exv4w40






EXHIBIT 4.40




Private & confidential




Dated: 5th   November, 2010




Commerzbank Aktiengesellschaft




as Bank

- and -




Grand Venetico Inc.




as Borrower

- and -

NewLead Holdings Ltd.

as Corporate Guarantor




- and -




Newlead Bulkers S.A.

as Approved Manager




 

 

THIRD SUPPLEMENTAL AGREEMENT

in relation to a Loan Agreement dated 10th November, 2006

for a secured loan facility of US$18,000,000


 

 


 

Theo V. Sioufas & Co.

Law Offices



Piraeus








 









 








TABLE OF CONTENTS




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











 









 







THIS AGREEMENT is made this 5th day of November, 2010



B E T W E E N





	(1)	 	Grand Venetico Inc., as Borrower;






	(2)	 	Commerzbank Aktiengesellschaft, as Bank; 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 (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 (the
“Approved Manager”, which expression shall include its successors in title);




AND IS SUPPLEMENTAL to a loan agreement dated 10th November, 2006 made between (1)
Grand Venetico Inc., a Marshall Islands corporation, as Borrower (therein and hereinafter
called the “Borrower”) and (2) Commerzbank Aktiengesellschaft, as lender (therein and
hereinafter called the “Bank”), as amended and/or supplemented by (i) a First Supplemental
Agreement dated 18th April, 2008 (the “First Supplemental Agreement”) and (ii) a Second
Supplemental Agreement dated 1st April, 2010 (the “Second Supplemental Agreement”), each
made between (inter alios) the Bank and the Borrower (the said loan agreement as amended by the
First Supplemental Agreement and the Second Supplemental Agreement and as the same may from time to
time be further amended and/or supplemented is hereinafter called the “Principal Agreement”), on
the terms and conditions of which the Bank made available to the Borrower a loan of Eighteen
million United States Dollars (US $18,000,000).



W H E R E A S :





	(A)	 	pursuant to a Drawdown Notice from the Borrower to the Bank, the Bank has advanced to the
Borrower the full amount of the Commitment on 13th November, 2006 namely Eighteen
million United States Dollars (US $18,000,000) (as the Borrower and the Corporate Guarantor
hereby jointly and severally acknowledge);
	 
	(B)	 	the outstanding amount in respect of the Loan immediately prior to the date of this Agreement
is US$8,625,000 (United States Dollars Eight million six hundred twenty five thousand) as the
Borrower and the Corporate Guarantor hereby jointly and severally acknowledge); and
	 
	(C)	 	the Borrower and (inter alia) the Corporate Guarantor have requested the Bank to consent to:






	 	(a)	 	the amendment of the repayment schedule of the Loan; and
	 
	 	(b)	 	the amendment of the Principal Agreement as set out in Clause 5 hereof;




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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.





	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 date, not being later than 5th November, 2010 (or such later date
as the Bank may agree) upon which all the conditions contained in Clause 4 shall have been
satisfied and this Agreement shall become effective; and
	 
	 	 	“Loan Agreement” means the Principal 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 and the Corporate Guarantor 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 and the Corporate Guarantor hereby jointly and
severally represent and warrant to the Bank as at the date of this Agreement that:










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	 	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 and does not have an
established place of business in any part of the United Kingdom or the USA;
	 
	 	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.	 	no action, suit or proceeding is pending or threatened against any of the
Borrower 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 or
the Corporate Guarantor; and
	 
	 	f.	 	none of the Borrower 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
	 
	3.1	 	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 repayment schedule of the Loan and that
the Principal Agreement be amended in the manner more particularly set out in Clause 5.1.
	 
	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:










3









 












	 	a.	 	the Bank shall have received on or before the Effective Date in form and
substance satisfactory to the Bank and its legal advisers:






	 	i.	 	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;
	 
	 	ii.	 	certificates of Incumbency issued by the appropriate officer of
each corporate Security Party confirming that:
	 
	 	iii.	 	the written resolutions adopted on 31st March, 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 1st day of April, 2010;
	 
	 	iv.	 	the written resolutions adopted on 31st March, 2010
by all the members of the Board of Directors of the Corporate Guarantor; and
	 
	 	v.	 	Minutes of the Meeting of the Board of Directors of the
Approved Manager duly convened and held on 31st 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 each corporate
Security Party on 1st April, 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;
	 
	 	vi.	 	all documents evidencing any other necessary action or
approvals or consents with respect to this Agreement;
	 
	 	vii.	 	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; and
	 
	 	viii.	 	the Vessel is managed by the Approved Manager on terms and
conditions approved by the Bank.






	 	b.	 	the Borrower shall have repaid to the Bank on the date hereof part of the Loan
in the amount of $750,000 (Seven hundred and fifty thousand Dollars).






	5.	 	Variations to the Principal Agreement






	5.1	 	In consideration of the agreement of the Bank contained in Clause 3.1, the Borrower 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




4









 






	 	 	effect from the Effective Date, the provisions of the Principal Agreement shall be varied
and/or amended and/or supplemented as follows:






	 	a.	 	The definition of Clause 1.2 of the Principal Agreement referred to hereinbelow
shall be deleted and replaced by the following:






	 	i.	 	““Final Maturity Date” by:
	 
	 	 	 	““Final Maturity Date” means the 31st day of January, 2011;”;






	 	b.	 	with effect from the Effective Date clause 4.1 of the Principal Agreement is
hereby amended to read as follows:






	 	 	 	“4.1 Repayment
	 
	 	 	 	The outstanding amount of the Loan (being on 1st October, 2010 in the
principal sum of $7,875,000) (Dollars Seven million eight hundred seventy five
thousand) shall be repaid by the Borrower in one amount on the Final Maturity Date,
on which date the Borrower shall also pay to the Bank any and all other monies then
payable and outstanding under this Agreement and the other Security Documents.”; and






	 	c.	 	with effect from the Effective Date paragraph (c) of clause 15.1 of the
Principal Agreement is hereby amended to read as follows:






	 	(c)	 	be sent:






	 	(i)	 	if to be sent to any Security Party, to:


	 
	 	 	 	c/o Newlead Bulkers S.A.

83 Akti Miaouli and Flessa Street,

185 38 Piraeus, Greece,

Fax No.: +30 21300148209

Attention: Chief Financial Officer


	 
	 	(ii)	 	in the case of the Bank at:


	 
	 	 	 	COMMERZBANK AKTIENGESELLSCHAFT,

Asset Based Finance — Shipping,

Domstraße 18 D — 20095, Hamburg,

Federal Republic of Germany

Fax No. : (+0049) 40 37699 — 649

Attention: Mr. Claas Ringleben






(interest rate fixing and payment matters to be addressed attention
Loan Administration, Fax. no. +49 40 3683 2049)




or to such other person, address or fax number as is notified by the relevant
Security Party or the Bank (as the case may be) to the other parties to this
Agreement and, in



5









 






the case of any such change of address or fax number notified to the Bank, the same
shall not become effective until notice of such change is actually received by the
Bank and a copy of the notice of such change is signed by the Bank.”; and




	 	d.	 	with effect from the Effective Date all references in the Principal Agreement
to “this Agreement”, “hereunder” and the like in the Principal Agreement and “the
Agreement” and in the Security Documents shall be construed as references to the
Principal Agreement as amended and/or supplemented by this Agreement.






	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
	 
	7.1	 	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.	 	Fees and expenses
	 
	8.1	 	The Borrower agrees to pay to the Bank upon demand on a full indemnity basis and from time to
time 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.




6









 






	9.	 	Miscellaneous
	 
	9.1	 	The provisions of Clause 13 (Assignment, Participation and Lending Branch) and Clause
15.1 (Notices) (as hereby amended) of the Principal Agreement shall apply to this Agreement as
if the same were set out herein in full.
	 
	9.2	 	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.
	 
	10.	 	Applicable law and jurisdiction
	 
	10.1	 	This Agreement shall be governed by and construed in accordance with English Law.
	 
	10.2	 	For the exclusive benefit of each Creditor, each of the Borrower and the Corporate Guarantor
agrees that any legal action or proceedings arising out or in connection with this Agreement
against the Borrower and the Corporate Guarantor (or any of them) or any of their respective
assets may be brought in the English Courts. Each of the Borrower and the Corporate Guarantor
irrevocably and unconditionally submits to the jurisdiction of such courts and irrevocably
designates, appoints and empowers Messrs. Cheeswrights (attention: Mr. Nigel P.
Ready) at their office for the time being at Bankside House, 107 Leadenhall Street, London
EC3A 4HA, England, to receive for it and on its behalf, service of process issued out of the
English courts in any such legal action or proceedings. Finally, each of the Borrower and the
Corporate Guarantor hereby waives any objections to the inconvenience of England as a forum.
	 
	10.3	 	The submission to the jurisdiction of the English Courts shall not (and shall not be
construed so as to) limit the right of the Bank to take proceedings against the Security
Parties (or any of them) in the courts of any other competent jurisdiction or to serve process
in any other manner permitted by law nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction, whether
concurrently or not.
	 
	10.4	 	The parties further agree that subject to Clause 10.3 the Courts of England shall have
exclusive jurisdiction to determine any claim which the Borrower and the Corporate Guarantor
(or any of them) may have against the Bank arising out of or in connection with this Agreement
and each of the Borrower and the Corporate Guarantor hereby waives any objections to
proceedings with respect to this Agreement in such courts on the grounds of venue or
inconvenient forum.
	 
	10.5	 	If it is decided by the Bank that any such proceedings should be commenced in any other
country, then any objections as to the jurisdiction or any claim as to the inconvenience of
the forum is hereby waived by each of the Borrower and the Corporate Guarantor and it is
agreed and undertaken by each of the Security Parties to instruct lawyers in that country to
accept service of legal process and not to contest the validity of such proceedings as far as
the jurisdiction of the court or




7









 






	 	 	courts involved is concerned and each of the Security Parties agrees that any judgement or
order obtained in an English court shall be conclusive and binding on the Security Parties
(and each of them) and shall be enforceable without review in the courts of any other
jurisdiction.
	 
	10.6	 	In this Clause 10 “proceedings” means proceedings of any kind, including an application for a
provisional or protective measure.




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









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EXECUTION PAGE




THE BORROWER




	 	 	 	 	 	 	 

	SIGNED by

	 	 	)	 	 	 
	Mr. Michail Livanos

	 	 	)	 	 	 
	for and on behalf of

	 	 	)	 	 	 
	GRAND VENETICO INC. 

of Marshall Islands, in the presence of:

	 	 	)

)	 	 	/s/ Michail Livanos
 
 Attorney-in-fact






	 	 	 	 	 

	Witness:

	 	/s/ Peter Kallifidas
 

	 	 
	Name: 	 	Peter Kallifidas	 	 
	Address:	 	 83 Akti Miaouli and Flessa Street,	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation:	 	Attorney-at-Law	 	 






THE CORPORATE GUARANTOR




	 	 	 	 	 	 	 

	SIGNED by

	 	 	)	 	 	 
	Mr. Peter Kallifidas

	 	 	)	 	 	 
	for and on behalf of

	 	 	)	 	 	 
	NewLead Holdings Ltd.,

of Bermuda, in the presence of:

	 	 	)

)	 	 	/s/ Peter Kallifidas
 
 Attorney-in-fact






	 	 	 	 	 

	Witness:

	 	/s/ Michail Livanos
 

	 	 
	Name:	 	Michail Livanos	 	 
	Address:	 	83 Akti Miaouli and Flessa Street,	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation:	 	 Attorney-at-Law	 	 






THE APPROVED MANAGER




	 	 	 	 	 	 	 

	SIGNED by

	 	 	)	 	 	 
	Mr. Michail Livanos

	 	 	)	 	 	 
	for and on behalf of

	 	 	)	 	 	 
	NEWLEAD BULKERS S.A.

of Liberia, in the presence of:

	 	 	)

)	 	 	/s/ Michail Livanos
 
 Attorney-in-fact






	 	 	 	 	 

	Witness:

	 	/s/ Peter Kallifidas
 

	 	 
	Name:	 	Peter Kallifidas	 	 
	Address:	 	 83 Akti Miaouli and Flessa Street,	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation:	 	Attorney-at-Law	 	 








9









 








THE BANK




	 	 	 	 	 	 	 

	SIGNED by

	 	 	)	 	 	 
	Mr. Charalambos V. Sioufas

	 	 	)	 	 	 
	for and on behalf of

	 	 	)	 	 	 
	COMMERZBANK AKTIENGESELLSCHAFT 

in the presence of:

	 	 	)

)	 	 	/s/ Charalambos V. Sioufas
 
 Attorney-in-fact






	 	 	 	 	 

	Witness:

	 	/s/ Efstratios Kalantzis
 

	 	 
	Name:	 	Efstratios Kalantzis	 	 
	Address:	 	13 Defteras Merarchias Street,	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation:	 	Attorney-at-Law	 	 







10