exv4w64






Exhibit 4.64




	 	 	 
	

	 	CLIFFORD CHANCE LLP
	 

	 	ADVOCATEN SOLICITORS NOTARIS
	 

	 	BELASTINGADVISEURS






EXECUTION COPY


AMENDMENT AND RESTATEMENT AGREEMENT 


dated

1 DECEMBER 2009



ADVENTURE TWO S.A.

ADVENTURE THREE S.A.

ADVENTURE SEVEN S.A.

ADVENTURE ELEVEN S.A.

AS BORROWERS AND CO-DEBTORS



and



FREESEAS INC.

AS PARENT AND GUARANTOR

with



NEW HBU II N.V.

as Lender



 





RELATING TO A USD 27,000,000 ROLLOVER LOAN

AGREEMENT DATED 9 APRIL 2008 AS SUPPLEMENTED

AND/OR AMENDED BY A USD 66,725,000 CREDIT

AGREEMENT DATED 12 AUGUST 2008 AND AS FURTHER

AMENDED AND RESTATED BY WAY OF AN AMENDMENT

AND RESTATEMENT AGREEMENT DATED 1 SEPTEMBER

2009



 





 









 





CONTENTS




	 	 	 	 	 	 	 
	Clause	 	 	 	Page	 
	1.
	 	Definitions And Interpretation	 	 	3	 
	 
	 	 	 	 	 	 
	2.
	 	Restatement Of The Original Facility Agreement	 	 	4	 
	 
	 	 	 	 	 	 
	3.
	 	Representations	 	 	4	 
	 
	 	 	 	 	 	 
	4.
	 	Continuity And Further Assurance	 	 	4	 
	 
	 	 	 	 	 	 
	5.
	 	Fees, Costs And Expenses	 	 	5	 
	 
	 	 	 	 	 	 
	6.
	 	Miscellaneous	 	 	6	 
	 
	 	 	 	 	 	 
	7.
	 	Governing Law	 	 	6	 
	 
	 	 	 	 	 	 
	Schedule 1
	 	The Obligors	 	 	7	 
	 
	 	 	 	 	 	 
	Part I
	 	Term Borrowers	 	 	7	 
	 
	 	 	 	 	 	 
	Part Ii
	 	Overdraft Facility Borrowers	 	 	7	 
	 
	 	 	 	 	 	 
	Part Iii
	 	Joint And Several Borrowers	 	 	7	 
	 
	 	 	 	 	 	 
	Schedule 2
	 	Conditions Precedent	 	 	7	 
	 
	 	 	 	 	 	 
	Schedule 3
	 	Restated Agreement	 	 	11	 
	 
	 	 	 	 	 	 
	Signatures
	 	 	 	 	12	 






-2-









 





THIS AGREEMENT is dated 1 December 2009 and made between:





	(1)	 	FREESEAS INC., a company incorporated under the laws of the Marshall Islands (the
“Parent” and the “Guarantor”);
	 
	(2)	 	THE SUBSIDIARIES OF THE PARENT listed in Schedule 1 (The Parties), Part I hereto as
term borrowers (the “Term Borrowers” and each a “Term Borrower”);
	 
	(3)	 	THE SUBSIDIARIES OF THE PARENT listed in Schedule 1 (The Parties), Part II hereto as
overdraft facility borrowers (the “Overdraft Facility Borrowers” and each an “Overdraft
Facility Borrower”);
	 
	(4)	 	THE SUBSIDIARIES OF THE PARENT listed in Schedule 1 (The Parties), Part III hereto
as joint and several borrowers (the “Joint and Several Borrowers” and each a “Joint and
Several Borrower”); and
	 
	(5)	 	NEW HBU II N.V. (as legal successor to Hollandsche Bank-Unie N.V. pursuant to the
deed of demerger (akte van splitsing) dated 6 August 2008), having its registered office in
Amstelveen, The Netherlands, acting through its branch at Coolsingel 104, Rotterdam, The
Netherlands as lender (the “Lender”).




IT IS AGREED as follows:





	1.	 	DEFINITIONS AND INTERPRETATION
	 
	1.1	 	Definitions
	 
	 	 	In this Agreement:
	 
	 	 	“Co-Debtor” has the meaning given to that term in the Restated Agreement.
	 
	 	 	“Effective Date” means ___ December 2009 provided that on or prior to such date the Lender
has confirmed to the Borrowers that it has received each of the documents and evidence
listed in Schedule 2 (Conditions Precedent) in a form and substance satisfactory to the
Lender.
	 
	 	 	“Obligor” has the meaning given to that term in the Restated Agreement.
	 
	 	 	“Original Facility Agreement” means the USD 27,000,000 rollover loan agreement dated 9 April
2008 between Adventure Two S.A., Adventure Three S.A. and Adventure Seven S.A. as borrowers
and Hollandsche Bank-Unie N.V. as lender as supplemented and/or amended by the USD
66,725,000 credit agreement dated 12 August 2008 and as further amended and restated on 1
September 2009 between Adventure Two S.A., Adventure Three S.A., Adventure Seven S.A. and
Adventure Eleven S.A. as borrowers and Hollandsche Bank-Unie N.V. as lender.
	 
	 	 	“Restated Agreement” means the Original Facility Agreement, as amended and restated by this
Agreement, the terms of which are set out in Schedule 3 (Restated Agreement).
	 
	1.2	 	Incorporation of defined terms




 









 












	 	1.2.1	 	Unless a contrary indication appears, a term defined in the Restated
Agreement has the same meaning in this Agreement.
	 
	 	1.2.2	 	The principles of construction set out in the Original Facility Agreement
shall have effect as if set out in this Agreement.






	1.3	 	Clauses
	 
	 	 	In this Agreement any reference to a “Clause” or a “Schedule” is, unless the context
otherwise requires, a reference to a Clause or a Schedule to this Agreement.
	 
	1.4	 	Third party rights
	 
	 	 	Except where any Finance Document expressly provides otherwise:






	 	1.4.1	 	a person who is not a party to this Agreement has no right under Article
6:253 Dutch Civil Code to exercise or enforce any term or condition of this Agreement;
and
	 
	 	1.4.2	 	where a person who is not a Party has a right under Article 6:253 Dutch Civil
Code to exercise or enforce a term or condition of this Agreement, this Agreement
(including, for the avoidance of doubt, that person’s rights under this Agreement) may
be amended, novated, supplemented, extended, restated or waived without that person’s
consent.






	1.5	 	Designation
	 
	 	 	Each of the Obligors and the Lender designates this Agreement as a Finance Document.
	 
	2.	 	RESTATEMENT OF THE ORIGINAL FACILITY AGREEMENT
	 
	 	 	With effect from the Effective Date the Original Facility Agreement shall be amended
and restated so that it shall be read and construed for all purposes as set out in Schedule
3 (Restated Agreement).
	 
	3.	 	REPRESENTATIONS
	 
	 	 	The representations and warranties included in Clause 19 (Representations) of the
Restated Agreement are deemed to be made by each Obligor (by reference to the facts and
circumstances then existing) on:






	 	(i)	 	the date of this Agreement; and
	 
	 	(ii)	 	the Effective Date.






	4.	 	CONTINUITY AND FURTHER ASSURANCE
	 
	4.1	 	Continuing obligations
	 
	 	 	The provisions of the Original Facility Agreement and the other Finance Documents shall,
save as amended by this Agreement, continue in full force and effect.
	 
	4.2	 	Further assurance




 









 






	 	 	Each Obligor shall, at the reasonable request of the Lender and at their own expense, do all
such acts and things necessary or desirable to give effect to the amendments effected or to
be effected pursuant to this Agreement.
	 
	4.3	 	Security Documents






	 	4.3.1	 	Each Obligor, with effect from the Effective Date, confirms that the Security
Documents shall (i) continue to be in full force and effect notwithstanding the
amendment and restatement effected by this Agreement and (ii) extends to all the
liabilities and obligations of the Obligors under the Finance Documents as amended and
restated pursuant to this Agreement.
	 
	 	4.3.2	 	The parties hereby furthermore agree and confirm that, notwithstanding the
amendments pursuant to this Agreement, none of the modifications to the Original
Facility Agreement or any of the Finance Documents:






	 	(i)	 	Will in any way adversely affect the validity or perfection of the
Security granted on the Assets as defined in the relevant Security Documents;
and
	 
	 	(ii)	 	Constitute a novation (schuldvernieuwing) or termination of the
obligations outstanding under the Finance Documents.






	4.4	 	Guarantees
	 
	 	 	Each of the Co-Debtors hereby confirms that:






	 	(a)	 	the guarantee granted by it pursuant to the Original Facility
Agreement shall remain unaffected; and
	 
	 	(b)	 	the obligations guaranteed by it will be the obligations defined in
the Original Facility Agreement as those obligations have been amended and
restated pursuant to this Agreement.






	5.	 	FEES, COSTS AND EXPENSES
	 
	5.1	 	Transaction expenses
	 
	 	 	Each Borrower shall within three Business Days of demand, pay the Lender the amount of all
reasonable, documented costs and expenses (including legal fees) reasonably incurred by any
of them in connection with the negotiation, preparation, printing and execution of this
Agreement and any other documents referred to in this Agreement.
	 
	5.2	 	Enforcement costs
	 
	 	 	Each Borrower shall, within three Business Days of demand, pay to the Lender the amount of
all reasonable documented costs and expenses (including legal fees) incurred by the Lender
in connection with the enforcement of, or the preservation of any rights under, this
Agreement.
	 
	5.3	 	Stamp taxes




 









 






	 	 	Each Borrower shall pay and, within three Business Days of demand, indemnify the Lender
against any cost, loss or liability that the Lender incurs in relation to all stamp duty,
registration and other similar Taxes payable in respect of this Agreement.
	 
	6.	 	MISCELLANEOUS
	 
	6.1	 	Incorporation of terms
	 
	 	 	The provisions of Clause 29 (Notices), Clause 31 (Partial Invalidity), Clause 32 (Remedies
and waivers) and Clause 36 (Enforcement) of the Restated Agreement shall be incorporated
into this Agreement as if set out in full in this Agreement and as if references in those
clauses to “this Agreement” or “the Finance Documents” are references to this Agreement.
	 
	6.2	 	Counterparts
	 
	 	 	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.
	 
	7.	 	GOVERNING LAW
	 
	 	 	This Agreement is governed by Dutch law.





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









 









 








SCHEDULE 1

The Obligors




Part I

Term Borrowers



	 	 	 
	Term Loan Borrowers	 	Registration number
	Adventure Two S.A.
	 	10413
	 
	 	 
	Adventure Three S.A.
	 	10414
	 
	 	 
	Adventure Seven S.A.
	 	23506
	 
	 	 
	Adventure Eleven S.A.
	 	C-111797






Part II

Overdraft Facility Borrowers




	 	 	 
	Overdraft Facility Borrowers	 	Registration number
	Adventure Two S.A.
	 	10413
	 
	 	 
	Adventure Three S.A.
	 	10414
	 
	 	 
	Adventure Seven S.A.
	 	23506
	 
	 	 
	Adventure Eleven S.A.
	 	C-111797






Part III

Joint and Several Borrowers




	 	 	 
	Co-Debtors	 	Registration number
	Adventure Two S.A.
	 	10413
	 
	 	 
	Adventure Three S.A.
	 	10414
	 
	 	 
	Adventure Seven S.A.
	 	23506
	 
	 	 
	Adventure Eleven S.A.
	 	C-111797






SCHEDULE 2

Conditions Precedent 




 









 









	1.	 	Obligors






	 	(a)	 	A copy of the articles of association and bylaws of each Obligor.
	 
	 	(b)	 	A copy of a resolution of the board of directors (or other managing entity) of
each Obligor:






	 	(i)	 	approving the terms of, and the transactions contemplated by, this
Agreement and the other Finance Documents to which it is a party and resolving
that it execute the Finance Documents to which it is a party (to the extent
that such Finance Documents were not previously approved and executed in
accordance with the Original Facility Agreement);
	 
	 	(ii)	 	authorising a specified person or persons to execute this Agreement
and the other Finance Documents to which it is a party on its behalf (to the
extent that such Finance Documents were not previously approved and executed
in accordance with the Original Facility Agreement); and
	 
	 	(iii)	 	authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant, any
Utilisation Request and Selection Notice) to be signed and/or despatched by it
under or in connection with this Agreement and the other Finance Documents to
which it is a party.






	 	(c)	 	A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
	 
	 	(d)	 	A certificate of the Borrowers (signed by a director and/or officer)
confirming that borrowing or guaranteeing, as appropriate would not cause any borrowing
or guaranteeing, or similar limit binding on any Obligor to be exceeded.
	 
	 	(e)	 	A certificate of an authorised signatory of each Obligor certifying that each
copy document relating to it specified in this Section 1 of Schedule 1 is correct,
complete and in full force and effect as at a date no earlier than the date of this
Agreement.






	2.	 	Legal opinions






	 	(a)	 	A legal opinion of Clifford Chance LLP, Amsterdam, legal advisers to the
Lender in The Netherlands, substantially in the form distributed to the Lender prior to
signing this Agreement.
	 
	 	(b)	 	If an Obligor is incorporated in a jurisdiction other than The Netherlands, a
legal opinion of the legal advisers to the Lender in the relevant jurisdiction,
substantially in the form distributed to the Lender prior to signing this Agreement.






	3.	 	Security






	 	(a)	 	First preferred Liberian mortgage granted in continuation of a prior mortgage
on Free Destiny, dated on or about the Effective Date.




 









 






	 	(b)	 	First preferred Liberian mortgage granted in connection of a prior mortgage on
Free Envoy, dated on or about the Effective Date.
	 
	 	(c)	 	Second amended and restated first preferred mortgage recorded against the FREE
MAVERICK, which further amends and restates that certain first preferred mortgages
dated September 1, 2008, as amended and restated by that certain amended and restated
first preferred mortgage dated September 1, 2009.
	 
	 	(d)	 	Security confirmation in relation to the deed of assignment entered into by
Adventure Two S.A. on 15 September 2009 in order to secure the rights and earnings of
Adventure Two S.A. arising out of the Free Destiny and any associated charterparties,
together with any insurances and requisition compensation in relation to the Free
Destiny.
	 
	 	(e)	 	Security confirmation in relation to the deed of assignment entered into by
Adventure Three S.A. on 15 September 2009 in order to secure the rights and earnings of
Adventure Tree S.A. arising out of the Free Envoy and any associated charterparties,
together with any insurances and requisition compensation in relation to the Free
Envoy.





4. Other documents and evidence





	 	(a)	 	Copies of the executed Charter Contracts and the latest Valuation Reports.
	 
	 	(b)	 	A copy of the Group Structure Chart.
	 
	 	(c)	 	Copies of the executed Finance Documents by all parties thereto.
	 
	 	(d)	 	Evidence that all fees, costs and expenses (including legal fees) due from the
Borrowers pursuant to Clause 5 (Fees, Costs and Expenses) of this Agreement have been
paid or will be paid by the Effective Date.
	 
	 	(e)	 	A certificate signed by an authorized signatory of the Borrowers stating that,
upon the Effective Date, (i) no member of the Group will have any Financial
Indebtedness other than Permitted Financial Indebtedness and each member of the Group
will have (ii) no Encumbrance existing in relation to any asset of any member of the
Group other than any Permitted Encumbrance.
	 
	 	(f)	 	Evidence satisfactory to the Lender that the Security has been or will be
perfected in accordance with all applicable laws on the Effective Date and constitutes
valid security with the ranking it is expressed to have.
	 
	 	(g)	 	Copies of all relevant insurance policies and evidence that these are in full
force and effect.
	 
	 	(h)	 	All requested information required pursuant to the obligations of the Lender,
together with any other additional documents, records and information that the Lender
may be required to obtain, verify or review pursuant to the terms of any other
applicable law or regulation.




 









 






	 	(i)	 	All documentation or information on assets required to be provided under any
Security Documents.
	 
	 	(j)	 	A copy of any other authorisation or other document, opinion or assurance
which the Lender notifies the Borrowers is necessary or desirable in connection with
the Finance Documents.
	 
	 	(k)	 	Evidence reasonably satisfactory to the Lender that all governmental and
regulatory consents and other clearances (including but not limited to tax clearances)
and all third party consents and approvals necessary in connection herewith or other
competition or regulatory authority have been obtained.
	 
	 	(l)	 	A good standing certificate from each Obligor.




 









 











SCHEDULE 3

Restated Agreement







 









 








SIGNATURES




	 	 	 	 	 
	The Parent
	 	 	 	 
	 
	 	 	 	 
	For and on behalf of:
	 	 	 	 
	 
	 	 	 	 
	FREESEAS INC.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	By: I. Varouxakis

	 	By:	 	 
	Title:
President

	 	Title:	 	 
	 
	 	 	 	 
	The Term Loan Borrowers
	 	 	 	 
	 
	 	 	 	 
	For and on behalf of
	 	 	 	 
	 
	 	 	 	 
	ADVENTURE TWO S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By: I. Varouxakis
	 	 	 	 
	Title:
President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 
	 
	 	 	 	 
	ADVENTURE THREE S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By: I. Varouxakis
	 	 	 	 
	Title: President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 






 









 






	 	 	 	 	 
	ADVENTURE SEVEN S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By:  I. Varouxakis 
	 	 	 	 
	Title: President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 
	 
	 	 	 	 
	ADVENTURE ELEVEN S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By:  I. Varouxakis
	 	 	 	 
	Title: President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 
	 
	The Overdraft Facility Borrowers
	 	 	 	 
	 
	 	 	 	 
	For and on behalf of
	 	 	 	 
	 
	 	 	 	 
	ADVENTURE TWO S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By:  I. Varouxakis
	 	 	 	 
	Title: President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 
	 
	 	 	 	 






 









 






	 	 	 	 	 
	ADVENTURE THREE S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By:  I. Varouxakis
	 	 	 	 
	Title: President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 
	 
	 	 	 	 
	ADVENTURE SEVEN S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By:  I. Varouxakis
	 	 	 	 
	Title: President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 
	 
	 	 	 	 
	ADVENTURE ELEVEN S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By:  I. Varouxakis
	 	 	 	 
	Title: President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 
	 
	 	 	 	 
	The Co-Debtors
	 	 	 	 
	 
	 	 	 	 
	For and on behalf of
	 	 	 	 






 









 






	 	 	 	 	 
	FREESEAS INC.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	By: I. Varouxakis

	 	By:	 	 
	Title: President

	 	Title:	 	 
	ADVENTURE TWO S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By: I. Varouxakis
	 	 	 	 
	Title: President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 
	 
	 	 	 	 
	ADVENTURE THREE S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By: I. Varouxakis
	 	 	 	 
	Title: President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 
	 
	 	 	 	 
	ADDVENTURE SEVEN S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By: I. Varouxakis
	 	 	 	 
	Title: President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 






 









 






	 	 	 	 	 
	ADVENTURE ELEVEN S.A.
	 	 	 	 
	/s/ Ion G. Varouxakis
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	By: I. Varouxakis
	 	 	 	 
	Title:
President
	 	 	 	 
	Address:
	 	 	 	 
	Fax:
	 	 	 	 






 









 






	 	 	 	 	 
	The Lender
	 	 	 	 
	 
	 	 	 	 
	For and on behalf of
	 	 	 	 
	 
	 	 	 	 
	NEW HBU II N.V.
	 	 	 	 
	 
	 	 	 	 
	/s/ Peter Vodegel 
	 	/s/ W. J. Griep
	 	 	 
	 
	 	 	 	 
	By: P.M.W. Vodegel

	 	By: W. J. Griep	 	 
	Title: Sr. Vice President

	 	Title: 	 	 
	Address:
	 	 	 	 
	Attention:
	 	 	 	 
	Tel:
	 	 	 	 
	Fax:
	 	 	 	 
	E-mail:
	 	 	 	 
	 
	 	 	 	 
	Contact for administrative matters:
	 	 	 	 
	 
	 	 	 	 
	Attention:
	 	 	 	 
	Tel:
	 	 	 	 
	Fax:
	 	 	 	 
	E-mail: