Exhibit 2.9
CONTRIBUTION AGREEMENT
by and among
GENERAL MARITIME SHIP HOLDINGS LTD.,
GENMAR ALEXANDRA, LLC,
GENMAR II, LLC,
EQUILI COMPANY, L.P.,
EQUILI COMPANY, LLC,
EQUILI COMPANY II, L.P., AND
EQUILI COMPANY II, LLC
Dated as of May 25, 2001
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement"), is made as a Deed,
is dated as of May 25, 2001 and is by and among General Maritime Ship Holdings
Ltd., a Xxxxxxxx Islands corporation (to be renamed General Maritime Corporation
on or about the Closing Date, "Acquiror"), Genmar Alexandra, LLC, a Delaware
limited liability company, Genmar II, LLC, a Delaware limited liability company,
Equili Company, L.P., a New York limited partnership, Equili Company, LLC, a
Delaware limited liability company, Equili Company II, L.P., a New York limited
partnership, and Equili Company II, LLC, a Delaware limited liability company
(each a "Transferor"), and the partners or members, as the case may be, of each
Transferor (each a "Partner" and together with the Transferors, the "Transferor
Parties"). Acquiror and the Transferor Parties are sometimes individually
referred to herein as a "Party" and together as the "Parties."
RECITALS
A. The Transferors listed on SCHEDULE 1 own all of the issued and outstanding
share capital (the "SPV Shares") of the companies listed below each Transferor's
name in SCHEDULE 1, each of which companies owns a Vessel (as hereinafter
defined) except for two Transferors which each own a Vessel. As of the date
hereof, the KENTUCKY and the WEST VIRGINIA Vessels are owned directly by Equili
Company, L.P. and Equili Company II, L.P. respectively, which have leased such
Vessels to Kentucky Shipping Company Ltd. and West Virginia Maritime Company
Ltd., respectively, pursuant to bareboat charters as described on SCHEDULE 1. It
is contemplated that the ownership of each of the KENTUCKY and WEST VIRGINIA
Vessels will be transferred prior to the Closing Date (as hereinafter defined)
to newly created Maltese entities. For purposes of this Agreement and subject to
the provisions of Section 7.07, the companies which own the Vessels, together
with Kentucky Shipping Company Ltd. and West Virginia Maritime Company Ltd., are
defined as the "SPVs".
B. Acquiror contemplates entering into a Recapitalization (as defined in the
Plan of Recapitalization attached as ANNEX A (the "Plan of Recapitalization"))
intended to create a company owning and operating a number of motor tankers,
including the Vessels, as further described in the Plan of Recapitalization.
C. As part of the plan of Recapitalization, Acquiror desires to exchange shares
("Acquiror Shares") of the common stock of Acquiror, par value $.01 per share
(the "Acquiror Stock"), for all of the SPV Shares on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Parties, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS.
1.01 "Action" has the meaning set forth in Section 7.09.
1.02 "Acquiror Shares" has the meaning set forth in Recital C.
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1.03 "Acquiror Stock" has the meaning set forth in Recital C.
1.04 "Balance Sheet" means the adjusted unaudited balance sheet of an SPV
as of March 31, 2001 previously delivered to Acquiror.
1.05 "Closing" means the closing of the transactions contemplated hereby.
1.06 "Closing Date" means the date on which the Closing occurs.
1.07 "Closing Opinion" has the meaning set forth in Section 3.07.
1.08 "Contracts" has the meaning set forth in Section 4.10.
1.09 "Disclosure Schedule" means the disclosure schedules accompanying
this Agreement which the Transferors have prepared.
1.10 "Encumbrance" means any lien, pledge, mortgage, security interest,
maritime lien, time or demise charter, charge, restriction, adverse claim or
other encumbrance of any kind or nature whatsoever.
1.11 "Environmental Claim" means any claim, allegation, action, cause of
action, investigation, removal, remedial activity, or notice by any person or
entity alleging potential liability (including potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from the presence, or release into the
environment, of any Material of Environmental Concern at any location, whether
or not owned or operated by any Transferor or SPV or the violation or alleged
violation of any Environmental Law.
1.12 "Environmental Law" means any Law or legally binding and enforceable
treaty or convention concerning the environment or human health, or activities
that might threaten or result in damage to the environment or human health, or
any Law that is concerned in whole or in part with the environment or human
health and with protecting or improving the quality of the environment or human
health and includes, but is not limited to, the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Clean Water Act, the Clean Air Act, the Toxic
Substances Control Act and the Oil Pollution Act of 1990, each of the foregoing
as amended or supplemented from time to time.
1.13 "Escrow Agent" has the meaning ascribed thereto in the Plan of
Recapitalization.
1.14 "Escrow Agreement" means the Escrow Agreement by and among Acquiror,
the Transferors, and the other parties thereto, in substantially the form of
Exhibit E with such changes thereto as may be reasonably required by the Escrow
Agent.
1.15 "Financial Statements" means (i) with respect to each of Equili
Company, L.P. and Equili Company II, L.P., the unaudited balance sheet and
statements of earnings prepared on a tax accounting basis, for each of the
fiscal years ended December 31, 2000, 1999 and 1998 and (ii) with respect to
each of Genmar Alexandra, LLC, whose only material asset is Genmar Alexandra,
Ltd., and Genmar II, LLC, whose only material assets are Genmar Xxxxxx, Ltd. and
Genmar Pericles, Ltd., the audited balance sheet, and statements of earnings,
equity and cash
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flows, prepared in accordance with GAAP for the fiscal year ended December 31,
2000, in each case as previously delivered to Acquiror.
1.16 "GAAP" means United States generally accepted accounting principles,
as in effect on the date of this Agreement, consistently applied.
1.17 "Governmental Body" means any U.S. or foreign federal or national,
state or provincial, municipal or local government, governmental authority,
regulatory or administrative agency, governmental commission, department, board,
bureau, agency or instrumentality, political subdivision, court, tribunal,
official arbitrator or arbitral body, in each case whether domestic or foreign.
1.18 "Indemnity Shares" means the Acquiror Shares to be held in the
Indemnity Account as defined in Section 9(A)(iii) of the Plan of
Recapitalization, the number of which are subject to adjustment pursuant to the
remainder of Section 9 of the Plan of Recapitalization.
1.19 "Interim Financial Statements" means the unaudited financial
statements of an SPV as of, and for the period ended March 31, 2001 previously
delivered to Acquiror.
1.20 "IPO Price" means the price per share of Acquiror Stock fixed in the
initial public offering of the Acquiror Stock.
1.21 "Law" means any federal, state, local, foreign or international law
(including common law), statute, code, ordinance, rule, regulation or other
legally enforceable requirement.
1.22 "Licenses" has the meaning set forth in Section 4.14(b).
1.23 "Lockup Agreement" means the Lockup Agreement executed by each
Transferor regarding the Acquiror Shares in the form of EXHIBIT A.
1.24 "Loss," in respect of any matter, means any loss, liability, cost,
expense, judgment, settlement or damage arising, directly or indirectly, as a
result of or in connection with such matter, including reasonable attorneys',
consultants' and other advisors' fees and expenses, reasonable costs of
investigating or defending any claim, action, suit or proceeding or of avoiding
the same or the imposition of any judgment or settlement.
1.25 "Manager" has the meaning set forth in Section 6.07.
1.26 "Material Adverse Effect" means any material adverse effect on any
SPV's business, operations, assets, financial condition, liabilities, or results
of operations or the ability of any Transferor to perform its obligations
hereunder.
1.27 "Materials of Environmental Concern" means chemicals, pollutants,
contaminants, hazardous materials, hazardous substances and hazardous wastes,
medical waste, toxic substances, petroleum and petroleum products,
asbestos-containing materials, polychlorinated biphenyls, and any other
chemicals, pollutants or substances regulated under any Environmental Law.
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1.28 "Person" means an individual, partnership, venture, unincorporated
association, organization, syndicate, corporation, limited liability company, or
other entity, trust and trustee, executor, administrator or other legal or
personal representative or any government or any agency or political subdivision
thereof.
1.29 "Pre-Closing Period" means all taxable periods ending on or before
the Closing Date and the portion ending on or before the Closing Date of any
taxable period that includes (but does not end on) the Closing Date.
1.30 "Registration Rights Agreement" means the Registration Rights
Agreement by and between Acquiror and recipients of Acquiror Stock attached
hereto as EXHIBIT B.
1.31 "Registration Statement" means the draft Registration Statement of
Acquiror on Form S-1 concerning the initial public offering of Acquiror Stock,
attached hereto as EXHIBIT D.
1.32 "Returns" means returns, reports, and information statements with
respect to Taxes required to be filed with any taxing authority, including
consolidated, combined and unitary tax returns.
1.33 "SPV" has the meaning set forth in Recital A.
1.34 "Tax" or "Taxes" shall mean taxes, fees, levies, duties, tariffs,
imposts and governmental impositions or charges of any kind in the nature of (or
similar to) taxes, payable to any U.S. federal, state, local or non-U.S. taxing
authority, including (a) income, franchise, profits, gross receipts, AD VALOREM,
net worth, value added, sales, use, service, real or personal property, special
assessments, capital stock, license, payroll, withholding, employment, social
security, workers' compensation, unemployment compensation, utility, severance,
production, excise, stamp, occupation, premiums, windfall profits, transfer and
gains taxes, and (b) interest, penalties, additional taxes and additions to tax
imposed with respect thereto.
1.35 "Texas Matter" has the meaning set forth in Section 7.12.
1.36 "Transferring SPVs" has the meaning set forth in Section 7.07.
1.37 "Underwriting Agreement" means the Underwriting Agreement with
respect to Acquiror Stock by and among Acquiror, Xxxxxx Brothers, Inc., ABN AMRO
Rothschild, LLC and Xxxxxxxxx & Company, Inc.
1.38 "Vessel Transfer" has the meaning set forth in Section 7.07.
1.39 "Vessels" means the motor tankers described in SCHEDULE 1.
1.40 "Waiver and Contribution Agreement" means the Waiver and Contribution
Agreement to be executed by each Transferor, substantially in the form of
EXHIBIT C.
1.41 COMMONLY USED TERMS. Unless the context clearly indicates otherwise,
the terms below mean the following:
(a) "Hereof," "herein," and "hereinafter" refer to this Agreement.
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(b) "Including" means including, without limitation (whether or not
so expressed).
(c) References to Sections, Recitals, Exhibits, Annexes, and
Schedules mean, respectively, Sections, Recitals, Exhibits, Annexes, and
Schedules of this Agreement.
(d) Words denoting the singular include the plural and vice versa.
(e) "It" or "its" or words denoting any gender include all genders.
2. EXCHANGE OF SECURITIES.
2.01 GENERALLY. Subject to and upon the terms and conditions hereinafter
set forth, at the Closing, and in reliance upon the representations and
warranties contained in this Agreement or made pursuant hereto, Transferors with
full title guarantee shall sell, assign, transfer and deliver absolutely to
Acquiror, and Acquiror shall purchase and accept from Transferors, all of the
SPV Shares and all of the Transferors' rights, title, and interest in the SPV
Shares, free and clear of all Encumbrances in exchange for the number of
Acquiror Shares specified pursuant to Section 2.02. Each of Genmar Kentucky Ltd.
and Genmar West Virginia, Ltd. is a Maltese company which will own the KENTUCKY
and WEST VIRGINIA Vessels respectively as of the Closing. Although this
Agreement is governed by New York law (as provided in Section 12.09), to the
extent that Maltese law is relevant to the terms and conditions hereof, the
Parties agree that this Agreement shall constitute a contract of exchange of
shares (as opposed to a contract of sale of shares) for purposes of Maltese law.
2.02 PLAN OF RECAPITALIZATION. The number of shares, timing of issuance,
and all other aspects of the issuance of Acquiror Shares to the Transferors in
consideration of the sale, assignment, transfer, and delivery of all SPV Shares
to Acquiror shall be according to the terms and conditions specified in the Plan
of Recapitalization, which is incorporated herein by reference. Acquiror shall
deposit 10% of the Acquiror Shares to which each Transferor is entitled in
escrow in the Purchase Price Calculation Account as defined in Section 9(A)(iii)
of the Plan of Recapitalization, which Acquiror Shares shall be distributed in
accordance with the remainder of Section 9 of the Plan of Recapitalization.
Acquiror shall deposit an additional 10% of the total number of Acquiror Shares
to which each Transferor is entitled under the Plan of Recapitalization in
escrow in the Indemnity Account as defined in Section 9(A)(iii) of the Plan of
Recapitalization. To the extent any Indemnity Shares are not subject to an
indemnification claim against any Transferor under Section 11.02 within six
months after the Closing, Acquiror shall instruct the Escrow Agent to release
such Indemnity Shares to the Transferors entitled to them in accordance with the
Plan of Reorganization. Acquiror shall instruct the Escrow Agent to release any
Indemnity Shares that are subject to such an indemnification claim to the
Transferors to the extent Acquiror and the Transferors or a court of competent
jurisdiction finally resolves such claim in favor of the Transferors without the
possibility of appeal.
3. CLOSING. The Closing shall be held at the offices of Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 contemporaneously with the
closing of the initial public offering contemplated by the Registration
Statement. The following shall take place at the Closing:
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3.01 DELIVERY OF SHARE CERTIFICATES, ETC. The Transferors shall deliver or
cause to be delivered to Acquiror (a) share certificates representing all the
equity interests of the SPVs (including all issued and outstanding SPV Shares),
accompanied by share transfer forms duly endorsed in blank or accompanied by
duly executed instruments of transfer and (b) a certified copy of the Register
of Members of the SPVs showing Acquiror as the owner of all of the SPV Shares.
3.02 DELIVERY OF ACQUIROR SHARES. Acquiror shall deliver (or provide
evidence satisfactory to the Transferors that it has delivered) to the Escrow
Agent certificates representing all of the Acquiror Shares to be issued
hereunder.
3.03 DELIVERY OF SCHEDULE OF PURCHASED SHARES. Acquiror shall deliver to
the Transferors a schedule reflecting issued and outstanding capital stock of
Acquiror as of the Closing including the number of Acquiror Shares to be
delivered to the Transferors and the number of Acquiror Shares delivered to the
various escrow accounts for the benefit of each Transferor as more particularly
described in the Plan of Recapitalization.
3.04 RESIGNATION OF DIRECTORS AND OFFICERS OF THE SPVS. Transferors shall
cause the directors and officers of the SPVs to resign as of the Closing, and
Acquiror shall be entitled to designate their replacements.
3.05 LOCKUP AGREEMENT. The Transferors shall execute and deliver to
Acquiror the Lockup Agreement.
3.06 REGISTRATION RIGHTS AGREEMENT. The Transferors and Acquiror shall
execute and deliver the Registration Rights Agreement.
3.07 LEGAL OPINION. Xxxxxxxx Islands counsel for Acquiror shall deliver to
the Transferors an opinion (the "Closing Opinion") containing substantially the
items set forth in EXHIBIT E in a form reasonably acceptable to counsel to the
Transferors.
3.08 TRANSFER TAXES. Acquiror shall be liable for and shall pay all
transfer or similar taxes, direct or indirect, if any, attributable to the
transfer of the SPV Shares (but not any taxes based on income or receipts) and,
in connection therewith, shall affix any necessary transfer stamps to any
certificates evidencing the SPV Shares.
3.09 INDEBTEDNESS. Acquiror shall repay the indebtedness listed on Section
4.06(b)(2) of the Disclosure Schedule.
3.10 ESCROW AGREEMENT. Each Transferor, Acquiror and the Escrow Agent
shall execute and deliver the Escrow Agreement.
4. REPRESENTATIONS AND WARRANTIES OF TRANSFERORS. The Transferors hereby
represent and warrant to Acquiror as follows:
4.01 ORGANIZATION AND GOOD STANDING OF TRANSFERORS. Each of Genmar
Alexandra, LLC, Genmar II, LLC, Equili Company LLC, and Equili Company II, LLC
is a limited liability company duly organized, validly existing, and in good
standing under the laws of Delaware. Each of Equili Company, L.P. and Equili
Company II, L.P. is a limited partnership duly
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organized, validly existing, and in good standing under the laws of New York.
Each Transferor has all requisite power and authority to own its properties and
to carry on its business as it is now being conducted. Each Transferor is duly
qualified to transact business and is in good standing in each jurisdiction
wherein the nature of its contracts, the business done, or the property owned,
leased, or operated by it requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect. Other than the
SPVs, no Transferor has any subsidiaries or owns any equity interest in any
Person whatsoever.
4.02 ORGANIZATION AND GOOD STANDING OF SPV. Each of Genmar Alexandra,
Ltd., Genmar Xxxxxx, Ltd. and Genmar Pericles, Ltd. is a company with limited
liability duly organized, validly existing, and in good standing under the laws
of the Cayman Islands without limitation on the duration of its existence and
has qualified and is in good standing as a Foreign Maritime Entity under the
laws of the Republic of the Xxxxxxxx Islands. Each of Kentucky Shipping Company
Ltd. and West Virginia Maritime Company Ltd. which operate the KENTUCKY and WEST
VIRGINIA Vessels respectively pursuant to bareboat charters is a company with
limited liability, duly organized, validly existing and in good standing under
the laws of Malta. Each of Genmar Kentucky Ltd. and Genmar West Virginia, Ltd.
is a company with limited liability, duly organized, validly existing and in
good standing under the laws of Malta. Each SPV has all requisite power and
authority to own its properties and to carry on its business as it is now being
conducted. Each SPV is duly qualified to transact business and is in good
standing in each jurisdiction wherein the nature of its contracts, the business
done, or the property owned, leased, or operated by it requires such
qualification. Copies of the Memorandum of Association and Articles of
Association of each SPV and all amendments to each of the foregoing have been
delivered to Acquiror and are true, complete, and accurate in all respects. The
minutes of all meetings of the directors and members of each SPV and all other
records regarding the governance or ownership of each SPV have been made
available to Acquiror and are true, complete and accurate in all material
respects. No SPV has any subsidiaries or owns any equity interest in any Person
whatsoever.
4.03 CAPITALIZATION; TITLE.
(a) The authorized capital and number of issued shares of capital
(to the extent applicable) of each SPV are as set forth in Section 4.03(a)
of the Disclosure Schedule. All SPV Shares are validly issued, fully paid,
and non-assessable. The Transferors own, beneficially and of record, and
have good, valid, and marketable title to all of the SPV Shares, free and
clear of any and all Encumbrances. No Person has any written or oral
agreement, arrangement or understanding or option to or any right or
privilege (whether by law, preemption, or contract) that is an agreement,
arrangement, understanding, or option for the purchase or acquisition from
any Transferor of any SPV Shares.
(b) There are no outstanding or authorized options, warrants,
purchase agreements, participation agreements, subscription rights,
conversion rights, exchange rights or other securities, contracts,
arrangements, understanding or commitments that could require any SPV to
issue, sell or otherwise cause to become outstanding any equity of such
SPV or any securities convertible into, exchangeable for or carrying a
right or option to purchase any equity of such SPV or to create,
authorize, issue, sell or otherwise cause to become outstanding any new
class of equity of such SPV. There are no outstanding agreements among
partners or members, registration rights agreements, or
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rights of first refusal pertaining to equity interests of any SPV. None of
the outstanding equity securities of any SPV has been issued in violation
of any rights of any Person or in violation of any Law.
4.04 AUTHORIZATION; ENFORCEABILITY. The execution and delivery of this
Agreement by each Transferor has been duly authorized by all necessary action
required on the part of such Transferor. This Agreement has been duly executed
and delivered by each Transferor and constitutes the legal, valid, and binding
obligation of such Transferor, enforceable against such Transferor in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium or other laws affecting the rights of
creditors generally and by general principles of equity.
4.05 NO CONFLICTS. Neither the execution and delivery by the Transferors
of this Agreement nor the consummation of the transactions contemplated hereby
will (a) conflict with or violate the organizational documents of any
Transferor, any resolutions of the members or the partners, as the case may be,
of any Transferor, the memorandum of association or articles of association of
any SPV, any resolutions of the directors or members of any SPV, or any
governing documents of any Transferor or SPV analogous to the foregoing, or (b)
except as would not be reasonably likely to have a Material Adverse Effect,
conflict with, violate, result in the breach of any term of, result in the
acceleration of performance of any obligation under, constitute a default under,
require the consent or approval of or any notice to or filing with any third
party or Governmental Body, or create an Encumbrance on any of the properties or
assets of any Transferor or SPV under, (x) any note, mortgage, deed of trust,
lease or other agreement or instrument to which any Transferor or SPV is a party
or by which any of their respective properties or assets is bound, or (y) any
law, order, rule, regulation, decree, writ, injunction, or License of any
Governmental Body having jurisdiction over any Transferor or SPV, or any of
their respective properties.
4.06 FINANCIAL STATEMENTS; UNDISCLOSED LIABILITIES.
(a) The Financial Statements and the Interim Financial Statements
(true, complete and accurate copies of which have been previously
delivered to Acquiror) have been prepared from the books and records of
the entities shown on a consistent basis (and, in the case of the audited
Financial Statements, in accordance with GAAP applied on a consistent
basis) throughout the periods covered thereby and fairly present in all
material respects the financial condition of the SPVs as at their
respective dates and the results of operations (and, in the audited
Financial Statements, the cash flows) of the SPVs for the periods covered
thereby.
(b) As of the date of each Balance Sheet, other than those set forth
in Section 4.06(b)(1) of the Disclosure Schedule, the SPVs had no material
liabilities, debts, or obligations of the type required to be reported on
a balance sheet prepared in accordance with GAAP (including the footnotes
thereto) (whether absolute, accrued, contingent or otherwise and in the
case of any such liabilities, debts or obligations in respect of any
Taxes, as determined on the basis of Tax Law as in effect as of the date
of the Balance Sheet), except for liabilities, debts, or obligations
reflected or reserved against in the applicable Balance Sheet or the
Financial Statements (including the footnotes thereto). Since the date of
each Balance Sheet, the SPVs have conducted their respective
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businesses in the ordinary course consistent with past practice and have
not incurred any liabilities, debts, or obligations of the type required
to be reported on a balance sheet prepared in accordance with GAAP
(including the footnotes thereto) (whether absolute, accrued, contingent
or otherwise), except for liabilities incurred in the ordinary course of
business and not reasonably likely to have a Material Adverse Effect.
Since the date of each Balance Sheet, there have been no material adverse
change in the business, operations, assets, condition (financial or
otherwise), liabilities, or results of operations of the SPVs (other than
general economic or industry conditions), and, to the Transferors'
knowledge, no event has occurred or facts or circumstances exist which
would be reasonably likely to result in a Material Adverse Effect. The
only indebtedness of the SPVs or the Maltese entities to which the
KENTUCKY and WEST VIRGINIA Vessels are to be transferred prior to Closing
or incurred by the Vessels at the Closing Date will be (A) the
indebtedness listed in Section 4.06 (b)(2) of the Disclosure Schedule
which indebtedness will include new debt with terms and conditions
reasonably satisfactory to Acquiror in an aggregate amount of up to $10
million and which indebtedness will not aggregate in excess of $59,000,000
and (B) current liabilities, other than for borrowed money, reflected or
reserved against in the SPV's or entity's Balance Sheet delivered to
Acquiror or otherwise incurred in the ordinary course of business and not
reasonably likely to have a Material Adverse Effect.
4.07 RECEIVABLES AND PAYABLES. Section 4.07 of the Disclosure Schedule
sets forth a true, correct, and complete list of all accounts and notes
receivable, trade notes and trade accounts, and accounts and notes payable,
together with the amounts thereof, as of March 31, 2001. All of the accounts and
notes receivable and trade notes and trade accounts owing to the SPVs constitute
valid and enforceable claims arising from bona fide transactions in the ordinary
course of business. All accounts payable and notes payable by the SPVs arose in
bona fide transactions in the ordinary course of business.
4.08 TAXES.
(a) Except as set forth in Section 4.08(a) of the Disclosure
Schedule, the SPVs have timely filed with the appropriate taxing
authorities all material Returns required to be filed by them (taking into
account any extension of time to file). The information on such Returns is
complete and accurate in all material respects. The SPVs have paid on a
timely basis all Taxes (whether or not shown on any Return) due and
payable, except for Taxes (i) which the applicable SPV believes in good
faith are not due and payable because they are being diligently contested
by appropriate proceedings, (ii) for which the applicable SPV has set
aside on its books reserves to the extent required by GAAP, or (iii) for
which the failure to pay would not be reasonably likely to have a Material
Adverse Effect. There are no liens for any material Taxes (other than for
current Taxes not yet due and payable) upon the assets of any SPV.
(b) Except as set forth in Section 4.08(b) of the Disclosure
Schedule, no unpaid (or unreserved in accordance with GAAP) deficiencies
for Taxes have been claimed, proposed or assessed in writing by any taxing
authority or other Governmental Body with respect to any SPV for any
Pre-Closing Period, and there are no pending or, to the Transferors'
knowledge, threatened, audits, investigations or claims or issued and
outstanding assessments for or relating to any liability in respect of
Taxes of any SPV. No extension of a statute of limitations relating to any
Taxes is in effect with respect to any SPV.
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(c) (i) Each SPV has made provision on its Balance Sheet in
accordance with GAAP for all Taxes payable by it with respect to any
Pre-Closing Period as determined on the basis of Tax Law in effect as of
the date hereof, which will not have been paid prior to the Closing Date;
(ii) except as set forth in Section 4.08(c)(ii) of the Disclosure
Schedule, no SPV is liable for Taxes of any other Person or is currently
under any contractual obligation to or a party to any tax sharing
agreement or any other agreement providing for payments by such SPV with
respect to Taxes; (iii) no written claim has ever been made by a taxing
authority in a jurisdiction where any SPV does not currently file Returns
that such SPV is or may be subject to taxation by that jurisdiction; and
(iv) no SPV has filed or been included in a combined, consolidated or
unitary return (or substantial equivalent thereof) of any Person.
4.09 TITLE TO PROPERTIES; ABSENCE OF ENCUMBRANCES.
(a) No SPV owns or leases any real property.
(b) Except as set forth in Section 4.09(b) of the Disclosure
Schedule, each SPV has good title to the Vessel listed as owned by such
SPV in SCHEDULE 1 and has either good title to or a valid leasehold
interest, license or similar interest in all other properties and assets,
real and personal, tangible and intangible, that it owns, purports to own,
or are necessary in the operation of its business, and all those other
properties and assets reflected on its books and records and on its
Balance Sheet (except those sold or disposed of subsequent to the date
thereof in the ordinary course of business consistent with past practice),
free and clear of all Encumbrances. None of such properties or assets
leased by any SPV are subject to any sublease, sublicense or other
agreement granting to any other Person any right to the use, occupancy or
enjoyment of such property or any portion thereof.
4.10 CONTRACTS. Each oral or written agreement to which any Transferor or
SPV is a party and which is material to the business of any SPV as it is
currently conducted (a "Contract") is legal, valid, binding and in full force
and effect and is enforceable by such Transferor or SPV, as applicable, in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium and other similar laws affecting creditors'
rights generally and by general principles of equity. Except as set forth in
Section 4.10 of the Disclosure Schedule, each Transferor and SPV are in
compliance and are not (with or without the lapse of time or the giving of
notice, or both) in breach of or in default under any of the Contracts to which
they are a party except where any such breaches or defaults would not in the
aggregate be reasonably likely to have a Material Adverse Effect, and, to the
Transferors' knowledge, no other party to any of the Contracts is (with or
without the lapse of time or the giving of notice, or both) in material breach
of or in material default under any of the Contracts. Except as set forth in
Section 4.10 of the
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Disclosure Schedule, to the Transferors' knowledge, there is no pending dispute
under any of the Contracts, nor has any other party thereto notified any
Transferor or SPV of any unresolved complaint regarding the performance of any
Transferor or SPV thereunder, except where any such disputes or complaints would
not in the aggregate be reasonably likely to have a Material Adverse Effect.
Except as set forth in Section 4.10 of the Disclosure Schedule, no Transferor or
SPV has received any notice of any termination or non-renewal of any Contract,
nor is any Transferor aware that any other party to any Contract intends to
terminate or not renew any such Contract. No SPV is party to or bound by any
contract, agreement or arrangement (whether oral or written) which has been
entered into without the participation of the Manager except (i) as set forth in
Section 4.10 of the Disclosure Schedule, or (ii) contracts, agreements and
arrangements entered in the ordinary course of business which are terminable at
will. Except as set forth in Section 4.10 of the Disclosure Schedule, no SPV is
party to or bound by any contract, agreement or arrangement with any Transferor
or its affiliates.
4.11 INSURANCE. Each insurance policy currently maintained by or for the
benefit of any SPV is in full force and effect (free from any presently
exercisable right of termination on the part of the insurance company issuing
such policy prior to the expiration of the term of such policy) and all premiums
due and payable in respect thereof have been paid except where the failure to
pay would not be reasonably likely to have a Material Adverse Effect. No
Transferor or SPV has received notice of cancellation or non-renewal of any such
policy. The transactions contemplated by this Agreement will not give rise to a
right of termination of any such policy by the insurance company issuing the
same prior to the expiration of the term of such policy.
4.12 LITIGATION. Except as set forth in Section 4.12 of the Disclosure
Schedule, there is no lawsuit, governmental investigation or legal,
administrative or arbitration action or proceeding (excluding any Environmental
Claims, which are governed exclusively by Section 4.13 of this Agreement) or
notice thereof pending or, to the Transferors' knowledge, threatened against any
Transferor or SPV or their respective properties or assets, including the
Vessels, or any director, officer, or employee of any SPV, in his or her
capacity as such, which would be reasonably likely to have a Material Adverse
Effect. Neither the Transferors nor the SPVs are identified as a party subject
to any restrictions or limitations under any judgment, order or decree of any
Governmental Body which, either singularly or in the aggregate, would be
reasonably likely to have a Material Adverse Effect.
4.13 ENVIRONMENTAL MATTERS. Except as would not be reasonably likely to
have a Material Adverse Effect:
(a) Except as set forth in Section 4.13(a) of the Disclosure
Schedule, the operations and properties of the SPVs and the Vessels are in
compliance with applicable Environmental Laws, which compliance includes
the possession by the SPVs of all permits and governmental authorizations
required under applicable Environmental Laws and compliance with the terms
and conditions thereof, and the SPVs have not received any written notice
of any violation of any Environmental Law.
(b) Except as set forth in Section 4.13(b) of the Disclosure
Schedule, there are no Environmental Claims pending or, to the
Transferors' knowledge, threatened against the Transferors, the SPVs, or
any of their respective properties or assets (including the Vessels) or
any director, officer or employee of the SPVs, in his or her capacity as
such, or any person or entity whose liability for any Environmental Claim
that Transferors or the SPVs have retained or assumed.
(c) Except as set forth on Section 4.13(c) of the Disclosure
Schedule, to the knowledge of the Transferors and the SPVs, there are no
past or present actions,
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circumstances, conditions, events or incidents, including the release,
emission, discharge, presence or disposal of any Materials of
Environmental Concern, that are reasonably likely to form the basis of any
Environmental Claim against the SPVs, the Vessels or any person or entity
whose liability for any Environmental Claim the Transferors or the SPVs
have retained or assumed.
4.14 COMPLIANCE WITH LAW.
(a) Except as would not be reasonably likely to have a Material
Adverse Effect, each SPV is and has been in compliance in all material
respects with all applicable laws, statutes, rules, ordinances,
regulations, orders and decrees governing the conduct or operation of its
business (excluding Environmental Laws which are governed exclusively by
Section 4.13 of this Agreement), and all of its Licenses. No SPV has
received any notice of any violation of any such law, statute, rule,
ordinance, regulation, order, decree or License.
(b) Except as would not be reasonably likely to have a Material
Adverse Effect, (i) each SPV has all governmental licenses, approvals,
authorizations, registrations, consents, orders, certificates, decrees,
franchises and permits (collectively, "Licenses") necessary to conduct its
business as currently conducted and such Licenses are in full force and
effect; and (ii) no proceeding is pending or, to Transferor's knowledge,
threatened seeking the revocation or limitation of any such License.
4.15 EMPLOYEES. No SPV now has, nor has it since the date of its formation
had, any employees.
4.16 BOOKS AND RECORDS. The books and records of each SPV with respect to
such SPV, its operations, employees and properties have been maintained in the
usual, regular and ordinary manner, all entries with respect thereto have been
accurately made and all transactions have been accurately accounted for in all
material respects.
4.17 INVESTMENT PURPOSE; PRIVATE PLACEMENT.
(a) Each Transferor is acquiring the Acquiror Shares solely for the
purpose of investment for its own account and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of
applicable law.
(b) Each Transferor acknowledges that the issuance of the Acquiror
Shares has not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), or any state securities laws, and are
being offered and sold in reliance on federal and state exemptions for
transactions not involving any public offering. Each Transferor
acknowledges that the Acquiror Shares may not be transferred or sold
except pursuant to the registration provisions of the Securities Act or
pursuant to an applicable exemption therefrom and subject to applicable
state securities laws and regulations.
(c) Each Transferor is an "accredited investor" within the meaning
of Rule 501(a) of Regulation D, promulgated under the Securities Act, and
was not organized for the specific purpose of acquiring the Acquiror
Shares.
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(d) Each Transferor, by reason of its business and financial
experience, has such knowledge, sophistication and experience in business
and financial matters as to be capable of evaluating the merits and risks
of an investment in the Acquiror Shares and is able to bear the economic
risk of such investment.
(e) Each Transferor has had a full opportunity to ask questions of
and receive answers from representatives of Acquiror concerning an
acquisition of the Acquiror Shares, including financial information
concerning Acquiror. Each Transferor was previously informed that all
documents, records and books pertaining to such an acquisition were at all
times available at the offices of Acquiror located at 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000, and that all documents, records and books pertaining
to such an acquisition requested by each Transferor have been made
available to each Transferor and the persons that each Transferor has
retained to advise it with respect to such an acquisition, and that each
Transferor and such persons have been supplied with such additional
information concerning such an acquisition as they have requested.
(f) No Transferor is relying on Acquiror or any of its officers,
directors, employees, founders or agents with respect to the tax and other
economic considerations of an investment in the Acquiror Shares. Each
Transferor has consulted its own financial, legal, and tax advisors with
respect to the economic, legal, and tax consequences of an investment in
the Acquiror Shares. No Transferor is relying on any representations or
warranties of Acquiror with respect to the transactions contemplated
hereunder other than those contained in Section 6 or on any
representations of any officer, director, employee, founder or agent of
Acquiror.
4.18 REGISTRATION STATEMENT INFORMATION. Each Transferor has received and
reviewed the Registration Statement. All information concerning the Transferors
in the Registration Statement is complete and correct. Any information provided
by any Transferor for inclusion in revisions to the Registration Statement after
the date of this Agreement will be complete and correct.
5. REPRESENTATIONS AND WARRANTIES OF TRANSFEROR PARTIES. The Transferor Parties
hereby represent and warrant to Acquiror that except with respect to the
potential sale by Transferors in the overallotment option in connection with
Acquiror's initial public offering, no Transferor Party or Transferor is under
any binding commitment or obligation to sell, transfer, or otherwise dispose of
the Acquiror Shares to be transferred to the Transferors pursuant to this
Agreement except as provided in the limited liability company agreement of
each of Genmar Alexandra, LLC and Genmar II, LLC.
6. REPRESENTATIONS AND WARRANTIES OF ACQUIROR. Acquiror represents and warrants
to each Transferor as follows:
6.01 ORGANIZATION AND GOOD STANDING. Acquiror is a corporation duly
organized, validly existing and in good standing under the laws of the Republic
of the Xxxxxxxx Islands and has all requisite corporate power and authority to
enter into and carry out its obligations under this Agreement.
6.02 CAPITALIZATION. The authorized capital of Acquiror consists of
75,000,000 shares of common stock, par value $.01 per share, and 5,000,000
shares of preferred stock, par value $.01 per share, of which none are
outstanding as of the date hereof. Immediately following
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the Closing, the outstanding capital stock of Acquiror shall be as set forth in
the schedule delivered pursuant to Section 3.03.
6.03 AUTHORIZATION. The execution and delivery of this Agreement by
Acquiror have been duly authorized by all necessary corporate action required on
the part of Acquiror. This Agreement has been duly executed and delivered by
Acquiror and constitutes the legal, valid, and binding obligation of Acquiror,
enforceable against Acquiror in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
or other laws affecting the rights of creditors generally and by general
principles of equity.
6.04 NO CONFLICTS. Neither the execution and delivery by Acquiror of this
Agreement nor the consummation by Acquiror of the transactions contemplated
hereby will (a) conflict with or violate the Certificate of Incorporation or
By-Laws of Acquiror, or (b) conflict with, violate, result in the breach of any
term of, constitute a default under or require the consent or approval of or any
notice to or filing with any Person under, (x) any note, mortgage, deed of trust
or other agreement or instrument to which Acquiror is a party or by which
Acquiror is bound, or (y) any law, order, rule, regulation, decree, writ or
injunction of any Governmental Body having jurisdiction over Acquiror (except
where such conflict, violation, breach or default, or the failure to obtain such
consent or approval, give such notice or make such filing, would not be
reasonably likely to have a Material Adverse Effect on the business, operations,
assets, conditions, liabilities or results of operations or materially adversely
impair the ability of Acquiror to consummate the transactions contemplated
hereby).
6.05 LITIGATION. No lawsuit, governmental investigation or legal,
administrative or arbitration action or proceeding is pending or, to the
knowledge of Acquiror, threatened against Acquiror or any of its properties or
assets, or any director, officer or employee of Acquiror in his or her capacity
as such, which questions the validity of this Agreement or seeks to prohibit,
enjoin or otherwise challenge the consummation of the transactions contemplated
hereby.
6.06 ACQUIROR SHARES. The issuance, transfer, and delivery of the Acquiror
Shares hereunder have been duly authorized by all required corporate action on
the part of Acquiror, and when issued, transferred, and delivered in accordance
with the terms hereof for the consideration expressed herein, will be duly and
validly issued, fully paid and non-assessable, free and clear of all
Encumbrances.
6.07 REPRESENTATIONS RELATING TO SPVS. To the knowledge of Acquiror which
for purposes hereof shall mean the knowledge of General Maritime Corporation, a
Xxxxxxxx Islands corporation, to be renamed upon its acquisition by Acquiror,
which has provided commercial management services for the Vessels and is being
acquired by Acquiror prior to the Closing (the "Manager), each of the
representations of the Transferors and the SPVs set forth in Sections
4.05(b)(x), 4.06, 4.07, 4.09(b), 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16
(solely with respect to the financial information contained in the books and
records of any SPV historically provided by the Manager) of this Agreement is
true and correct in all material respects as it relates to matters relating to
activities performed by such corporation to date.
6.08 PRIVATE PLACEMENT. Acquiror is acquiring the SPV Shares solely for
the purpose of ownership for its own account and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of
applicable law. Acquiror acknowledges that the SPV
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Shares have not been registered under the Securities Act, or any state
securities laws, and are being offered and sold in reliance on federal and state
exemptions for transactions not involving any public offering. Acquiror
acknowledges that the SPV Shares may not be transferred or sold except pursuant
to the registration provisions of the Securities Act or pursuant to an
applicable exemption therefrom and subject to applicable state securities laws
and regulations.
6.09 WAIVER OF MANAGEMENT FEE. Acquiror shall cause the Manager to waive,
as of the Closing, its right pursuant to Section 15 of the management agreements
listed on SCHEDULE 2 which the Manager has entered with respect to the Vessels
to receive a management fee from any Transferor for any period following the
Closing Date or as a result of the consummation of the transactions contemplated
by this Agreement.
6.10 LIQUIDATION OF SPVS. Acquiror has no present intention to liquidate
any SPV or make any election or take any action which would be treated under the
Code as resulting in the liquidation of any SPV.
7. COVENANTS; EFFECT OF TRANSFER OF VESSELS. The Parties hereby covenant
and agree as follows:
7.01 CONDUCT OF BUSINESS. From the date hereof until the Closing, the
Transferors will cause each of the SPVs to conduct its business in the ordinary
course, and without limiting the generality of the foregoing, not do any of the
following, without the prior written consent of Acquiror:
(a) amend or otherwise modify its constituting documents or by-laws
(or similar organizational documents);
(b) issue or sell or authorize for issuance or sale, or grant any
options or make other agreements, arrangements or understandings of the
type referred to in Section 4.03(b) with respect to, the SPV Shares or any
other of its securities, or alter any term of any of its outstanding
securities or make any change in its outstanding shares or other ownership
interests or its capitalization, whether by reason of a reclassification,
recapitalization, split or combination, exchange or readjustment of
shares, dividend or otherwise;
(c) mortgage, pledge or grant any security interest in any of its
assets;
(d) declare, set aside, make or pay any dividend or other
distribution to any holder of its share capital;
(e) redeem, purchase or otherwise acquire, directly or indirectly,
the SPV Shares; or
(f) enter into any commitment to do any of the foregoing.
Notwithstanding the foregoing, the Parties acknowledge that prior to the
Closing the SPVs that own the KENTUCKY and WEST VIRGINIA Vessels shall
transfer such Vessels to Genmar Kentucky Ltd. and Genmar West Virginia Ltd.
respectively in accordance with Section 7.07.
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7.02 NO SOLICITATION OF ALTERNATIVE TRANSACTION. No Transferor shall, and
the Transferors shall cause the SPVs not to, directly or indirectly, solicit or
entertain offers from, negotiate with, provide any nonpublic information to,
enter into any agreement with, or in any manner encourage, discuss, accept, or
consider any proposal of, any third party relating to the acquisition of such
Transferor, any SPV, or their assets or business, in whole or in part, whether
through a tender offer (including a self tender offer), exchange offer, merger,
consolidation, sale of substantial assets or a significant amount of assets,
sale of securities, liquidation, dissolution, or similar transactions involving
any Transferor or SPV (collectively, "Acquisition Proposals"). Each Transferor
shall promptly inform the Acquiror of any inquiry (including the terms thereof
and the identity of the third party making such inquiry) which it may receive in
respect of an Acquisition Proposal and furnish to the Acquiror a copy of any
such written inquiry.
7.03 TAXES AND COOPERATION ON TAX MATTERS.
(a) TAX RETURNS; LIABILITY FOR TAXES; INDEMNIFICATION.
(i) Acquiror shall cause each SPV to prepare and file the
Returns for the taxable periods of such SPV ending on or prior to
the Closing Date; PROVIDED that the Transferors shall provide full
cooperation and support in the preparation of such Returns. All
reasonable, out-of-pocket costs, fees, and expenses relating to the
preparation and filing of such Returns shall be the responsibility
of the SPVs.
(ii) Acquiror shall be liable and shall indemnify the
Transferors for any and all Taxes imposed on the SPVs (but not the
Transferors) for which the Transferors are liable relating to or
apportioned to any taxable year or portion thereof beginning and
ending after the Closing Date (except to the extent no provision was
properly made for such Tax on the applicable Balance Sheet in
accordance with GAAP as set forth in Section 4.8(c)(i) of this
Agreement). Indemnity payments made pursuant to this Section
7.03(a)(ii) shall be increased by any Tax cost incurred as a result
of the receipt of such payment and shall be decreased by any tax
benefit (E.G., increased basis of an asset or a deduction available
in a future year) received as a result of such payment (taking into
account the time value of money). Acquiror shall not settle, either
administratively or after the commencement of litigation, any Tax
claim imposed on the SPVs for which the Transferors have indemnified
Acquiror pursuant to this Agreement without the prior written
consent of the Transferors which consent may not be unreasonably
withheld.
(iii) The value of any cash or securities paid, transferred,
or withheld in satisfaction of the indemnification obligations of
Acquiror, the SPVs, or the Transferors under this Agreement will be
treated for tax purposes as an adjustment to the purchase price for
the SPV Shares.
(iv) The Transferors shall notify Acquiror in writing of, and
keep Acquiror fully informed as to the status of, any pending or
threatened Tax audits or assessments that may result in a liability
for which the Acquiror has indemnified the Transferors pursuant to
this Section 7.03(a). Acquiror may
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control the audits and any proceedings relating to any such Tax
claim, on condition that (a) it keeps the Transferors informed on a
current basis of the status of any such proceedings and (b) the
Transferors and their counsel have the right to participate, at the
Transferors' expense, in any such proceeding. No Transferor shall
settle, either administratively or after the commencement of
litigation, any such Tax claim without the prior written consent of
Acquiror, which consent may not be unreasonably withheld.
(b) No new elections with respect to Taxes, or any changes in
current elections with respect to Taxes, of the Transferors or any SPV
which may have an effect on any SPV for periods ending after the Closing
Date shall be made after the date of this Agreement without the prior
written consent of Acquiror.
(c) Acquiror shall take no position on any tax return or take any
action that is inconsistent with the intention of the Parties that the
transfers of the SPVs qualify as transactions described in Section 351 of
the Internal Revenue Code of 1986, as amended (the "Code"), including,
without limitation, that Acquiror shall not, at any time within one year
following consummation of the transactions contemplated herein, liquidate
any SPV, or make any election or take any action which would be treated
under the Code as resulting in the liquidation of any SPV.
(d) COOPERATION.
(i) Acquiror and the Transferors shall cooperate fully, as and
to the extent reasonably requested by the other party, in connection
with the filing of Returns pursuant to this Section 7.03 and any
audit, litigation or other proceeding with respect to Taxes. Such
cooperation shall include the retention and (upon the other party's
request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other
proceeding and making employees available on a mutually convenient
basis to provide additional information and explanation of any
material provided hereunder. The Transferors (before the Closing)
and Acquiror (after the Closing) shall each cause the SPVs (A) to
retain all books and records with respect to Tax matters pertinent
to the SPVs relating to any taxable period beginning before the
Closing Date until the expiration of the statute of limitations of
the respective taxable periods, and to abide by all record retention
agreements entered into with any taxing authority, and (B) to give
the other party reasonable written notice prior to transferring,
destroying or discarding any such books and records and, if the
other Party so requests, each SPV or Transferor, as the case may be,
shall allow the other Party to take possession of such books and
records.
(ii) Acquiror and the Transferors further agree, upon request,
to use good faith efforts to obtain any certificate or other
document from any Governmental Body or any other Person as may be
necessary to mitigate, reduce or eliminate any Tax that could be
imposed (including, but not limited to, with respect to the
transactions contemplated hereby); provided that such certificate or
other document does not increase the Tax of Acquiror or the
Transferors.
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7.04 EXECUTION OF DOCUMENTS. Each Transferor shall execute and deliver to
Acquiror the Lockup Agreement. Acquiror and each Transferor shall execute and
deliver to each other the Registration Rights Agreement.
7.05 FURTHER ASSURANCES. Each Transferor agrees to execute and deliver,
and to cause each SPV to execute and deliver, such additional documents and
instruments, and to perform such additional acts, as Acquiror may reasonably
request to effectuate or carry out and perform all the terms, provisions and
conditions of this Agreement and the transactions contemplated hereby and to
effectuate the intent and purposes hereof. Without limiting the generality of
the foregoing, to the extent that any assets, Contracts, licenses, permits, or
insurance policies are necessary for the conduct of the business of the SPVs in
substantially the manner currently conducted and owned by or held in the name of
the Transferors, the Transferors shall execute and deliver such additional
documents and instruments and perform such additional acts as are necessary to
transfer such assets, Contracts, licenses, permits, and insurance policies to
the SPVs.
7.06 RESTRICTIONS ON SECURITIES. Each Transferor acknowledges and agrees
that any certificates representing Acquiror Shares shall bear the following
legend and that the transfer agent of Acquiror will be instructed to place a
stop transfer order prohibiting transfers of Acquiror Shares except in
conformity with such legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS.
7.07 TRANSFER OF VESSELS; SUBSTITUTION OF SPVS. Prior to the Closing, (i)
Equili Company, L.P. shall transfer the KENTUCKY Vessel to Genmar Kentucky Ltd.
and Equili Company II, L.P. shall transfer the WEST VIRGINIA Vessel to Genmar
West Virginia, Ltd. pursuant to terms and conditions, including the incurrence
of debt in the aggregate amount of $10 million listed on Section 4.06(b)(2) of
the Disclosure Schedule, and arrangements which are reasonably satisfactory to
Acquiror (the "Vessel Transfers") and (ii) from and after the date of such
transfers, the Transferors shall cause each of Genmar Kentucky Ltd. and Genmar
West Virginia, Ltd. to comply with the terms of this Agreement whereupon they
will be substituted hereunder as SPVs for Equili Company, L.P., Equili Company
II, L.P., Kentucky Shipping Company Ltd. and West Virginia Maritime Company Ltd.
(in such capacity, the "Transferring SPVs"). Upon the effective date of the
Vessel Transfers, the Transferring SPVs shall no longer be deemed SPVs under
this Agreement but Equili Company, L.P. and Equili Company II, L.P. shall remain
as Transferors.
7.08 REPRESENTATIONS, WARRANTIES AND COVENANTS. Transferors agree and
represent that on the date of the Vessel Transfers, (i) each and every
representation and warranty with respect to (x) the Transferring SPVs and (y)
the SPV Shares issued by Equili Company, L.P. and Equili
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Company II, L.P., and (ii) each and every covenant to be performed by any
Transferring SPV, which are contained in this Agreement, any Schedule or any
certificate delivered pursuant hereto shall be deemed made, in the case of a
representation and warranty, and assumed, in the case of a covenant, as to
Genmar Kentucky Ltd. and Genmar West Virginia, Ltd. as of such date and shall be
true and correct as of such date and shall be repeated at the Closing.
7.09 OUTSTANDING LITIGATION. Transferors agree that (i) the litigation to
which Marathon Ashland Petroleum LLC is a party described in Section 4.12 of the
Disclosure Schedule (the "Action") shall remain with Equili Company, L.P. and
Equili Company II, L.P. and neither Acquiror, Genmar Kentucky Ltd. nor Genmar
West Virginia, Ltd. will acquire any interest in any right of recovery
thereunder and (ii) Acquiror shall be indemnified with respect to the Action as
provided in Section 11.04.
7.10 REPAYMENT OF INDEBTEDNESS. Prior to the Closing, Transferors shall
cause all of the indebtedness of the SPVs other than the indebtedness set forth
on Section 4.06(b)(2) of the Disclosure Schedule to be repaid.
7.11 OVERALLOTMENT SALES. If Transferors have the opportunity to sell
Acquiror Shares in the underwriters' overallotment option in Acquiror's initial
public offering, then at the closing of the issuance of any Acquiror Shares
pursuant to such overallotment option, Acquiror shall make substantially similar
representations and warranties to such selling Transferors as Acquiror makes to
the underwriters and obtain for such selling Transferors an accountant's comfort
letter and legal opinions substantially similar to those provided to the
underwriters solely for such selling Transferors' use in their diligence review
for sale under such overallotment option; provided, however, that such selling
Transferors shall provide any information or materials reasonably requested by
such accountants and counsel.
7.12 COOPERATION RELATING TO XXXXXX VESSEL. Prior to the Closing,
Transferors shall cooperate fully with, and to the extent reasonably requested
by, Acquiror in connection with its due diligence investigation with respect to
the matter (the "Texas Matter") set forth on Section 4.13(b) of Disclosure
Schedule.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUIROR. The obligations of Acquiror
under Sections 2, 3, and the Plan of Recapitalization shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Acquiror; provided however that
notwithstanding the foregoing, the failure of any condition specified in this
Section 8 with respect to any single SPV or Transferor shall not relieve
Acquiror of its obligations to consummate the transactions described in this
Agreement and in the Plan of Recapitalization with respect to the Transferors
except that (i) a failure with respect to any SPV shall relieve Acquiror of
such obligations with respect to the Transferors which have an equity
interest in such SPV as to such SPV and (ii) a failure with respect to a
Transferor shall relieve Acquiror of such obligations with respect to other
Transferors with equity interests in the SPVs to which such failure is
relevant as to such SPVs:
8.01 REPRESENTATIONS AND WARRANTIES. Each and every representation and
warranty of each Transferor contained or provided in this Agreement, any
Schedule or any certificate delivered pursuant hereto shall have been true and
correct when made and shall be repeated at the Closing and (a) if qualified by
materiality (or any variation of such term), shall be true and correct as of the
Closing Date, except that any such representations and warranties that are made
as of a specified date shall only be required to be true and correct as of that
date, and (b) if not qualified by materiality (or any variation of such term),
shall be true and correct in all material respects as of the Closing Date,
except that any such representations and warranties that are made as of a
specified date shall only be required to be true and correct in all material
respects as of that date.
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8.02 COMPLIANCE WITH COVENANTS. Each Transferor shall have performed and
observed in all material respects all covenants and agreements to be performed
or observed by such Transferor under this Agreement at or before the Closing.
8.03 LACK OF ADVERSE CHANGE. Since the date of each Balance Sheet, there
has not occurred any circumstance or event which, individually or in the
aggregate, has had or is reasonably likely to result in a Material Adverse
Effect.
8.04 REGULATORY APPROVALS. All material approvals and consents of
regulatory authorities required to carry out the transactions contemplated by
this Agreement shall have been obtained.
8.05 CONSENTS OF THIRD PARTIES. All material consents from third parties
necessary for the execution and delivery of this Agreement by Transferors and
the consummation of the transactions contemplated hereby shall have been
obtained in writing.
8.06 NO VIOLATION OF ORDERS. No preliminary or permanent injunction or
other order issued by any court or governmental or regulatory authority, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any Governmental Body, that declares this Agreement invalid or unenforceable in
any material respect or that prevents the consummation of the transactions
contemplated hereby or which imposes restrictions on Acquiror's right or ability
to operate the businesses of any SPV shall be in effect; and no action or
proceeding before any Governmental Body shall have been instituted or, to the
knowledge of Acquiror, threatened by any Governmental Body, or by any other
Person, which seeks to prevent or delay the consummation of the transactions
contemplated by this Agreement or which challenges the validity or
enforceability of this Agreement or which seeks to impose restrictions on
Acquiror's right or ability to operate the businesses of any SPV, or seeks to
require Acquiror to dispose of any of its businesses, operations, properties or
assets or any claim relating to the equity of any SPV and which in any such case
has a reasonable likelihood of success in the reasonable opinion of counsel to
Acquiror.
8.07 LOCKUP AGREEMENT. Each Transferor shall have executed and delivered
to Acquiror the Lockup Agreement.
8.08 REGISTRATION RIGHTS AGREEMENT. Each Transferor shall have executed
and delivered to Acquiror the Registration Rights Agreement.
8.09 UNDERWRITING AGREEMENT. The Underwriting Agreement shall have been
executed and delivered by the parties thereto.
8.10 WAIVER AND CONTRIBUTION AGREEMENT. Each Transferor shall have
executed and delivered to Acquiror a Waiver and Contribution Agreement.
8.11 NO ENCUMBRANCES OR INDEBTEDNESS. Each of the Vessels and all of the
SPV Shares shall be delivered free and clear of all Encumbrances. Transferors
shall have caused the repayment of all indebtedness of the SPVs or incurred by
the Vessels other than the indebtedness set forth on Section 4.06(b)(2) of the
Disclosure Schedule.
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8.12 TRANSFER OF VESSELS. Equili Company, L.P. shall have transferred the
KENTUCKY Vessel to Genmar Kentucky Ltd. and Equili Company II, L.P. shall have
transferred the WEST VIRGINIA Vessel to Genmar West Virginia, Ltd. in accordance
with Section 7.07.
8.13 ESCROW AGREEMENT. Each Transferor, Acquiror and the Escrow Agent
shall have executed and delivered the Escrow Agreement.
8.14 UPDATE OF SCHEDULES. Transferors shall have updated SCHEDULE 1 and
relevant sections of the Disclosure Schedule to reflect the transfers of the
KENTUCKY and WEST VIRGINIA Vessels in accordance with Section 7.07 and the
results of the due diligence investigation conducted by Acquiror as contemplated
by Section 7.12 in each case in a manner reasonably acceptable to Acquiror.
8.15 OTHER CLOSING MATTERS. Acquiror shall have received such other
supporting information in confirmation of the representations, warranties,
covenants and agreements of Transferor and the satisfaction of the conditions to
Acquiror's obligation to close hereunder as Acquiror or its counsel may
reasonably request.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF TRANSFEROR. The obligations of
the Transferors under Sections 2 and 3 shall be subject to the satisfaction
at or prior to the Closing of the following conditions, any one or more of
which may be waived by the Transferors:
9.01 REPRESENTATIONS AND WARRANTIES. Each and every representation and
warranty of Acquiror contained or provided in this Agreement, any Schedule or
any certificate delivered pursuant hereto shall have been true and correct when
made and shall be repeated at the Closing and (a) if qualified by materiality
(or any variation of such term), shall be true and correct as of the Closing
Date, except that any such representations and warranties that are made as of a
specified date shall only be required to be true and correct as of that date,
and (b) if not qualified by materiality (or any variation of such term), shall
be true and correct in all material respects as of the Closing Date, except that
any such representations and warranties that are made as of a specified date
shall only be required to be true and correct in all material respects as of
that date.
9.02 COMPLIANCE WITH COVENANTS. Acquiror shall have performed and observed
in all material respects all covenants and agreements to be performed or
observed by it under this Agreement at or before the Closing.
9.03 REGULATORY APPROVALS. All material approvals and consents of
regulatory authorities required to carry out the transactions contemplated by
this Agreement, shall have been obtained.
9.04 CONSENTS OF THIRD PARTIES. All consents from third parties necessary
for the execution and delivery of this Agreement by Acquiror and the
consummation of the transactions contemplated hereby shall have been obtained in
writing.
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9.05 NO VIOLATION OF ORDERS. No preliminary or permanent injunction or
other order issued by Governmental Body, nor any statute, rule, regulation,
decree or executive order promulgated or enacted by any Governmental Body, that
declares this Agreement invalid or unenforceable in any material respect or that
prevents the consummation of the transactions contemplated hereby shall be in
effect.
9.06 REGISTRATION RIGHTS AGREEMENT. Acquiror shall have executed and
delivered to the Transferors the Registration Rights Agreement. 9.07
UNDERWRITING AGREEMENT. The Underwriting Agreement shall have been executed and
delivered by the parties thereto.
9.08 ESCROW AGREEMENT. Each Transferor, Acquiror and the Escrow Agent
shall have executed and delivered the Escrow Agreement.
9.09 CLOSING OPINION. The Transferors shall have received the Closing
Opinion.
10. TERMINATION OF AGREEMENT.
10.01 CONDITIONS FOR TERMINATION. This Agreement may be terminated as to
the acquisition of any and all SPVs:
(a) at any time prior to the Closing, by mutual consent of Acquiror
and the Transferors;
(b) by Acquiror or the Transferors if the Closing shall not have
been consummated by July 15, 2001, unless such failure of consummation
shall be due to a material breach of any representation or warranty, or
the nonfulfillment in a material respect, and failure to cure such
nonfulfillment, of any covenant or agreement contained herein on the part
of the Party seeking to terminate this Agreement; or
(c) by Acquiror or the Transferors if the other fails to cure a
material breach of any provision of this Agreement within fifteen days
after its receipt of written notice of such breach from the non-breaching
Party, provided, however, that no Party shall be entitled to terminate
this Agreement pursuant to this Section 10.01(c) if it is also in material
breach of any provision of this Agreement;
provided that Acquiror, on the one hand, and the Transferors, on the other hand,
may waive their right to terminate this Agreement as to the acquisition of one
or more SPVs.
10.02 EFFECT OF TERMINATION. Upon the termination of this Agreement for
any reason, Acquiror and the Transferors shall have no liability or further
obligations arising out of this Agreement except for any liability resulting
from a breach of a representation, warranty or covenant contained in this
Agreement prior to termination. Furthermore, the provisions of Section 121 shall
survive any termination of this Agreement.
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11. REMEDIES.
11.01 SURVIVAL. The representations and warranties of the Transferors in
Section 4.01, 4.02, 4.03, and 4.04 (each as modified by Section 7.08) and
Acquiror in Sections 6.01, 6.02 and 6.03 shall survive the Closing for a period
of eighteen months thereafter plus such additional amount of time required for
the final resolution of any claim under Section 11.02 with respect to any such
representation or warranty of which notice is given in writing during such
initial eighteen-month period. All other representations and warranties of the
Parties hereunder shall survive the Closing for a period of six months
thereafter plus such additional amount of time required for the final resolution
of any claim under Section 11.02 with respect to any such representation or
warranty of which notice is given in writing during such initial six-month
period. The covenants of the Parties contained herein, or in any signed writing
delivered pursuant hereto or in connection herewith, shall survive the Closing
indefinitely.
11.02 INDEMNIFICATION BY TRANSFERORS.
(a) The Transferors hereby severally (provided that with respect to
(i) Equili Company, L.P. and Equili Company, LLC hereby jointly and
severally and (ii) Equili Company II, L.P. and Equili Company II, LLC,
hereby jointly and severally) indemnify and hold harmless Acquiror, each
SPV, and each of their respective directors, officers, employees, agents,
and representatives, and their respective successors and assigns (all of
the foregoing, the "Indemnified Parties") from and against any Loss
incurred or suffered by such Person as a result of, arising from or in
connection with a breach by any Transferor of any representation,
warranty, or covenant made by any Transferor in this Agreement.
(b) Except for a breach by a Transferor of any representation or
warranty contained in Sections 4.01, 4.02, 4.03, or 4.04 (each as modified
by Section 7.08), each Transferor's sole obligation and Acquiror's sole
remedy with respect to indemnification by the Transferors for a breach of
a representation or warranty under Section 11.02(a) shall be for Acquiror
to have recourse to the Indemnity Shares, and Acquiror may instruct the
Escrow Agent to return to Acquiror a number of Indemnity Shares equal to
the amount of the applicable Loss divided by the IPO Price until such
number of Indemnity Shares equals zero. Any fractional shares among such
Indemnity Shares created as a result of such reduction shall be subject to
Section 7 of the Plan of Recapitalization.
(c) With respect to indemnification for a breach by a Transferor of
any representation or warranty contained in Sections 4.01, 4.02, 4.03, or
4.04 (each as modified by Section 7.08), Acquiror's first remedy shall be
recourse to the Indemnity Shares, and Acquiror may instruct the Escrow
Agent to return Indemnity Shares to Acquiror in accordance with the first
sentence of this Section 11.02(b). To the extent such return of Indemnity
Shares does not fully offset the Loss, the Transferors shall satisfy the
remainder of the Loss by returning to Acquiror a number of Acquiror Shares
equal to the remainder of the Loss divided by the IPO Price until the
Transferors have returned a number of shares equal to the number of
Acquiror Shares issued to the Transferors. To the extent any Transferor
and its affiliate transferees no longer own Acquiror Shares sufficient to
satisfy its obligations under the preceding sentence, such Transferor
shall pay to Acquiror the remainder of the Loss in cash, subject to the
limit expressed in the preceding sentence. For greater certainty, in no
event shall any
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Transferor be required to return to Acquiror more than such Transferor's
Transferor Shares (or the cash equivalent of such Acquiror Shares based on
the IPO Price if such Transferor no longer owns such Transferor Shares).
(d) Except as provided in Section 11.04, the remedies provided in
this Section 11.02 are the exclusive remedy of Acquiror with respect to
the representations, warranties, and covenants, and any other matters
covered by this Agreement; provided, however, that nothing in this Section
11.02 shall prohibit Acquiror from seeking specific performance or
injunctive relief against any Transferor in respect of a breach by such
Transferor of any covenant hereunder; and further provided, that nothing
in this Section 11.02 shall limit Acquiror's remedies for a breach of
covenant occurring prior to the Closing.
11.03 INDEMNIFICATION BY ACQUIROR.
(a) Acquiror shall indemnify and hold harmless each Transferor and
each of its respective directors, officers, employees, agents, and
representatives, and their respective successors and assigns from and
against any Loss incurred or suffered by such Person as a result of,
arising from or in connection with a breach by Acquiror of any
representation, warranty, or covenant made by Acquiror in this Agreement,
in each case solely to the extent provided in Section 11.03(b).
(b) Acquiror's sole obligation and each Transferor's sole remedy for
a breach by Acquiror of a representation, warranty, or covenant hereunder
shall be for Acquiror to pay such Transferor the amount of such
Transferor's Loss in cash; provided that Acquiror's total obligations
under this Section 11.03 shall in no event exceed the aggregate value of
the SPV Shares minus any cash paid by Acquiror in respect of the SPVs.
11.04 INDEMNIFICATION WITH RESPECT TO THE ACTION. Each of Equili Company,
L.P. and Equili Company II, L.P. hereby jointly and severally indemnifies and
holds harmless the Indemnified Parties from and against any Loss incurred or
suffered by such Person as a result of, arising from or in connection with the
Action. Nothing contained in Section 11.02 shall limit Acquiror's remedies with
respect to a breach of Section 7.09.
12. MISCELLANEOUS.
12.01 EXPENSES. Each Party shall pay all costs and expenses incurred by
such Party in respect of the transactions contemplated hereby, including fees of
brokers, finders, advisers, attorneys, and accountants.
12.02 LIST OF APPRAISALS. The Parties acknowledge that EXHIBIT F hereto
lists the valuations described in the Plan of Reorganization obtained by
Acquiror with respect to the Vessels and other motor tankers.
12.03 ENTIRETY OF AGREEMENT. This Agreement (including the Disclosure
Schedule and all other Schedules, Annexes and Exhibits hereto), states the
entire agreement of the Parties, merges all prior negotiations, agreements and
understandings, if any, and states in full all
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representations, warranties, covenants, and agreements which have induced this
Agreement. No Party shall make any contrary representations in dealing with
third parties.
12.04 NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally or by overnight courier to the Parties at the
following addresses or sent by electronic transmission, with confirmation
received, to the telecopy numbers specified below (or at such other address or
telecopy number for a Party as shall be specified by like notice):
(a) If to Acquiror:
General Maritime Ship Holdings Ltd.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxxxxxxxxx
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
With a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
(b) If to the Transferors:
Wexford Capital LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxxxx Xxxxx
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
and
Attn.: Xx. Xxxxxx Xxxxx
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
With a copy to:
Reitler Xxxxx, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
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12.05 AMENDMENT. This Agreement may be modified or amended only by an
instrument in writing, duly executed by the Parties.
12.06 WAIVER. No waiver by any Party of any term, provision, condition,
covenant, agreement, representation, or warranty contained in this Agreement (or
any breach thereof) shall be effective unless it is in writing executed by the
Party against which such waiver is to be enforced. No waiver shall be deemed or
construed as a further or continuing waiver of any such term, provision,
condition, covenant, agreement, representation or warranty (or breach) on any
other occasion or as a waiver of any other term, provision, condition, covenant,
agreement, representation or warranty (or of the breach of any other term,
provision, condition, covenant, agreement, representation or warranty) contained
in this Agreement on the same or any other occasion.
12.07 ASSIGNMENT; BINDING NATURE; NO BENEFICIARIES. This Agreement may not
be assigned by any Party without the prior written consent of the Parties;
PROVIDED, however, that Acquiror may assign any of its rights hereunder
(including the right to purchase one or more SPVs) to any affiliate of Acquiror
which assumes the corresponding obligations of Acquiror hereunder, but no such
assignment shall relieve Acquiror of any such obligations. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit
of, and be enforceable by the Parties and their respective heirs, personal
representatives, legatees, successors and permitted assigns. This Agreement
shall not confer any rights or remedies upon any Person other than the parties
hereto and their respective heirs, personal representatives, legatees,
successors and permitted assigns.
12.08 SEVERABILITY. If any provision of this Agreement is found
unenforceable by a court of competent jurisdiction, such unenforceable provision
shall not affect the other provisions but shall be deemed modified to the extent
necessary to render it enforceable, preserving to the fullest extent permissible
the intent of the Parties.
12.09 INTERPRETATION. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
12.10 GOVERNING LAW; JURISDICTION.
(a) This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of New York applicable to contracts
executed and fully performed within the State of New York.
(b) Each Party submits to the non-exclusive jurisdiction of the
state and federal courts of the United States located in the City of New
York, Borough of Manhattan with respect to any claim or cause of action
arising out of this Agreement or the transactions contemplated hereby.
12.11 NEGOTIATED AGREEMENT. Acquiror and the Transferors acknowledge that
they have been advised and represented by counsel in the negotiation, execution
and delivery of this Agreement and accordingly agree that if an ambiguity exists
with respect to any provision of this Agreement, such provision shall not be
construed against any Party because such Party or its representatives drafted
such provision.
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12.12 REMEDIES CUMULATIVE. The remedies provided for or permitted by this
Agreement shall be cumulative and the exercise by any Party of any remedy
provided for herein shall not preclude the assertion or exercise by such Party
of any other right or remedy provided for herein.
12.13 WAIVER OF JURY TRIAL. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
12.14 EXECUTION AND DELIVERY. This Agreement may be executed in
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement. This
Agreement may be delivered by facsimile transmission with the same legal effect
as if delivery of an original were made in person.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.]
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IN WITNESS WHEREOF, the Parties have duly executed and delivered
this Agreement as a Deed as of the date first set forth above.
GENERAL MARITIME SHIP HOLDINGS LTD.
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxxxxxx
Title: Chairman and Chief Executive Officer
GENMAR ALEXANDRA, LLC
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
GENMAR II, LLC
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
EQUILI COMPANY, L.P.
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
EQUILI COMPANY, LLC
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
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EQUILI COMPANY II, L.P.
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
EQUILI COMPANY II, LLC
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
GENMAR AJAX, LLC
for purposes of Section 5 only
By: /s/ Xxxxx X. Xxxxxxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxxxxxx
Title:
VALENTIS INVESTORS LLC
for purposes of Section 5 only
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
WEXFORD TANKERS KENTUCKY LLC
for purposes of Section 5 only
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
WEXFORD INVESTORS KENTUCKY LLC
for purposes of Section 5 only
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
-00-
XXXXXXX XXXXXXX XXXX XXXXXXXX LLC
for purposes of Section 5 only
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
WEXFORD INVESTORS WEST
VIRGINIA LLC
for purposes of Section 5 only
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title:
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LIST OF SCHEDULES AND EXHIBITS*
EXHIBITS:
Exhibit A - Lock up Agreement
Exhibit B - Registration Rights Agreement
Exhibit C - Waiver and Contribution Agreement
Exhibit D - Registration Statement
Exhibit E - Legal Opinion
Exhibit F - List of Appraisals
SCHEDULES:
Schedule 1 - List of Transferors, Vessels and SPVs
Schedule 2 - Management Agreements
* Omitted Schedules and Exhibits will be furnished supplementally to the
Commission upon request.
