Exhibit
10.9

 

Dated      February
2013

 

SIXTHONE
CORP. and

SEVENTHONE
CORP.

as
joint and several Borrowers

 

and

 

THE
BANKS AND FINANCIAL INSTITUTIONS

listed
in Schedule 1 

as
Lenders

 

and

 

HSH
NORDBANK AG

as
Agent, Mandated Lead Arranger, Swap Bank and Security Trustee

 

SUPPLEMENTAL
AGREEMENT

 

relating
to a secured loan facility

of
(originally) up to US$37,300,000





 


	 




	 



 

Index

 

	Clause		Page
	 	 	 
	1	Interpretation	1
	2	Agreement of the Creditor PArties	2
	3	Conditions Precedent	2
	4	Representations and Warranties	3
	5	Amendments to Loan Agreement and other
      Finance Documents	3
	6	Further Assurances	5
	7	Fees and Expenses	6
	8	Communications	6
	9	Supplemental	6
	10	Law and Jurisdiction	6
	Schedule 1  Lenders
      and Contributions	7
	Executions Pages	8


 


	 




	 



 

THIS
AGREEMENT is made on February 2015

 

BETWEEN

 

		(1)	SIXTHONE CORP. and SEVENTHONE
      CORP. as joint and several Borrowers;


 

		(2)	THE BANKS AND FINANCIAL
      INSTITUTIONS listed in Schedule 1 herein, as
  Lenders;


 

		(3)	HSH NORDBANK AG, acting through its
      office at Gerhart-Hauptmann-Platz 50, D-20095, Hamburg, Germany as
      Mandated Lead Arranger;


 

		(4)	HSH NORDBANK AG, acting through its
      office at Gerhart-Hauptmann-Platz 50, D-20095, Hamburg, Germany as
      Agent;


 

		(5)	HSH NORDBANK AG, acting through its
      office at Gerhart-Hauptmann-Platz 50, D-20095, Hamburg, Germany, as
      Security Trustee; and


 

		(6)	HSH NORDBANK AG, acting through its
      office at Martensdamm 6, D-24103, Kiel, Germany as Swap
  Bank.


 

BACKGROUND

 

		(A)	By a loan agreement dated 12 October 2012
      (the "Loan Agreement") and made between (i) the Borrowers, (ii) the
      Lenders, (iii) the Mandated Lead Arranger, (iv) the Agent, (v) the
      Security Trustee and (vi) the Swap Bank, the Lenders agreed to make
      available to the Borrowers a secured loan facility in an amount of
      (originally) up to US$37,300,000.


 

		(B)	By a master agreement (on the 2002 ISDA
      (Multicurrency-Crossborder) form) together with schedule thereto as
      amended dated 31 October 2012 and made between (i) the Borrowers and (ii)
      the Swap Bank, pursuant to which the Swap Bank agreed to enter into
      Designated Transactions with the Borrowers from time to time to hedge the
      Borrowers’ exposure under the Loan Agreement to interest rate
    fluctuations.


 

		(C)	The Borrowers have requested that the
      Lenders give their consent to (inter alia) the following changes in the
      Loan Agreement (terms as defined therein):


 

		(i)	to extend the Availability Period for
      Tranche A until 31 March 2013;


 

		(ii)	to reduce the amount of Tranche A to
      $14,000,000;


 

		(iii)	to amend the condition relating to a time
      charterparty agreement for Ship A; and


 

		(iv)	to amend the requirements with respect to
      Minimum Liquidity.


 

		(D)	The Lenders' consent to the Borrowers’
      requests referred to in Recital (B) are subject to the Borrowers
      satisfying the conditions outlined in Clause 3 of this
  Agreement.


 

		(E)	This Agreement sets out the terms and
      conditions on which the Creditor Parties agree, with effect on and from
      the Effective Date, to amend the Loan Agreement.


 

IT
IS AGREED as follows:

 

		1	Interpretation


 

		1.1	Defined
expressions


 

Words
and expressions defined in the Loan Agreement and the other Finance Documents
shall have the same meanings when used in this Agreement unless the context
otherwise requires.

 


	 




	 



  

		1.2	Definitions


 

In
this Agreement, unless the contrary intention appears:

 

"Effective
Date" means the date on which the Agent confirms that the conditions
precedent in Clause 3 have been satisfied;

 

"Loan
Agreement" means the loan agreement dated 12 October 2012 referred to in
Recital (A); and

 

“Master
Agreement” means the master agreement (on the 2002 ISDA
(Multicurrency-Crossborder) form) and schedule thereto dated 12 October 2012
referred to in Recital (B).

 

		1.3	Application of construction and
      interpretation provisions of Loan Agreement


 

Clauses
1.2 and 1.5 of the Loan Agreement apply, with any necessary modifications, to
this Agreement.

 

		2	Agreement of the Creditor
  PArties


 

		2.1	Agreement of the
  Lenders


 

The
Lenders agree (inter alia), subject to and upon the terms and conditions of this
Agreement:

 

		(a)	to extend the Availability Period for
      Tranche A until 31 March 2013;


 

		(b)	to reduce the amount of Tranche A to
      $14,000,000;


 

		(c)	to amend the condition relating to a time
      charterparty agreement for Ship A; and


 

		(d)	to amend the requirements with respect to
      Minimum Liquidity.


 

		2.2	Agreement of the Creditor
  Parties


 

The
Creditor Parties agree, subject to and upon the terms and conditions of this
Agreement, to the consequential amendment of the Loan Agreement and the other
Finance Documents in connection with the matters referred to in Clause 2.1.

 

		2.3	Effective Date


 

The
agreement of the Lenders and the other Creditor Parties contained in Clauses 2.1
and 2.2 shall have effect on and from the Effective Date.

 

		3	Conditions Precedent


 

		3.1	General


 

The
agreement of the Lenders and the other Creditor Parties contained in Clauses 2.1
and 2.2 is subject to the fulfilment of the conditions precedent in Clause
3.2.

 


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		3.2	Conditions
precedent


 

The
conditions referred to in Clause 3.1 are that the Agent shall have received the
following documents and evidence in all respects in form and substance
satisfactory to the Agent and its lawyers on or before the Effective Date:

 

		(a)	documents of the kind specified in
      paragraphs 3, 4 and 5 of Schedule 3, Part A to the Loan Agreement in
      relation to each Borrower and the Corporate Guarantor in connection with
      their execution (or, in the case of the Corporate Guarantor,
      counter-signature) of this Agreement, updated with appropriate
      modifications to refer to this Agreement as may be
required;


 

		(b)	an original of this Agreement duly
      executed by the parties to it and counter-signed by the Corporate
      Guarantor;


 

		(c)	favourable opinions from lawyers appointed
      by the Agent on such matters concerning the laws of the Republic of the
      Marshall Islands and such other relevant jurisdictions as the Agent may
      require; and


 

		(d)	any other document or evidence as the
      Agent may request in writing from the Borrowers.


 

		4	Representations and
  Warranties


 

		4.1	Repetition of Loan Agreement
      representations and warranties


 

The
Borrowers represent and warrant to the Creditor Parties that the representations
and warranties in clause 10 of the Loan Agreement remain true and not misleading
if repeated on the date of this Agreement.

 

		4.2	Repetition of Finance Document
      representations and warranties


 

Each
Borrower and each of the other Security Parties represent and warrant to the
Creditor Parties that the representations and warranties in the Finance
Documents (other than the Loan Agreement) to which it is a party remain true and
not misleading if repeated on the date of this Agreement.

 

		5	Amendments to Loan Agreement and other
      Finance Documents


 

		5.1	Specific amendments to Loan
      Agreement


 

With
effect on and from the Effective Date the Loan Agreement shall be amended as
follows:

 

		(a)	by deleting the date “20 December 2012”
      from the first line of paragraph (a) of the definition of “Availability
      Period in clause 1.1 thereof and replacing with the date “31 March
    2013”;


 

		(b)	by deleting the figure “$16,000,000” in
      the definition of “Tranche A” in clause 1.1 thereof and replacing with the
      figure “$14,000,000”;


 

		(c)	by deleting the figure “$16,000,000” in
      paragraph (c) of clause 4.2 thereof and replacing with the figure
      “$14,000,000”;


 

		(d)	by deleting clause 8.1 thereof in its
      entirety and replacing it with the following:


 


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“8.1
Amount of Repayment Instalments. 

 

The
Borrowers shall repay each Tranche as follows:

 

		(a)	in the case of Tranche A, by 17 equal
      consecutive quarterly instalments, each in the amount of $350,000 (each a
      "Tranche A Repayment Instalment"); and


 

		(b)	in the case of Tranche B, by 20 equal
      consecutive quarterly instalments, each in the amount of $313,235 (each a
      "Tranche B Repayment Instalment"),


 

each
Tranche A Repayment Instalment and each Tranche B Repayment Instalment, a
"Repayment Instalment" and, together, the "Repayment Instalments";
and

 

		(c)	in the case of Tranche A, $8,050,000 (the
      "Tranche A Balloon Instalment"); and


 

		(d)	in the case of Tranche B, $15,035,300 (the
      "Tranche B Balloon Instalment"),


 

the
Tranche A Balloon Instalment and the Tranche B Balloon Instalment each a
"Balloon Instalment" and, together, the "Balloon Instalments",

 

Provided
that if the amount drawn down in respect of a Tranche is less than (i) in
the case of Tranche A, $14,000,000 and (ii) in the case of Tranche B,
$21,300,000, each Repayment Instalment in respect of that Tranche and the
Balloon Instalment in respect of that Tranche shall be reduced pro rata by an
amount in aggregate equal to the undrawn amount.”;

 

		(e)	by deleting the words “date of this
      Agreement” in paragraph (a) of clause 9.1 thereof and replacing with the
      words “first Drawdown Date”;


 

		(f)	by deleting clause 11.17 thereof in its
      entirety and replacing it with the following:


 

“11.17
Minimum Liquidity.

 

The
Borrowers undertake to maintain in the Liquidity Account as from the first
Drawdown Date to occur under this Agreement and at all times thereafter during
the Security Period a credit balance in the amount of $1,000,000 (the
“Minimum Liquidity Amount”). In addition, the Borrowers agree to deposit
an additional amount of $650,000 in the Liquidity Account on the first Drawdown
Date to occur under this Agreement (the “Additional Liquidity Amount”).
The Agent shall release the Additional Liquidity Amount on 31 December 2013 to
the Borrowers Provided that no Event of Default or Potential Event of
Default has occurred or would result from the release of the Additional
Liquidity Amount to the Borrowers.”;

 

		(g)	by deleting the words “date of this
      Agreement” from paragraph (a)(ii) of clause 20.1 thereof and replacing
      them with the words “first Drawdown Date”;


 

		(h)	by deleting the word “nine” from the
      second line of paragraph 6, Part B of Schedule 3 thereof and replacing it
      with the word “six”;


 

		(i)	by adding the words “(and of each document
      to be delivered pursuant to it)” after the words “Charterparty Assignment”
      in paragraph 7, Part B of Schedule 3 thereof;


 

		(j)	by replacing the figure “$37,300,000”
      wherever it appears in the Loan Agreement (including the Schedules
      thereto) with the figure “$35,300,000”; and


 

		(k)	by inserting a new paragraph 9 to Part B
      of Schedule 3 thereof as follows:


 

		“9	Evidence satisfactory to the Agent
      that Ship B is subject to a time charterparty agreement for a period not
      less than twelve months in duration and at a daily hire rate of not less
      than $14,000 with a charterer acceptable to the Agent in all
  respects.”.


 


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		5.2	Amendments to Finance
  Documents


 

With
effect on and from the Effective Date each of the Finance Documents other than
the Loan Agreement shall be, and shall be deemed by this Agreement to have been,
amended as follows:

 

		(a)	the definition of, and references
      throughout each of the Finance Documents to, the Loan Agreement and any of
      the other Finance Documents shall be construed as if the same referred to
      the Loan Agreement and those Finance Documents as amended and supplemented
      by this Agreement; and


 

		(b)	by construing references throughout each
      of the Finance Documents to "this Agreement", "this Deed", hereunder and
      other like expressions as if the same referred to such Finance Documents
      as amended and supplemented by this Agreement.


 

		5.3	Finance Documents to remain in full
      force and effect


 

The
Finance Documents shall remain in full force and effect as amended and
supplemented by:

 

		(a)	the amendments to the Finance Documents
      contained or referred to in Clauses 5.1 and 5.2; and


 

		(b)	such further or consequential
      modifications as may be necessary to give full effect to the terms of this
      Agreement.


 

		6	Further Assurances


 

		6.1	Borrowers’ and each Security Party's
      obligation to execute further documents etc.


 

Each
Borrower and each Security Party shall:

 

		(a)	execute and deliver to the Security
      Trustee (or as it may direct) any assignment, mortgage, power of attorney,
      proxy or other document, governed by the law of England or such other
      country as the Security Trustee may, in any particular case,
  specify;


 

		(b)	effect any registration or notarisation,
      give any notice or take any other step,


 

which
the Agent may, by notice to the Borrowers, specify for any of the purposes
described in Clause 6.2 or for any similar or related purpose.

 

		6.2	Purposes of further
  assurances


 

Those
purposes are:

 

		(a)	validly and effectively to create any
      Security Interest or right of any kind which the Security Trustee intended
      should be created by or pursuant to the Loan Agreement or any other
      Finance Document, each as amended and supplemented by this Agreement,
    and


 

		(b)	implementing the terms and provisions of
      this Agreement.


 

		6.3	Terms of further
  assurances


 

The
Security Trustee may specify the terms of any document to be executed by the
Borrowers or any Security Party under Clause 6.1, and those terms may include
any covenants, powers and provisions which the Security Trustee considers
appropriate to protect its interests.

 


	5




	 



  

		6.4	Obligation to comply with
  notice


 

The
Borrowers or any Security Party shall comply with a notice under Clause 6.1 by
the date specified in the notice.

 

		7	Fees and Expenses


 

The
provisions of clause 20 (fees and expenses) of the Loan Agreement shall apply to
this Agreement as if they were expressly incorporated in this Agreement with any
necessary modifications.

 

		8	Communications


 

		8.1	General


 

The
provisions of clause 28 (notices) of the Loan Agreement, as amended and
supplemented by this Agreement, shall apply to this Agreement as if they were
expressly incorporated in this Agreement with any necessary modifications.

 

		9	Supplemental


 

		9.1	Counterparts


 

This
Agreement may be executed in any number of counterparts.

 

		9.2	Third Party
rights


 

A
person who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any
term of this Agreement.

 

		10	Law and Jurisdiction


 

		10.1	Governing law


 

This
Agreement and any non-contractual obligations arising out of or in connection
with it shall be governed by and construed in accordance with English law.

 

		10.2	Incorporation of the Loan Agreement
      provisions


 

The
provisions of clause 31 (law and jurisdiction) of the Loan Agreement, as amended
and supplemented by this Agreement, shall apply to this Agreement as if they
were expressly incorporated in this Agreement with any necessary
modifications.

 

THIS
AGREEMENT has been duly executed by or on behalf of the parties and has, on
the date stated at the beginning of this Agreement, been delivered as a
Deed.

 


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Schedule
1

 

Lenders
and Contributions

 

 

	Lender	 	Lending
Office	 	
      Contribution

      (US
      Dollars)
	 
	 	 	 	 	 	 
	HSH Nordbank
      AG	 	Gerhart-Hauptmann-Platz 50
      
D-20095, Hamburg 
Germany	 	 	35,300,000	 


 


	7




	 



 

 

Executions
Pages

 

	THE BORROWERS	 
	 	 
	SIGNED by	)
	for and on behalf of	)
	SIXTHONE CORP.	)
	 	 
	SIGNED by	)
	for and on behalf of	)
	SEVENTHONE CORP.	)
	 	 
	THE LENDERS	 
	 	 
	SIGNED by	)
	for and on behalf of	)
	HSH NORDBANK AG	)
	 	 
	MANDATED LEAD ARRANGER	 
	 	 
	SIGNED by	)
	for and on behalf of	)
	HSH NORDBANK AG	)
	 	 
	AGENT	 
	 	 
	SIGNED by	)
	for and on behalf of	)
	HSH NORDBANK AG	)
	 	 
	SECURITY TRUSTEE	 
	 	 
	SIGNED by	)
	for and on behalf of	)
	HSH NORDBANK AG	)
	 	 
	THE SWAP BANK	 
	 	 
	SIGNED by	)
	for and on behalf of	)
	HSH NORDBANK AG	)
	 	 
	Witness to all the	)
	above signatures	)


 

Name:

Address:

 


	8




	 



  

COUNTERSIGNED
this       day of February 2013 for and on behalf of each of the following Security
Parties which, by its execution hereof, confirms and acknowledges that it has
read and understood the terms and conditions of this supplemental letter, that
it agrees in all respects to the same and that the Finance Documents to which it
is a party shall remain in full force and effect and shall continue to stand as
security for the obligations of the Borrowers under the Loan Agreement.

 

	 	 
	 	 
	for and on behalf of	 
	PYXIS HOLDING INC.	 


 


	9