exv4w44






EXHIBIT 4.44




Private & confidential




Dated: 8th November, 2010




EMPORIKI BANK OF GREECE S.A.

(as lender)



- and -



GRAND MARKELA INC.

(as Borrower)



- and -



NEWLEAD HOLDINGS LTD.

(as Corporate Guarantor and Pledgor)



- and -



NEWLEAD BULKERS S.A.

(as Approved Manager)



 

 


FIFTH SUPPLEMENTAL AGREEMENT

in relation to a Loan Agreement

dated 29th November, 2006

for a loan facility of up to US$14,750,000



 

 







Theo V. Sioufas & Co.

Law Offices

Piraeus





 









 








TABLE OF CONTENTS




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








 









 







THIS AGREEMENT is made this 8th day of November, 2010



B E T W E E N





	(1)	 	EMPORIKI BANK OF GREECE S.A., a banking societe anonyme duly incorporated under the laws of
Greece, having its registered office at 11 Sofokleous Street, Athens, Greece, acting for the
purposes of this Agreement through its office at 1 Korai Street, Athens, Greece (the “Bank”
which expression shall include its successors and assigns);
	 
	(2)	 	GRAND MARKELA INC., a company incorporated in the Republic of Liberia, having
its registered office at 80 Broad Street, Monrovia, Liberia, as borrower (hereinafter called
the “Borrower”, which expression shall include its successors); 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”
and sometimes the “Pledgor”, which expressions 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 a loan agreement dated 29th November, 2006 made between (1) the
Bank, as lender and (2) the Borrower, as borrower, as amended and/or supplemented by:





	(a)	 	a First Supplemental Agreement dated 7th August, 2009 and made between (inter
alios) the Bank and the Borrower (the “First Supplemental Agreement”);
	 
	(b)	 	a Second Supplemental Agreement dated 9th April, 2010 and made between (inter
alios) the Bank, the Borrower and the Approved Manager (the “Second Supplemental Agreement”);
and
	 
	(c)	 	a Third Supplemental Agreement dated 2nd July, 2010 and made between (inter alios)
the Bank, the Borrower, the Corporate Guarantor and the Approved Manager, (the “Third
Supplemental Agreement”) and
	 
	(d)	 	a Fourth Supplemental Agreement dated 8th September, 2010 and made between (inter
alios) the Bank, the Borrower, the Corporate Guarantor and the Approved Manager, (the “Fourth
Supplemental Agreement”)




on the terms and conditions of which the Bank has advanced to the Borrower a secured multi-currency
loan facility of up to Fourteen million seven hundred fifty thousand United States
Dollars (US$14,750,000) or the equivalent thereof in an Optional Currency (the “Loan”) for




1









 







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 further amended and/or supplemented
is hereinafter called the “Loan 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 Borrower the full amount of the
Loan in the principal amount of United States Dollars Fourteen million seven hundred fifty
thousand (US$14,750,000) in one advance and (b) as the date hereof the amount of
(US$9,800,000) (US Dollars nine million eight hundred thousand) remains outstanding;
	 
	(B)	 	pursuant to a Corporate Guarantee dated 2nd 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 Agreement and the Security Documents executed in accordance thereto;
	 
	(C)	 	pursuant to a Shares Pledge Agreement dated 2nd July, 2010 executed by the
Pledgor, as Pledgor, in favour of the Bank, the Pledgor pledged all the issued share capital
of the Borrower in favour of the Bank (the “Shares Pledge Agreement”); and
	 
	(D)	 	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.




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 2nd July, 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




2









 






	 	 	“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, 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:






	 	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;




3









 






	 	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, 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
	 
	 	f.	 	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
	 
	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 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.
	 
	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 31st 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 1st day of September, 2010,




4









 






	 	(ii)	 	the written resolutions adopted on 31st 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 15th 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 September, 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.	 	the Corporate Guarantee shall be amended as provided in the Guarantee
Supplement and Amendment thereto signed by the parties thereto on the date hereof;
	 
	 	d.	 	all documents evidencing any other necessary action or approvals or consents
with respect to this Agreement; and
	 
	 	e.	 	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 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:






	 	a.	 	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
and cash flow statements (including balance sheet and profit and loss accounts)
of the Guarantor (including 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 together with a Compliance Certificate to be
provided by the Guarantor and signed by one director of the Guarantor,
setting out (in reasonable detail) computations as to compliance with Clause
5.3 (Additional Financial covenants-Compliance Certificate) of the Corporate
Guarantee as at the date at which those financial and cash flow statements
were drawn up and (ii) as soon as the same become available, but in any
event within 90 days




5









 






	 	 	 	after the end of each financial half-year, the
Borrower’s semi-annual management accounts for that financial half-year and
the Guarantor’s semi-annual interim Financial Statement for that financial
half-year and (iii) as soon as practically the same become available, but in
any event within 90 days after the end of each financial quarter, the
Corporate Guarantor’s quarterly financial statements ;”;






	 	b.	 	with effect from the Effective Date all references in the Principal Agreement
to “this Agreement”, “hereunder” and the like and in the Security Documents to the
“Loan Agreement” or the “Agreement” shall be construed as references to the Principal
Agreement as amended and/or supplemented by this Agreement; and
	 
	 	c.	 	the definition “Security Documents” with effect as from the date hereof 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 Borrower
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.






	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




6









 






	 	 	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
	 
	9.1	 	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 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.
	 
	9.2	 	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 13 (Assignment, Participation and Lending Branch) and Clause
15.1 (Notices) of the Principal Agreement shall apply to this Agreement as if the same
were set out herein in full.
	 
	11.	 	Applicable law and jurisdiction
	 
	11.1	 	This Agreement shall be governed by and construed in accordance with Hellenic Law and in
particular with the provisions of (i) Act of the Monetary Committee under Serial No. 187/1978
(as amended), (ii) the provisions of L.D. dated 17.7/13.8.1923 on “Special Provisions on
Societes Anonymes” and (iii) the special terms set out in the resolutions of the Bank of
Greece or any other competent Authority. Moreover, the Borrower hereby acknowledges and
declares that it is fully familiar with the General Transaction Terms of the Bank and it is
hereby agreed that the said General Transaction Terms shall be deemed an integral part of this
Agreement.
	 
	11.2	 	For the exclusive benefit of the Bank, each of the Borrower and the Corporate Guarantor
hereby (i) irrevocably submits to the non exclusive jurisdiction of the Courts of Piraeus in
Greece and (ii) agrees that any summons, writ, judicial or extra-judicial notice, protest,
payment order, order for payment, order for enforcement, announcement of claim or other legal
process issued against it in Greece shall be served upon the Process Agent, who is hereby
authorised to accept such service,




7









 






	 	 	which shall be deemed to be good service on each of the
Borrower and the Corporate Guarantor.






	 	(a)	 	The submission to the jurisdiction of the Courts of Piraeus shall not (and
shall not be construed so as to) limit the right of the Bank to take proceedings
against the Borrower and/or the Corporate Guarantor in the courts of any other
jurisdiction 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.
	 
	 	(b)	 	The parties further agree that subject to sub-Clause 16.2(b) the Courts of
Piraeus shall have exclusive jurisdiction to determine any claim which the Borrower 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.






	11.3	 	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 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.
	 
	11.4	 	Mr. Panagiotis-Peter Kallifidas, an attorney at law, presently of 83 Akti Miaouli and Flessa
Street, 185 38 Piraeus, Greece, is hereby appointed by the Borrower as agent to accept service
(hereinafter “Process Agent”) upon whom any judicial process in respect of proceedings in
Greece may be served and any process notice, judicial or extra-judicial request, demand for
payment, payment order, foreclosure proceedings, notarial announcement of claim, notice,
request, demand or other communication under this Agreement or any of the Security Documents.
In the event that the Process Agent (or any substitute process agent notified to the Bank in
accordance with the foregoing) cannot be found at the address specified above (or, as the case
may be, notified to the Bank), which will be conclusively proved by a deed of a process server
to the effect that the Process Agent was not found at such address, any process notice,
judicial or extra-judicial request, demand for payment,
payment order, foreclosure proceedings, notarial announcement of claim or other
communication to be sent to any Security Party may be validly notified in accordance with
the relevant provisions of the Hellenic Code on Civil Procedure.
	 
	11.5	 	In this Clause 10 “proceedings” means proceedings of any kind, including an application for a
provisional or protective measure.




8









 










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







9









 








EXECUTION PAGE




	 	 	 	 	 	 	 	 	 

	THE BORROWER
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	SIGNED by

	 	 	)	 	 	 	 	 
	Mr. Michail Livanos

	 	 	)	 	 	 	 	 
	for and on behalf of

	 	 	)	 	 	 	 	 
	Grand Markela Inc.,

	 	 	)	 	 	 	 	/s/ Michail Livanos
	 

	 	 	 	 	 	 	 	 
	of Liberia, in the presence of:

	 	 	)	 	 	 	 	Attorney-in-Fact






	 	 	 	 	 

	Witness:

	 	/s/ Efstratios Kalantzis
	 	 
	 

	 	 	 	 
	Name: Efstratios Kalantzis	 	 
	Address:

	 	13 Defteras Merarchias Str.	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation: Attorney-at-law	 	 






	 	 	 	 	 	 	 	 	 

	THE CORPORATE GUARANTOR/PLEDGOR
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	SIGNED by

	 	 	)	 	 	 	 	 
	Mr. Panagiotis-Peter Kallifidas

	 	 	)	 	 	 	 	 
	for and on behalf of

	 	 	)	 	 	 	 	 
	NewLead Holdings Ltd.,

	 	 	)	 	 	 	 	/s/ Panagiotis-Peter Kallifidas
	 

	 	 	 	 	 	 	 	 
	of Bermuda, in the presence of:

	 	 	)	 	 	 	 	Attorney-in-fact






	 	 	 	 	 

	Witness:

	 	/s/ Efstratios Kalantzis
	 	 
	 

	 	 	 	 
	Name: Efstratios Kalantzis	 	 
	Address:

	 	13 Defteras Merarchias Str.	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation: Attorney-at-law	 	 






10









 





	 	 	 	 	 	 	 	 	 

	THE APPROVED MANAGER
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	SIGNED by

	 	 	)	 	 	 	 	 
	Mr. Panagiotis-Peter Kallifidas

	 	 	)	 	 	 	 	 
	for and on behalf of

	 	 	)	 	 	 	 	 
	Newleads Bulkers S.A.,

	 	 	)	 	 	 	 	/s/ Panagiotis-Peter Kallifidas
	 

	 	 	 	 	 	 	 	 
	of Liberia, in the presence of:

	 	 	)	 	 	 	 	Attorney-in-Fact






	 	 	 	 	 

	Witness:

	 	/s/ Efstratios Kalantzis
	 	 
	 

	 	 	 	 
	Name: Efstratios Kalantzis	 	 
	Address:

	 	13 Defteras Merarchias Str.	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation: Attorney-at-law	 	 






	 	 	 	 	 	 	 	 	 

	THE BANK
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	SIGNED by

	 	 	)	 	 	 	 	 
	Mrs. Christina Margelou

	 	 	)	 	 	 	 	/s/ Christina Margelou
	 

	 	 	 	 	 	 	 	 
	and Mrs. Chrysoula Voulgari

	 	 	)	 	 	 	 	Attorney-in-Fact
	for and on behalf of

	 	 	)	 	 	 	 	 
	EMPORIKI BANK OF GREECE S.A.

	 	 	)	 	 	 	 	 
	in the presence of:

	 	 	)	 	 	 	 	/s/ Chrysoula Voulgari
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Attorney-in-Fact






	 	 	 	 	 

	Witness:

	 	/s/ Efstratios Kalantzis
	 	 
	 

	 	 	 	 
	Name: Efstratios Kalantzis	 	 
	Address:

	 	13 Defteras Merarchias Str.	 	 
	 

	 	Piraeus, Greece	 	 
	Occupation: Attorney-at-law	 	 







11