COMMISSION RECEIVABLES SALE AGREEMENT
DATED AS OF 6th June, 2005
between
XXXXXXX SHIPPING LIMITED,
as Seller,
and
CAPITAL MARITIME & TRADING CORP.,
as Buyer
TABLE OF CONTENTS
Page
----
Article I Amounts and Terms of the Purchase....................................2
Section 1.1 Sale and Purchase of Commission Receivables....................2
Section 1.2 Payment for the Purchase.......................................3
Section 1.3 Purchase Price Credit Adjustments..............................3
Article II Representations and Warranties......................................4
Section 2.1 Representations and Warranties of Seller.......................4
Article III Conditions of Purchase.............................................6
Section 3.1 Conditions Precedent to Purchase...............................6
Article IV Covenants...........................................................6
Section 4.1 Affirmative Covenants of Seller................................6
Section 4.2 Negative Covenants of Seller...................................7
Article V Indemnification......................................................7
Section 5.1 Indemnities by Seller..........................................7
Article VI Miscellaneous.......................................................9
Section 6.1 Waivers and Amendments.........................................9
Section 6.2 Protection of Ownership Interests of Buyer.....................9
Section 6.3 Limitation of Liability........................................9
Section 6.4 Choice of Law.................................................10
Section 6.5 Dispute Resolution............................................10
Section 6.6 Integration; Binding Effect; Assignment; Survival of Terms....10
Section 6.7 Counterparts; Severability; Section References................10
Exhibits
--------
Exhibit I Other Definitions
Exhibit II Schedule of Commission Receivables
Exhibit III Commission Agreements
Schedules
---------
Schedule A Closing Documents
1
COMMISSION RECEIVABLES SALE AGREEMENT
COMMISSION RECEIVABLES SALE AGREEMENT, dated as of 6th June 2005, by
and between XXXXXXX SHIPPING LIMITED, a Liberian corporation ("Seller"), and
CAPITAL MARITIME & TRADING CORP., a Xxxxxxxx Islands corporation ("Buyer").
Unless defined elsewhere herein, capitalized terms used in this
Agreement shall have the meanings assigned to such terms in Exhibit I hereto.
PRELIMINARY STATEMENTS
Seller now owns the right to receive certain commission payments listed
in Exhibit II hereto (the "Commission Receivables") from Hyundai Mipo Dockyard
Co., Ltd. (the "Obligor") in accordance with and on the terms set forth under
the Commission Agreements (the "Commission Agreements") attached hereto as
Exhibit III. Seller wishes to sell, assign and transfer to Buyer, and Buyer
wishes to purchase from Seller, all of Seller's right, title and interest in and
to such Commission Receivables. Seller and Buyer intend the transactions
contemplated hereby to be true sales of the Commission Receivables from Seller
to Buyer, providing Buyer with the full benefits of ownership of the Commission
Receivables.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASE
SECTION 1.1 SALE AND PURCHASE OF COMMISSION RECEIVABLES.
-------------------------------------------
(a) On the date hereof (the "Purchase Date"), in consideration for
the Purchase Price and upon the terms and subject to the conditions set forth
herein, Seller does hereby sell, assign, transfer, set-over and otherwise convey
to Buyer, without recourse (except to the extent expressly provided herein), and
Buyer does hereby purchase from Seller (the "Purchase"), all of Seller's right,
title and interest in and to all Commission Receivables having an aggregate
Original Balance of $9,408,000. In accordance with the preceding sentence, on
the date hereof Buyer shall acquire all of Seller's right, title and interest in
and to all Commission Receivables. Buyer shall be obligated to pay the Purchase
Price for the Commission Receivables purchased hereunder in accordance with
Section 1.2.
(b) It is the intention of the parties hereto that the Purchase of
Commission Receivables made hereunder shall constitute a sale, which sale is
absolute and irrevocable and provides Buyer with the full benefits of ownership
of the Commission Receivables. Except for the Purchase Price Credits owed
pursuant to Section 1.3, the transfer of
2
Commission Receivables hereunder is made without recourse to Seller; provided,
however, that (i) Seller shall be liable to Buyer for all representations,
warranties, covenants and indemnities made by Seller pursuant to this Agreement,
and (ii) such transfer does not constitute and is not intended to result in an
assumption by Buyer or any assignee thereof of any obligation of Seller or any
other Person arising in connection with the Commission Receivables, the related
Commission Agreements or any other obligations of Seller, including any
obligations of Seller or any other Person arising from, relating to or in
connection with any commissions paid by Obligor to Seller or any other Person in
respect of any Commission Agreement.
SECTION 1.2 PAYMENT FOR THE PURCHASE.
------------------------
With respect to the Purchase, the aggregate price to be paid by Buyer
to Seller for such Purchase (the "Purchase Price") shall equal (subject to
adjustment for any Purchase Price Credit adjustments described below) the
product of (A) the Original Balance of such Commission Receivables on the
Purchase Date, multiplied by (B) one minus a Discount Factor of 5.312% (which
percentage is equal to the sum of the three-year U.S. Treasury rate on April 13,
2005 and 1%). For the avoidance of doubt, the Purchase Price as calculated in
accordance with the terms of this Section 1.2 is $8,908,247.04. The Discount
Factor is a percentage that has been calculated to provide Buyer with a
reasonable return on its investment in the Commission Receivables after taking
account of (i) the time value of money based upon the anticipated dates of
collection of the Commission Receivables and the cost to Buyer of financing its
investment in the Commission Receivables during such period and (ii) the risk of
nonpayment by the Obligor.
The Purchase Price shall be payable in full by Buyer to Seller on the
date hereof, and shall be paid to Seller by delivery of immediately available
funds to the account designated by Seller or as otherwise directed by Seller;
provided, however, that notwithstanding Buyer's payment of the Purchase Price on
the date hereof, the Purchase Price may be adjusted from time to time by any
Purchase Price Credits described in Section 1.3 that may arise after the
Purchase of the Commission Receivables.
SECTION 1.3 PURCHASE PRICE CREDIT ADJUSTMENTS.
---------------------------------
If, after the Purchase Date:
(a) a Commission Receivable is:
(i) canceled or terminated by, or refundable to, Obligor as a result of
Obligor's cancellation, rescission and/or termination of a related Shipbuilding
Contract ("Contract") for any reason other than the failure of Buyer or any
subsidiary of Buyer to pay the Obligor or otherwise to meet any of its or their
other obligations under any Commission Agreement or related Contract, or
(ii) reduced or canceled as a result of or in respect of any claim by any Person
against Seller (whether such claim arises out of the same or a related
transaction or an unrelated transaction), or
3
(iii) reduced as a result of any cash discount or any adjustment or otherwise by
Seller or any Affiliate of Seller, or
(iv) reduced or canceled on account of the failure of Seller or any Affiliate of
Seller to pay the Obligor or otherwise to meet any of its or their other
obligations under any Commission Agreement or related Contract, or
(b) any of the representations and warranties set forth in Section
2.1(g), Section 2.1(i), Section 2.1(k), Section 2.1(l) or Section 2.1(m) are not
true when made or deemed made with respect to any Commission Receivable, then,
in such event, Buyer shall be entitled to a credit (each, a "Purchase Price
Credit") against the Purchase Price otherwise payable hereunder equal to the sum
of (A) the amount of any such reduction, cancellation or refund of the
Commission Receivable and (B) any interest owed to the Obligor calculated in
accordance with the terms of the applicable Commission Agreement, and Seller
shall pay to Buyer the amount of such Purchase Price Credit in cash immediately.
Simultaneously with the payment of any Purchase Price Credit by Seller in
respect of a Commission Receivable under Section 1.3(b), such Commission
Receivable shall immediately and automatically be sold, assigned, transferred
and reconveyed (without recourse) by Buyer to Seller without any further action
by Buyer or any other Person.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
----------------------------------------
Seller hereby represents and warrants to Buyer on the date hereof that:
(a) Existence and Power. It is duly organized under the laws of its jurisdiction
of organization and it is validly existing and in good standing under the laws
of its jurisdiction of organization. It is duly qualified to do business and is
in good standing as a foreign entity, and has and holds all organizational power
and all governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is conducted
except where the failure to do so qualify or so hold could not reasonably be
expected to have a Material Adverse Effect.
(b) Power and Authority; Due Authorization, Execution and Delivery. Its
execution and delivery of this Agreement, and the performance of its obligations
hereunder, are within its organizational powers and authority and have been duly
authorized by all necessary organizational action on its part. This Agreement
has been duly executed and delivered by it.
(c) No Conflict. Its execution and delivery of this Agreement, and the
performance of its obligations hereunder do not contravene or violate (i) its
organizational documents, (ii) any law, rule or regulation applicable to it,
(iii) any restrictions under any agreement, contract or instrument to which it
is a party or by which it or any of its property is bound, or (iv) any order,
writ, judgment, award, injunction or decree binding on or affecting it or its
property, and do not result in the creation or imposition of any lien, security
interest, charge or encumbrance, or other right or claim in, of or on any
Commission Receivable
4
in favor of any other Person (each an "Adverse Claim") (except as created
hereunder), except, in any case, where such contravention or violation could not
reasonably be expected to have a Material Adverse Effect; and no transaction
contemplated hereby requires compliance with any bulk sales act or similar law.
(d) Governmental Authorization. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required for its due execution and delivery of this Agreement and the
performance of its obligations hereunder.
(e) Actions, Suits. There are no actions, suits or proceedings pending, or to
the best of its knowledge, threatened, against or affecting it, or any of its
properties, in or before any court, arbitrator or other body, that could
reasonably be expected to have a Material Adverse Effect. It is not in default
with respect to any order of any court, arbitrator or governmental body that
could reasonably be expected to have a Material Adverse Effect.
(f) Binding Effect. This Agreement constitutes its legal, valid and binding
obligations, enforceable against it in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws relating to or limiting creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(g) Accuracy of Information. All information heretofore furnished in writing by
it or any of its Affiliates to Buyer (or its assigns) for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by it or any of its Affiliates to Buyer
(or its assigns) will be, true and accurate in every material respect on the
date such information is stated or certified.
(h) Ownership. Immediately prior to the Purchase hereunder, it owns and has
legal and equitable ownership of the Commission Receivables, free and clear of
any Adverse Claim and Seller has not received any notice of the intention of
Obligor to terminate, repudiate or otherwise fail to pay any Commission
Receivable.
(i) Compliance with Law. Each Commission Receivable, together with the
Commission Agreement related thereto, does not contravene any laws, rules or
regulations applicable thereto (including, without limitation, laws, rules and
regulations relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and
privacy), and no part of such Commission Agreement is in violation of any such
law, rule or regulation, except where such contravention or violation could not
reasonably be expected to have a Material Adverse Effect.
(j) Compliance with Commission Agreements. It and its Affiliates have complied
in all material respects with the Commission Agreement related to each
Commission Receivable, and has not made any material change to such Commission
Agreement, except such material change as to which Buyer (or its assigns) has
been notified in writing.
(k) Payments to Seller. With respect to each Commission Receivable transferred
to Buyer hereunder, the Purchase Price received by it constitutes reasonably
equivalent value in consideration therefor. No transfer by it of any Commission
Receivable hereunder is or may be voidable under any section of any bankruptcy,
insolvency, reorganization or other similar laws relating to or limiting
creditors' rights generally applicable to it.
(l) Enforceability of Commission Agreements. Each Commission Agreement with
respect to each Commission Receivable is effective to create, and has created, a
legal, valid and
5
binding obligation of the Obligor to pay the Original Balance of the Commission
Receivable created thereunder and any accrued interest thereon, enforceable
against the Obligor in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(m) Accounting. Such Seller will account for the transactions contemplated by
this Agreement as being true sales.
ARTICLE III
CONDITIONS OF PURCHASE
SECTION 3.1 CONDITIONS PRECEDENT TO PURCHASE.
--------------------------------
The Purchase under this Agreement is subject to the conditions
precedent that Buyer shall have received on or before the Closing Date those
documents listed on Schedule A attached hereto.
ARTICLE IV
COVENANTS
SECTION 4.1 AFFIRMATIVE COVENANTS OF SELLER.
-------------------------------
Until the date on which Buyer has received or should have received all
Commission Receivables pursuant to the terms of each respective Commission
Agreement, Seller hereby covenants, as to itself, as set forth below:
(a) Information. Promptly provide, from time to time, such information,
documents, records or reports relating to the Commission Receivables as Buyer
(or its assigns) may from time to time reasonably request in order to protect
the interests of Buyer (and its assigns) under or as contemplated by this
Agreement.
(b) Compliance with Commission Agreements. It will timely and fully perform and
comply in all material respects with all provisions, covenants and other
promises required to be observed by it under the Commission Agreements related
to the Commission Receivables.
(c) Ownership. It will take all necessary action to establish and
maintain, irrevocably in Buyer legal and equitable title to the Commission
Receivables, in each case, free and clear of any Adverse Claims other than
Adverse Claims in favor of Buyer (and its assigns). To the extent Seller
receives payment of any Commission Receivable from Obligor following the
Purchase on the Purchase Date, Seller will promptly forward any such payment to
Buyer (without any deduction, set-off or withholding).
6
SECTION 4.2 NEGATIVE COVENANTS OF SELLER.
----------------------------
Until the date on which Buyer has received or should have received all
Commission Receivables pursuant to the terms of each respective Commission
Agreement, Seller hereby covenants that:
(a) Sales, Liens. It will not sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, or create or suffer
to exist any Adverse Claim upon (including, without limitation, the filing of
any financing statement) or with respect to, any Commission Receivable or upon
or with respect to any Commission Agreement under which any Commission
Receivable arises, or assign any right to receive income with respect thereto
(other than, in each case, as provided for herein), and it will defend the
right, title and interest of Buyer in, to and under any of the foregoing
property, against all claims of third parties claiming through or under it. It
shall not create or suffer to exist any mortgage, pledge, security interest,
encumbrance, lien, charge or other similar arrangement on any Commission
Receivable.
(b) Accounting for Purchase. It will not, and will not permit any Affiliate to,
account for or treat (whether in financial statements or otherwise) the
transactions contemplated hereby in any manner other than the sale and/or
contribution and absolute assignment of the Commission Receivables by it to
Buyer or in any other respect account for or treat the transactions contemplated
hereby in any manner other than as a sale and/or contribution and absolute
assignment of the Commission Receivables by it to Buyer except to the extent
that such transactions are not recognized on account of consolidated financial
reporting in accordance with generally accepted accounting principles.
ARTICLE V
INDEMNIFICATION
SECTION 5.1 INDEMNITIES BY SELLER.
---------------------
Without limiting any other rights that Buyer may have hereunder or
under applicable law, Seller hereby agrees to indemnify (and pay upon demand to)
Buyer and its assigns, officers, directors, agents and employees (each an
"Indemnified Party") from and against any and all damages, losses, claims,
taxes, liabilities, costs, expenses and for all other amounts payable, including
reasonable and documented attorneys' fees and disbursements (all of the
foregoing being collectively referred to as "Indemnified Amounts") awarded
against or incurred by any of them arising out of or as a result of this
Agreement or the acquisition, either directly or indirectly, by Buyer of an
interest in the Commission Receivables, excluding, however:
(a) Indemnified Amounts to the extent a final judgment of a court of
competent jurisdiction holds that such Indemnified Amounts resulted from bad
faith, gross negligence or willful misconduct on the part of the Indemnified
Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of
Commission Receivables that are uncollectible on account of the insolvency,
bankruptcy or lack of creditworthiness of the related Obligor; or
7
(c) taxes imposed by any jurisdiction in which such Indemnified Party is
organized, its principal executive office is located or it does business, on or
measured by the net income of such Indemnified Party; provided, however, that
nothing contained in this sentence shall limit the liability of Seller or limit
the recourse of Buyer to Seller for amounts otherwise specifically provided to
be paid by Seller under the terms of this Agreement. Without limiting the
generality of the foregoing indemnification, but subject in each case to clauses
(a), (b) and (c) above, Seller shall indemnify Buyer for Indemnified Amounts
relating to or resulting from:
(i) any representation or warranty made by Seller (or any officers of Seller)
under or in connection with this Agreement, or any other information or report
delivered by Seller pursuant hereto for which Buyer has not received a Purchase
Price Credit that shall have been false or incorrect in any material respect
when made or deemed made;
(ii) the failure by the Seller to comply in any material respect with any
applicable law, rule or regulation with respect to any Commission Receivable or
Commission Agreement related thereto, or the nonconformity in any material
respect of any Commission Receivable or Commission Agreement included therein
with any such applicable law, rule or regulation or any failure of Seller to
keep or perform in any material respect any of its obligations, express or
implied, with respect to any Commission Agreement;
(iii) any failure of Seller to perform in any material respect its duties,
covenants or other obligations in accordance with the provisions of this
Agreement;
(iv) any dispute, claim, offset or defense (other than discharge in bankruptcy
of the Obligor) of the Obligor to the payment of any Commission Receivable
(including, without limitation, a defense based on such Commission Receivable or
the related Commission Agreement not being a legal, valid and binding obligation
of such Obligor enforceable against it in accordance with its terms);
(v) any investigation, litigation or proceeding related to or arising from this
Agreement, the transactions contemplated hereby, the use of the proceeds of the
Purchase Price hereunder, the ownership of the Commission Receivables or any
other investigation, litigation or proceeding relating to Seller in which any
Indemnified Party becomes involved as a result of any of the transactions
contemplated hereby;
(vi) any inability to litigate any claim by Buyer against any Obligor in respect
of any Commission Receivable as a result of such Obligor being immune from civil
and commercial law and suit on the grounds of sovereignty or otherwise from any
legal action, suit or proceeding;
(vii) any failure to vest and maintain vested in Buyer, or to transfer to Buyer,
legal and equitable title to, and ownership of, the Commission Receivables, in
each case, free and clear of any Adverse Claim;
(viii) any action or omission by Seller which reduces or impairs the rights of
Buyer with respect to any Commission Receivable or the value of any such
Commission Receivable;
(ix) any attempt by any Person to void the Purchase hereunder under statutory
provisions or common law or equitable action; and
(x) the failure of any Commission to be an eligible or viable Commission
Receivable at the time acquired by Buyer.
8
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 WAIVERS AND AMENDMENTS.
----------------------
(a) No failure or delay on the part of Buyer (or its assigns) in exercising any
power, right or remedy under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or remedy
preclude any other further exercise thereof or the exercise of any other power,
right or remedy. The rights and remedies herein provided shall be cumulative and
nonexclusive of any rights or remedies provided by law. Any waiver of this
Agreement shall be effective only in the specific instance and for the specific
purpose for which given.
(b) No provision of this Agreement may be amended, supplemented, modified or
waived except in writing signed by Seller and Buyer.
SECTION 6.2 PROTECTION OF OWNERSHIP INTERESTS OF BUYER.
------------------------------------------
(a) Seller agrees that from time to time, at its expense, it will promptly
execute and deliver all instruments and documents, and take all actions, that
may be reasonably necessary or desirable, or that Buyer (or its assigns) may
reasonably request, to perfect, protect or more fully evidence the interest of
Buyer hereunder and in the Commission Receivables, or to enable Buyer (or its
assigns) to exercise and enforce their rights and remedies hereunder or with
respect to the Commission Receivables, including (but not limited to) directing
that Obligor make all payments of all amounts due or that become due under any
or all Commission Agreements be made directly to Buyer or its designee.
(b) If Seller fails to perform any of its obligations hereunder after giving
effect to any applicable grace or cure period, Buyer (or its assigns) may (but
shall not be required to) perform, or cause performance of, such obligations,
and Buyer's (or such assigns') costs and expenses incurred in connection
therewith shall be payable by Seller.
SECTION 6.3 LIMITATION OF LIABILITY.
-----------------------
Except with respect to any claim arising out of the bad faith, willful
misconduct or gross negligence, no claim may be made by any party to this
agreement or other Person, against any other party to this agreement or their
respective affiliates, directors, officers, employees, counsel, representatives,
agents or attorneys-in-fact for any special, indirect, consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith, and
each party hereby waives, releases and agrees not to xxx upon any claim for such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
9
SECTION 6.4 CHOICE OF LAW.
-------------
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF ENGLAND.
SECTION 6.5 DISPUTE RESOLUTION.
------------------
Buyer and Seller agree to mandatory arbitration proceedings for
resolution of all disputes involving, directly or indirectly, any matter
(whether sounding in tort, contract or otherwise) in any way arising out of,
related to, or connected with this Agreement, any document executed by Seller
pursuant to this Agreement or the relationship established hereunder or
thereunder in accordance with the Arbitration Act 1996 or any statutory
modification or re-enactment thereof, and judgment upon any award rendered in
the arbitration proceeding may be entered in any court having jurisdiction
thereof. The arbitration shall be held in London, England, or at another
location if it can be selected by mutual agreement. Any arbitration award may
grant a reimbursement to the prevailing party of all of its fees and expenses,
including reasonable attorneys' fees. Without waiving any right to arbitration
under this Agreement, any party may apply to any court having jurisdiction
hereof and seek injunctive relief so as to maintain the status quo until such
time as the arbitration decision is rendered or the controversy is resolved.
SECTION 6.6 INTEGRATION; BINDING EFFECT; ASSIGNMENT; SURVIVAL OF TERMS.
(a) This Agreement contains the final and complete integration of all prior
expressions by the parties hereto with respect to the subject matter hereof and
shall constitute the entire agreement among the parties hereto with respect to
the subject matter hereof superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the benefit of Seller,
Buyer and their respective successors and permitted assigns (including any
trustee in bankruptcy). Seller may not assign any of its rights and obligations
hereunder or any interest herein without the prior written consent of Buyer.
Buyer may assign at any time its rights and obligations hereunder and interests
herein or in any Commission Receivable to any other Person without the consent
of Seller. This Agreement shall create and constitute the continuing obligations
of the parties hereto in accordance with its terms and shall remain in full
force and effect until terminated in accordance with its terms; provided,
however, that the rights and remedies with respect to (i) any breach of any
representation and warranty made by Seller pursuant to Article II and (ii) the
indemnification and payment provisions of Article V shall be continuing and
shall survive any termination of this Agreement.
SECTION 6.7 COUNTERPARTS; SEVERABILITY; SECTION REFERENCES.
----------------------------------------------
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same Agreement. Delivery of an executed counterpart
of a signature page by facsimile shall be
10
effective as delivery of a manually executed counterpart of this Agreement. Any
provisions of this Agreement which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Unless otherwise expressly indicated, all references herein
to "Article," "Section," "Schedule" or "Exhibit" shall mean articles and
sections of, and schedules and exhibits to, this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
XXXXXXX SHIPPING LIMITED, as Seller
By: /s/ Xxxxxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxxxxx Xxxxxxx
Title: Sole Director
CAPITAL MARITIME & TRADING CORP.,
as Buyer
By: /s/ Xxxxxxx Timagenis
----------------------------
Name: Xxxxxxx Timagenis
Title: Chairman
by authority of the Board
11
Exhibit I
Other Definitions
-----------------
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or controlled by such Person or any
Subsidiary of such Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Material Adverse Effect" means a material adverse effect on (i) the
financial condition of the Seller, (ii) the ability of the Seller to perform its
obligations under this Agreement, (iii) the legality, validity or enforceability
of this Agreement, (iv) the Buyer's interest in the Commission Receivables
generally or in any material portion of the Commission Receivables, or (v) the
collectibility of the Commission Receivables generally or of any material
portion of the Commission Receivables.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
12
Exhibit II
Schedule of Commission Receivables
----------------------------------
<TABLE>
REMAINING
COMMISSION AGREEMENT ORIGINAL BALANCE UNDISCOUNTED BALANCE
Commission Agreement dated December 19, 2003 $ 3,654,000 $ 3,288,600
(Hull Nos. 0311-0316)
Commission Agreement dated February 16, 2004 2,700,000 2,430,000
(Hull Nos. 0410-0413)
Commission Agreement dated July 15, 2004 692,000 553,600
(Hull No. 0442)
Commission Agreement dated July 15, 2004 692,000 553,600
(Hull No. 0443)
Commission Agreement dated July 15, 2004 692,000 553,600
(Hull No. 0444)
Commission Agreement dated July 15, 2004 754,000 678,600
(Hull No. 0445)
Commission Agreement dated July 15, 2004 750,000 675,000
(Hull No. 0446)
Commission Agreement dated July 15, 2004 750,000 675,000
(Hull No. 0447)
TOTAL $10,684,000.00 $9,408,000.00
</TABLE>
13
Exhibit III
Commission Agreements (attached) Schedule A
----------------------
Documents to be Delivered to Buyer on or Prior to the Purchase
--------------------------------------------------------------
1. Executed copies of the Commission Receivables Sale Agreement, duly
executed by the parties thereto.
2. Copy of each Commission Agreement to attach to the Commission Receivables
Sale Agreement as an Exhibit.
3. A certificate of Seller's secretary certifying a copy of the resolutions
of the board of directors of Seller, authorizing Seller's execution, delivery
and performance of the Commission Receivables Sale Agreement and the other
documents to be delivered by it thereunder; and
4. Executed copies of (i) all consents from and authorizations by any
Persons, (ii) assignments evidencing the transfer and sale of the Commission
Receivables from Seller to Buyer and (iii) all waivers and amendments to
existing credit facilities, which are necessary in connection with the
Commission Receivables Sale Agreement.
14
