EX-4.21
6
d1064872_ex4-21.htm
EXHIBIT
4.21
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Private
& Confidential
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Dated
6 October 2009
_______________________________
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AMCIC
CAPE HOLDINGS LLC
and
BIRD
ACQUISITION CORP.
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(1)
(2)
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_______________________________
MEMBERSHIP INTEREST TRANSFER
AGREEMENT
for
the transfer of membership interests in
Xxxxxx
Xxxxxx LLC and
Hope
Shipco LLC
_______________________________
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Contents
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1
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Definitions
and interpretation
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1
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2
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Conditions
precedent
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4
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3
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Agreement
to sell the Xxxxxx Membership Interests
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4
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4
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Consideration
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5
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5
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Agreement
to transfer the Hope Membership Interests
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5
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6
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Completion
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5
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7
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The
Warranties
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8
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8
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Dealing
with and voting on the Xxxxxx Membership Interests and the Hope Membership
Interests
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9
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9
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Bird
undertaking
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10
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10
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Entire
agreement
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10
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11
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Announcements
and confidentiality
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11
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12
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Waivers
and releases
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11
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13
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Miscellaneous
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12
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14
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Notices
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12
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15
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Assignment
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13
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16
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Governing
law and agent for service of process
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13
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17
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Jurisdiction
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14
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Schedule
1 Information on Xxxxxx
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15
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Schedule
2 Information on Hope
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16
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Schedule
3 The Bird Warranties
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17
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Schedule
4 The AMCIC Warranties
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19
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Schedule
5 Draft Proforma Management Agreement
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21
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THIS AGREEMENT is dated 6
October 2009 and is made BETWEEN:
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(1)
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AMCIC CAPE HOLDINGS LLC
whose registered office is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro, Republic of the Xxxxxxxx Xxxxxxx XX00000 (AMCIC);
and
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(2)
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BIRD ACQUISITION CORP.
whose registered office is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro, Republic of the Xxxxxxxx Xxxxxxx XX00000 (Bird).
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NOW IT IS HEREBY AGREED as
follows:
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1
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Definitions
and interpretation
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1.1
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In
this Agreement, unless the context requires
otherwise:
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Xxxx SPA means the share
purchase agreement made or, as the context may require, to be made between
Keagan Enterprises S.A. and MK Maritime LLC in relation to the sale and purchase
of interests in Quest Maritime Enterprises S.A. and Xxxx Maritime Limited in
agreed form;
AMCIC Warranties means the
warranties given by AMCIC and set out in schedule 4;
Bank means The Royal Bank of
Scotland plc of 00 Xx. Xxxxxx Xxxxxx, Xxxxxxxxx XX0 0XX, Xxxxxxxx acting through
its branch known as The Shipping Business Centre at 0-00 Xxxxx Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx and includes its successors in title, transferees
and/or assignees;
Bird Warranties means the
warranties given by Bird and set out in schedule 3;
Builder means STX Offshore
& Shipbuilding Co., Ltd. of 100 Wonpo-dong, Jinhae, Gyeongsangnam-do,
Republic of Korea and includes its successors in title;
Business Day means a day other
than a Saturday or Sunday on which banks are ordinarily open for the transaction
of normal banking business in Athens and New York;
Charterer means EDF Trading
Limited of 00 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx XX0X 5JL, England and
includes its successors in title;
Xxxxxxxxx
Membership Interest
Transfer Agreement means the
membership interest transfer agreement made
or, as the context may require, to be made between Bird and AMCIC in relation to
the transfer of membership interests in Xxxxxxxxx Xxxxxx LLC, in agreed
form;
Completion means completion of
the sale by Bird and purchase by AMCIC of the Xxxxxx Membership Interests and
the transfer of the Hope Membership Interests by AMCIC to Bird by the
performance by the parties of their respective obligations under, and otherwise
in accordance with, clause 6;
Completion Date means 31
October 2009 or such earlier or later date as the parties hereto may agree in
writing;
Conditions means the
conditions specified in clause 2.1;
Conditions Final Date means 9
October 2009 or such later date as the parties hereto may agree in
writing;
Dollars and $ mean the lawful currency of
the United States of America and in respect of all payments to be made under
this Agreement mean funds which are for same day settlement in the New York
Clearing House Interbank Payments System (or such other US dollar funds as may
at the relevant time be customary for the settlement of international banking
transactions denominated in US dollars);
1
Encumbrance means any
mortgage, charge, pledge, lien, option, restriction, right of first refusal,
right of pre-emption, claim, right, interest or preference granted to any person
or any other encumbrance or security interest of any kind (or an agreement or
commitment to create any of the same);
Hope means Hope Shipco LLC,
further details of which are set out in schedule 2;
Hope Charter means the "NYPE
93 Form" time charter in respect of x.x. Xxxxx dated 3 March 2007 made
between the Charterer and Xxxxx Xxxxxx LLC as amended by addendum No.1 dated 16
November 2007, and as further amended by addendum No.2 dated 21 August 2008
which allowed the owner to substitute m.v. Iron Beauty for x.x. Xxxxx, pursuant to which the
owner agreed to let and the Charterer agreed to take on charter the relevant
vessel for a period of 60 to 66 months at $28,000 per day plus an amount in
Dollars equal to 50% of that daily hire calculated by the parties to the Hope
Charter pursuant to clause 10 thereof which is in excess of $28,000 per day and
otherwise on terms set out therein;
Hope Charter Addendum means
addendum no.3 to the Hope Charter made or, as the context may require, to be
made between Xxxxx Xxxxxx LLC, Hope and the Charterer in agreed form, pursuant
to which the Hope Vessel will be substituted for m.v. Iron Beauty and the charter
period will commence from the Hope Vessel's delivery from the
Builder;
Hope Contract means a
shipbuilding contract dated 16 April 2007 made between Bird as the purchaser and
the Builder as builder, as transferred in favour of Hope by a letter of
nomination and transfer dated 4 May 2007 addressed by Bird to Hope and the
Builder pursuant to which the Builder agrees to design, construct, sell and
deliver to Hope the Hope Vessel;
Hope Limited Liability Company
Agreement means the limited liability company agreement regarding Hope
dated 27 April 2007 and made between AMCIC and Bird;
Hope Loan Agreement means the
loan agreement dated 11 May 2007 made between the Bank, as lender and Hope as
borrower as amended and supplemented by a first supplemental agreement dated 14
April 2008 and a second supplemental agreement dated 30 July 2008, both made
between the Bank and Hope pursuant to which the Bank has agreed, inter alia, to
make available to Hope a term loan in the amount of up to
$10,934,000;
Hope XXX means a letter of
undertaking dated 11 May 2007 provided by AMCIC and Bird and addressed to the
Bank in relation to the obligations of Hope under the Hope Loan Agreement as the
same has been or shall be amended from time to time;
Hope Membership Interests
means the limited liability company interests in Hope owned by AMCIC equal to
50% of the total limited liability company interests in Hope;
Hope Performance Guarantee
means a letter of guarantee dated 4 May 2007 executed by Bird in favour of the
Builder guaranteeing to the Builder the obligations of Hope under the Hope
Contract;
Hope Vessel means the 180,838 dwt
capesize bulk carrier motor vessel to be constructed by the Builder for Hope
pursuant to the Hope Contract and bearing during such construction Hull No.
S-1335;
Xxxxxx means Xxxxxx Xxxxxx
LLC, further details of which are set out in schedule 1;
Xxxxxx Charter means the "NYPE
93 Form" time charter in respect of Xxxxxx Vessel dated 3 March 2007 and made
between the Charterer and Xxxxxx as amended by addendum no. 1 dated 16 November
2007 made between the Charterer and Xxxxxx as same may from time to time be
amended and supplemented pursuant to which Xxxxxx has agreed to let and the
Charterer has agreed to take on charter the Lilly Vessel for a period of 60 to
66 months commencing on its delivery from the Builder at $28,000 per day plus an
amount in Dollars equal to 50% of that daily hire calculated by the parties to
the Xxxxxx Charter pursuant to clause 10 thereof in excess of US$28,000 per day
and otherwise on the terms set out therein;
2
Xxxxxx Contract means a shipbuilding
contract dated 16 April 2007 made between Bird as the purchaser and the Builder
as builder, as transferred in favour of Xxxxxx by a letter of nomination and
transfer dated 4 May 2007 addressed by Bird to Xxxxxx and the Builder pursuant
to which the Builder agrees to design, construct, sell and deliver to Xxxxxx the
Xxxxxx Vessel;
Xxxxxx Indemnity means a deed
of indemnity to be executed by AMCIC in favour of Bird whereby AMCIC agrees to
indemnify 100% of any liability of Bird to the Builder under the Xxxxxx
Performance Guarantee in agreed form;
Xxxxxx Limited Liability Company
Agreement means the limited liability company agreement regarding Xxxxxx
dated 27 April 2007 and made between AMCIC and Bird;
Xxxxxx Loan Agreement means the loan
agreement dated 11 May 2007 made between the Bank, as lender and Xxxxxx as
borrower, as amended and supplemented by a first supplemental agreement dated 14
April 2008 and a second supplemental agreement dated 30 July 2008, both made
between the Bank and Xxxxxx pursuant to which the Bank has agreed, inter alia,
to make available to Xxxxxx a term loan in the amount of
$16,926,000;
Xxxxxx XXX means a letter of
undertaking dated 11 May 2007 provided by AMCIC and Bird and addressed to the
Bank in relation to the obligations of Xxxxxx under the Xxxxxx Loan Agreement as
the same has been or shall be amended from time to time;
Xxxxxx Material Contracts means,
together, the Xxxxxx Contract, the Xxxxxx Refund Guarantee, the second
supplemental agreement dated 30 July 2008 referred to in the Xxxxxx Loan
Agreement and the Xxxxxx Charter;
Xxxxxx Membership Interests
means the limited liability company interests in Xxxxxx owned by Bird equal to
50% of the total limited liability company interests in Xxxxxx;
Xxxxxx Performance Guarantee
means a letter of guarantee dated 4 May 2007 executed by Bird in favour of the
Builder guaranteeing to the Builder the obligations of Xxxxxx under the Xxxxxx
Contract;
Xxxxxx Purchase Price means
one million two hundred and nine thousand Dollars ($1,209,000);
Xxxxxx Refund Guarantee means
the refund guarantee No. 0000-000-000000 dated 9 May 2007 issued by the Refund
Guarantor in favour of Xxxxxx in respect of the Xxxxxx Contract;
Xxxxxx Vessel means the 180,838 dwt
capesize bulk carrier motor vessel to be constructed by the Builder for Xxxxxx
pursuant to the Xxxxxx Contract and bearing during such construction Hull No.
S-1330;
Membership Interests Purchase
Documents has the meaning given to it in clause 9.1;
Nominated Account means a bank
account in the name of Excel Maritime Carriers Ltd, held at EFG EUROBANK
ERGASIAS S.A. of 00-00 Xxxx Xxxxxxx & Xxxxxx Xxx., Xxxxxxx, Xxxxxx (SWIFT:
EFGBGRAA) with account number XX0000000000000000000000000 (IBAN);
Other Purchase Agreements
means together the Xxxx SPA and the Xxxxxxxxx
Membership Interest
Transfer Agreement;
Refund Guarantor means Woori
Bank of Republic of Korea and includes its successors in title; and
Relevant Claim means (i) in
relation to AMCIC, a claim by AMCIC involving or relating to a breach of any of
the Bird Warranties, whether for damages, compensation or any other relief and
(ii) in relation to Bird, a claim by Bird involving or relating to a breach of
any of the AMCIC Warranties, whether for damages, compensation or any other
relief.
3
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1.2
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In
this Agreement, unless the context requires
otherwise:
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1.2.1
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a
document expressed to be in agreed form means a
document in a form which has been agreed by the parties on or before the
execution of this Agreement and signed or initialled by them or on their
behalf, for the purposes of
identification;
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1.2.2
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references
to a clause or schedule are to a clause of or a schedule to this
Agreement. The schedules form part of this
Agreement;
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1.2.3
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the
headings in this Agreement do not affect its
interpretation;
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1.2.4
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words
importing the singular include the plural and vice versa, words
importing a gender include every gender and references to persons include
corporations, partnerships and other unincorporated associations or bodies
of persons;
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1.2.5
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references
to AMCIC, Lillie, Hope and Bird will include, where the context permits,
their respective successors in title;
and
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1.2.6
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references
to any enactment shall be deemed to include references to such enactment
as re-enacted, amended or extended.
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2.1
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The
sale and purchase of the Xxxxxx Membership Interests pursuant to clause 3
and the transfer of the Hope Membership Interests pursuant to clause 5 is
conditional on the satisfaction of all of the
following:
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2.1.2
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the
Xxxx SPA being duly executed by both parties
thereto.
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2.2
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AMCIC
and Bird undertake to use their respective reasonable endeavours to ensure
that the Conditions are satisfied as soon as possible after the date of
this Agreement and in any event by no later than the Conditions Final
Date.
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2.3
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If
at any time either party becomes aware of a fact or circumstance that
might prevent or materially delay any of the Conditions set out in clause
2.1 being satisfied, it shall promptly notify the
other.
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2.4
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AMCIC
and Bird may agree to waive (to the extent agreed between them) either or
both of the Conditions.
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2.5
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Each
party shall give notice to the other that a Condition has been satisfied
within one Business Day of becoming aware of that
fact.
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2.6
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If
any Condition is not satisfied or waived on or before the Conditions Final
Date then this Agreement shall terminate (except clauses 10 (Entire
agreement), 11 (Announcements and confidentiality) to 14 (Notices), clause
16 (Governing law and agent for service of process) and clause 17
(Jurisdiction) which shall remain in full force and effect) and no party
shall have any claim against the others except for any prior breach of
clause 2.2.
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3
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Agreement
to sell the Xxxxxx Membership
Interests
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3.1
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Bird
shall sell to AMCIC the Xxxxxx Membership Interests and AMCIC (relying on
the warranties and undertakings contained in this Agreement) shall buy the
Xxxxxx Membership Interests from Bird with full title guarantee and free
from all Encumbrances in accordance with the terms and conditions
contained in this Agreement.
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4
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3.2
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Title
to and beneficial ownership of the Xxxxxx Membership Interests shall pass
on Completion to AMCIC together with all associated rights and benefits
deriving from, attaching or accruing to, them on or after Completion as
evidenced by the membership interest transfer to be executed pursuant to
clause 6.1.1(b).
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3.3
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Bird
irrevocably waives any rights of pre-emption that may be conferred on it
by Article 10 of the Xxxxxx Limited Liability Company Agreement or
otherwise over any of the Xxxxxx Membership
Interests.
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3.4
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AMCIC
shall not be obliged to complete the purchase of any of the Xxxxxx
Membership Interests unless the purchase of all the Xxxxxx Membership
Interests is completed
simultaneously.
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The
consideration for the sale of the Xxxxxx Membership Interests by Bird
shall be:
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(a)
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the
payment by AMCIC to Bird of the Xxxxxx Purchase Price;
and
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(b)
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the
transfer by AMCIC to Bird of the Hope Membership
Interests.
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5
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Agreement
to transfer the Hope Membership
Interests
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5.1
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AMCIC
shall transfer to Bird and Bird (relying on the warranties and
undertakings contained in this Agreement) shall accept the transfer of the
Hope Membership Interests from AMCIC with full title guarantee and free
from all Encumbrances in accordance with the terms and conditions
contained in this Agreement.
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5.2
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Title
to and beneficial ownership of the Hope Membership Interests shall pass on
Completion to Bird together with all associated rights and benefits
deriving from, attaching or accruing to, them on or after Completion as
evidenced by the membership interest transfer to be executed pursuant to
clause 6.1.3(b).
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5.3
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AMCIC
irrevocably waives any rights of pre-emption that may be conferred on it
by Article 10 of the Hope Limited Liability Company Agreement or otherwise
over any of the Hope Membership
Interests.
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5.4
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Bird
shall not be obliged to accept the transfer of any of the Hope Membership
Interests unless the transfer of all the Hope Membership Interests is
completed simultaneously.
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6.1
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Subject
to clauses 6.2, 6.5 and 6.6, Completion shall take place at the offices of
Xxxxxx Xxxx LLP at 1 Xxxxxx Leoforos Posidonos & 0 Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxx on the Completion Date when all (but
not part only unless the parties so agree or waive pursuant to clause 6.5)
of the following business shall be
transacted:
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6.1.1
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Bird
shall deliver, or shall procure the delivery, to AMCIC
of:
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(a)
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the
powers of attorney or other authorities under which the execution of this
Agreement and the transfer of the Xxxxxx Membership Interests are
authorised and certified copies of the minutes recording the resolution of
the Board of Directors of Bird authorising the sale of the Xxxxxx
Membership Interests and the transfer of the Xxxxxx Membership Interests
to AMCIC;
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(b)
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such
other duly executed documents as may be required to give AMCIC good title
to the Xxxxxx Membership Interests and to enable AMCIC to become the
holder of them including a membership interest transfer in respect of the
Xxxxxx Membership Interests, in agreed
form;
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5
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(c)
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all
the statutory and minute books of Xxxxxx (written up to the Business Day
immediately preceding Completion and its limited liability company seal
(if any), the true, complete and up to date copy of the certificate of
formation of Xxxxxx as provided by the Registry of the Republic of the
Xxxxxxxx Islands in Piraeus, Greece, the true, complete and up to date
executed copy of the Xxxxxx Limited Liability Company Agreement and other
documents and records concerning Xxxxxx in the possession or under the
control of Bird, each certified as such by an officer of Bird not earlier
than 5 Business Days prior to
Completion;
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(d)
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the
complete executed originals of the Xxxxxx Material Contracts (save for the
Xxxxxx Refund Guarantee the original of which is held by the
Bank);
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(e)
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a
true, complete and up to date copy of the Xxxxxx Refund Guarantee,
certified as such by an officer of Bird not earlier than 5 Business Days
prior to Completion;
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(f)
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a
true, complete and up to date copy of the Xxxxxx Performance Guarantee,
certified as such by an officer of Bird not earlier than 5 Business Days
prior to Completion;
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(g)
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a
true, complete and up to date copy of the Hope XXX, certified as such by
an officer of Bird not earlier than 5 Business Days prior to
Completion;
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(h)
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a
deed of release issued by the Bank in favour of AMCIC in agreed form, duly
executed by the Bank and any other party thereto releasing AMCIC from its
obligations under the Hope XXX; and
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(i)
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a
termination agreement made between Xxxxxx, as owner, and Maryville
Maritime Inc., as manager, in agreed form, duly executed by the parties
thereto, terminating the de facto management of the Xxxxxx Vessel under
the terms of the draft pro forma management agreement attached hereto as
schedule 5.
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(a)
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shall
transfer the Xxxxxx Membership Interests to
AMCIC;
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(b)
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shall
procure that an officer of Xxxxxx procures that the capital account
maintained by Xxxxxx for Bird be closed and the balance be transferred
into the name of AMCIC and consolidated with the existing capital account
maintained by Xxxxxx for AMCIC.
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6.1.3
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AMCIC
shall deliver, or shall procure the delivery, to Bird
of:
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(a)
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the
duly executed powers of attorney or other authorities under which the
transfer of the Hope Membership Interests are authorised and certified
copies of the minutes recording the resolution of the Board of Directors
of AMCIC authorising the sale of the Hope Membership Interests and the
transfer of the Hope Membership Interests to
Bird;
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(b)
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such
other duly executed documents as may be required to give Bird good title
to the Hope Membership Interests and to enable Bird to become the holder
of them, including a membership interest transfer in respect of the Hope
Membership Interests in agreed
form;
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(c)
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all
the statutory and minute books of Hope (written up to the Business Day
immediately preceding Completion and its limited liability company seal
(if any), the true, complete and up to date copy of the certificate of
formation of Hope as provided by the Registry of the Republic of the
Xxxxxxxx Islands in Piraeus, Greece, the true, complete and up to date
executed copy of the Hope Limited Liability Company Agreement and other
documents and records concerning Hope in the possession or under the
control of AMCIC, each certified as such by an officer of AMCIC not
earlier than 5 Business Days prior to
Completion;
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6
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(d)
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the
true, complete and up to date copy of the Hope Contract and the Hope Loan
Agreement (save for the second supplemental agreement dated 30 July 2008
referred to in the relevant definition), certified as such by an officer
of AMCIC not earlier than 5 Business Days prior to
Completion;
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(e)
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a
true, complete and up to date copy of the Xxxxxx XXX, certified as such by
an officer of AMCIC not earlier than 5 Business Days prior to
Completion;
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(f)
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a
deed of release issued by the Bank in favour of Bird in agreed form, duly
executed by the Bank and any other party thereto releasing Bird from its
obligations under the Xxxxxx XXX;
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(g)
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the
complete executed original of the Xxxxxx Indemnity;
and
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(h)
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the
complete executed original of the Hope Charter
Addendum.
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(a)
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shall
transfer the Hope Membership Interests to
Bird;
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(b)
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shall
procure that an officer of Hope procures that the capital account
maintained by Hope for AMCIC be closed and the balance be transferred into
the name of Bird and consolidated with the existing capital account
maintained by Hope for Bird;
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(c)
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shall
procure the delivery to Bird of resignation letters (duly executed as
deeds) from Xx Xxxxxxxx Molaris as director and officer, Xx Xxxx X. Xxxxx
as director and Xx Xxxxx Xxxxxxxxxxxxxxx as assistant secretary, in agreed
form; and
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(d)
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shall
pay the Xxxxxx Purchase Price by electronic funds transfer for value on
the day of Completion to the Nominated Account and payment of the Xxxxxx
Purchase Price into such account shall constitute a good discharge to Bird
in respect of it.
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6.1.5
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The
parties shall join in procuring that all bank mandates in force for Hope
shall, if necessary, be altered (in such manner as Bird shall require) to
reflect the resignations referred to in clause
6.1.4(c).
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6.2.1
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transaction
(or the agreement not to transact pursuant to clause 6.5) of all of the
business set out in clause 6.1; and
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6.2.3
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transaction
(or the agreement not to transact pursuant to clause 5.5 of the Xxxx SPA)
of all of the business set out in clause 5.1 of the Xxxx
SPA,
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then this
Agreement and the Other Purchase Agreements shall complete simultaneously and
the transfers provided for in this Agreement and the Other Purchase Agreements
shall become effective. For the avoidance of doubt, if the matters specified in
clauses 6.2.1 and/or 6.2.2 and/or 6.2.3 shall fail to occur then neither this
Agreement nor the Other Purchase Agreements shall complete, the transfers
provided for in this Agreement and the Other Purchase Agreements shall not
become effective and, in respect of this Agreement, the terms of clause 6.6
shall apply.
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6.3
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Each
party hereto undertakes to use its best endeavours to ensure that the
business that needs to be transacted by such party pursuant to clause 6.1
is transacted on or before the Completion
Date.
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7
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6.4
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If
at any time either party becomes aware of a fact or circumstance that
might prevent or materially delay any of the business set out in clause
6.1 from being transacted, it shall promptly notify the
other.
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6.5
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Each
party may agree in writing to waive all or any of the obligations of the
other party pursuant to the terms of clause 6.1. The parties may agree in
writing to waive (to the extent agreed between them) all or any of the
joint obligations of the parties.
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6.6
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If
Completion does not take place on the Completion Date then this Agreement
shall terminate (except clauses 10 (Entire agreement), 11 (Announcements
and confidentiality) to 14 (Notices), clause 16 (Governing law and agent
for service of process) and clause 17 (Jurisdiction) which shall remain in
full force and effect) and no party shall have any claim against the other
except for any prior breach of clause 6.3 each party hereto shall have the
right to ask for any documents given to the other party to be
returned.
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6.7
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Following
Completion the parties agree to execute an acknowledgement in agreed form
that all the business set out in clause 6.1 has been transacted or, as the
case may be, waived and that Completion has taken
place.
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7.1.1
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warrants
to AMCIC (for itself and as trustee for its successors in title) that each
of the Bird Warranties is true and accurate;
and
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7.1.2
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acknowledges
that AMCIC has entered into this Agreement in reliance on, among other
things, the Bird Warranties.
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7.2
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In
each Bird Warranty, where any statement is qualified as being made so far
as Bird is aware or any similar expression, it has been so qualified after
due and careful enquiries by Bird and Bird has used all reasonable
endeavours to ensure that all information given, referred to or reflected
in that statement is accurate.
|
|
|
7.3
|
Each
of the paragraphs in schedule 3:
|
|
7.3.1
|
shall
be construed as a separate and independent warranty and representation;
and
|
|
7.3.2
|
unless
expressly provided in this Agreement, shall not be limited by reference to
any other paragraph in schedule 3 or by any other provision of this
Agreement,
|
and AMCIC
shall have a separate claim and right of action in respect of every breach of a
Bird Warranty.
|
|
7.4
|
The
Bird Warranties shall not in any respect be extinguished or affected by
Completion.
|
|
|
7.5
|
Bird
agrees with AMCIC (for itself and as trustee for Xxxxxx and its directors,
agents and advisers) to waive any right or claim which it may have in
respect of any misrepresentation or error in, or omission from any
information or opinion supplied or given by Xxxxxx and/or any of its
directors, officers or agents in the course of negotiating this Agreement,
and that any such right or claim shall not constitute a defence to any
claim by AMCIC under or in relation to this
Agreement.
|
|
|
7.6
|
AMCIC
shall be entitled to make a Relevant Claim after Completion, whether or
not AMCIC and/or any of its agents and/or any of its advisers had
knowledge (whether actual, constructive or implied) of the matter giving
rise to the claim before Completion; and AMCIC's right or ability to make
any such claim shall not be affected or limited, and the amount
recoverable shall not be reduced, on the grounds that AMCIC and/or its
agents and/or its advisers may before Completion have had actual,
constructive or implied knowledge of the matter giving rise to the
claim.
|
8
|
|
7.7
|
Bird
further warrants to AMCIC (for itself and as a trustee for its successors
in title) that each of the Bird Warranties shall be true and accurate as
at Completion (and such Bird Warranties shall be deemed to be repeated as
at Completion) with reference to the facts and circumstances then
prevailing, and for this purpose a reference in any of the Bird Warranties
to the date of this Agreement shall be construed as a reference to the
date of Completion.
|
|
7.8.1
|
warrants
to Bird (for itself and as trustee for its successors in title) that each
of the AMCIC Warranties is true and accurate;
and
|
|
7.8.2
|
acknowledges
that Bird has entered into this Agreement in reliance on, among other
things, the AMCIC Warranties.
|
|
|
7.9
|
In
each AMCIC Warranty, where any statement is qualified as being made so far
as AMCIC is aware or any similar expression, it has been so qualified
after due and careful enquiries by AMCIC and AMCIC has used all reasonable
endeavours to ensure that all information given, referred to or reflected
in that statement is accurate.
|
|
7.10
|
Each
of the paragraphs in schedule 4:
|
|
7.10.1
|
shall
be construed as a separate and independent warranty and representation;
and
|
|
7.10.2
|
unless
expressly provided in this Agreement, shall not be limited by reference to
any other paragraph in schedule 4 or by any other provision of this
Agreement,
|
and Bird
shall have a separate claim and right of action in respect of every breach of an
AMCIC Warranty.
|
7.11
|
The
AMCIC Warranties shall not in any respect be extinguished or affected by
Completion.
|
|
7.12
|
AMCIC
agrees with Bird (for itself and as trustee for Hope and its directors,
employees, agents and advisers) to waive any right or claim which it may
have in respect of any misrepresentation or error in, or omission from any
information or opinion supplied or given by Hope and/or any of its
directors, officers, employees or agents in the course of negotiating this
Agreement, and that any such right or claim shall not constitute a defence
to any claim by Bird under or in relation to this
Agreement.
|
|
7.13
|
Bird
shall be entitled to make a Relevant Claim after Completion, whether or
not Bird and/or any of its agents and/or any of its advisers had knowledge
(whether actual, constructive or implied) of the matter giving rise to the
claim before Completion; and Bird's right or ability to make any such
claim shall not be affected or limited, and the amount recoverable shall
not be reduced, on the grounds that Bird and/or its agents and/or its
advisers may before Completion have had actual, constructive or implied
knowledge of the matter giving rise to the
claim.
|
|
7.14
|
AMCIC
further warrants to Bird (for itself and as a trustee for its successors
in title) that each of the AMCIC Warranties shall be true and accurate as
at Completion (and such AMCIC Warranties shall be deemed to be repeated as
at Completion) with reference to the facts and circumstances then
prevailing, and for this purpose a reference in any of the AMCIC
Warranties to the date of this Agreement shall be construed as a reference
to the date of Completion.
|
|
|
8
|
Dealing
with and voting on the Xxxxxx Membership Interests and the Hope Membership
Interests
|
|
|
8.1
|
Bird
declares that, for so long as it remains the owner of record of any of the
Xxxxxx Membership Interests after Completion it
shall:
|
|
8.1.1
|
hold
the Xxxxxx Membership Interests and the dividends and other distributions
of profits or surplus or other assets declared, paid or made in respect of
them after Completion and all rights arising out of or in connection with
them in trust for AMCIC and its successors in title;
and
|
9
|
8.1.2
|
deal
with and dispose of the Xxxxxx Membership Interests and all such
dividends, distributions and rights as AMCIC or any such successor may
direct; and
|
|
8.1.3
|
if
so requested by AMCIC or any such
successor:
|
|
|
(a)
|
vote
at all meetings which it shall be entitled to attend as the owner of
record of the Xxxxxx Membership Interests in such manner as AMCIC or any
such successor may direct; and
|
|
|
(b)
|
execute
all instruments of proxy or other documents which AMCIC may reasonably
require and which may be necessary or desirable or convenient to enable
AMCIC or any such successor to attend and vote at any such
meeting.
|
|
|
8.2
|
AMCIC
declares that, for so long as it remains the owner of record of any of the
Hope Membership Interests after Completion it
shall:
|
|
8.2.1
|
hold
the Hope Membership Interests and the dividends and other distributions of
profits or surplus or other assets declared, paid or made in respect of
them after Completion and all rights arising out of or in connection with
them in trust for Bird and its successors in title;
and
|
|
8.2.2
|
deal
with and dispose of the Hope Membership Interests and all such dividends,
distributions and rights as Bird or any such successor may direct;
and
|
|
8.2.3
|
if
so requested by Bird or any such
successor:
|
|
|
(a)
|
vote
at all meetings which it shall be entitled to attend as the owner of
record of the Hope Membership Interests in such manner as Bird or any such
successor may direct; and
|
|
|
(b)
|
execute
all instruments of proxy or other documents which Bird may reasonably
require and which may be necessary or desirable or convenient to enable
Bird or any such successor to attend and vote at any such
meeting.
|
Bird
hereby confirms to AMCIC that if any deed of indemnity (other than, if
applicable, the Xxxxxx Indemnity) has been given by AMCIC to Bird prior to the
execution of this Agreement for any reason whatsoever in relation to the Hope
Performance Guarantee or the Xxxxxx Performance Guarantee, Bird agrees to the
cancellation of such deed of indemnity and irrevocably and unconditionally
releases AMCIC from all its obligations whatsoever which, but for this clause,
it might otherwise have had against Bird under such deed of indemnity and
confirms that such deed of indemnity has expired and is of no legal effect
whatsoever. Bird irrevocably and unconditionally undertakes to AMCIC that it
will under no circumstances make any demand on AMCIC under or in connection with
such deed of indemnity.
|
10.1
|
Each
party acknowledges and agrees that:
|
|
10.1.1
|
this
Agreement and all documents referred to or to be entered into pursuant to
this Agreement including, without limitation, the Xxxx SPA and the
Xxxxxxxxx Membership Interest Transfer Agreement (together the Membership Interests Purchase
Documents) constitute the entire agreement between the parties and
supersede any prior agreement, understanding, undertaking or arrangement
between the parties relating to the subject matter of the Membership
Interests Purchase Documents;
|
|
10.1.2
|
by
entering into the Membership Interests Purchase Documents, they do not
rely on any statement, representation, assurance or warranty of any person
(whether a party to the Membership Interests Purchase Documents or not and
whether made in writing or not) other than as expressly set out in the
Membership Interests Purchase
Documents;
|
10
|
10.1.3
|
except
as otherwise provided in any of the Membership Interests Purchase
Documents, no party may rescind or terminate any of the Membership
Interests Purchase Documents for breach of contract or for negligent or
innocent misrepresentation or otherwise;
and
|
|
10.1.4
|
nothing
in this clause shall exclude or limit any liability for
fraud.
|
|
|
11
|
Announcements
and confidentiality
|
|
11.1
|
Subject
to clause 11.2, no announcement, circular or communication (each an Announcement) concerning
the existence or content of this Agreement shall be made by either party
without the prior written approval of the other party (such approval not
to be unreasonably withheld or
delayed).
|
|
11.2
|
Clause
11.1 does not apply to any Announcement if, and to the extent that, it is
required to be made by the rules of any stock exchange or any
governmental, regulatory or supervisory body or court of competent
jurisdiction (a Relevant
Authority) to which the party making the Announcement is subject,
whether or not any of the same has the force of law, provided that any
Announcement shall, so far as is practicable, be made after consultation
with the other party and after taking into account its reasonable
requirements regarding the content, timing and manner of despatch of the
Announcement in question.
|
|
11.3
|
Subject
to Clause 11.4, each party shall treat as strictly confidential all
information received or obtained as a result of entering into or
performing this Agreement which relates
to:
|
|
11.3.1
|
the
subject matter and provisions of this
Agreement;
|
|
11.3.2
|
the
negotiations relating to this Agreement;
or
|
|
11.4
|
A
party may disclose information which would otherwise be confidential if
and to the extent:
|
|
11.4.1
|
required
by the law of any relevant
jurisdiction;
|
|
11.4.2
|
required
by existing contractual
obligations;
|
|
11.4.3
|
required
by any Relevant Authority to which the party making the disclosure is
subject, whether or not such requirement has the force of
law;
|
|
11.4.4
|
required
to vest the full benefit of this Agreement in either
party;
|
|
11.4.5
|
disclosure
is made to the professional advisers, auditors and bankers of either
party;
|
|
11.4.6
|
the
information has come into the public domain through no fault of that
party; or
|
|
11.4.7
|
the
other party has given prior written approval to the
disclosure,
|
provided
that any disclosure pursuant to clause 11.4.1, 11.4.2 or 11.4.3 shall, so far as
it practicable, be made only after consultation with the other
party.
|
12.1
|
The
rights and remedies of each party to this Agreement are, except where
expressly stated to the contrary, without prejudice to any other rights
and remedies available to it. No neglect, delay or indulgence
by any party in enforcing any provision of this Agreement shall be
construed as a waiver and no single or partial exercise of any rights or
remedy of any party under this Agreement shall affect or restrict the
further exercise or enforcement of any such right or
remedy.
|
11
|
12.2
|
The
liability of any party to this Agreement may in whole or in part be
released, compounded or compromised; and, if the other party shall give
time or indulgence to the person under such liability, this shall in no
way prejudice or affect that party's rights against any other person under
the same or similar liability.
|
|
13.1
|
No
purported alteration of this Agreement shall be effective unless it is in
writing, refers to this Agreement and is duly executed by each party to
this Agreement.
|
|
13.2
|
This
Agreement may be executed in any number of counterparts, and each of the
executed counterparts, when duly exchanged or delivered, shall be deemed
to be an original, but, taken together, they shall constitute one
instrument.
|
|
13.3
|
Each
of the parties shall be responsible for its respective legal and other
costs incurred in relation to the negotiation, preparation and completion
of this Agreement and all ancillary
documents.
|
|
13.4
|
A
person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any of its
terms.
|
|
14.1
|
A
notice or other communication given under or in connection with this
Agreement (a Notice) shall
be:
|
|
14.1.2
|
in
the English language; and
|
|
14.1.3
|
sent
by the Permitted Method to the Notified
Address.
|
|
14.2
|
The
Permitted Method means any of the methods set out in the first column
below, the second column setting out the date on which a Notice given by
such Permitted Method shall be deemed to be given provided the Notice is
properly addressed and sent in full to the Notified
Address:
|
|
(1)
Permitted
Method
|
(2)
Date
on which Notice deemed given
|
|
Personal
delivery
|
When
left at the Notified Address
|
|
First
class pre-paid post
|
Two
Business Days after posting
|
|
Pre-paid
air-mail
|
Six
Business Days after posting
|
|
Fax
transmission
|
On
completion of transmission
|
12
|
14.3
|
The
Notified Addresses of each of the parties is as set out
below:
|
|
Name
of Party
|
Address
|
Fax
number
|
Marked
for the attention of:
|
|
Bird
|
17th
km National Road, Athens Lamia & Xxxxxxx Xxxxxx, 000 00 Xxx Xxxxxxxx,
Xxxxxx, Xxxxxx
|
x00
000 000 0000
|
Xxx
Xxxxxxxx Xxxxxxxxxxx
|
|
AMCIC
|
000
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxx XX 00000
XXX
|
+ 1
203 625 9231
|
Xx
Xxxx Xxxxx/Mr Xxxxxx Xxxxx
|
| With
a copy to Norose Notices Limited |
the
address of its registered office for the time being (at the date of this
Agreement being 3 More Xxxxxx Xxxxxxxxx, Xxxxxx XX0 0XX,
UK)
| x00
000 000 0000 | The
Partnership Office Manager (CCR/LN
30281) |
or such
other Notified Address as any of the parties may, by written notice to the other
parties, substitute for their Notified Address set out above.
Neither
of the parties shall be entitled to assign the benefit of any rights under this
Agreement.
|
|
16
|
Governing
law and agent for service of
process
|
|
16.1
|
This
Agreement and any non-contractual obligations connected with it shall be
governed by and construed in accordance with English
law.
|
|
16.2
|
The
parties irrevocably agree that all disputes arising under or in connection
with this Agreement, or in connection with the negotiation, existence,
legal validity, enforceability or termination of this Agreement,
regardless of whether the same shall be regarded as contractual claims or
not, shall be exclusively governed by and determined only in accordance
with English law.
|
|
16.3
|
Each
party hereby irrevocably authorises and
appoints:
|
|
16.3.1
|
in
the case of Bird, Hill Xxxxxxxxx Services (London) Limited of Xxxxxxxx
Xxxxx, Xxxx'x Xxxxx, Xxxxxx XX0X 0XX, Xxxxxxx;
and
|
|
16.3.2
|
in
the case of AMCIC, Norose Notices Limited (for the attention of the
Partnership Office Manager) of 3 More Xxxxxx Xxxxxxxxx, Xxxxxx XX0 0XX, XX
(reference CCR/LN30281);
|
or such
other person located in England or Wales as each party may at any time in the
future substitute by notice in writing to all the other parties to this
Agreement, to accept on its behalf service of all legal process arising out of
or in connection with any proceedings before the English courts in connection
with this Agreement.
13
The
parties irrevocably agree that the courts of England and Wales are to have
exclusive jurisdiction, and that no other court is to have jurisdiction
to:
|
|
(a)
|
determine
any claim, dispute or difference arising under or in connection with this
Agreement or in connection with the negotiation, existence, legal
validity, enforceability or termination of this Agreement, whether the
alleged liability shall arise under the law of England and Wales or under
the law of some other country and regardless of whether a particular cause
of action may successfully be brought in the English courts (Proceedings);
and
|
|
|
(b)
|
grant
interim remedies, or other provisional or protective
relief.
|
The
parties submit to the exclusive jurisdiction of such courts and accordingly any
Proceedings may be brought against the parties or any of them or any of their
respective assets in such courts.
This
Agreement has been executed as a deed and it has been delivered on the date
stated at the beginning of this Agreement.
14
Schedule 1
Information
on Xxxxxx
|
Date
and place of formation
|
27
April 2007, Republic of the Xxxxxxxx Islands
|
|
Registered
office
|
Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the
Xxxxxxxx Xxxxxxx XX00000
|
|
Initial
Capital Contribution
|
$1,000
divided into 2 equal membership interests
|
|
Directors
|
Xxxx
X. Xxxxx
Xxxxxxxx
Xxxxxxx
|
|
Officers
|
Xxxxxxxx
Xxxxxxx: Chief Executive Officer
Xxxx
Xxxxxxx: Chief Financial Officer and Treasurer
Xxxxx
Xxxxxxxxxxxxx: Chief Operating Officer and Chief Commercial
Officer
Xxxxx
Xxxxxx: Vice President and Secretary
Xxxxx
Xxxxxxxxxxxxxxx: Assistant Secretary
|
|
Secretary/Assistant
Secretary
|
Xxxxx
Xxxxxx/Xxxxx Xxxxxxxxxxxxxxx
|
15
Schedule 2
Information
on Hope
|
Date
and place of formation
|
27
April 2007, Republic of the Xxxxxxxx Islands
|
|
Registered
office
|
Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the
Xxxxxxxx Xxxxxxx XX00000
|
|
Initial
Capital Contribution
|
$1,000
divided into 2 equal membership interests
|
|
Directors
|
Xxxx
X. Xxxxx
Xxxxxxxx
Xxxxxxx
|
|
Officers
|
Xxxxxxxx
Xxxxxxx: Chief Executive Officer
Xxxx
Xxxxxxx: Chief Financial Officer and Treasurer
Xxxxx
Xxxxxxxxxxxxx: Chief Operating Officer and Chief Commercial
Officer
Xxxxx
Xxxxxx: Vice President and Secretary
Xxxxx
Xxxxxxxxxxxxxxx: Assistant Secretary
|
|
Secretary/Assistant
Secretary
|
Xxxxx
Xxxxxx/Xxxxx Xxxxxxxxxxxxxxx
|
16
Schedule 3
The
Bird Warranties
|
|
1
|
The
Xxxxxx Membership Interests and
Xxxxxx
|
|
|
1.1
|
The
Xxxxxx Membership Interests are fully paid and constitute fifty per cent
(50%) of the issued and allotted membership interests of
Xxxxxx.
|
|
|
1.2
|
There
is no Encumbrance on, over or affecting the Xxxxxx Membership Interests,
there is no agreement or commitment to give or create any such Encumbrance
and no person has made any claim to be entitled to any right over or
affecting the Xxxxxx Membership
Interests.
|
|
|
1.3
|
Xxxxxx
is a Xxxxxxxx Islands limited liability company registered in the Republic
of the Xxxxxxxx Islands. The information set out in schedule 1
is complete and accurate and Xxxxxx does not have, nor has it ever had,
any subsidiaries or interest in any body corporate, partnership, joint
venture or any other legal entity of any nature
whatsoever.
|
|
|
1.4
|
No
person has the right (whether exercisable now or in the future and whether
contingent or not) to call for the issue or transfer of any membership
interest or loan capital of Xxxxxx under any option or other agreement or
otherwise howsoever.
|
|
|
2
|
Powers
and obligations of Bird
|
|
|
2.1
|
Bird
has the right, power and authority and has taken all action necessary to
execute and deliver, and to exercise its rights and perform its
obligations under, this Agreement and each document to be executed at or
before Completion will, when executed, constitute legal, valid and binding
obligations of Bird enforceable in accordance with their respective
terms.
|
|
|
2.2
|
Bird
is entitled to sell and transfer or procure the sale and transfer of the
full legal and beneficial ownership in the Xxxxxx Membership Interests to
AMCIC on the terms set out in this
Agreement.
|
|
|
2.3
|
No
consent, authorisation, licence or approval of any governmental,
administrative, judicial or regulatory body, authority or organisation or
by the holders of the membership interests in Xxxxxx and/or Bird is
required to authorise the execution, delivery, validity, enforceability or
the performance by Bird of its obligations under this Agreement or will be
required as a consequence of this
Agreement.
|
|
|
3
|
Compliance
with legal requirements
|
|
|
3.1
|
All
registers and minute books required by law to be kept by Xxxxxx have been
properly written up to the Business Day prior to the Completion Date and
contain an accurate and complete record of the matters which should be
recorded in them, and Xxxxxx has not received any application or request
for rectification of its statutory registers or any notice or allegation
that any of them is incorrect.
|
|
|
3.2
|
Xxxxxx
is conducting and has at all times conducted its business in all respects
in accordance with all applicable laws and regulations in the Republic of
the Xxxxxxxx Islands and all other jurisdictions in which Xxxxxx does
business (including, without limitation, all laws and regulations
pertaining to competition matters) and has no liability for any unlawful
act committed by any other person.
|
|
|
3.3
|
Xxxxxx
has obtained all licences, permissions, consents and other approvals
(together Permits)
and made all filings required for or in connection with the carrying on of
its business in the places and in the manner in which business is now
carried on; such Permits are in full force and effect, are not limited in
duration or subject to any unusual or onerous conditions and have
been
|
17
|
|
complied
with in all respects, and there are no circumstances which exist or
indicate that any of such Permits will or may be revoked or not renewed or
which may confer a right of
revocation.
|
|
|
3.4
|
Xxxxxx
has not been notified that any investigation or enquiry in respect of its
affairs is being or has been conducted by any governmental or other body,
and so far as Bird is aware there are no circumstances likely to give rise
to any such investigation or
enquiry.
|
Bird is
the successor in interest by merger to Xxxxxxxx Maritime Limited (Xxxxxxxx) and acquired all
right, title and interest in and to the Xxxxxx Membership Interest previously
held by Xxxxxxxx by operation of law as a result of such merger.
|
|
5
|
Certificate
of membership interests
|
Xxxxxx has not issued any certificate
regarding the Xxxxxx Membership Interests.
18
Schedule 4
The
AMCIC Warranties
|
|
1
|
The
Hope Membership Interests and Hope
|
|
|
1.1
|
The
Hope Membership Interests are fully paid and constitute fifty per cent
(50%) of the issued and allotted membership interests of
Hope.
|
|
|
1.2
|
There
is no Encumbrance on, over or affecting the Hope Membership Interests,
there is no agreement or commitment to give or create any such Encumbrance
and no person has made any claim to be entitled to any right over or
affecting the Hope Membership
Interests.
|
|
|
1.3
|
Hope
is a Xxxxxxxx Islands limited liability company registered in the Republic
of the Xxxxxxxx Islands. The information set out in schedule 2 is complete
and accurate and Hope does not have, nor has it ever had, any subsidiaries
or interest in any body corporate, partnership, joint venture or other
legal entity of any nature
whatsoever.
|
|
|
1.4
|
No
person has the right (whether exercisable now or in the future and whether
contingent or not) to call for the issue or transfer of any membership
interest or loan capital of Hope under any option or other agreement or
otherwise howsoever.
|
|
|
2
|
Powers
and obligations of AMCIC
|
|
|
2.1
|
AMCIC
has the right, power and authority and has taken all action necessary to
execute and deliver, and to exercise its rights and perform its
obligations under, this Agreement and each document to be executed at or
before Completion will, when executed, constitute legal, valid and binding
obligations of AMCIC enforceable in accordance with their respective
terms.
|
|
|
2.2
|
AMCIC
is entitled to sell and transfer or procure the sale and transfer of the
full legal and beneficial ownership in the Hope Membership Interests to
Bird on the terms set out in this
Agreement.
|
|
|
2.3
|
No
consent, authorisation, licence or approval of any governmental,
administrative, judicial or regulatory body, authority or organisation or
by the holders of the membership interests in Hope is required
to authorise the execution, delivery, validity, enforceability or the
performance by AMCIC of its obligations under this Agreement or will be
required as a consequence of this
Agreement.
|
|
|
3
|
Compliance
with legal requirements
|
|
|
3.1
|
All
registers and minute books required by law to be kept by Hope have been
properly written up and contain an accurate and complete record of the
matters which should be recorded in them, and Hope has not received any
application or request for rectification of its statutory registers or any
notice or allegation that any of them is
incorrect.
|
|
|
3.2
|
Hope
is conducting and has at all times conducted its business in all respects
in accordance with all applicable laws and regulations in the Republic of
the Xxxxxxxx Islands and all other jurisdictions in which Hope does
business (including, without limitation, all laws and regulations
pertaining to competition matters) and has no liability for any unlawful
act committed by any other person.
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3.3
|
Hope
has obtained all licences, permissions, consents and other approvals
(together Permits)
and made all filings required for or in connection with the carrying on of
its business in the places and in the manner in which business is now
carried on; such Permits are in full force and effect, are not limited in
duration or subject to any unusual or onerous conditions and have
been
|
19
complied
with in all respects, and there are no circumstances which exist or indicate
that any of such Permits will or may be revoked or not renewed or which may
confer a right of revocation.
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3.4
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Hope
has not been notified that any investigation or enquiry in respect of its
affairs is being or has been conducted by any governmental or other body,
and so far as AMCIC is aware there are no circumstances likely to give
rise to any such investigation or
enquiry.
|
|
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4
|
Certificate
of membership interests
|
Hope has not issued any certificate
regarding the Hope Membership Interests.
20
Schedule 5
Draft
Proforma Management Agreement
21
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EXECUTED as a DEED
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by
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for
and on
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behalf
of AMCIC CAPE HOLDINGS
LLC
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Attorney-in-fact
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in
the presence of:
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Witness
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Name:
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Address:
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Occupation:
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EXECUTED as a DEED
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by
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for
and on
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behalf
of BIRD ACQUISITION
CORP.
|
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Attorney-in-fact
|
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in
the presence of:
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Witness
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Name:
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Address:
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Occupation:
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22
