exv4w45






EXHIBIT 4.45




Private & confidential



Dated: 15th October, 2010


EFG EUROBANK ERGASIAS S.A.

(as lender)


 - and -


GRAND ESMERALDA INC.

(as Borrower)


- and -


NEWLEAD HOLDINGS LTD.

(as Corporate Guarantor)


- and -


NEWLEAD BULKERS S.A.

(as Approved Manager)



 

 


FIFTH SUPPLEMENTAL AGREEMENT

in relation to a Loan Agreement

dated 22nd October, 2007

for a loan facility of up to US$32,000,000


 

 






Theo V. Sioufas & Co.

Law Offices

Piraeus







 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	CLAUSE	 	HEADINGS	 	PAGE
	 	1.	 	 	Definitions
	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	 	2.	 	 	Representations and warranties
	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	 	3.	 	 	Agreement of the Bank
	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	 	4.	 	 	Conditions
	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	 	5.	 	 	Variations to the Principal Agreement
	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	 	6.	 	 	Entire agreement and amendment
	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 	7.	 	 	Continuance of Principal Agreement and the Security Documents
	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 	8.	 	 	Fees and expenses
	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 	9.	 	 	Miscellaneous
	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	 	10.	 	 	Applicable law and jurisdiction
	 	 	12	 











 









 







THIS AGREEMENT is made this 15th day of October, 2010



B E T W E E N





	(1)	 	EFG EUROBANK ERGASIAS S.A., a banking societe anonyme duly incorporated under the laws of
Greece, having its registered office at 8 Othonos Street, Athens, Greece, acting for the
purposes of this Agreement through its office at 83 Akti Miaouli & Flessa Street, Piraeus,
Greece (the “Bank”, which expression shall include its successors and assignees);
	 
	(2)	 	GRAND ESMERALDA INC., a company incorporated in the Republic of Liberia, having its
registered office at 80 Broad Street, Monrovia, Liberia, and established in Marshall Islands
as Foreign Maritime Entity, as borrower (hereinafter called the “Borrower”, which expression
shall include its successors in title); and
	 
	(3)	 	NEWLEAD HOLDINGS LTD., a company duly incorporated under the laws of Bermuda, having its
registered office at Canon’s Court, 22 Victoria Street, Hamilton, Bermuda and listed and
trading in the NASDAQ Stock Exchange, New York (hereinafter called the “Corporate Guarantor”,
which expression shall include its successors in title); and
	 
	(4)	 	NEWLEAD BULKERS S.A., a company duly incorporated under the laws of the Republic of
Liberia having its registered office at 80 Broad Street, Monrovia, Liberia and an office
established in Greece (83 Akti Miaouli and Flessa Street, GR 185.38 Piraeus) pursuant to the
Greek laws 89/67, 378/68, 27/75 and 814/79 (the “Approved Manager”, which expression shall
include its successors in title);




AND IS SUPPLEMENTAL to:





	(i)	 	a loan agreement dated 22nd October, 2007 made between (1) the Bank and (2) the
Borrower and others, as joint and several borrowers (the “Initial Borrowers”), as amended
and/or supplemented by:






	 	(a)	 	a First Supplemental Agreement dated 15th June, 2009 and made
between (inter alios) the Bank and the Initial Borrowers (the “First Supplemental
Agreement”); and
	 
	 	(b)	 	a Second Supplemental Agreement dated 28th June, 2010 and made
between (inter alios) the Bank and the Initial Borrowers, (the “Second Supplemental
Agreement”); and
	 
	 	(c)	 	a Third Supplemental Agreement dated 9th July, 2010 and made between
(inter alios) the Bank and the Borrower, the Corporate Guarantor and the Approved
Manager (the “Third Supplemental Agreement”); and
	 
	 	(d)	 	a Fourth Supplemental Agreement dated 13th August, 2010 and made
between (inter alios) the Bank and the Borrower, the Corporate Guarantor and the
Approved Manager (the “Fourth Supplemental Agreement”);




1









 












	 	 	on the terms and conditions of which the Bank has advanced to the Initial Borrowers, on a
joint and several basis, a loan of up to Thirty two million Dollars ($32,000,000) (the
“Loan”) for the purposes therein specified;






	 	 	(the said Loan Agreement as amended and/or supplemented by the First Supplemental Agreement,
the Second Supplemental Agreement, the Third Supplemental Agreement and the Fourth
Supplemental Agreement is hereinafter called the “Principal Agreement”) (the Principal
Agreement as hereby amended and as the same may hereinafter be amended and/or supplemented
is hereinafter called the “Loan Agreement”); and






	(ii)	 	a 1992 ISDA Master Agreement dated 22nd October 2007 made between the Initial
Borrowers, as Party B and the Bank, as Party A, as amended and/or supplemented by the First
Supplemental Agreement, the Second Supplemental Agreement, the Third Supplemental Agreement
and the Fourth Supplemental Agreement (the “Principal Master Agreement”).




W H E R E A S :





	(A)	 	the Borrower, the Corporate Guarantor and the Approved Manager hereby jointly and severally
acknowledge and confirm that (a) the Bank has advanced to the Initial Borrowers, on a joint
and several basis, the full amount of the Loan in the principal amount of United States
Dollars Thirty two million (US$32,000,000) in one advance and (b) as the date hereof the
amount of US$14,790,000 (United States Dollars Fourteen Million Seven Hundred Ninety Thousand)
remains outstanding;






	(B)	 	pursuant to a Corporate Guarantee dated 9th July 2010 and granted by the Corporate
Guarantor (the “Corporate Guarantee”) the Corporate Guarantor irrevocably and unconditionally
guaranteed the due and timely repayment of the Loan and interest and default interest accrued
thereon and the performance of all the obligations of the Borrower under the Principal Loan
Agreement, the Principal Master Agreement and the Security Documents executed in accordance
thereto;






	(C)	 	the Borrower, the Approved Manager and the Corporate Guarantor have requested the Bank to
consent to the amendment of the Principal Agreement as set out in Clause 5 hereof and the Bank
has agreed so to do conditionally upon terms that (inter alia) the Principal Agreement shall
be amended in the manner hereinafter set out.




2









 












	NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:






	1.	 	Definitions






	1.1	 	Words and expressions defined in the Principal Agreement and not otherwise defined herein
(including the Recitals hereto) shall have the same meanings when used in this Agreement.






	1.2	 	In addition, in this Agreement the words and expressions specified below shall have the
meanings attributed to them below:






	 	 	“Effective Date” means the 9th July, 2010;






	 	 	“Loan Agreement” means the Principal Agreement as hereby amended and as the same may from
time to time be further amended and/or supplemented; and






	 	 	“Master Agreement” means the Principal Master Agreement as hereby amended and as the same
may from time to time be further amended and/or supplemented.






	1.3	 	In this Agreement:






	 	(a)	 	Where the context so admits words importing the singular number only shall
include the plural and vice versa and words importing persons shall include firms and
corporations;
	 
	 	(b)	 	clause headings are inserted for convenience of reference only and shall be
ignored in construing this Agreement;
	 
	 	(c)	 	references to clauses are to clauses of this Agreement save as may be otherwise
expressly provided in this Agreement; and
	 
	 	(d)	 	all capitalised terms used herein and not otherwise defined herein shall have
the meanings ascribed to them in the Principal Agreement.






	2.	 	Representations and warranties






	2.1	 	The Borrower, the Corporate Guarantor and the Approved Manager hereby jointly and severally
represent and warrant to the Bank as at the date hereof that the representations and
warranties set forth in the Principal Agreement and the Security Documents (updated mutatis
mutandis to the date of this Agreement) are (and will be on the Effective Date) true and
correct as if all references therein to “this Agreement” were references to the Principal
Agreement as amended and supplemented by this Agreement.






	2.2	 	In addition to the above the Borrower, the Approved Manager and the Corporate Guarantor
hereby jointly and severally represent and warrant to the Bank as at the date of this
Agreement that:




3









 












	 	(a)	 	each of the corporate Security Parties is duly formed, is validly existing and
in good standing under the laws of the place of its incorporation has full power to
carry on its business as it is now being conducted and to enter into and perform its
obligations under the Principal Agreement and this Agreement and has complied with all
statutory and other requirements relative to its business;
	 
	 	(b)	 	all necessary licences, consents and authorities, governmental or otherwise
under this Agreement and the Principal Agreement have been obtained and, as of the date
of this Agreement, no further consents or authorities are necessary for any of the
Security Parties to enter into this Agreement or otherwise perform its obligations
hereunder;
	 
	 	(c)	 	this Agreement constitutes the legal, valid and binding obligations of the
Security Parties thereto enforceable in accordance with its terms;
	 
	 	(d)	 	the execution and delivery of, and the performance of the provisions of this
Agreement do not, and will not contravene any applicable law or regulation existing at
the date hereof or any contractual restriction binding on any of the Security Parties
or its respective constitutional documents;
	 
	 	(e)	 	none of the Borrowers and the other Security Parties is and at the Effective
Date will be in default under any agreement by which it is or will be at the Effective
Date bound or in respect of any financial commitment, or obligation
	 
	 	(f)	 	no action, suit or proceeding is pending or threatened against any of the
Borrower, the Approved Manager and the Corporate Guarantor or its assets before any
court, board of arbitration or administrative agency which could or might result in any
material adverse change in the business or condition (financial or otherwise) of the
Borrower, the Approved Manager or the Corporate Guarantor; and
	 
	 	(g)	 	none of the Borrower, the Approved Manager and the Corporate Guarantor is and
at the Effective Date will be in default under any agreement by which it is or will be
at the Effective Date bound or in respect of any financial commitment, or obligation;






	3.	 	Agreement of the Bank
	 
	 	 	The Bank, relying upon each of the representations and warranties set out in clause 2 hereby
agree with the Borrower, subject to and upon the terms and conditions of this Agreement and
in particular, but without limitation, subject to the fulfilment of the conditions precedent
set out in clause 4 to consent to the amendment of the Principal Agreement and the Principal
Master Agreement in the manner more particularly set out in clause 5.1.





4









 






	4.	 	Conditions
	 
	4.1	 	The agreement of the Bank contained in clause 3.1 shall be expressly subject to the
fulfilment of the conditions set out in this clause and further subject to the condition that
the Bank shall have received on or before the Effective Date in form and substance
satisfactory to the Bank and its legal advisers:






	 	(a)	 	a certificate of good standing or equivalent document issued by the competent
authorities of the place of its incorporation in respect of each of the Borrower and
the Corporate Guarantor;
	 
	 	(b)	 	certificates of Incumbency issued by the appropriate officer of each corporate
Security Party confirming that:






	 	(i)	 	the written resolutions adopted on 11th August, 2010
by all the members of the Board of Directors of the Borrower and Minutes of the
Extraordinary Meeting of the Shareholders of the Borrower duly convened and
held on 11th day of August, 2010;
	 
	 	(ii)	 	the written resolutions adopted on 10th day of
August, 2010 by all the members of the Board of Directors of the Corporate
Guarantor; and
	 
	 	(iii)	 	the Minutes of the Meeting of the Board of Directors of the
Approved Manager duly convened and held on 17th day of March, 2010






	 	 	 	remain in full force as of the date hereof and have not been amended or rescinded
and that the any power of attorney issued by RIDER each corporate Security Party on
10th August, 2010 authorising appropriate officers or attorneys to (inter
alia) sign, execute and deliver any supplementary and/or amendatory agreement of the
Loan Agreement or other evidence of such approvals and authorisations as shall be
acceptable to the Bank;
	 
	 	(c)	 	all documents evidencing any other necessary action or approvals or consents
with respect to this Agreement; and
	 
	 	(d)	 	such favourable legal opinions from lawyers acceptable to the Bank and its
legal advisors on such matters concerning the laws of Bermuda and such other relevant
jurisdiction as the Bank shall require.






	5.	 	Variations to the Principal Agreement






	5.1	 	In consideration of the agreement of the Bank contained in clause 3.1, the Borrower, the
Approved Manager and the Corporate Guarantor hereby jointly and severally agree with the Bank
that (subject to the satisfaction of the conditions precedent contained in clause 4) with
effect from the Effective Date, the provisions of the Principal Agreement shall be varied
and/or amended and/or supplemented as follows:




5









 












	 	(a)	 	with effect from 15th October, 2010 the amount of Dollars One
million one hundred thirty thousand ($1,130,000) currently standing to the credit of
the Retention Account shall be applied (at the Borrower’s request) towards pro-rata
reduction of the Balloon Instalment and the outstanding Repayment Instalments, as a
result of which the first paragraph of clause 4.1 (Repayment) of the Principal
Agreement shall be amended to read as follows (with effect as of the date of such
application):
	 
	 	 	 	“4.1 Repayment
	 
	 	 	 	The Borrower shall and it is expressly undertaken by the Borrower to repay the Loan
amounting as of 15th October, 2010 in the principal sum Dollars Thirteen
million six hundred sixty thousand ($13,660,000) by:






	 	(a)	 	fifteen (15) consecutive quarterly repayment instalments (the
“Repayment Instalments”), each to be repaid on each of the Repayment Dates, so
that the first Repayment Instalment be repaid on the 24th October,
2010 and each of the subsequent ones consecutively falling due for payment on
each of the dates falling three (3) months after the immediately proceeding
Repayment Date with the last (the 15th) of such Repayment
Instalments falling due for payment on the Final Maturity Date; subject to the
provisions of this Agreement, the amount of each such Repayment Instalment
shall be $525,000 (Five hundred twenty five thousand Dollars; and
	 
	 	(b)	 	a final balloon instalment of Five million seven hundred eighty
five thousand Dollars ($5,785,000) (the “Balloon Instalment”), which shall be
repayable together with the last (the 15th) Repayment Instalment on
the Final Maturity Date;”;






	 	(b)	 	with effect from the Effective Date clause 8.1(a) of the Principal Agreement
shall be amended to read as follows:






	 	“(a)	 	Financial Statements: prepare or procure to be prepared
and furnished to the Bank, in form and substance satisfactory to the Bank, with
(i) annual, audited (by auditors acceptable to the Bank) consolidated financial
statements (including balance sheet and profit and loss accounts) of the Group
and the Borrower as soon as practicable but not later than 180 days after the
end of the financial year to which they relate, prepared in accordance with
GAAP (ii) quarterly management accounts of the Corporate Guarantor and (iii)
annual cash flow statement of the Borrower within 90 days from the end of each
fiscal year;”;






	 	(c)	 	with effect from the Effective Date clause 8.10(a)(v) of the Principal
Agreement shall be amended to read as follows:






	 	“(v)	 	deliver to the Bank a Compliance Certificate at the same time
as the audited financial statements referred to in clause 8.1(a), a certified
true copy of the




6









 






	 	 	 	Compliance Certificate issued and signed by the Corporate Guarantor’s Chief
Financial Officer certifying that the covenants contained in clause 5.3 of
the Corporate Guarantee are being complied with and providing full
calculations supporting such compliance derived from the then latest
financial statements of the Group as lodged with the Securities and Exchange
Commission of the United States by way of Form 6K/20F, such certificate to
be substantially in the form agreed by the Bank set out in Schedule 2.”;






	 	(d)	 	with effect from the Effective Date definition “EBITDA” in clause 8.11 of the
Principal Agreement shall be amended to read as follows:
	 
	 	 	 	““EBITDA” means, in respect of any period, the consolidated profit on ordinary
activities of the Group before Taxation for such period:






	 	(a)	 	adjusted to exclude interest receivable and interest payable
and other similar income or costs to the extent not already excluded;
	 
	 	(b)	 	adjusted to exclude any gain or loss realised on the disposal
of fixed assets (whether tangible or intangible);
	 
	 	(c)	 	after adding back depreciation and amortisation;
	 
	 	(d)	 	adjusted to exclude any exceptional or extraordinary costs or
income; and
	 
	 	(e)	 	after deducting any profit arising out of the release of any
provisions against a liability or charge (excluding in this context the release
of any provisions against liabilities or charges relating to exceptional or
extraordinary items);”;






	 	(e)	 	with effect from the Effective Date Schedule 2 of the Principal Agreement shall
be amended to read as follows:





“SCHEDULE 2




Form of Compliance Certificate



	 	 	 

	To:

	 	EFG Eurobank Ergasias S.A.
	 

	 	83 Akti Miaouli and Flessa Street,
	 

	 	Piraeus GR 185 38, Greece
	 

	 	Attention: the Manager
	 
	 	 
	From:

	 	Newlead Holdings Ltd., of Bermuda
	 

	 	c/o Newlead Bulkers S.A.,
	 

	 	83 Akti Miaouli and Flessa Street,
	 

	 	185 38 Piraeus, Greece,
	 
	Dated:

	 	[•]






7









 







	 	 	 	Dear Sirs
	 
	 	 	 	Re: US$32,000,000 loan agreement dated 22nd October, 2007 (the “Loan
Agreement”) made between (1) Grand Esmeralda Inc. and other (as borrowers)
and (2) EFG Eurobank Ergasias S.A. (as lender), as amended from time to
time.






	 	1	 	We refer to the Loan Agreement. This is a Compliance
Certificate. Terms defined in the Loan Agreement have the same meaning when
used in this Compliance Certificate unless given a different meaning in this
Compliance Certificate.
	 
	 	2	 	We refer to clause 8.11, 8.4(c) and 8.9(b) of the Loan
Agreement and hereby certify that:






	 	(1)	 	Equity Ratio
	 
	 	 	 	Requirement: Equity Ratio of not less than [25%] [30%].
	 
	 	 	 	Actual Equity Ratio: [ ]
	 
	 	 	 	Satisfied [YES] : [NO]
	 
	 	(2)	 	Minimum Liquidity of the Group
	 
	 	 	 	Actual Minimum Liquidity: [ ]
	 
	 	 	 	Requirement: maintain on a consolidated basis the Minimum Liquidity
(as defined in the Corporate Guarantee).
	 
	 	 	 	Satisfied [YES] : [NO]
	 
	 	(3)	 	Minimum Liquidity under clause 8.9(b):
	 
	 	 	 	Actual Minimum Liquidity: [ ]
	 
	 	 	 	Requirement: maintain on a consolidated basis the Minimum Liquidity
(as defined in the Loan Agreement).
	 
	 	 	 	Satisfied [YES] : [NO]
	 
	 	(4)	 	Interest Coverage
	 
	 	 	 	Actual Interest Coverage ratio: [ ]
	 
	 	 	 	Requirement: maintain a ratio of EBITDA to interest payable of not
less than [2.0] [2.50] to 1.0.
	 
	 	 	 	Satisfied [YES] : [NO]
	 
	 	(5)	 	Security Value Maintenance
	 
	 	 	 	Actual Security Value/Security Requirement:
	 
	 	 	 	Requirement: Security Value is not less than the Security Requirement.




8









 






	 	 	 	Satisfied [YES] : [NO]






	 	3	 	We confirm that no Default is continuing [If this statement
cannot be made, the certificate should identify any Default that is continuing
and the steps, if any, being taken to remedy it.]
	 
	 	4	 	appendix 1 hereto contains a comprehensive list of all Group
Members as at the date hereof and the jurisdictions in which they are
incorporated and an up-to-date corporate structure chart for the Group;
	 
	 	5	 	the representations set out in clause 7 of the Loan Agreement
are true and accurate with reference to all facts and circumstances now
existing and all required authorisations have been obtained and are in full
force and effect; and






	 	 	 	[State any exceptions/qualifications to the above statements]
	 
	 	 	 	[Attach list of current Group Members and current corporate structure chart]






	 	 	 	___________________________
	 
	 	 	 	Chief Financial Officer”;






	 	(f)	 	With effect from the Effective Date, the definition and all references in the
Principal Agreement to “this Agreement”, “hereunder” and the like and in the Security
Documents to the “Loan Agreement” shall be construed as references to the Principal
Agreement as amended and/or supplemented by this Agreement;
	 
	 	(g)	 	with effect from the Effective Date, the definition “Security Documents” shall
be deemed to include the Security Documents as amended and/or supplemented in pursuance
to the terms hereof as well as any document or documents (including if the context
requires the Loan Agreement) that may now or hereafter be executed as security for the
repayment of the Loan, interest thereon and any other moneys payable by the Bank under
the Principal Agreement and the Security Documents (as herein defined) as well as for
the performance by the Borrower and the other Security Parties (as herein defined) of
all obligations, covenants and agreements pursuant to the Principal Agreement this
Agreement and/or the Security Documents;
	 
	 	e.	 	with effect from the Effective Date, all references to definitions of “this
Agreement”, “the Master Agreement” “hereunder” and the like and in the Security
Documents to the “Loan Agreement” and “the Master Agreement” shall be construed as
references to the Principal Agreement, or as the case
may be, the Principal Master Agreement as amended and/or supplemented by this
Agreement.




9









 












	5.2	 	With effect from the Effective Date the provisions of the Principal Master Agreement shall be
varied and/or amended and/or supplemented by inserting after the words “Party A (as lender)”
in the last line of the definition of “Loan Facility” in Part 5, paragraph (e) of the Schedule
to the Principal Master Agreement the words:
	 
	 	 	“and as further amended by a First Supplemental Agreement dated 15th June 2009, a
Second Supplemental Agreement dated 28th June, 2010 both made between the Initial
Borrowers, as Party B and the Bank, as Party A , a Third Supplemental Agreement dated
9th July 2010 and a Fourth Supplemental Agreement dated 13th August
2010 and a Fifth Supplemental Agreement dated 15th October, 2010, all made
between the Borrower, as Party B and the Bank, as Party A.”.
	 
	6.	 	Entire agreement and amendment
	 
	6.1	 	The Principal Agreement, the Security Documents, and this Agreement represent the entire
agreement among the parties hereto with respect to the subject matter hereof and supersede any
prior expressions of intent or understanding with respect to this transaction and may be
amended only by an instrument in writing executed by the parties to be bound or burdened
thereby.
	 
	6.2	 	This Agreement is supplementary to and incorporated in the Principal Agreement, all terms and
conditions whereof, including, but not limited to, provisions on payments, calculation of
interest and Events of Default, shall apply to the performance and interpretation of this
Agreement.
	 
	7.	 	Continuance of Principal Agreement and the Security Documents
	 
	 	 	Save for the alterations to the Principal Agreement made or deemed to be made pursuant to
this Agreement and such further modifications (if any) thereto as may be necessary to make
the same consistent with the terms of this Agreement the Principal Agreement shall remain in
full force and effect and the security constituted by the Security Documents executed by the
Borrower and the other Security Parties shall continue and remain valid and enforceable.
	 
	8.	 	Continuance and reconfirmation of the Corporate Guarantee
	 
	 	 	The Corporate Guarantor hereby confirms that, notwithstanding the variation to the Principal
Agreement contained herein, the provisions of the Corporate Guarantee executed by the
Corporate Guarantor shall remain in full force and effect as guarantee of the obligations of
the Borrower under the Principal Agreement as amended hereby and in respect of all sums due
to the Bank under the Principal Agreement (as so amended) and the Security Documents.
	 
	9.	 	Fees and expenses
	 
	8.1	 	The Borrower and the Corporate Guarantor jointly and severally covenant and agree to pay and
discharge all upon demand on a full indemnity basis and from time to time




10









 






	 	 	all costs, charges
and expenses (including legal fees) incurred by the Bank in connection with the negotiation,
preparation, execution and enforcement or attempted enforcement of this Agreement and any
document executed pursuant thereto and/or in preserving or protecting or attempting to
preserve or protect the security created hereunder and/or under the Security Documents.
	 
	8.2	 	The Borrower and the Corporate Guarantor jointly and severally covenant and agree to pay and
discharge all stamp duties, registration and recording fees and charges and any other charges
whatsoever and wheresoever payable or due in respect of this Agreement and/or any document
executed pursuant hereto.
	 
	10.	 	Miscellaneous
	 
	10.1	 	The provisions of clause 15.1 of the Principal Agreement shall extend and apply to the giving
or making of notices or demands hereunder as if the same were expressly stated herein save
that notices or demands hereunder as regards the Borrower should be sent to such address or
facsimile number as the Borrower have advised in writing to the Bank on the date of the
Principal Agreement.
	 
	10.2	 	No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act
1999 by a person who is not party to this Agreement.
	 
	11.	 	Entire Agreement and Amendment; Effect on Principal Agreement
	 
	11.1	 	The Principal Agreement, the Principal Master Agreement, the Security Documents and this
Agreement represent the entire agreement among the parties hereto with respect to the subject
matter hereof and supersede any prior expressions of intent or understanding with respect to
this transaction and may be amended only by an instrument in writing executed by the party or
parties to be bound or burdened thereby.
	 
	11.2	 	Except to the extent that each of the Principal Agreement and the Principal Master Agreement
is expressly amended or supplemented by this Agreement, all terms and conditions of the
Principal Agreement remain in full force and effect. This Agreement is supplementary to and
incorporated in the Principal Agreement, all terms and conditions whereof, including, but not
limited to, provisions on payments, calculation of interest and Events of Default, shall apply
to the performance and interpretation of this Agreement.
	 
	11.3	 	No waiver of any such right, remedy or power, or any consent to any departure from the
strict application of the provisions of this Agreement, the Loan Agreement, Principal Master
Agreement or of any other Security Document shall in any way prejudice or affect the powers
conferred upon the Bank under this Agreement, the
Loan Agreement, Principal Master Agreement and the other Security Documents or the right of
the Bank thereafter to act strictly in accordance with the terms of this Agreement, the Loan
Agreement, Principal Master Agreement and the other Security Documents nor shall, any delay
or omission by the Bank to exercise any right, remedy or power vested in the Bank under this
Agreement, the Loan Agreement,




11









 






	 	 	Principal Master Agreement and/or the other Security
Documents or by law, impair such right or power, or be construed as a waiver of, or as an
acquiescence in any default by the Borrower and/or any other Security Party, nor shall any
single or partial exercise by the Bank of any power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or remedy.
	 
	12.	 	Applicable law and Jurisdiction




This Supplemental Agreement shall be governed by and construed in accordance with English law. The
provisions of clause 15.2 (Process Agent) as hereby amended, clause 16.1 (Law and Jurisdiction) and
clause 16.2 (Submission to Jurisdiction) of the Principal Agreement shall extend and apply to this
Supplemental Agreement as if the same were (mutatis mutandis) herein expressly set forth.



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








12









 








EXECUTION PAGE




THE BORROWER






	 	 	 

	SIGNED by

	 	) 
	Mr. Panagiotis-Peter Kallifidas

	 	) 
	for and on behalf of

	 	) 
	Grand Esmeralda Inc.,

	 	) 
	of Liberia, in the presence of:

	 	) 









	 
	 
	 
	 
	/s/ Panagiotis-Peter Kallifidas
 



	Attorney-in-Fact












	 	 	 	 	 

	Witness: 

Name:

	 	/s/ Efstratios Kalantzis
 

 Efstratios Kalantzis
	 	 
	Address:

	 	 13 Defteras Merarchias Str.	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation:

	 	 Attorney-at-law	 	 






THE CORPORATE GUARANTOR






	 	 	 

	SIGNED by

	 	)
	Mr. Panagiotis-Peter Kallifidas

	 	)
	for and on behalf of

	 	)
	NewLead Holdings Ltd.,

	 	)
	of Bermuda, in the presence of:

	 	)









	 	 	 
	 
	 
	 
	/s/ Panagiotis-Peter Kallifidas
 

Attorney-in-fact

	 	 











	 	 	 	 	 

	Witness: 

Name:

	 	/s/ Efstratios Kalantzis
 

Efstratios Kalantzis
	 	 
	Address:

	 	 13 Defteras Merarchias Str.	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation:

	 	Attorney-at-law	 	 






13









 




THE APPROVED MANAGER






	 	 	 

	SIGNED by

	 	) 
	Mr. Panagiotis-Peter Kallifidas

	 	) 
	for and on behalf of

	 	) 
	Newlead Bulkers S.A.,

	 	) 
	of Liberia, in the presence of:

	 	) 









	 	 	 
	 
	 
	 
	/s/ Panagiotis-Peter Kallifidas
 

Attorney-in-Fact

	 	 











	 	 	 	 	 

	Witness:


Name:

	 	/s/ Efstratios Kalantzis
 

Efstratios Kalantzis
	 	 
	Address:

	 	 13 Defteras Merarchias Str.	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation:

	 	 Attorney-at-law	 	 






THE BANK






	 	 	 

	SIGNED by

	 	) 
	Mrs. Stavroula Ydreou

	 	) 
	and Mr. Athanassios Doudoulas

	 	) 
	for and on behalf of

	 	) 
	EFG EUROBANK ERGASIAS S.A.

	 	) 
	in the presence of:

	 	) 









	 	 	 
	 
	/s/ Stavroula Ydreou
 

Attorney-in-Fact

	 	 
	 
	 	 
	/s/ Athanassios Doudoulas
 

Attorney-in-Fact

	 	 











	 	 	 	 	 

	Witness: 

Name:

	 	/s/ Efstratios Kalantzis
 

Efstratios Kalantzis
	 	 
	Address:

	 	13 Defteras Merarchias Str.	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation:

	 	Attorney-at-law	 	 







14