exv10w4






Exhibit 10.4




Private and Confidential




Date 28 January 2011




KOHYLIA SHIPMANAGEMENT S.A.

and

DUCALE MARINE INC.

as Borrowers



EMPORIKI BANK OF GREECE S.A.

as Bank



 





SUPPLEMENTAL AGREEMENT

 





in relation to a Facility Agreement dated 28 August 2009 (as amended)

for a term loan facility of up to US$75,000,000








PIRAEUS




 









 





Index




	 	 	 	 	 	 	 
	Clause	 	Page No
	 	 	 
	 	 	 	 
	1	 	INTERPRETATION
	 	 	2	 
	 	 	 
	 	 	 	 
	2	 	AGREEMENT OF THE BANK
	 	 	2	 
	 	 	 
	 	 	 	 
	3	 	CONDITIONS PRECEDENT
	 	 	2	 
	 	 	 
	 	 	 	 
	4	 	REPRESENTATIONS AND WARRANTIES
	 	 	3	 
	 	 	 
	 	 	 	 
	5	 	AMENDMENTS TO FACILITY AGREEMENT AND OTHER
SECURITY DOCUMENTS
	 	 	4	 
	 	 	 
	 	 	 	 
	6	 	FURTHER ASSURANCES
	 	 	4	 
	 	 	 
	 	 	 	 
	7	 	FEES AND EXPENSES
	 	 	5	 
	 	 	 
	 	 	 	 
	8	 	NOTICES AND OTHER MATTERS
	 	 	5	 
	 	 	 
	 	 	 	 
	9	 	SUPPLEMENTAL
	 	 	5	 
	 	 	 
	 	 	 	 
	10	 	LAW AND JURISDICTION
	 	 	5	 
	 	 	 
	 	 	 	 
	SCHEDULE — Indenture Excerpt	 	 	8	 






 









 





THIS AGREEMENT is made on 28 January 2011




BETWEEN





	(1)	 	KOHYLIA SHIPMANAGEMENT S.A. and DUCALE MARINE INC. as Borrowers; and
	 
	(2)	 	EMPORIKI BANK OF GREECE S.A. as Bank.





BACKGROUND





	(A)	 	By a Facility Agreement dated 28 August 2009 as amended by a supplemental agreement dated 16
November 2010 and made between the parties hereto, the Bank made available to the Borrowers a
term loan of (originally) up to US$75,000,000.
	 
	(B)	 	The Borrowers have made a request to the Bank that it agrees to the Borrowers issuing
guarantees of the notes pursuant to that certain indenture dated 28 January 2011 issued by the
Corporate Guarantor, Navios Maritime Finance II (US) Inc. and the guarantors party thereto,
including the Borrowers, for US$350,000,000 of 8 1/8% Senior Notes due on 15 February 2019
(with the proceeds thereof being used to repurchase and/or redeem the Corporate Guarantor’s
9.5% Senior Notes due 2014 and to pay related fees and expenses and for general corporate
purposes).
	 
	(C)	 	This Agreement sets out the terms and conditions on which the Bank agrees, with effect on and
from the Effective Date, to the Borrowers issuing the guarantees referred to above and the
consequential amendments to the Facility Agreement.





IT IS AGREED as follows:





	1	 	INTERPRETATION
	 
	1.1	 	Defined expressions. Words and expressions defined in the Facility Agreement shall have the
same meanings when used in this Agreement unless the context otherwise requires.
	 
	1.2	 	Definitions. In this Agreement, unless the contrary intention appears:
	 
	 	 	“Effective Date” means the Banking Day on which all the conditions precedent referred to in
Clause 3.1 have been fulfilled by the Borrower; and
	 
	 	 	“Facility Agreement” means the Facility Agreement referred to in Recital (A); and
	 
	1.3	 	Application of construction and Interpretation provisions of Facility Agreement. Clauses
1.3, 1.4 and 1.5 of the Facility Agreement apply, with any necessary modifications, to this
Agreement.
	 
	2	 	AGREEMENT OF THE BANK
	 
	2.1	 	Bank’s consent. The Bank hereby agrees to the amendments to the Facility Agreement set out in
Clause 5 and to the Borrowers issuing guarantees under the indenture referred to in Recital
(B) on condition that:
	 
	2.1.1	 	the Agent, or its authorised representative, has received the documents and
evidence specified in Clause 3.1 in form and substance satisfactory to the Agent; and
	 
	2.1.2	 	the representations and warranties contained in clause 4 are then true and correct
as if each was made with respect to the facts and circumstances existing at such time; and
	 
	3	 	CONDITIONS PRECEDENT




 









 












	3.1	 	Conditions precedent to the new indenture. The conditions referred to in Clause 2.1 are that
the Agent shall have received the following documents:
	 
	(a)	 	Corporate documents
	 
	 	 	Certified Copies of all documents which evidence or relate to the constitution of each
Borrower and its current corporate existence;
	 
	(b)	 	Corporate authorities






	 	(i)	 	Certified Copies of resolutions of the directors of each of the Borrowers
approving this Supplemental Agreement and authorising the execution and delivery
thereof and performance of the Borrowers’ obligations thereunder, additionally
certified by an officer of such Borrower as having been duly passed at a duly convened
meeting of the directors of such Borrower and not having been amended, modified or
revoked and being in full force and effect; and
	 
	 	(ii)	 	originals or Certified Copies of any powers of attorney issued by any
Borrower pursuant to such resolutions






	(c)	 	Certificate of incumbency
	 
	 	 	a list of directors and officers of each Borrower, specifying the names and positions of
such persons, certified by an officer of such Borrower to be true, complete and up to date;
	 
	(d)	 	Laws of the Marshall Islands: opinion
	 
	 	 	an opinion of Messrs Cozen O’Connor, special legal advisers in New York to the
Bank;
	 
	(e)	 	London agent
	 
	 	 	documentary evidence that the agent for service of process named in clause 19 of the
Facility Agreement has accepted its appointment in respect of this Agreement;
	 
	(f)	 	Acknowledgment
	 
	 	 	an acknowledgement (in a letter or otherwise) signed by each Security Party (other than the
Borrower) in such form as the Bank may require in its sole discretion acknowledging the
terms of this Agreement; and
	 
	(g)	 	Further opinions, etc
	 
	 	 	any further opinions, consents, agreements and documents in connection with this Agreement
and the Security Documents which the Agent may request by notice to the Borrowers prior to
the Effective Date.
	 
	4	 	REPRESENTATIONS AND WARRANTIES
	 
	4.1	 	Repetition of Facility Agreement representations and warranties. Each Borrower represents and
warrants to the Bank that the representations and warranties in clause 7 of the Facility
Agreement, as amended and supplemented by this Agreement and updated with appropriate
modifications to refer to this Agreement, remain true and not misleading if repeated on the
date of this Agreement with reference to the circumstances now existing.




 









 












	5	 	AMENDMENTS TO FACILITY AGREEMENT AND OTHER SECURITY DOCUMENTS
	 
	5.1	 	Specific amendments to Facility Agreement. With effect on and from the Effective Date the
Facility Agreement shall be, and shall be deemed by this Agreement to be, amended as follows:






	 	(a)	 	by deleting in the definition of “Indenture” in Clause 1.1 the words “18
December 2006 issued by the Borrowers and the Corporate Guarantor for 9 1/2% Senior
Notes due on 18 December 2014” and replacing them with the words “28 January 2011
issued by the Corporate Guarantor, Navios Maritime Finance II (US) Inc. and the
guarantors party thereto (including the Borrowers) for 8 1/8% Senior Notes due on 15
February 2019”;
	 
	 	(b)	 	by deleting the Indenture Excerpt from Schedule 3 and replacing it with the
Indenture Excerpt set out in the Schedule attached to this Agreement.
	 
	 	(c)	 	by construing references throughout to “this Agreement”, “hereunder” and
other like expressions as if the same referred to the Facility Agreement as amended
and supplemented by this Agreement.






	5.2	 	Amendments to Security Documents. With effect on and from the Effective Date each of the
Security Documents other than the Facility Agreement, shall be, and shall be deemed by this
Agreement to be, amended as follows:






	 	(a)	 	the definition of, and references throughout each of the Security Documents
to, the Facility Agreement and any of the other Security Documents shall be construed
as if the same referred to the Facility Agreement and those Security Documents as
amended and supplemented by this Agreement;
	 
	 	(b)	 	by construing references throughout each of the Security Documents to “this
Agreement”, “this Deed”, “hereunder” and other like expressions as if the same
referred to such Security Documents as amended and supplemented by this Agreement.






	5.3	 	Security Documents to remain In full force and effect. The Security Documents shall remain
in full force and effect as amended and supplemented by:






	 	(a)	 	the amendments to the Security Documents contained or referred to in
Clauses 5.1 and 5.2; and
	 
	 	(b)	 	such further or consequential modifications as may be necessary to give
full effect to the terms of this Agreement.






	6	 	FURTHER ASSURANCES
	 
	6.1	 	Borrower’s obligation to execute further documents etc. The Borrowers shall, and shall
procure that any other party to any Security Document shall:






	 	(a)	 	execute and deliver to the Agent (or as it may direct) any assignment,
mortgage, power of attorney, proxy or other document, governed by the law of England or
such other country as the Agent may, in any particular case, specify,
	 
	 	(b)	 	effect any registration or notarisation, give any notice or take any other
step, which the Agent may, by notice to the Borrowers or other party, specify for any
of the purposes described in Clause 6.2 or for any similar or related purpose.






	6.2	 	Purposes of further assurances. Those purposes are:




 









 












	 	(a)	 	validly and effectively to create any Security Interest or right of any kind
which the Bank intended should be created by or pursuant to the Facility Agreement or
any other Security Document, each as amended and supplemented by this Agreement; and
	 
	 	(b)	 	implementing the terms and provisions of this Agreement.






	6.3	 	Terms of further assurances. The Agent may specify the terms of any document to be executed
by the Borrowers or any other party under Clause 6.1, and those terms may include any
covenants, powers and provisions which the Agent considers appropriate to protect its
interests.
	 
	6.4	 	Obligation to comply with notice. The Borrowers shall comply with a notice under Clause 6.1
by the date specified in the notice.
	 
	6.5	 	Additional corporate action. At the same time as the Borrowers or any other party delivers
to the Agent any document executed under Clause 6.1(a), the Borrowers or such other party
shall also deliver to the Agent a certificate signed by 2 of the Borrower’s or that other
party’s directors which shall:






	 	(a)	 	set out the text of a resolution of the Borrower’s or that other party’s
directors specifically authorising the execution of the document specified by the
Agent, and
	 
	 	(b)	 	state that either the resolution was duly passed at a meeting of the
directors validly convened and held throughout which a quorum of directors entitled to
vote on the resolution was present or that the resolution has been signed by all the
directors and is valid under the Borrower’s or that other party’s articles of
association or other constitutional documents.






	7	 	FEES AND EXPENSES
	 
	7.1	 	Expenses. The provisions of clause 5 (Commitment commission, Fees and Expenses) of the
Facility Agreement, as amended and supplemented by this Agreement, shall apply to this
Agreement as if they were expressly incorporated in this Agreement with any necessary
modifications.
	 
	8	 	NOTICES AND OTHER MATTERS
	 
	8.1	 	General. The provisions of clause 16 (Notices) of the Facility Agreement, as amended and
supplemented by this Agreement, shall apply to this Agreement as if they were expressly
incorporated in this Agreement with any necessary modifications.
	 
	9	 	SUPPLEMENTAL
	 
	9.1	 	Counterparts. This Agreement may be executed in any number of counterparts.
	 
	9.2	 	Third party rights. A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of
this Agreement.
	 
	10	 	LAW AND JURISDICTION
	 
	10.1	 	Governing law. This Agreement shall be governed by and construed in accordance with English
law.
	 
	10.2	 	Incorporation of the Facility Agreement provisions. The provisions of clauses 18 and 19
(Governing Law and Jurisdiction) of the Facility Agreement, as amended and supplemented by




 









 












	 	 	this Agreement, shall apply to this Agreement as if they were expressly incorporated in
this Agreement with any necessary modifications.




IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed on
the date first above written.




	 	 	 	 	 
	SIGNED as a deed for and on behalf of
	 	)	 	 
	DUCALE MARINE INC.
	 	)	 	 
	by Alexandros Laios
	 	)	 	/s/ Alexandros Laios
	(as Borrower under and pursuant to
	 	 	 	 
	a power of attorney dated 28 January 2011)
	 	)	 	 
	 
	 	 	 	 
	SIGNED as a deed for and on behalf of
	 	)	 	 
	KOHYLIA SHIPMANAGEMENT S.A.
	 	)	 	 
	by Alexandros Laios
	 	)	 	/s/ Alexandros Laios
	(as Borrower under and pursuant to
	 	 	 	 
	a power of attorney dated 28 January 2011)
	 	)	 	 
	 
	 	 	 	 
	SIGNED by C.
Margelou and E. Makri
	 	)	 	/s/ C. Margelou
	for and on behalf of
	 	)	 	/s/ E. Makri
	EMPORIKI BANK OF GREECE S.A.
	 	)	 	 
	(as Bank)
	 	)	 	 
	 
	 	 	 	 
	Witness to all the above
	 	)	 	 
	Signatures:
	 	)	 	 
	Name: Robin Parry
	 	)	 	/s/ Robin Parry
	Address: 47-49 Akti Miaouli
	 	)	 	 
	Piraeus 185 36
	 	 	 	 
	Greece
	 	 	 	 






 









 





We on this 28 day of January 2011 hereby confirm and acknowledge that we have read and understood
the terms and conditions of the above Supplemental Agreement and agree in all respects to the same
and confirm that the Security Documents to which we are a party shall remain in full force and
effect and shall continue to stand as security for the obligations of the Borrower under the
Facility Agreement (as amended by the Supplemental Agreement) and shall, without limitation, secure
the Loan.




	 	 	 	 	 
	/s/ Vasiliki Papaefthymiou

	 	/s/ Vasiliki Papaefthymiou
	 	 
	 

	 	 	 	 
	VASILIKI PAPAEFTHYMIOU

	 	VASILIKI PAPAEFTHYMIOU	 	 
	For and on behalf of

	 	For and on behalf of	 	 
	NAVIOS MARITIME HOLDINGS INC

	 	NAVIOS SHIPMANAGEMENT INC.	 	 
	 
	 	 	 	 
	/s/ Vasiliki Papaefthymiou
	 	 	 	 
	 
	 	 	 	 
	VASILIKI PAPAEFTHYMIOU
	 	 	 	 
	For and on behalf of
	 	 	 	 
	RUMER HOLDING LTD.