(b) |
SECONDLY: in or towards payment pro rata of any accrued interest or commission due but unpaid under this Agreement;
|
(c) |
THIRDLY: in or towards payment pro rata of any principal due but unpaid under this Agreement;
|
(j) |
FOURTHLY: in or towards payment pro rata of any other amounts due but unpaid under any Finance Document;
|
(d) |
FIFTHLY: in retention of an amount equal to any amount not then due and payable under any Finance Document but which the Lender, by notice to the Borrower,
states in its opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of Clause 8.1(a), 8.1(b), 8.1(c) and 8.1(d);
and
|
(e) |
SIXTHLY: any surplus shall be paid to the Borrower or to any other person appearing to be entitled to it.
|
8.2 |
Variation of order of application
|
8.3 |
Notice of variation of order of application
|
8.4 |
Appropriation rights overridden
|
9 |
NOTICES
|
10 |
AMENDMENTS AND WAIVERS
|
11 |
PROCESS AGENT
|
12 |
GOVERNING LAW AND JURISDICTION
|
13 |
MISCELLANEOUS
|
13.1 |
The headings of the clauses of this Loan Agreement are for convenience only and shall not control or affect the meaning or construction of any provision of
this Loan Agreement.
|
13.2 |
If any provision or part of a provision of this Loan Agreement or its application to either party, shall be, or be found by any authority of competent
jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall. not affect the other provisions or parts of such provisions of this Loan Agreement, all of which shall remain in full force and effect;
|
13.3 |
This Loan Agreement may be entered into on separate engrossments, each of which when so executed and delivered shall be an original but 'each engrossment
shall together constitute one and the same instrument and shall take effect from the time of execution of the last engrossment. Immediate evidence that an engrossment has been executed may be provided by transmission of such engrossment
by facsimile machine or by email with the original executed engrossment to be forthwith put in the mail.
|
13.4 |
A person who is not a party to this Loan Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 of the United Kingdom to enforce any
term of this Loan Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
|
THE LENDER
|
|
SIGNED
by
|
|
Alastair Macdonald
|
)
|
for and behalf of
|
)
/s/
Alastair Macdonald
|
JELCO DELTA HOLDING CORP.
|
)
|
in the presence of:
Karen Campbell
|
|
/s/ Karen Campbell
|
|
THE BORROWER
|
|
SIGNED
by
|
|
Stavros Gyftakis
|
)
|
for and behalf of
|
)/s/
Stavros Gyftakis
|
SEANERGY MARITIME HOLDINGS CORP.
|
)
|
in the presence of:
Theodora Mitropetrou
|
|
/s/
Theodora Mitropetrou
|
To: |
Jelco Delta Holding Corp.
(the " Lender ") |
1 |
Copies of the certificate of incorporation and constitutional documents of the Borrower and the Guarantor and any company registration documents in respect of
the Borrower required by the Lender.
|
2 |
Copies of resolutions of the directors of the Borrower and the Guarantor authorising the execution of each of the Loan Agreement and the Emperor Guarantee
and, in the case of the Borrower, authorising named representatives to give the Drawdown Notice and other notices under this Loan Agreement.
|
3 |
The original of any power of attorney under which the Loan Agreement and the Emperor Guarantee is executed on behalf of the Borrower and the Guarantor.
|
4 |
The original of the Deed of Release and of each document to be delivered under or pursuant to it, together with evidence satisfactory to the Lender of its due
execution by the parties to it.
|
Clause
|
Page
|
|
1
|
INTERPRETATION
|
2
|
2
|
GUARANTEE
|
2
|
3
|
LIABILITY AS PRINCIPAL AND INDEPENDENT DEBTOR
|
2
|
4
|
EXPENSES
|
2
|
5
|
ADJUSTMENT OF TRANSACTIONS
|
2
|
6
|
PAYMENTS
|
2
|
7
|
INTEREST
|
3
|
8
|
SUBORDINATION
|
2
|
9
|
ENFORCEMENT
|
2
|
10
|
REPRESENTATIONS AND WARRANTIES
|
4
|
11
|
UNDERTAKINGS
|
5
|
12
|
JUDGMENTS
|
2
|
13
|
SUPPLEMENTAL
|
2
|
14
|
NOTICES
|
2
|
15
|
INVALIDITY OF A SECURED AGREEMENT
|
2
|
16
|
GOVERNING LAW AND JURISDICTION
|
9
|
EXECUTION PAGE
|
11 |
(1) |
EMPEROR HOLDING LTD.
, a corporation incorporated under
the laws of the Republic of the Marshall Islands, whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the “
Guarantor
”); and
|
(2) |
JELCO DELTA HOLDING CORP.
, a corporation incorporated
under the laws of the Republic of the Marshall Islands, whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the “
Lender
”, which expression includes its successors and assigns).
|
(A) |
By a loan agreement dated 26 March 2019 (the “
Loan Agreement
”)
and made between (i) Seanergy Maritime Holdings Corp., as borrower (the “
Borrower
”) and (i) the Lender as lender, it was agreed that
the Lender would make available to the Borrower a loan facility of up to US$7,000,000 (the “
Loan
”).
|
(B) |
The Guarantor is a wholly owned subsidiary of the Borrower and commercially benefits from the Loan as the Loan provides additional liquidity to the Borrower
ensuring that it can meet its current obligations while retaining liquidity available to fund the working capital and other financial requirements of the Guarantor.
|
(C) |
It is a condition precedent to the Lender advancing the Loan to the Borrower under the Loan Agreement that the Guarantor shall execute and deliver to the
Lender this Guarantee.
|
1 |
INTERPRETATION
|
1.1 |
Defined Expressions
|
1.2 |
Construction of certain terms
|
|
(a) |
all amounts which have become due for payment by the Borrower under the Loan Agreement have been paid; and
|
|
(b) |
no amount is owing or has accrued (without yet having become due for payment) under the Loan Agreement.
|
1.3 |
Application of construction and interpretation provisions of Loan Agreement
|
2 |
GUARANTEE
|
2.1 |
Guarantee and indemnity
|
(a) |
guarantees the due payment of all amounts payable by the Borrower under or in connection with each of the Secured Agreements;
|
(b) |
undertakes to pay to the Lender, on the Lender’s demand, any such amount which is not paid by the Borrower when payable; and
|
(c) |
fully indemnifies the Lender on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by the
Lender as a result of or in connection with any obligation or liability guaranteed by the Guarantor being or becoming unenforceable, invalid, void or illegal; and the amount recoverable under this indemnity shall be equal to the amount
which the Lender would otherwise have been entitled to recover.
|
2.2 |
No limit on number of demands
|
2.3 |
Release of Guarantee
|
3 |
LIABILITY AS PRINCIPAL AND INDEPENDENT DEBTOR
|
3.1 |
Principal and independent debtor
|
3.2 |
Waiver of rights and defences
|
(a) |
any amendment or supplement being made to any of the Secured Agreements;
|
(b) |
any arrangement or concession (including a rescheduling or acceptance of partial payments) relating to, or affecting, any of the Secured Agreements;
|
(c) |
any release or loss (even though negligent) of any right created by any of the Secured Agreements;
|
(d) |
any failure (even though negligent) promptly or properly to exercise or enforce any such right; or
|
(e) |
any other Secured Agreement now being or later becoming void, unenforceable, illegal or invalid or otherwise defective for any reason, including a neglect to
register it.
|
4 |
EXPENSES
|
4.1 |
Costs of preservation of rights, enforcement etc.
|
5 |
ADJUSTMENT OF TRANSACTIONS
|
5.1 |
Reinstatement of obligation to pay
|
6 |
PAYMENTS
|
6.1 |
Method of payments
|
(a) |
in immediately available funds;
|
(b) |
to such account as the Lender may from time to time notify to the Guarantor;
|
(c) |
without any form of set‑off, cross‑claim or condition; and
|
(d) |
free and clear of any tax deduction except a tax deduction which the Guarantor is required by law to make.
|
6.2 |
Grossing-up for taxes
|
7 |
INTEREST
|
7.1 |
Accrual of interest
|
7.2 |
Calculation of interest
|
7.3 |
Guarantee extends to interest payable under each Secured Agreement
|
8 |
SUBORDINATION
|
8.1 |
Subordination of rights of Guarantor
|
(a) |
claim, or in a bankruptcy of the Borrower prove for, any amount payable to the Guarantor by the Borrower, whether in respect of this Guarantee or any other
transaction;
|
(b) |
claim to set-off any such amount against any amount payable by the Guarantor to the Borrower; or
|
(c) |
claim any subrogation or other right in respect of any Secure Agreement or any sum received or recovered by the Lender under a Secured Agreement.
|
9 |
ENFORCEMENT
|
9.1 |
No requirement to commence proceedings against Borrower
|
9.2 |
Conclusive evidence of certain matters
|
(a) |
any judgment or order of a court in England or in the Republic of the Marshall Islands, the State of New York, the United States or America or Greece in
connection with the Loan Agreement or any other Secured Agreement; and
|
(b) |
any statement or admission of the Borrower in connection with the Loan Agreement or any other Secured Agreement, shall be binding and conclusive as to all
matters of fact and law to which it relates.
|
10 |
REPRESENTATIONS AND WARRANTIES
|
10.1 |
General
|
10.2 |
Status
|
10.3 |
Corporate power
|
(a) |
to execute this Guarantee; and
|
(b) |
to make all the payments contemplated by, and to comply with, this Guarantee.
|
10.4 |
Consents in force
|
10.5 |
Legal validity and effective Security Interests
|
(a) |
constitutes the Guarantor’s legal, valid and binding obligations enforceable against the Guarantor in accordance with its terms and subject any relevant
insolvency laws affecting creditors’ rights generally; and
|
(b) |
creates legal, valid and binding security interests enforceable in accordance with its terms over all the assets to which it relates.
|
10.6 |
No conflicts
|
(a) |
any law or regulation; or
|
(b) |
the constitutional documents of the Guarantor; or
|
(c) |
any contractual or other obligation or restriction which is binding on the Guarantor or any of its assets.
|
10.7 |
No withholding taxes
|
10.8 |
No default
|
10.9 |
No litigation
|
11 |
UNDERTAKINGS
|
11.1 |
General
|
11.2 |
Creditor notices
|
11.3 |
Consents
|
(a) |
for the Guarantor to perform its obligations under this Guarantee;
|
(b) |
for the validity or enforceability of this Guarantee, and the Guarantor will comply with the terms of all such consents.
|
11.4 |
Maintenance of Security Interests
|
(a) |
at its own cost, do all that it reasonably can to ensure that this Guarantee validly creates the obligations and the security interests which it purports to
create; and
|
(b) |
without limiting the generality of paragraph (a) above, at its own cost, promptly register, file, record or enrol this Guarantee with any court or authority
in all relevant jurisdictions, pay any stamp, registration or similar tax in all relevant jurisdictions in respect of this Guarantee, give any notice or take any other step which may be or become necessary or desirable for this
Guarantee to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any security interest which it creates.
|
11.5 |
Notification of litigation
|
11.6 |
Notification of default
|
(a) |
the occurrence of an Event of Default; or
|
(b) |
any matter which indicates that an Event of Default may have occurred, and will thereafter keep the Lender fully up-to-date with all developments.
|
11.7 |
Maintenance of status
|
11.8 |
No disposal of assets, change of business
|
(a) |
transfer, lease or otherwise dispose of all or a substantial part of its assets, whether by one transaction or a number of transactions, whether related or
not; or
|
(b) |
make any substantial change to the nature of its business from that existing at the date of this Guarantee.
|
11.9 |
No merger etc.
|
12 |
JUDGMENTS
|
12.1 |
Judgments relating to a Secured Agreement
|
13 |
SUPPLEMENTAL
|
13.1 |
Continuing guarantee
|
13.2 |
Rights cumulative, non-exclusive
|
13.3 |
No impairment of rights under Guarantee
|
13.4 |
Severability of provisions
|
13.5 |
Guarantee not affected by other security
|
13.6 |
Guarantor bound by Loan Agreement
|
13.7 |
Applicability of provisions of Guarantee to other security interests
|
13.8 |
Applicability of provisions of Guarantee to other rights
|
13.9 |
Guarantor’s approval of Loan Agreement
|
13.10 |
Third party rights
|
14 |
NOTICES
|
14.1 |
Notices to Guarantor
|
14.2 |
Application of certain provisions of Loan Agreement
|
14.3 |
Validity of demands
|
(a) |
on the date on which the amount to which it relates is payable by the Borrower under the Loan Agreement;
|
(b) |
at the same time as the service of a notice under clause 7.10 (
Events of Default
) of the Loan Agreement,
|
14.4 |
Notices to Lender
|
15 |
INVALIDITY OF A SECURED AGREEMENT
|
15.1 |
Invalidity of a Secured Agreement
|
(a) |
a Secured Agreement now being or later becoming, with immediate or retrospective effect, void, illegal, unenforceable or otherwise invalid for any other
reason whatsoever, whether of a similar kind or not; or
|
(b) |
without limiting the scope of paragraph (a), a bankruptcy of the Borrower, the introduction of any law or any other matter resulting in the Borrower being
discharged from liability under a Secured Agreement, or a Secured Agreement ceasing to operate (for example, by interest ceasing to accrue); this Guarantee shall cover any amount which would have been or become payable under or in
connection with that Secured Agreement if that Secured Agreement had been and remained entirely valid, legal and enforceable, or the Borrower had not suffered bankruptcy, or any combination of such events or circumstances, as the case
may be, and the Borrower had remained fully liable under it for liabilities whether invalidly incurred or validly incurred but subsequently retrospectively invalidated; and references in this Guarantee to amounts payable by the
Borrower under or in connection with such Secured Agreement shall include references to any amount which would have so been or become payable as aforesaid.
|
15.2 |
Invalidity of Finance Documents
|
16 |
GOVERNING LAW AND JURISDICTION
|
16.1 |
English law
|
16.2 |
Exclusive English jurisdiction
|
16.3 |
Choice of forum for the exclusive benefit of the Lender
|
(a) |
to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and
|
(b) |
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing
proceedings in England.
|
16.4 |
Process agent
|
16.5 |
Lender’ rights unaffected
|
16.6 |
Meaning of “proceedings”
|
EXECUTED AND DELIVERED AS A DEED
by
EMPEROR HOLDING LTD.
acting by
Stavros Gyftakis
expressly authorised in accordance with the
laws of the Republic of the Marshall Islands
by virtue of a power of attorney granted
by
EMPEROR HOLDING LTD.
on
March 26, 2019
such execution being witnessed by
Theodora Mitropetrou
Signature of witness
/s/ Theodora Mitropetrou
|
)
)
)
)
)
)
)
)
)
|
/s/ Stavros Gyftakis
|
EXECUTED AND DELIVERED AS A DEED
by
JELCO DELTA HOLDING CORP.
acting by
Alastair Macdonald
expressly authorised in accordance with the
laws of the Republic of the Marshall Islands
by virtue of a power of attorney granted
by
JELCO DELTA HOLDING CORP.
on
March 25, 2019
such execution being witnessed by
Karen Campbell
Signature of witness
/s/ Karen Campbell
|
)
)
)
)
)
)
)
)
)
|
/s/ Alastair Macdonald
|