Exhibit 99.1

■	Restructuring of $117 million of senior secured loan facilities and $62 million of junior loan facilities and convertible notes

■	No outstanding debt maturities before the fourth quarter of 2022

■	Reduction of interest rate and repayment instalments with positive impact on the cash break-even of the fleet

■	Relaxation of financial covenants allowing for additional financial flexibility, including payment of dividends

■	Aggregate debt reduction of $36 million in 2020 through the restructuring arrangements and scheduled debt amortization

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THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of December 30, 2020, by and between SEANERGY MARITIME HOLDINGS CORP., a corporation organized under the laws of the Republic of the Marshall Islands (the “Company” or the “Seller”), and JELCO DELTA HOLDING CORP., a corporation organized under the laws of the Republic of the Marshall Islands (the “Purchaser”).

WHEREAS, the Purchaser and the Company have from time to time entered into the Loan Facilities.

WHEREAS, in exchange for, among other things, the full and final settlement of unpaid interest under the Loan Facilities for the period of January 1, 2020 until December 31, 2020 and an amendment fee as set forth herein, the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase, 7,986,913 units of the Company (including the underlying Securities, the “Units”) each consisting of (i) one common share, par value $0.0001 per share, of the Company (a “Common Share”) or, at the option of the Purchaser, one pre-funded warrant of the Company in the form set forth on Schedule C hereto to purchase one Common Share at an exercise price of $0.0001 (a “Pre-Funded Warrant”), and (ii) one warrant of the Company in the form set forth on Schedule B hereto to purchase one Common Share at an exercise price of $0.70 (a “Warrant” and, together with the Common Shares and the Pre-Funded Warrants issued as part of Units, the “Securities”), subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, and for such other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01         Definitions. In this Agreement, unless the context otherwise requires, each term or expression defined in the recital of the parties and this clause shall have the meaning given to it in the recital of the parties and in this clause:

“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.

“Business Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday or a day on which banking institutions in the State of New York, London, England or Athens, Greece are authorized or required by law or other governmental action to close.

“Commission” means the United States Securities and Exchange Commission.

“Common Share Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Shares, including, without limitation, any debt, preferred shares, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares.

 

“Finance Documents” shall have the meaning given to such term in the Omnibus Loan Supplemental Agreement and Omnibus Note Supplemental Agreement.

“First Jelco Loan” means that certain loan agreement dated October 4, 2016, as amended by amendment no. 1 thereto dated as of November 17, 2016, as amended and restated by a deed of amendment and restatement on November 28, 2016, as supplemented on June 13, 2018, as amended and restated by a deed of amendment and restatement on February 13, 2019 and as further supplemented on May 29, 2019, made by and between the Company as borrower and the Purchaser as lender, relating to a facility in the original amount of up to $12,800,000, with an outstanding principal amount of $5,900,000 as of the date hereof.

“First Jelco Note” means that certain convertible promissory note dated March 12, 2015, as amended by an amendment no. 1 dated May 14, 2015, as supplemented by a mutual consent dated September 18, 2017, as amended by an amendment no. 2 dated September 18, 2017, as further amended by an amendment no. 3 dated March 26, 2019, and as further amended by Amendment No. 4 dated May 29, 2019, made by the Company in favor of the Purchaser, relating to an original amount of $4,000,000, with an outstanding principal amount of $3,800,000 as of the date hereof.

“Fourth Jelco Loan” means that certain loan agreement dated March 26, 2019 (as supplemented on May 29, 2019) made by and between the Company as borrower and the Purchaser as lender, relating to a facility in an amount of $7,000,000, with an outstanding principal amount of $6,000,000 as of the date hereof.

“Governmental Authority” means any federal, state, local or foreign political subdivision, court, administrative agency, board, bureau, commission or department or other governmental authority or instrumentality.

“Intercreditor Deed” means that certain agreement dated February 15, 2019, by and between Amsterdam Trade Bank N.V., the Purchaser, the Company, Partner Shipping Co. Limited and others.

“Jelco Notes” means the First Jelco Note, the Second Jelco Note and the Third Jelco Note.

“Liens” means a lien, charge, pledge, security interest, mortgage, encumbrance, right of first refusal, preemptive right or other restriction of any kind.

“Loan Facilities” means the Jelco Notes, the First Jelco Loan, the Second Jelco Loan and the Fourth Jelco Loan.

“Material Adverse Effect” means (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company's ability to perform in any material respect on a timely basis its obligations under any Transaction Document.

“Omnibus Loan Supplemental Agreement” means that certain agreement dated the date hereof between, among others, the Purchaser, as lender, and the Company, as borrower under the First Jelco Loan, the Second Jelco Loan and the Fourth Jelco Loan, in the form attached hereto as Schedule D.

 “Omnibus Note Supplemental Agreement” means that certain agreement dated the date hereof between, among others, the Purchaser, as lender, and the Company, as borrower under the Jelco Notes, in the form attached hereto as Schedule E.

 

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Registration Rights Agreement” means a registration rights agreement with respect to the Common Shares issued as part of Units and issuable upon exercise of the Warrants and Pre-Funded Warrants in the form attached hereto as Schedule A.

“SEC Reports” shall have the meaning set forth in Section 4.07.

“Second Jelco Loan” means that certain loan agreement dated May 24, 2017, as amended and supplemented by a supplemental letter dated June 22, 2017, as amended and supplemented by a second supplemental letter dated August 22, 2017, as amended and restated by a deed of amendment and restatement on September 27, 2017, and as further supplemented by a supplemental agreement dated February 13, 2019 and a supplemental letter dated May 29, 2019, relating to a loan in the original amount of up to $16,200,000, made by and between the Company as borrower and the Purchaser as lender with an outstanding principal amount of $11,450,000 as of the date hereof.

“Second Jelco Note” means that certain revolving convertible promissory note dated September 7, 2015, as amended by an amendment dated December 1, 2015, as amended by a second amendment dated December 14, 2015, as amended by a third amendment dated January 27, 2016, as amended by a fourth amendment dated March 7, 2016, as amended by a fifth amendment dated April 21, 2016, as amended by a sixth amendment dated May 17, 2016, as amended by a seventh amendment dated June 16, 2016, as amended by an eighth amendment dated March 28, 2017, as supplemented by a mutual consent dated September 8, 2017, as amended by a ninth amendment dated September 27, 2017, as amended by a tenth amendment dated September 1, 2018, as further amended by an eleventh amendment dated March 26, 2019, and as further amended by a Twelfth Amendment dated as of May 29, 2019, made by the Company in favor of the Purchaser, relating to an original amount of $6,765,000 that was subsequently raised to $24,665,000, with an outstanding principal amount of $21,165,000 as of the date hereof.

“Securities Act” means the Securities Act of 1933, as amended.

“Senior Lender” means Amsterdam Trade Bank N.V.

“Subsidiary” means any subsidiary of the Company which is actively engaged in a trade or business.

“Third Jelco Note” means that certain convertible promissory note dated September 27, 2017, as amended by an amendment dated February 13, 2019 and as further amended by a Second Amendment dated as of May 29, 2019, made by the Company in favor of the Purchaser, relating to an original amount of $13,750,000, with an outstanding principal amount of $13,750,000 as of the date hereof.

“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing).

“Transaction Documents” means this Agreement, Omnibus Loan Supplemental Agreement, Omnibus Note Supplemental Agreement, Warrants, Pre-Funded Warrants and Registration Rights Agreement.

“Warrant Shares” means the Common Shares issuable on exercise of the Warrants and Pre-Funded Warrants in accordance with their terms.

 

ARTICLE II

SALE AND PURCHASE OF UNITS

Section 2.01       Sale and Purchase. Upon the terms and subject to the conditions of this Agreement, the Company hereby agrees to issue and sell the Units to the Purchaser, and the Purchaser agrees to purchase the Units from the Company in exchange for the Consideration.

Section 2.02         Consideration. The aggregate consideration for the Units shall be paid as follows (the “Consideration”):

(a) in exchange for 6,213,628 Units consisting of one Common Share (or, at the option of the Purchaser, one Pre-Funded Warrant in lieu of such Common Share) and one Warrant, the Purchaser shall waive payment of unpaid interest accrued through December 31, 2020, including all default interest applicable thereon, under the Loan Facilities pursuant to Section 6.01(a) hereof in an amount equal to $4,349,539.89; and

(b) in exchange for 1,773,285 Units consisting of one Common Share and one Warrant, the Purchaser shall waive payment of the amendment fee payable pursuant to Section 6.02 hereof in an amount equal to $1,241,300.

Section 2.03      Time and Place of Closing. Upon the terms and subject to the satisfaction or waiver of the conditions contained in this Agreement, the closing of the transactions contemplated by this Agreement (the “Closing”) will take place on a date to be agreed in writing, not later than one (1) Business Day following the satisfaction or waiver of the conditions to Closing set forth in Article III hereof, at the offices of Watson Farley & Williams LLP or at such other place or time as the parties may agree in writing. The date on which the Closing occurs is herein referred to as the “Closing Date” and the Closing shall be deemed to have occurred as of the close of business on the Closing Date.

Section 2.04       Closing Payments and Delivery of Units. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at Closing the Consideration shall be deemed paid in full, and the Company shall issue and deliver the Units, which will separate immediately on issuance into their component Securities, to the Purchaser not later than five (5) Business Days following the date of the Closing.

ARTICLE III

CLOSING

Section 3.01       Deliveries. On or prior to the date of Closing, the Company shall deliver or cause to be delivered to the Purchaser the following:

 

On or prior to the date of Closing, the Purchaser shall deliver or cause to be delivered to the Company:

Section 3.02       Mutual Conditions. The respective obligations of each party to consummate the issuance and sale and the purchase of the Units shall be subject to the satisfaction of each of the following conditions (any or all of which may be waived by a particular party on behalf of itself in writing, in whole or in part, to the extent permitted by applicable law):

(a) no statute, rule, order, decree or regulation shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Authority which temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the transactions contemplated by this Agreement or makes the transactions contemplated hereby illegal;

(b) there shall not be pending any suit, action or proceeding by any Governmental Authority or any person seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement;

(c) written confirmation from the Company’s senior lenders affirming their consent to the amendments of the Loan Facilities described in the Omnibus Loan Supplemental Agreement and the Omnibus Note Supplemental Agreement; and

(d) all other consents, authorizations, waivers, orders and approvals of, notices to, filings or registrations with and the expiration of all waiting periods imposed by, any third person, including any Governmental Authority, which are required for or in connection with the execution and delivery by the parties of this Agreement and the consummation of the transactions contemplated by this Agreement shall have been obtained or made, in form and substance reasonably satisfactory to each of the parties, and shall be in full force and effect.

Section 3.03       Company's Conditions. The obligation of the Company to consummate the issuance and sale of the Units shall be subject to the satisfaction of each of the following conditions (any or all of which may be waived by the Company in writing, in whole or in part, to the extent permitted by applicable law):

 

(a) the representations and warranties of the Purchaser contained in this Agreement shall be true and correct in all material respects at and as of the Closing Date as if made on and as of the Closing Date (except that representations made as of a specific date shall be required to be true and correct as of such date only); and

(b) delivery by the Purchaser of the items set forth in Section 3.01.

Section 3.04         Purchaser's Conditions. The obligation of the Purchaser to consummate the purchase of the Units shall be subject to the satisfaction of each of the following conditions (any or all of which may be waived by the Purchaser in writing, in whole or in part, to the extent permitted by applicable law):

(a) Purchaser's having received the consent of the Senior Lender to the transactions contemplated herein pursuant to the requirement set forth in the Intercreditor Deed; and

(b) delivery by the Company of the items set forth in Section 3.01.

ARTICLE IV

REPRESENTATIONS, WARRANTIES AND

AGREEMENTS OF THE COMPANY

The Company hereby represents and warrants to, and agrees with, the Purchaser, as of the date hereof and as of the Closing Date, as follows:

Section 4.01         Organization. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the Republic of the Marshall Islands, with the requisite power and authority to enter into this Agreement and the transactions contemplated hereby.

Section 4.02         Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action. No other corporate or other action or proceeding on the part of the Company is necessary to authorize this Agreement or the consummation of the transactions contemplated hereby. This Agreement has been duly executed by the Company and, when delivered, will constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors' rights generally, (ii) as limited by laws relating to the availability of a specific performance, injunctive relief or other equitable remedies or (iii) to the extent the indemnification provisions contained in this Agreement may be limited by applicable federal or state securities laws, public policy and other equitable considerations.

Section 4.03         No Conflicts. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby do not and will not, (i) conflict with or violate any provision of its Amended and Restated Articles of Incorporation, as amended, or Third Amended and Restated Bylaws, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any contract to which the Company is a party or by which any property or asset of the Company is bound or affected, (iii) result in a violation of any law, rule, statute or regulation to which the Company is subject (including federal and state securities laws and regulations) or (iv) result in any violation of any order, judgment, injunction, decree or other restriction of any Governmental Authority to which the Company is subject, or by which any property or asset of the Company is bound or affected.

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Section 4.05         Issuance of the Securities; Registration. The Common Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Warrants are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms. The Pre-Funded Warrants are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms. The Warrant Shares are duly authorized and, when issued in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital share the maximum number of Common Shares issuable pursuant to this Agreement and the Warrants.

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Section 4.09         Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty, which could result in a Material Adverse Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.

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ARTICLE V

REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PURCHASER

The Purchaser hereby represents and warrants to, and agrees with, the Company, as of the date hereof and as of the Closing Date, as follows:

Section 5.01         Organization. The Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of the Republic of the Marshall Islands, with the requisite power and authority to enter into this Agreement and the transactions contemplated hereby.

Section 5.02         Authorization; Enforcement. The Purchaser has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Purchaser and the consummation by it of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action. No other corporate or other action or proceeding on the part of the Purchaser is necessary to authorize this Agreement or the consummation of the transactions contemplated by this Agreement. This Agreement has been duly executed by the Purchaser and when delivered, will constitute the valid and binding obligation of the Purchaser enforceable against it in accordance with its terms, except: (i) as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors' rights generally; (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies; or (iii) to the extent the indemnification provisions contained in this Agreement may be limited by applicable federal or state securities laws, public policy and other equitable considerations.

 

Section 5.03         No Conflicts. Subject to the Senior Lender's consent as set forth in Section 3.04, the execution, delivery and performance of this Agreement by the Purchaser and the consummation of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of its articles of incorporation, bylaws or other charter documents; (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any contract to which the Purchaser is a party; (iii) result in a violation of any law, rule, statute or regulation to which the Purchaser is subject (including federal and state securities laws and regulations); or (iv) result in any violation of any order, judgment, injunction, decree or other restriction of any Governmental Authority to which the Purchaser is subject, or by which any respective property or asset of the Purchaser is bound or affected.

Section 5.04         Investment Representations.

(a) Investment Intent. The Purchaser is acquiring the Units for its own account, for investment purposes only and not with a view to or for distributing or reselling the Units or any part thereof, without prejudice, however, to the Purchaser's right at all times to sell or otherwise dispose of all or any part of the Units in compliance with applicable federal and state securities laws. The Purchaser does not have any agreement or understanding, directly or indirectly, with any person to distribute any of the Units.

(b) General Solicitation. The Purchaser is not purchasing the Units as a result of any advertisement, article, notice or other communication regarding the Units published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.

(c) Access to Information. The Purchaser acknowledges that it has had the opportunity to review this Agreement and has been afforded: (i) the reasonable opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the Units and the merits and risks of investing in the Units; (ii) reasonable access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the transactions contemplated hereby.

(d) Independent Investment Decision. The Purchaser has independently evaluated the merits of its decision to acquire the Units pursuant to this Agreement, such decision has been independently made by the Purchaser and the Purchaser confirms that it has only relied on the advice of its own counsel and not on the advice of the Company or its counsel in making such decision.

(e) Reliance upon Representation and Warranties. The Purchaser understands that the Units are being offered and sold to the Purchaser in reliance on exemptions from the registration requirements of United States federal and state securities laws, and that the Company is relying upon the truth and accuracy of, and the compliance by the Purchaser with, the representations, warranties and agreements of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Units.

 

(f) Unregistered Securities. The Purchaser understands that: (a) none of the Units have been registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred, unless: (A) subsequently registered thereunder pursuant to the Registration Rights Agreement or (B) sold in reliance on an exemption therefrom, provided that the Company shall receive an opinion of counsel satisfactory to the Company and its counsel that such registration is not required; and (b) except as shall be provided under the Registration Rights Agreement, neither the Company nor any other person is under any obligation to register the Units under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.

(g) Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which it exercises any Warrants or Pre-Funded Warrants, it will be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act.

ARTICLE VI

OTHER AGREEMENTS

Section 6.01         Waiver; Amendments to Loan Facilities.

(a) Subject to Closing, the Purchaser hereby agrees that all unpaid interest accrued under each of the Loan Facilities through December 31, 2020, including all default interest accrued thereunder as a result of such unpaid interest, in an aggregate amount of $4,349,539.89, shall be deemed paid in full.

(b) The Purchaser hereby agrees that upon application of the $6,500,000 prepayment of the Second Jelco Loan as required as a condition to Closing in Section 3.01, the principal amount of the Second Jelco Loan outstanding following the Closing will be $4,950,000.

(c) Subject to Closing, Purchaser hereby irrevocably and unconditionally waives any and all breaches, including but not limited to breaches of payment provisions, existing or occurring on or before the date hereof under each of the Loan Facilities, and any Default or Event of Default (as defined in the Loan Facilities) under any such agreement arising by reason thereof.

Section 6.02         Amendment Fee

Subject to and payable at Closing, the Company agrees to pay an amendment fee of $1,241,300 in connection with the transactions contemplated herein, and the Purchaser agrees that at Closing, pursuant to Section 2.02(b), such amendment fee shall be deemed paid in full.

Section 6.03         Optional Securities

The Company and the Purchaser agree that the Purchaser shall have the option, exercisable only once by written notice to the Company on or prior to the date which is 45 calendar days from the date on which the Registration Statement required under the Registration Rights Agreement is declared effective by the Commission, to purchase up to 4,285,714 Units, with each Unit consisting of one Common Share (or one Pre-Funded Warrant in lieu thereof at the Purchaser’s option) and one Warrant, at a price of $0.70 per Unit consisting of one Common Share and one Warrant and $0.70 per Unit consisting of one Pre-Funded Warrant and one Warrant, as consideration for which the Purchaser will apply the aggregate purchase price of the Units as a prepayment and reduction of outstanding principal of the Second Jelco Loan (provided that such prepayment will not be deemed to be a payment pursuant to any of clauses 6.1, 6.2, 6.3 or 6.4 of the Omnibus Loan Supplemental Agreement). The Company shall issue and deliver such Units, which will separate immediately on issuance into their component Securities, to the Purchaser not later than five (5) Business Days following the date of delivery of the notice of the exercise of such option.

 

Section 6.04         Warrant Exercise

The Company and the Purchaser agree that the Purchaser shall have the option to elect, by written notice to the Company upon submission of a notice of exercise pursuant to the terms of the Warrants, that the Company shall immediately apply the aggregate exercise price of any cash exercise of the Warrants as a prepayment pursuant to clause 6.3 of the Omnibus Loan Supplemental Agreement or Omnibus Note Supplemental Agreement, as applicable. Upon issuance of the Common Shares upon exercise of Warrants by the Purchaser subject to such an election, the Company will be deemed to have received full payment of the aggregate exercise price, and the Purchaser will be deemed to have received a prepayment of the same amount in the manner set forth in the previous sentence. Notwithstanding the foregoing, the provisions of this Section 6.04 will not apply if, within one (1) Business Day of the date of the Company’s receipt of the Purchaser’s notice hereunder, the Company notifies the Purchaser in writing that an event of default has occurred which is continuing under the Company’s other credit facilities or financing arrangements.

Section 6.05         Warrant Exercise Price Reduction

The Company agrees that, upon any voluntary adjustment to the exercise price of the Class E Warrants issued in the Company’s public offering of units in August 2020 pursuant to Section 3(g) of the Warrant Certificate for such warrants, a corresponding adjustment will be made to the exercise price of the Warrants; provided, however, that no such adjustment shall be made to the extent it would cause an increase in the exercise price of the Warrants.

Section 6.06         Ownership Limitation

Unless approved in advance by the board of directors of the Company, the Purchaser agrees that neither it nor any of its Affiliates acting on behalf of or in concert with the Purchaser (or any of its affiliates) will directly or indirectly acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any Common Shares, or rights or options to acquire Common Shares, such that the Purchaser would beneficially own in excess of 9.99% of the Company’s outstanding common shares and may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the Company. Following the date that the Company’s Common Shares cease to be listed on any Trading Market, the obligation set forth in the previous sentence may be waived by Purchaser providing at least 61 days’ advance written notice to the Company and no board approval shall be required.

Section 6.07         Legend

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.

 

Section 6.08         Indemnification. (a)           The Purchaser agrees to indemnify the Company and its officers, directors, employees, agents, counsel, accountants, and other representatives from, and hold each of them harmless against, any and all losses, actions, suits, proceedings (including any investigations, litigation or inquiries), demands, and causes of action, and promptly upon demand, pay or reimburse each of them for all reasonable costs, losses, liabilities, damages, or expenses of any kind or nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them as a result of, arising out of, or in any way related to a material breach of any of the representations, warranties or covenants of the Purchaser contained herein; provided that the liability of the Purchaser shall not be in an amount greater than One Million Two Hundred Thousand United States Dollars (U.S. $1,200,000), and the Purchaser shall not have any indemnification obligations hereunder for losses directly caused by the Company's gross negligence or willful misconduct.

(b)           Subject to the provisions of this Section 6.08(b), the Company will indemnify and hold Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (x) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (y) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 6.08(b) shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law. Notwithstanding the foregoing, the aggregate liability of the Company under this paragraph shall not be in an amount greater than One Million Two Hundred Thousand United States Dollars (U.S. $1,200,000).

 

Section 6.09         Disclosure. Disclosure to the public or to any third party of the existence or terms of this Agreement and the transactions contemplated hereby and any other information relating to any party hereto shall be at the sole and complete discretion of the Company. The Purchaser acknowledges and the Company agrees that the Company will file this Agreement with the U.S. Securities and Exchange Commission as an exhibit to a Report on Form 6-K in accordance with the rules of the Commission promptly but in no event more than 4 Business Days following public announcement of this Agreement and the transactions contemplated hereby in accordance with the rules of the Trading Market.

Section 6.10         Public Announcements. Except with regard to the Form 6-K required by Section 6.09, the issuance of any press release or any other public statement thereafter with respect to this Agreement and the transactions contemplated hereby shall be at the Company's sole and complete discretion.

Section 6.11         Expenses. The Company shall reimburse up to $30,000 of Purchaser’s costs and expenses incurred in connection with this Agreement, and the Company and Purchaser shall otherwise, except as otherwise provided herein, each bear their own costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby.

Section 6.12         Sales and Transfer Taxes. All sales and transfer taxes (including all stock transfer taxes, if any) incurred in connection with this Agreement and the transactions contemplated hereby will be borne by the Company, and the Company will, at its own expense, file all necessary tax returns and other documentation with respect to all such sales and transfer taxes, and, if required by applicable law, the Purchaser will join in the execution of any such tax returns or other documentation.

Section 6.13         Warrant Shares. If all or any portion of a Warrant or Pre-Funded Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if a Warrant is exercised via cashless exercise more than six months after its issuance, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends.

Section 6.14         Furnishing of Information. Until the earliest of the time that (i) no Purchaser owns Securities or (ii) the Warrants have expired, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all periodic reports which are required to be filed by it pursuant to the Exchange Act, even if the Company is not then subject to the reporting requirements of the Exchange Act.

Section 6.15         Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.

 

ARTICLE VII

MISCELLANEOUS

Section 7.01         Notices. All notices, requests, consents and other communications under this Agreement shall be in writing and shall be deemed delivered (i) upon delivery when delivered personally, (ii) upon receipt if by facsimile transmission (with confirmation of receipt thereof), (iii) upon transmission if such notice or communication is delivered via e-mail at the email address set forth below at or prior to 5:30 p.m. (Athens time) on a Business Day or (iv) one Business Day after being sent via a reputable nationwide overnight courier service guaranteeing next Business Day delivery, in each case to the intended recipient as set forth below:

If to the Company:

154 Vouliagmenis Avenue

166 74 Glyfada

Athens Greece

Attention: Chief Executive Officer

Email: legal@seanergy.gr

Facsimile: +30 210 9638404

With a copy (which shall not constitute notice) to:

Watson Farley & Williams LLP

250 West 55th Street, 31st Floor

New York, New York 10019

Attention: Will Vogel

Email: wvogel@wfw.com

If to the Purchaser:

c/o Western Isles

Jardine House

P.O. Box NM 1431

Hamilton NM FX

 

Bermuda

Attention: Alastair Macdonald

Email: abm@wibda.com

Facsimile: +1441 (296) 0329

Any party may change the address to which notices, requests, consents or other communications hereunder are to be delivered by giving the other parties notice in the manner set forth in this Section 7.01.

Section 7.02         Survival. Each and every representation, warranty, covenant and agreement contained in this Agreement, including the waivers under Section 6.01, or in any document delivered pursuant to or in connection with this Agreement shall survive the Closing indefinitely.

Section 7.03         Further Assurances. Each party agrees that it will execute and deliver, or cause to be executed and delivered, on or after the date of this Agreement, all such other documents and instruments as are reasonably required for the performance of such party's obligations hereunder and will take all commercially reasonable actions as may be necessary to consummate the transactions contemplated hereby and to effectuate the provisions and purposes hereof.

Section 7.04         Successors and Assigns. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns; provided, that none of the parties hereto may assign any of its obligations hereunder without the prior written consent of the other party.

Section 7.05         Entire Agreement. This Agreement constitutes the entire agreement by the parties hereto and supersedes any other agreement, whether written or oral, that may have been made or entered into between them relating to the matters contemplated hereby.

Section 7.06         Amendments and Waivers. This Agreement may be amended, modified, superseded, or canceled, and any of the terms, representations, warranties or covenants hereof may be waived, only by written instrument executed by both of the parties hereto or, in the case of a waiver, by the party waiving compliance.

Section 7.07         Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws principles.

Section 7.09         Waiver of Jury Trial. The parties hereby irrevocably waive trial by jury in any action, proceeding or claim brought by any party hereto or beneficiary hereof on any matter whatsoever arising out of or in any way connected with this Agreement.

 

Section 7.10         Captions; Counterparts, Execution. The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. All such counterparts may be delivered between the parties hereto by facsimile or other electronic transmission, which shall not affect the validity thereof.

Section 7.11         Termination. This Agreement shall terminate upon (a) the mutual written agreement of the Purchaser and the Company, or (b) if the Closing has not occurred by January 7, 2021 (the “Termination Date”). Upon termination neither party shall have any further obligation to the other party pursuant to this Agreement; provided, however, that in the case of a termination pursuant to Section 7.11 (b), the Company shall remain liable for Purchaser’s expenses pursuant to Section 6.11 unless the delay in Closing results from Purchaser’s action or failure to act upon being informed that all of the conditions to Closing had been satisfied and that the Company is prepared to close prior to the Termination Date.

17

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15

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Clause		Page
1	Definitions and Interpretation	3
2	Agreement of the Lender	5
3	Conditions Precedent and Subsequent	5
4	Representations	6
5	Amendments to Facility Agreements	6
6	Omnibus Mandatory Repayment and Prepayment Provisions	8
7	Notices	9
8	Counterparts	9
9	Governing Law	10
10	Enforcement	10
11	Termination	10
Schedules
Schedule 1 Conditions Precedent		11
Execution
Execution Page		12

(3)	EMPEROR HOLDING LTD., a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960, the Marshall Islands (“Emperor”); and

EXECUTION PAGE

BORROWER

SIGNED by		)
duly authorised attorney-in-fact		)
for and on behalf of		)
SEANERGY MARITIME HOLDINGS CORP.		)
in the presence of:		)
Witness' signature:		)
Witness' name:		)
Witness' address:		)

OWNER

SIGNED by		)
duly authorised attorney-in-fact		)
for and on behalf of		)
PARTNER SHIPPING CO. LIMITED		)
in the presence of:		)
Witness' signature:		)
Witness' name:		)
Witness' address:		)

EMPEROR

SIGNED by		)
duly authorised attorney-in-fact		)
for and on behalf of		)
EMPEROR HOLDING LTD.		)
in the presence of:		)
Witness' signature:		)
Witness' name:		)
Witness' address:		)

LENDER

SIGNED by		)
duly authorised attorney-in-fact		)
for and on behalf of		)
JELCO DELTA HOLDING CORP.		)
in the presence of:		)
Witness' signature:		)
Witness' name:		)
Witness' address:		)

12

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Dated December ______, 2020

SEANERGY MARITIME HOLDINGS CORP.

as Borrower

and

JELCO DELTA HOLDING CORP.

as Lender

OMNIBUS SUPPLEMENTAL AGREEMENT

relating to

(1) a convertible promissory note in the principal amount of US$4,000,000

(2) a revolving convertible promissory note in the principal amount of up to US$6,765,000

(3) a convertible promissory note in the principal amount of US$13,750,000

Index

 

 

THIS OMNIBUS SUPPLEMENTAL AGREEMENT is made on ______,  2020 (this “Agreement”)

PARTIES

BACKGROUND

OPERATIVE PROVISIONS

In this Agreement:

“Cash and Cash Equivalents” means, in relation to a fiscal quarter, the sum of all cash and cash equivalents  of the Borrower and its subsidiaries on a consolidated basis as of the end of that fiscal quarter reported either (i) in its quarterly publicly disclosed financial statements, or (ii) in the certificate certified by a director of the Borrower  provided to the Lender in accordance with clause 6.2.

“Convertible Notes” means, collectively, the First Jelco Convertible Note, the Second Jelco Convertible Note and the Third Jelco Convertible Note.

“Effective Date” means the date on which the conditions precedent in Schedule 1 (Conditions Precedent) are satisfied or waived by the Lender.

“Facility Agreements” means, collectively, (i) that certain loan agreement dated October 4, 2016 (as may have been amended, amended and restated, and/or supplemented from time to time), (ii) that certain loan agreement dated May 24, 2017 (as may have been amended, amended and restated, and/or supplemented from time to time) and (iii) that certain loan agreement dated March 26, 2019 (as may have been amended, amended and restated, and/or supplemented from time to time), each made between the Borrower as borrower and the Lender as lender.

“First Jelco Convertible Note” means that certain Convertible Promissory Note dated as of March 12, 2015, as amended by Amendment No. 1 dated as of May 14, 2015, as supplemented by a mutual consent dated September 18, 2017, as further amended by Amendment No. 2 dated as of September 18, 2017, as further amended by Amendment No. 3 dated as of March 26, 2019 and as further amended by Amendment No. 4 dated May 29, 2019.

“Guarantors” means Emperor and the Owner.

“Guarantees” means the Guarantee dated June 13, 2018 between Emperor and the Lender with respect to the First Jelco Loan Agreement, the Guarantee dated May 24, 2017 between Emperor and the Lender with respect to the Second Jelco Loan Agreement, the Guarantee dated March 26, 2019 between Emperor and the Lender with respect to the Fourth Jelco Loan Agreement, and the Guarantee dated February 15, 2019 between the Owner and the Lender.

“Obligors” means the Borrower, the Owner and Emperor.

“Omnibus Loan Supplemental Agreement” means that certain agreement dated the date hereof among the Lender and the Borrower under the Facility Agreements, a copy of which is attached hereto as Exhibit A.

“Party” means a party to this Agreement.

“Seanergy Capesize Fleet” means at any given time, all dry bulk vessels of greater than 150,000 dwt owned by the Borrower or any of its subsidiaries or operated by the Borrower or any of its subsidiaries as lessees under finance leases.

“Second Jelco Convertible Note” means that certain Revolving Convertible Promissory Note dated as of September 7, 2015, as amended by an Amendment dated as of December 1, 2015, further amended by a Second Amendment dated as of December 14, 2015, further amended by a Third Amendment dated as of January 27, 2016, further amended by a Fourth Amendment dated as of March 7, 2016, further amended by a Fifth Amendment dated as of April 21, 2016, further amended by a Sixth Amendment dated as of May 17, 2016, further amended by a Seventh Amendment dated as of June 16, 2016, further amended by an Eighth Amendment dated as of March 28, 2017, supplemented by a mutual consent dated September 8, 2017, further amended by a Ninth Amendment dated as of September 27, 2017, further amended by a Tenth Amendment dated September 1, 2018, further amended by an Eleventh Amendment dated as of March 26, 2019 and as further amended by a Twelfth Amendment dated as of May 29, 2019.

“SPA” means the Securities Purchase Agreement dated on or about the date of this Agreement and made between the Borrower and the Lender.

“Third Jelco Convertible Note” means that certain Convertible Promissory Note, dated as of September 27, 2017, as amended by an Amendment dated as of February 13, 2019 and as further amended by a Second Amendment dated as of May 29, 2019.

Defined expressions in each of the Convertible Notes shall have the same meanings when used in this Agreement unless the context otherwise requires or unless otherwise defined in this Agreement.

The Lender agrees, with effect from the Effective Date and subject to and upon the terms and conditions of this Agreement to:

The Parties agree, subject to and upon the terms and conditions of this Agreement, to the consequential amendment of each of the Convertible Notes in connection with the matters referred to in clause 2.1 (Agreement of the Lender).

The agreement of the Lender contained in clause 2.1 (Agreement of the Lender) shall have effect on and from the Effective Date.

The agreement of the Lender contained in clause 2.1 (Agreement of the Lender) is subject to the Lender having received (or waived receipt of) all of the documents and other evidence listed in Schedule 1 (Conditions Precedent) in form and substance satisfactory to the Lender on or before the Effective Date.

The parties to the Intercreditor Agreement (as such term is defined in the SPA) enter into an amendment to the Intercreditor Agreement to reflect the amendments to the relevant Convertible Notes contemplated hereby as soon as reasonably practicable after the Effective Date, but in any event no later than 7^th January 2021, it being understood that each of the parties hereto shall use commercially reasonable efforts to effect such amendment in a timely manner.

With effect on and from the Effective Date, each of the Convertible Notes shall be, and shall be deemed by this Agreement to have been, amended as follows:

“1.4          “Maturity Date” shall mean December 31, 2024.”;

“1.6          “SPA” means a securities purchase agreement dated on or about December 30, 2020 and made between the Borrower and the Lender;”;

“3.           Interest. The Maker shall pay interest on the principal amount of this Note, which shall accrue from the Closing Date (as defined in the SPA) until payment to the Holder of all amounts payable under this Note  at a rate equal to 5.5% per annum (the “Interest Rate”). Interest shall be payable to the Holder quarterly with the last interest payment falling due for payment on the date on which all amounts payable to the Holder under this Note are paid to the Holder. In case the date of an interest payment is not a business day, the relevant interest shall be payable on the next following business day. All interest payable under this Note shall accrue from day to day and be calculated on the basis of actual days elapsed and a 360-day year. Notwithstanding the above, the last interest period shall end on the date on which all amounts payable to the Holder under this Note are paid to the Holder. In the event of a failure by the Maker to pay any amount on the date on which such amount is due and payable pursuant to this Note and irrespective of any notice by the Holder or any other person to the Maker in respect of such failure, the Maker shall pay interest on such amount on demand from the date of such default up to the date of actual payment at the per annum rate which is the aggregate of: (a) two point fifty per cent (2.50%); and (b) the Interest Rate.”;

“7.1          Conversion. The Holder may by notice in writing to the Maker elect at any time to convert the whole or any part of the then remaining Repayment Instalments or the Balloon Instalment or the principal amount of this Note into a number of fully paid and nonassessable shares of the Maker Common Stock (“Common Shares,” and such number of Common Shares issuable on conversion, the “Conversion Shares”) equal to the amount of the Repayment Instalments and Balloon Instalment being converted divided by a conversion price equal to $1.20 per share, as such conversion price may be adjusted pursuant to the terms hereof or by any other conversion price to be agreed in writing between the Maker and the Holder (the “Conversion Price”).

The Maker shall not effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, pursuant to this Section 7.1 or otherwise, to the extent that after giving effect to such issuance after conversion as set forth on the applicable notice of conversion, the Holder (together with the Holder’s Affiliates (as defined below), and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).  For purposes of the foregoing sentence, the number of Common Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Common Shares issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of Common Shares which would be issuable upon (i) conversion of the remaining, unconverted portion of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) conversion or conversion of the unexercised or nonconverted portion of any other securities of the Maker subject to a limitation on conversion or conversion analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties.  Except as set forth in the preceding sentence, for purposes of this Section 7.1, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Maker is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith.   To the extent that the limitation contained in this Section 7.1 applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a notice of conversion shall be deemed to be the Holder’s determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Maker shall have no obligation to verify or confirm the accuracy of such determination.   In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 7.1, in determining the number of outstanding Common Shares, a Holder may rely on the number of outstanding Common Shares as reflected in (A) the Maker’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Maker or (C) a more recent written notice by the Maker or the Maker’s transfer agent setting forth the number of Common Shares outstanding.  Upon the written or oral request of a Holder, the Maker shall within one business day confirm orally and in writing to the Holder the number of Common Shares then outstanding.  In any case, the number of outstanding Common Shares shall be determined after giving effect to the conversion or conversion of securities of the Maker, including this Note, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding Common Shares was reported. “Affiliate” means any person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a person, as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended. The “Beneficial Ownership Limitation” shall be 9.99% of the number of the Common Shares outstanding immediately after giving effect to the issuance of Common Shares issuable upon conversion of this Note.  “Trading Market” means any of the following markets or exchanges: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing). The Holder, upon notice to the Maker, may increase or decrease the Beneficial Ownership Limitation for the purpose of this Section 7.1, provided that, with respect to any increase in the Beneficial Ownership Limitation noticed prior to the date that the Company’s Common Shares cease to be listed on any Trading Market, the Beneficial Ownership Limitation shall in no event exceed 9.99% of the number of the Common Shares outstanding immediately after giving effect to the issuance of Common Shares upon conversion of this Note held by the Holder and the provisions of this Section 7.1 shall continue to apply.  Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Maker.  The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 7.1 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Note.”;

“1.8          “Maturity Date” shall mean December 31, 2024.”;

“1.9          “SPA” means a securities purchase agreement dated on or about December 30, 2020 and made between the Borrower and the Lender;”;

“3.           Interest. The Maker shall pay interest on the principal amount of this Note, which shall accrue from the Closing Date (as defined in the SPA) until payment to the Holder of all amounts payable under this Note  at a rate equal to 5.5% per annum (the “Interest Rate”). Interest shall be payable to the Holder quarterly with the last interest payment falling due for payment on the date on which all amounts payable to the Holder under this Note are paid to the Holder. In case the date of an interest payment is not a business day, the relevant interest shall be payable on the next following business day. All interest payable under this Note shall accrue from day to day and be calculated on the basis of actual days elapsed and a 360-day year. Notwithstanding the above, the last interest period shall end on the date on which all amounts payable to the Holder under this Note are paid to the Holder. In the event of a failure by the Maker to pay any amount on the date on which such amount is due and payable pursuant to this Note and irrespective of any notice by the Holder or any other person to the Maker in respect of such failure, the Maker shall pay interest on such amount on demand from the date of such default up to the date of actual payment at the per annum rate which is the aggregate of: (a) two point fifty per cent (2.50%); and (b) the Interest Rate.”;

“10.1          Conversion. The Holder may by notice in writing to the Maker elect at any time to convert the whole or any part of the then remaining Repayment Instalments or the Balloon Instalment or the principal amount of this Note into a number of fully paid and nonassessable shares of the Maker Common Stock (the “Conversion Shares”) equal to the amount of the remaining Repayment Instalments and Balloon Instalment being converted divided by a conversion price equal to $1.20 per share, as such conversion price may be adjusted pursuant to the terms hereof or by any other conversion price to be agreed in writing between the Maker and the Holder (the “Conversion Price”).

The Maker shall not effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, pursuant to this Section 10.1 or otherwise, to the extent that after giving effect to such issuance after conversion as set forth on the applicable notice of conversion, the Holder (together with the Holder’s Affiliates (as defined below), and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).  For purposes of the foregoing sentence, the number of Common Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Common Shares issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of Common Shares which would be issuable upon (i) conversion of the remaining, unconverted portion of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) conversion or conversion of the unexercised or nonconverted portion of any other securities of the Maker subject to a limitation on conversion or conversion analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties.  Except as set forth in the preceding sentence, for purposes of this Section 10.1, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Maker is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith.   To the extent that the limitation contained in this Section 10.1 applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a notice of conversion shall be deemed to be the Holder’s determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Maker shall have no obligation to verify or confirm the accuracy of such determination.   In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 10.1, in determining the number of outstanding Common Shares, a Holder may rely on the number of outstanding Common Shares as reflected in (A) the Maker’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Maker or (C) a more recent written notice by the Maker or the Maker’s transfer agent setting forth the number of Common Shares outstanding.  Upon the written or oral request of a Holder, the Maker shall within one business day confirm orally and in writing to the Holder the number of Common Shares then outstanding.  In any case, the number of outstanding Common Shares shall be determined after giving effect to the conversion or conversion of securities of the Maker, including this Note, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding Common Shares was reported. “Affiliate” means any person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a person, as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended. The “Beneficial Ownership Limitation” shall be 9.99% of the number of the Common Shares outstanding immediately after giving effect to the issuance of Common Shares issuable upon conversion of this Note.  “Trading Market” means any of the following markets or exchanges: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing). The Holder, upon notice to the Maker, may increase or decrease the Beneficial Ownership Limitation for the purpose of this Section 10.1, provided that, with respect to any increase in the Beneficial Ownership Limitation noticed prior to the date that the Company’s Common Shares cease to be listed on any Trading Market, the Beneficial Ownership Limitation shall in no event exceed 9.99% of the number of the Common Shares outstanding immediately after giving effect to the issuance of Common Shares upon conversion of this Note held by the Holder and the provisions of this Section 10.1 shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Maker.  The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 10.1 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Note.”;

“1.11          “Maturity Date” means December 31, 2024.”;

“1.23          “SPA” means a securities purchase agreement dated on or about December 30, 2020 and made between the Borrower and the Lender;”;

“3.           Interest. The Maker shall pay interest on the principal amount of this Note, which shall accrue from the Closing Date (as defined in the SPA) until payment to the Holder of all amounts payable under this Note  at a rate equal to 5.5% per annum (the “Interest Rate”). Interest shall be payable to the Holder quarterly with the last interest payment falling due for payment on the date on which all amounts payable to the Holder under this Note are paid to the Holder. In case the date of an interest payment is not a business day, the relevant interest shall be payable on the next following business day. All interest payable under this Note shall accrue from day to day and be calculated on the basis of actual days elapsed and a 360-day year. Notwithstanding the above, the last interest period shall end on the date on which all amounts payable to the Holder under this Note are paid to the Holder. In the event of a failure by the Maker to pay any amount on the date on which such amount is due and payable pursuant to this Note and irrespective of any notice by the Holder or any other person to the Maker in respect of such failure, the Maker shall pay interest on such amount on demand from the date of such default up to the date of actual payment at the per annum rate which is the aggregate of: (a) two point fifty per cent (2.50%); and (b) the Interest Rate.”; and

“10.1          Conversion. The Holder may by notice in writing to the Maker elect at any time to convert the whole or any part of the then remaining Repayment Instalments or the Balloon Instalment or the principal amount of this Note into a number of fully paid and nonassessable shares of the Maker Common Stock (the “Conversion Shares”) equal to the amount of the remaining Repayment Instalments and Balloon Instalment being converted divided by a conversion price equal to $1.20 per share, as such conversion price may be adjusted pursuant to the terms hereof or by any other conversion price to be agreed in writing between the Maker and the Holder (the “Conversion Price”).

The Maker shall not effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, pursuant to this Section 10.1 or otherwise, to the extent that after giving effect to such issuance after conversion as set forth on the applicable notice of conversion, the Holder (together with the Holder’s Affiliates (as defined below), and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).  For purposes of the foregoing sentence, the number of Common Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Common Shares issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of Common Shares which would be issuable upon (i) conversion of the remaining, unconverted portion of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) conversion or conversion of the unexercised or nonconverted portion of any other securities of the Maker subject to a limitation on conversion or conversion analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties.  Except as set forth in the preceding sentence, for purposes of this Section 10.1, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Maker is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith.   To the extent that the limitation contained in this Section 10.1 applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a notice of conversion shall be deemed to be the Holder’s determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Maker shall have no obligation to verify or confirm the accuracy of such determination.   In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 10.1, in determining the number of outstanding Common Shares, a Holder may rely on the number of outstanding Common Shares as reflected in (A) the Maker’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Maker or (C) a more recent written notice by the Maker or the Maker’s transfer agent setting forth the number of Common Shares outstanding.  Upon the written or oral request of a Holder, the Maker shall within one business day confirm orally and in writing to the Holder the number of Common Shares then outstanding.  In any case, the number of outstanding Common Shares shall be determined after giving effect to the conversion or conversion of securities of the Maker, including this Note, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding Common Shares was reported. “Affiliate” means any person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a person, as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended. The “Beneficial Ownership Limitation” shall be 9.99% of the number of the Common Shares outstanding immediately after giving effect to the issuance of Common Shares issuable upon conversion of this Note.  “Trading Market” means any of the following markets or exchanges: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing). The Holder, upon notice to the Maker, may increase or decrease the Beneficial Ownership Limitation for the purpose of this Section 10.1, provided that, with respect to any increase in the Beneficial Ownership Limitation noticed prior to the date that the Company’s Common Shares cease to be listed on any Trading Market, the Beneficial Ownership Limitation shall in no event exceed 9.99% of the number of the Common Shares outstanding immediately after giving effect to the issuance of Common Shares upon conversion of this Note held by the Holder and the provisions of this Section 10.1 shall continue to apply.  Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Maker.  The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 10.1 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Note.”

The Guarantors:

With effect on and from the Effective Date, each of the Partnership Finance Documents shall be amended so that any references to the Third Jelco Convertible Note shall be construed as a reference to the Third Jelco Convertible Note as amended and supplemented by this Agreement and the Partnership Finance Documents shall remain in full force and effect.

Each of the Obligors confirms that:

Notwithstanding anything to the contrary contained in any of the Convertible Notes, the Borrower hereby agrees as follows, provided that any payment obligation of the Borrower under any of clauses 6.1, 6.2, 6.3 and 6.4 hereof will arise only when the liabilities under the Facility Agreements to which payments made pursuant to the corresponding clause of the Omnibus Loan Supplemental Agreement would be applied are fully repaid, and any payment obligation of the Borrower under any of clauses 6.1, 6.2, 6.3 and 6.4 hereof will be reduced by the amount of the payments made in satisfaction of the corresponding payment obligation under the Omnibus Loan Supplemental Agreement, and, notwithstanding anything to the contrary herein, this clause 6 will not be construed to create an equal and independent payment obligation arising out of the same circumstances as a payment obligation arising under clause 6 of the Omnibus Loan Supplemental Agreement:

The Borrower shall make the following mandatory payments to the Lender to be applied in accordance with clause 2.1(c) hereof, as follows:

The Borrower shall make mandatory prepayments under each Convertible Note to the Lender to be applied in accordance with clause 2.1(c) hereof, as follows:

Within five (5) Banking Days of the earlier of (i) the public disclosure of the Borrower’s financial results for each of the first and third fiscal quarters of any fiscal year or (ii) the Reporting Date (as defined below) following each such fiscal quarter, an amount equal to the greater of (X) provided that the actual average time charter equivalent rate of the Seanergy Capesize Fleet for that fiscal quarter and the immediately preceding fiscal quarter as calculated by the Borrower (which must be in accordance with methodology applied by the Borrower in its financial results in the financial year preceding to the date of this Agreement) and reported in its financial results (the “TCE Rate”) is at least US$18,000, the product of (a) the lesser of (i) the difference between US$18,000 and the TCE Rate and (ii) US$3,000, multiplied by (b) the aggregate operating days as calculated by the Borrower and reported in its financial results of the Seanergy Capesize Fleet for that fiscal quarter and the immediately preceding fiscal quarter and (Y) the Cash and Cash equivalents as at the end of that fiscal quarter in excess of US$25,000,000.

The first testing period will be the six-month period ending March 31, 2021, and the following testing periods will be each six-month period thereafter ending on March 31 and September 30 of each year during the Security Period. If the Borrower has not previously publicly disclosed its quarterly financial results with respect to the two fiscal quarters constituting a particular testing period by the date that is 90  days after the end of such testing period (the “Reporting Date”), it will, on or before the Reporting Date, provide certificates with sufficient detail to support the calculation of any payments to be made under this clause 6.2 with respect to such testing period, certified by a director of the Borrower, which will include supporting management accounts..

In the event Lender exercises its option pursuant to Section 6.04 of the SPA to deem the aggregate price payable on exercise of the warrants with US$0.70 to be applied as a prepayment under the Convertible Notes, then such deemed payment shall be deemed a prepayment under each of the Convertible Notes to be applied in accordance with clause 2.1(c) hereof.

The Borrower shall be obliged to prepay an amount equal to 25 per cent. of (a) the net proceeds from the cash exercise of the Class E Warrants outstanding on the date hereof and (b) the net proceeds of any public offering of securities (including any registered direct offering) concluded by the Borrower following the Effective Date, in each case (save where the following proviso applies) payable promptly on receipt by the Borrower of those proceeds, the proceeds of which shall be applied in accordance with clause 2.1(c)(ii) hereof provided that payments from proceeds of warrant exercises shall be made within five (5) Banking Days following the fiscal quarter in which a warrant is exercised, and then only with respect to proceeds from warrant exercises which aggregate to US$2,000,000 or more since (i) with respect to the first such payment, the Effective Date hereof, and (ii) with respect to any subsequent payment, the end of the fiscal quarter with respect to which a payment had last been made under this clause 6.4. For the avoidance of doubt, in the event the aggregate proceeds from any exercise of warrants during (i) a fiscal quarter and (ii) all preceding fiscal quarters which have been carried forward in accordance with this clause 6.4, are less than US$2,000,000, and as a result, no payment is required at the end of such fiscal quarter under the terms of this clause 6.4, the relevant proceeds shall carry forward to, and be aggregated with the proceeds of any subsequent fiscal quarters for purposes of calculating the next payment under this clause 6.4.

Notwithstanding the foregoing, any amount payable pursuant to clauses 6.1, 6.2, 6.3 and 6.4, when aggregated with all such amounts paid pursuant to clauses 6.1, 6.2, 6.3 and 6.4 in the 12-month period ending on and including 31 December in the relevant year, shall not exceed US$12,000,000.

Notwithstanding anything contained in any of the Convertible Notes to the contrary, no prepayment fee or similar prepayment penalty shall be applicable to any amounts paid under this clause 6.

The relevant notice provisions under each of the Convertible Notes, as applicable apply to this Agreement as if expressly incorporated herein with any necessary modifications.

This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.

This Agreement and any non-contractual obligations arising out of or in connection with it are governed by laws of the State of New York.

Any dispute regarding this Agreement shall be exclusively referred to arbitration in London and conducted in accordance with the Arbitration Act 1996 (England and Wales) or any statutory modification or re-enactment thereof, and the parties agree to submit to the personal and exclusive jurisdiction and venue of such arbitrators. Any and all disputes hereunder shall be referred by the parties hereto to three arbitrators, each party to appoint one arbitrator and the two so appointed shall appoint the third who shall and as chairman of such panel of arbitrators.  Upon receipt by one party of the nomination in writing of such other party's arbitrator, that party shall appoint its arbitrator within ten days, failing which the decision of the single arbitrator appointed shall apply. The two arbitrators so appointed shall appoint the third arbitrator within ten days, failing which the third arbitrator shall be appointed by the President of the London Maritime Arbitrators Association (“LMAA”) at the time within twenty one days of the two arbitrators being appointed. The arbitration shall be conducted in accordance with the terms of the LMAA then in effect.  The parties agree that any tribunal constituted under this Agreement shall have the power to order consolidation of proceedings or concurrent hearings in relation to any and all disputes arising out of or in connection with this Note or the other documents contemplated thereby, which involve common questions of fact or law, and to make any orders ancillary to the same, including, without limitation, any orders relating to the procedures to be followed by the parties in any such consolidated proceedings or concurrent hearings. Consolidated disputes are to be heard by a maximum of three arbitrators, each party to have the right to appoint one arbitrator. In case a dispute arises as to whether consolidation is appropriate (including without limitation conflicting orders of relevant tribunals) and/or as to the constitution of the tribunal for any such consolidated proceedings, each party shall have the right to apply to the President for the time being of the LMAA for final determination of the consolidation of the proceedings and/or constitution of such tribunal.

If the SPA is terminated because the Closing Date (as defined in the SPA) does not occur on or before 7^th January 2021 then this Agreement shall thereupon terminate and be deemed to be null and void thereafter.

This Agreement has been entered into on the date stated at the beginning of this Agreement.

SCHEDULE 1

CONDITIONS PRECEDENT

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“First Jelco Note” means that certain convertible promissory note dated March 12, 2015, as amended by an amendment no. 1 dated May 14, 2015, as supplemented by a mutual consent dated September 18, 2017, as amended by an amendment no. 2 dated September 18, 2017, as further amended by an amendment no. 3 dated March 26, 2019, and as further amended by Amendment No. 4 dated May 29, 2019, made by the Company in favor of the Purchaser, relating to an original amount of $4,000,000, with an outstanding principal amount of $3,800,000 as of the date hereof.

 

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“Second Jelco Note” means that certain revolving convertible promissory note dated September 7, 2015, as amended by an amendment dated December 1, 2015, as amended by a second amendment dated December 14, 2015, as amended by a third amendment dated January 27, 2016, as amended by a fourth amendment dated March 7, 2016, as amended by a fifth amendment dated April 21, 2016, as amended by a sixth amendment dated May 17, 2016, as amended by a seventh amendment dated June 16, 2016, as amended by an eighth amendment dated March 28, 2017, as supplemented by a mutual consent dated September 8, 2017, as amended by a ninth amendment dated September 27, 2017, as amended by a tenth amendment dated September 1, 2018, as further amended by an eleventh amendment dated March 26, 2019, and as further amended by a Twelfth Amendment dated as of May 29, 2019, made by the Company in favor of the Purchaser, relating to an original amount of $6,765,000 that was subsequently raised to $24,665,000, with an outstanding principal amount of $21,165,000 as of the date hereof.

“Suspension Certificate” shall have the meaning set forth in Section 6(d).

 

“Third Jelco Note” means that certain convertible promissory note dated September 27, 2017, as amended by an amendment dated February 13, 2019 and as further amended by a Second Amendment dated as of May 29, 2019, made by the Company in favor of the Purchaser, relating to an original amount of $13,750,000, with an outstanding principal amount of $13,750,000 as of the date hereof.

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 If to the Company:

 

154 Vouliagmenis Avenue

166 74 Glyfada

Athens Greece

Attention: Chief Executive Officer

Email: legal@seanergy.gr

Facsimile: +30 210 9638404

 

 

With a copy (which shall not constitute notice) to:

 

Watson Farley & Williams LLP
250 West 55th Street, 31st Floor
New York, New York 10019
Attention:  Will Vogel

Email: wvogel@wfw.com

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