EX-4.20
5
d1064872_ex4-20.htm
EXHIBIT
4.20
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Private
& Confidential
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Dated
6 October 2009
____________________________________
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AMCIC CAPE HOLDINGS LLC
and
BIRD
ACQUISITION CORP.
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(1)
(2)
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Contents
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Clause
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Page
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1
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Definitions
and interpretation
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1
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2
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Conditions
precedent
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3
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3
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Agreement
to sell the Xxxxxxxxx Membership Interests
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4
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4
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Consideration
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4
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5
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Completion
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4
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6
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The
Warranties
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6
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7
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Dealing
with and voting on the Xxxxxxxxx Membership Interests
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8
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8
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Entire
agreement
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8
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9
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Announcements
and confidentiality
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8
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10
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Waivers
and releases
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9
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11
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Miscellaneous
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9
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12
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Notices
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10
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13
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Assignment
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10
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14
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Governing
law and agent for service of process
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11
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15
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Jurisdiction
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11
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Schedule
1 Information on Xxxxxxxxx
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12
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Schedule
2 The AMCIC Warranties
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13
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Schedule
3 The Bird Warranties
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15
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THIS AGREEMENT is dated 6
October 2009 and is made BETWEEN:
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(1)
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AMCIC CAPE HOLDINGS LLC
whose registered office is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro, Republic of the Xxxxxxxx Xxxxxxx XX00000 (AMCIC);
and
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(2)
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BIRD ACQUISITION CORP.
whose registered office is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro, Republic of the Xxxxxxxx Xxxxxxx XX00000 (Bird).
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NOW IT IS HEREBY AGREED as
follows:
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1
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Definitions
and interpretation
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1.1
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In
this Agreement, unless the context requires
otherwise:
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Xxxx SPA means the share
purchase agreement made or, as the context may require, to be made between
Keagan Enterprises S.A. and MK Maritime LLC in relation to the sale and purchase
of interests in Quest Maritime Enterprises S.A. and Xxxx Maritime Limited in
agreed form;
AMCIC Performance Guarantee means a
letter of guarantee dated 5 April 2007 executed by AMCIC in favour of the Seller
guaranteeing to the Seller 28.6% of the financial obligations of Xxxxxxxxx under
the Xxxxxxxxx Contract;
AMCIC Warranties means the
warranties given by AMCIC and set out in schedule 2;
Bank means The Royal Bank of
Scotland plc of 00 Xx. Xxxxxx Xxxxxx, Xxxxxxxxx XX0 0XX, Xxxxxxxx acting through
its branch known as The Shipping Business Centre at 0-00 Xxxxx Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx and includes its successors in title, transferees
and/or assignees;
Bird Warranties means the
warranties given by Bird and set out in Schedule 3;
Builder means Imabari
Shipbuilding Co., Ltd. of Tokyo, Japan and includes its successors in
title;
Business Day means a day other
than a Saturday or Sunday on which banks are ordinarily open for the transaction
of normal banking business in Athens and New York;
Charterer means EDF Trading
Limited of 00 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx XX0X 5JL, England and
includes its successors in title;
Xxxxxxxxx means Xxxxxxxxx
Xxxxxx LLC, further details of which are set out in schedule 1;
Xxxxxxxxx Charter means the
"NYPE 93 Form" time charter in respect of the Xxxxxxxxx Vessel dated 28 December
2006 and made between the Charterer and Xxxxxxxxx as amended and supplemented by
a side letter dated 16 April 2007 made between the Charterer and Xxxxxxxxx and
as the same may from time to time be further amended and supplemented pursuant
to which Xxxxxxxxx has agreed to let and the Charterer has agreed to take on
charter the Xxxxxxxxx Vessel for a period of 66 to 72 months commencing on its
delivery from the Builder at $25,000 per day plus an amount in Dollars equal to
50% of that daily hire calculated by the parties to the Xxxxxxxxx Charter
pursuant to clause 10 thereof which is in excess of $25,000 per day and
otherwise on the terms set out therein;
Xxxxxxxxx Contract means a "Nipponsale
1993" memorandum of agreement dated 5 April 2007 made between the Seller as
seller and Xxxxxxxxx as buyer in relation to the sale and delivery by the Seller
to Xxxxxxxxx of the Xxxxxxxxx Vessel;
1
Xxxxxxxxx Indemnity means a
deed of indemnity to be executed by Bird in favour of AMCIC whereby Bird agrees
to indemnify 100% of any liability of AMCIC to the Seller under the AMCIC
Performance Guarantee in agreed form;
Xxxxxxxxx Limited Liability Company
Agreement means the limited liability company agreement regarding
Xxxxxxxxx dated 30 March 2007 and made between Xxxxxxxxx Maritime Investors LLC,
AMCIC and Bird;
Xxxxxxxxx Loan Agreement means
the loan agreement dated 11 April 2007 made between the Bank, as lender and
Xxxxxxxxx, as borrower, pursuant to which the Bank has agreed, inter alia, to
make available to Xxxxxxxxx a term loan in the amount of up to
$25,333,000;
Xxxxxxxxx XXX means a letter
of undertaking dated 11 April 2007 provided jointly by AMCIC and Xxxxxxxxx
Maritime Investors LLC and addressed to the Bank in relation to the obligations
of Xxxxxxxxx under the Xxxxxxxxx Loan Agreement as the same has been or shall be
amended from time to time;
Xxxxxxxxx Membership Interests
means the limited liability company interests in Xxxxxxxxx owned by AMCIC equal
to 28.6% of the total limited liability company interests in
Xxxxxxxxx;
Xxxxxxxxx Vessel means the approximately
180,000 dwt capesize bulk carrier motor vessel to be constructed by the Builder
and bearing during such construction Hull No. S-2295;
Completion means completion of
the sale by AMCIC and purchase by Bird of the Xxxxxxxxx Membership Interests by
the performance by the parties of their respective obligations under, and
otherwise in accordance with, clause
5;
Completion Date means 31
October 2009 or such earlier or later date as the parties hereto may agree in
writing;
Conditions means the
conditions specified in clause 2.1;
Conditions Final Date means 9
October 2009 or such later date as the parties hereto may agree in
writing;
Dollars and $ mean the lawful currency of
the United States of America and in respect of all payments to be made under
this Agreement mean funds which are for same day settlement in the New York
Clearing House Interbank Payments System (or such other US dollar funds as may
at the relevant time be customary for the settlement of international banking
transactions denominated in US dollars);
Encumbrance means any
mortgage, charge, pledge, lien, option, restriction, right of first refusal,
right of pre-emption, claim, right, interest or preference granted to any person
or any other encumbrance or security interest of any kind (or an agreement or
commitment to create any of the same);
Guarantee means any guarantee,
indemnity, suretyship, letter of comfort or other assurance, security or right
of set-off given or undertaken by a person to secure or support the obligations
(actual or contingent) of any other person and whether given directly or by way
of counter-indemnity to any other person who has provided a
Guarantee;
Xxxxxx and Hope
Membership Interest
Transfer Agreement means the
membership interest transfer agreement made
or, as the context may require, to be made between Bird and AMCIC in relation to
the transfer of membership interests in Xxxxxx Xxxxxx LLC and Hope Shipco LLC,
in agreed form;
Membership Interests Purchase
Documents has the meaning given to it in clause 8.1;
2
Nominated Account means a bank
account in the name of AMCIC Kaperbrief Holdings B.V. held at Rabobank
International of The Netherlands (SWIFT: XXXXXX0X), with account number NL5O
RABO 0127169938 (IBAN);
Other Purchase Agreements
means together the Xxxx SPA and the Xxxxxx and Hope
Membership Interest
Transfer Agreement;
Purchase Price means two
million eight hundred thousand Dollars ($2,800,000);
Refund Guarantor means Mizuho
Corporate Bank, Ltd. of 0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx 000-0000,
Xxxxx and includes its successors in title;
Relevant Claim means (i) in
relation to Bird, a claim by Bird involving or relating to a breach of any of
the AMCIC Warranties, whether for damages, compensation or any other relief and
(ii) in relation to AMCIC, a claim by AMCIC involving or relating to a breach of
any of the Bird Warranties, whether for damages, compensation or any other
relief; and
Seller means Cosmos World
Maritime S.A. of 53rd Street, Xxxxxxxxxxxx Xxxxxxx, Xxxxx Xxxxxxxx, 00xx Xxxxx,
Xxxxxx, Xxxxxxxx of Panama.
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1.2
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In
this Agreement, unless the context requires
otherwise:
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1.2.1
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a
document expressed to be in agreed form means a
document in a form which has been agreed by the parties on or before the
execution of this Agreement and signed or initialled by them or on their
behalf, for the purposes of
identification;
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1.2.2
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references
to a clause or schedule are to a clause of or a schedule to this
Agreement. The schedules form part of this
Agreement;
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1.2.3
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the
headings in this Agreement do not affect its
interpretation;
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1.2.4
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words
importing the singular include the plural and vice versa, words
importing a gender include every gender and references to persons include
corporations, partnerships and other unincorporated associations or bodies
of persons;
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1.2.5
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references
to AMCIC, Bird and Xxxxxxxxx will include, where the context permits,
their respective successors in title;
and
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1.2.6
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references
to any enactment shall be deemed to include references to such enactment
as re-enacted, amended or extended.
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2.1
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The
sale and purchase of the Xxxxxxxxx Membership Interests pursuant to clause
3 is conditional on the satisfaction of all of the
following:
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2.1.2
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the
Xxxx SPA being duly executed by both parties
thereto.
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2.2
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AMCIC
and Bird undertake to use their respective best endeavours to ensure that
the Conditions are satisfied as soon as possible after the date of this
Agreement and in any event by no later than the Conditions Final
Date.
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2.3
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If
at any time either party becomes aware of a fact or circumstance that
might prevent or materially delay any of the Conditions set out in clause
2.1 being satisfied, it shall promptly notify the
other.
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3
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2.4
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AMCIC
and Bird may agree to waive (to the extent agreed between them) either or
both of the Conditions.
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2.5
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Each
party shall give notice to the other that a Condition has been satisfied
within one Business Day of becoming aware of that
fact.
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2.6
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If
any Condition is not satisfied or waived on or before the Conditions Final
Date then this Agreement shall terminate (except clauses 8 (Entire
agreement), 9 (Announcements and confidentiality) to 12 (Notices), clause
14 (Governing law and agent for service of process) and clause 15
(Jurisdiction) which shall remain in full force and effect) and no party
shall have any claim against the others except for any prior breach of
clause 2.2.
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3
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Agreement
to sell the Xxxxxxxxx Membership
Interests
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3.1
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AMCIC
shall sell to Bird the Xxxxxxxxx Membership Interests and Bird (relying on
the AMCIC Warranties and undertakings given by AMCIC contained in this
Agreement) shall buy the Xxxxxxxxx Membership Interests from AMCIC with
full title guarantee and free from all Encumbrances in accordance with the
terms and conditions contained in this
Agreement.
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3.2
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Title
to and beneficial ownership of the Xxxxxxxxx Membership Interests shall
pass on Completion to Bird together with all associated rights and
benefits deriving from, attaching or accruing to, them on or after
Completion as evidenced by the membership interest transfer to be executed
pursuant to clause 5.1.2(b).
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3.3
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Bird
shall not be obliged to complete the purchase of any of the Xxxxxxxxx
Membership Interests unless the purchase of all the Xxxxxxxxx Membership
Interests is completed
simultaneously.
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The
consideration for the sale of the Xxxxxxxxx Membership Interests by AMCIC shall
be the payment by Bird to AMCIC of the Purchase Price.
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5.1
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Subject
to clauses 5.2, 5.5 and 5.6, Completion shall take place at the offices of
Xxxxxx Xxxx LLP at 1 Xxxxxx Leoforos Posidonos & 0 Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxx on the Completion Date when all (but
not part only unless the parties so agree or waive pursuant to clause 5.5)
of the following business shall be
transacted:
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5.1.1
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Bird
shall deliver, or shall procure the delivery, to AMCIC
of:
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(a)
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the
powers of attorney or other authorities under which the execution of this
Agreement and the transfer of the Xxxxxxxxx Membership Interests are
authorised and certified copies of the minutes recording the resolution of
the Board of Directors of Bird authorising the execution of this Agreement
and the transactions to be performed pursuant to
it;
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(b)
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a
deed of release issued by the Bank in favour of AMCIC in agreed form, duly
executed by the Bank and any other party thereto releasing AMCIC from its
obligations under the Xxxxxxxxx XXX;
and
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(c)
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the
complete executed original of the Xxxxxxxxx
Indemnity.
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5.1.2
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AMCIC
shall deliver, or shall procure the delivery, to Bird
of:
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(a)
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the
duly executed powers of attorney or other authorities under which the
transfer of the Xxxxxxxxx Membership Interests are authorised and
certified copies of the minutes recording the resolution of the Board of
Directors of AMCIC authorising the sale of
the
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Xxxxxxxxx
Membership Interests and the transfer of the Xxxxxxxxx Membership Interests to
Bird;
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(b)
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such
other duly executed documents as may be required to give Bird good title
to the Xxxxxxxxx Membership Interests and to enable Bird to become the
holder of them, including the execution of a membership interest transfer
in relation to the Xxxxxxxxx Membership Interests in agreed
form;
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(c)
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all
the statutory and minute books of Xxxxxxxxx (written up to the Business
Day immediately preceding Completion and its limited liability company
seal (if any), the true, complete and up to date copy of the certificate
of formation of Xxxxxxxxx as provided by the Registry of the Republic of
the Xxxxxxxx Islands in Piraeus, Greece, the true, complete and up to date
executed copy of the Xxxxxxxxx Limited Liability Company Agreement and
other documents and records concerning Xxxxxxxxx in the possession or
under the control of AMCIC, each certified as such by an officer of AMCIC
not earlier than 5 Business Days prior to Completion;
and
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(d)
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an
addendum no.1 to the Xxxxxxxxx Charter in agreed form executed by the
Charterer only.
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(a)
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shall
transfer the Xxxxxxxxx Membership Interests to
Bird;
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(b)
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shall
procure that an officer of Xxxxxxxxx procures that the capital account
maintained by Xxxxxxxxx for AMCIC be closed and the balance be transferred
into the name of Bird and consolidated with the existing capital account
maintained by Xxxxxxxxx for Bird;
and
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(c)
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shall
procure the delivery to Bird of resignation letters (duly executed as
deeds) from Xx Xxxx X. Xxxxx as director, Xx Xxxxxxxx Molaris as director
and officer and Xx Xxxxx Xxxxxxxxxxxxxxx as assistant secretary, each in
agreed form;
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5.1.4
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Bird
shall (a) pay the Purchase Price by electronic funds transfer for value on
the day of Completion to the Nominated Account and payment of the Purchase
Price into such account shall constitute a good discharge to AMCIC in
respect of it and (b) execute and deliver to Xxxxxxxxx an adoption
agreement in an agreed form (the Adoption Agreement)
pursuant to the terms and conditions of which Bird shall agree to be bound
by the terms and conditions of the Xxxxxxxxx Limited Liability Company
Agreement with respect to the Xxxxxxxxx Membership
Interests.
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5.1.5
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The
parties shall join in procuring that all bank mandates in force for
Xxxxxxxxx shall if, necessary, be altered (in such manner as Bird shall
require) to reflect the resignations referred to in clause
5.1.3(c).
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5.2.1
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transaction
(or the agreement not to transact pursuant to clause 5.5) of all of the
business set out in clause 5.1; and
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5.2.3
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transaction
(or the agreement not to transact pursuant to clause 5.5 of the Xxxx SPA)
of all of the business set out in clause 5.1 of the Xxxx
SPA,
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then this
Agreement and the Other Purchase Agreements shall complete simultaneously and
the transfers provided for in this Agreement and the Other Purchase Agreements
shall become effective. For the avoidance of doubt, if the matters specified in
clauses 5.2.1 and/or 5.2.2 and/or 5.2.3 shall fail to occur then neither this
Agreement nor the Other Purchase Agreements shall
5
complete,
the transfers provided for in this Agreement and the Other Purchase Agreements
shall not become effective and, in respect of this Agreement, the terms of
clause 5.6 shall apply.
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5.3
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Each
party hereto undertakes to use its best endeavours to ensure that the
business that needs to be transacted by such party pursuant to clause 5.1
is transacted on or before the Completion
Date.
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5.4
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If
at any time either party becomes aware of a fact or circumstance that
might prevent or materially delay any of the business set out in clause
5.1 from being transacted, it shall promptly notify the
other.
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5.5
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Each
party may agree in writing to waive all or any of the obligations of the
other party pursuant to the terms of clause 5.1. The parties may agree in
writing to waive (to the extent agreed between them) all or any of the
joint obligations of the parties.
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5.6
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If
Completion does not take place on the Completion Date then this Agreement
shall terminate (except clauses 8 (Entire agreement), 9 (Announcements and
confidentiality) to 12 (Notices), clause 14 (Governing law and agent for
service of process) and clause 15 (Jurisdiction) which shall remain in
full force and effect) and no party shall have any claim against the other
except for any prior breach of clause 5.3 and each party hereto shall have
the right to ask for any documents given to the other party to be
returned.
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5.7
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Following
Completion:
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5.7.1
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the
parties hereto agree to execute an acknowledgement in agreed form that all
the business set out in clause 5.1 has been transacted or, as the case may
be, waived and that Completion has taken place;
and
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5.7.2
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Bird
shall provide AMCIC with written evidence of the delivery of the Adoption
Agreement to Xxxxxxxxx on the Completion
Date.
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6.1.1
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warrants
to Bird (for itself and as trustee for its successors in title) that each
of the AMCIC Warranties is true and accurate;
and
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6.1.2
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acknowledges
that Bird has entered into this Agreement in reliance on, among other
things, the AMCIC Warranties.
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6.2
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In
each AMCIC Warranty, where any statement is qualified as being made so far
as AMCIC is aware or any similar expression, it has been so qualified
after due and careful enquiries by AMCIC and AMCIC has used all reasonable
endeavours to ensure that all information given, referred to or reflected
in that statement is accurate.
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6.3
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Each
of the paragraphs in schedule 2:
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6.3.1
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shall
be construed as a separate and independent warranty and representation;
and
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6.3.2
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unless
expressly provided in this Agreement, shall not be limited by reference to
any other paragraph in schedule 2 or by any other provision of this
Agreement,
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and Bird
shall have a separate claim and right of action in respect of every breach of an
AMCIC Warranty.
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6.4
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The
AMCIC Warranties shall not in any respect be extinguished or affected by
Completion.
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6.5
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AMCIC
agrees with Bird (for itself and as trustee for Xxxxxxxxx and its
directors, employees, agents and advisers) to waive any right or claim
which it may have in respect of any
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6
misrepresentation
or error in, or omission from any information or opinion supplied or given by
Xxxxxxxxx and/or any of its directors, officers, employees or agents in the
course of negotiating this Agreement, and that any such right or claim shall not
constitute a defence to any claim by AMCIC under or in relation to this
Agreement.
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6.6
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Bird
shall be entitled to make a Relevant Claim after Completion, whether or
not Bird and/or any of its agents and/or any of its advisers had knowledge
(whether actual, constructive or implied) of the matter giving rise to the
claim before Completion; and Bird's right or ability to make any such
claim shall not be affected or limited, and the amount recoverable shall
not be reduced, on the grounds that Bird and/or its agents and/or its
advisers may before Completion have had actual, constructive or implied
knowledge of the matter giving rise to the
claim.
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6.7
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AMCIC
further warrants to Bird (for itself and as a trustee for its successors
in title) that each of the AMCIC Warranties shall be true and accurate as
at Completion (and such AMCIC Warranties shall be deemed to be repeated as
at Completion) with reference to the facts and circumstances then
prevailing, and for this purpose a reference in any of the AMCIC
Warranties to the date of this Agreement shall be construed as a reference
to the date of Completion.
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6.8.1
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warrants
to AMCIC (for itself and as trustee for its successors in title) that each
of the Bird Warranties is true and accurate;
and
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6.8.2
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acknowledges
that AMCIC has entered into this Agreement in reliance on, among other
things, the Bird Warranties.
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6.9
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In
each Bird Warranty, where any statement is qualified as being made so far
as Bird is aware or any similar expression, it has been so qualified after
due and careful enquiries by Bird and Bird has used all reasonable
endeavours to ensure that all information given, referred to or reflected
in that statement is accurate.
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6.10
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Each
of the paragraphs in schedule 3:
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6.10.1
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shall
be construed as a separate and independent warranty and representation;
and
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6.10.2
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unless
expressly provided in this Agreement, shall not be limited by reference to
any other paragraph in schedule 3 or by any other provision of this
Agreement,
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and AMCIC
shall have a separate claim and right of action in respect of every breach of a
Bird Warranty.
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6.11
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The
Bird Warranties shall not in any respect be extinguished or affected by
Completion.
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6.12
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AMCIC
shall be entitled to make a Relevant Claim after Completion, whether or
not AMCIC and/or any of its agents and/or any of its advisers had
knowledge (whether actual, constructive or implied) of the matter giving
rise to the claim before Completion; and AMCIC's right or ability to make
any such claim shall not be affected or limited, and the amount
recoverable shall not be reduced, on the grounds that AMCIC and/or its
agents and/or its advisers may before Completion have had actual,
constructive or implied knowledge of the matter giving rise to the
claim.
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6.13
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Bird
further warrants to AMCIC (for itself and as a trustee for its successors
in title) that each of the Bird Warranties shall be true and accurate as
at Completion (and such Bird Warranties shall be deemed to be repeated as
at Completion) with reference to the facts and circumstances then
prevailing, and for this purpose a reference in any of the Bird Warranties
to the date of this Agreement shall be construed as a reference to the
date of Completion.
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7
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7
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Dealing
with and voting on the Xxxxxxxxx Membership
Interests
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7.1
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AMCIC
declares that, for so long as it remains the owner of record of any of the
Xxxxxxxxx Membership Interests after Completion it
shall:
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7.1.1
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hold
the Xxxxxxxxx Membership Interests and the dividends and other
distributions of profits or surplus or other assets declared, paid or made
in respect of them after Completion and all rights arising out of or in
connection with them in trust for Bird and its successors in
title;
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7.1.2
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deal
with and dispose of the Xxxxxxxxx Membership Interests and all such
dividends, distributions and rights as Bird or any such successor may
direct; and
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7.1.3
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if
so requested by Bird or any such
successor:
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(a)
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vote
at all meetings which it shall be entitled to attend as the owner of
record of the Xxxxxxxxx Membership Interests in such manner as Bird or any
such successor may direct; and
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(b)
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execute
all instruments of proxy or other documents which Bird may reasonably
require and which may be necessary or desirable or convenient to enable
Bird or any such successor to attend and vote at any such
meeting.
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8.1
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Each
party acknowledges and agrees that:
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8.1.1
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this
Agreement and all documents referred to or to be entered into pursuant to
this Agreement including, without limitation the Xxxx SPA and the Xxxxxx
and Hope Membership Interest Transfer Agreement (together the Membership Interests Purchase
Documents) constitute the entire agreement between the parties and
supersede any prior agreement, understanding, undertaking or arrangement
between the parties relating to the subject matter of the Membership
Interests Purchase Documents;
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8.1.2
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by
entering into the Membership Interests Purchase Documents, they do not
rely on any statement, representation, assurance or warranty of any person
(whether a party to the Membership Interests Purchase Documents or not and
whether made in writing or not) other than as expressly set out in the
Membership Interests Purchase
Documents;
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8.1.3
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except
as otherwise provided in any of the Membership Interests Purchase
Documents, no party may rescind or terminate any of the Membership
Interests Purchase Documents for breach of contract or for negligent or
innocent misrepresentation or otherwise;
and
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8.1.4
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nothing
in this clause shall exclude or limit any liability for
fraud.
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9
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Announcements
and confidentiality
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9.1
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Subject
to clause 9.2, no announcement, circular or communication (each an Announcement) concerning
the existence or content of this Agreement shall be made by either party
without the prior written approval of the other party (such approval not
to be unreasonably withheld or
delayed).
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9.2
|
Clause
9.1 does not apply to any Announcement if, and to the extent that, it is
required to be made by the rules of any stock exchange or any
governmental, regulatory or supervisory body or court of competent
jurisdiction (a Relevant
Authority) to which the party making the Announcement is subject,
whether or not any of the same has the force of law, provided that any
Announcement shall, so far as is practicable, be made after consultation
with the other party and after taking into account its reasonable
requirements regarding the content, timing and manner of despatch of the
Announcement in question.
|
8
|
|
9.3
|
Subject
to Clause 9.4, each party shall treat as strictly confidential all
information received or obtained as a result of entering into or
performing this Agreement which relates
to:
|
|
9.3.1
|
the
subject matter and provisions of this
Agreement;
|
|
9.3.2
|
the
negotiations relating to this Agreement;
or
|
|
|
9.4
|
A
party may disclose information which would otherwise be confidential if
and to the extent:
|
|
9.4.1
|
required
by the law of any relevant
jurisdiction;
|
|
9.4.2
|
required
by existing contractual
obligations;
|
|
9.4.3
|
required
by any Relevant Authority to which the party making the disclosure is
subject, whether or not such requirement has the force of
law;
|
|
9.4.4
|
required
to vest the full benefit of this Agreement in either
party;
|
|
9.4.5
|
disclosure
is made to the professional advisers, auditors and bankers of either
party;
|
|
9.4.6
|
the
information has come into the public domain through no fault of that
party; or
|
|
9.4.7
|
the
other party has given prior written approval to the
disclosure,
|
provided
that any disclosure pursuant to clause 9.4.1, 9.4.2 or 9.4.3 shall, so far as it
practicable, be made only after consultation with the other party.
|
10.1
|
The
rights and remedies of each party to this Agreement are, except where
expressly stated to the contrary, without prejudice to any other rights
and remedies available to it. No neglect, delay or indulgence
by any party in enforcing any provision of this Agreement shall be
construed as a waiver and no single or partial exercise of any rights or
remedy of any party under this Agreement shall affect or restrict the
further exercise or enforcement of any such right or
remedy.
|
|
10.2
|
The
liability of any party to this Agreement may in whole or in part be
released, compounded or compromised; and, if the other party shall give
time or indulgence to the person under such liability, this shall in no
way prejudice or affect that party's rights against any other person under
the same or similar liability.
|
|
11.1
|
No
purported alteration of this Agreement shall be effective unless it is in
writing, refers to this Agreement and is duly executed by each party to
this Agreement.
|
|
11.2
|
This
Agreement may be executed in any number of counterparts, and each of the
executed counterparts, when duly exchanged or delivered, shall be deemed
to be an original, but, taken together, they shall constitute one
instrument.
|
|
11.3
|
Each
of the parties shall be responsible for its respective legal and other
costs incurred in relation to the negotiation, preparation and completion
of this Agreement and all ancillary
documents.
|
|
11.4
|
A
person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any of its
terms.
|
9
|
12.1
|
A
notice or other communication given under or in connection with this
Agreement (a Notice) shall
be:
|
|
12.1.2
|
in
the English language; and
|
|
12.1.3
|
sent
by the Permitted Method to the Notified
Address.
|
|
12.2
|
The
Permitted Method means any of the methods set out in the first column
below, the second column setting out the date on which a Notice given by
such Permitted Method shall be deemed to be given provided the Notice is
properly addressed and sent in full to the Notified
Address:
|
|
(1)
Permitted
Method
|
(2)
Date
on which Notice deemed given
|
|
Personal
delivery
|
When
left at the Notified Address
|
|
First
class pre-paid post
|
Two
Business Days after posting
|
|
Pre-paid
air-mail
|
Six
Business Days after posting
|
|
Fax
transmission
|
On
completion of transmission
|
|
12.3
|
The
Notified Addresses of each of the parties is as set out
below:
|
|
Name
of Party
|
Address
|
Fax
Number
|
Marked
for the attention of:
|
|
AMCIC
With
a copy to Norose Notices Limited
|
000
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxx XX 00000
XXX
the
address of its registered office for the time being (at the date of this
Agreement being 3 More Xxxxxx Xxxxxxxxx, Xxxxxx XX0 0XX,
UK)
|
+ 1
203 625 9231
x00
000 0000000
|
Xx
Xxxx Xxxxx/ Mr Xxxxxx Xxxxx
The
Partnership Office Manager (CCR/LN30281)
|
|
Bird
|
17th
km National Road, Athens Lamia & Xxxxxxx Xxxxxx, 000 00 Xxx Xxxxxxxx,
Xxxxxx, Xxxxxx
|
x00
000 000 0000
|
Xxx
Xxxxxxxx Xxxxxxxxxxx
|
or such
other Notified Address as any of the parties may, by written notice to the other
parties, substitute for their Notified Address set out above.
Neither
of the parties shall be entitled to assign the benefit of any rights under this
Agreement.
10
|
|
14
|
Governing
law and agent for service of
process
|
|
14.1
|
This
Agreement and any non-contractual obligations connected with it shall be
governed by and construed in accordance with English
law.
|
|
14.2
|
The
parties irrevocably agree that all disputes arising under or in connection
with this Agreement, or in connection with the negotiation, existence,
legal validity, enforceability or termination of this Agreement,
regardless of whether the same shall be regarded as contractual claims or
not, shall be exclusively governed by and determined only in accordance
with English law.
|
|
14.3
|
Each
party hereby irrevocably authorises and
appoints:
|
|
14.3.1
|
in
the case of AMCIC, Norose Notices Limited (for the attention of the
Partnership Office Manager) of 3 More Xxxxxx Xxxxxxxxx, Xxxxxx XX0 0XX, XX
(reference CCR/ LN30281);
and
|
|
14.3.2
|
in
the case of Bird, Hill Xxxxxxxxx Services (London) Limited of Xxxxxxxx
Xxxxx, Xxxx'x Xxxxx, Xxxxxx XX0X 0XX,
Xxxxxxx,
|
or such
other person located in England or Wales as each party may at any time in the
future substitute by notice in writing to all the other parties to this
Agreement, to accept on its behalf service of all legal process arising out of
or in connection with any proceedings before the English courts in connection
with this Agreement.
The
parties irrevocably agree that the courts of England and Wales are to have
exclusive jurisdiction, and that no other court is to have jurisdiction
to:
|
|
(a)
|
determine
any claim, dispute or difference arising under or in connection with this
Agreement or in connection with the negotiation, existence, legal
validity, enforceability or termination of this Agreement, whether the
alleged liability shall arise under the law of England and Wales or under
the law of some other country and regardless of whether a particular cause
of action may successfully be brought in the English courts (Proceedings);
and
|
|
|
(b)
|
grant
interim remedies, or other provisional or protective
relief.
|
The
parties submit to the exclusive jurisdiction of such courts and accordingly any
Proceedings may be brought against the parties or any of them or any of their
respective assets in such courts.
This
Agreement has been executed as a deed and it has been delivered on the date
stated at the beginning of this Agreement.
11
Schedule 1
Information
on Xxxxxxxxx
|
Date
and place of formation
|
30
March 2007, Republic of the Xxxxxxxx Islands
|
|
Registered
office
|
Trust
Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the
Xxxxxxxx Xxxxxxx XX00000
|
|
Initial
Capital Contribution
|
$1,000
divided as follows:
Xxxxxxxxx
Maritime Investors LLC - 28.6%
AMCIC
- 28.6%
Bird
- 42.8%
|
|
Directors
|
Xxxxxx
X. Xxxxxxxxx Xx.
Xxxx
X. Xxxxx
Xxxxxxxx
Xxxxxxx
|
|
Officers
|
Xxxxxxxx
Xxxxxxx: Chief Executive Officer
Xxxx
Xxxxxxx: Chief Financial Officer and Treasurer
Xxxxx
Xxxxxxxxxxxxx: Chief Operating Officer and Chief Commercial
Officer
Xxxxx
Xxxxxx: Vice President and Secretary
Xxxxx
Xxxxxxxxxxxxxxx: Assistant Secretary
|
|
Secretary/Assistant
Secretary
|
Xxxxx
Xxxxxx/Xxxxx Xxxxxxxxxxxxxxx
|
12
Schedule 2
The
AMCIC Warranties
|
|
1
|
The
Xxxxxxxxx Membership Interests and
Xxxxxxxxx
|
|
|
1.1
|
The
Xxxxxxxxx Membership Interests are fully paid and constitute twenty eight
point six per cent (28.6%) of the issued and allotted membership interests
of Xxxxxxxxx.
|
|
|
1.2
|
There
is no Encumbrance on, over or affecting the Xxxxxxxxx Membership
Interests, there is no agreement or commitment to give or create any such
Encumbrance and no person has made any claim to be entitled to any right
over or affecting the Xxxxxxxxx Membership
Interests.
|
|
|
1.3
|
Xxxxxxxxx
is a Xxxxxxxx Islands limited liability company registered in the Republic
of the Xxxxxxxx Islands. The information set out in schedule 1 is complete
and accurate and Xxxxxxxxx does not have, nor has it ever had, any
subsidiaries or interest in any body corporate, partnership, joint venture
or other legal entity of any nature
whatsoever.
|
|
|
1.4
|
Save
pursuant to Article 10 of the Xxxxxxxxx Limited Liability Company
Agreement, no person has the right (whether exercisable now or in the
future and whether contingent or not) to call for the issue or transfer of
any membership interest or loan capital of Xxxxxxxxx under any option or
other agreement or otherwise
howsoever.
|
|
|
2
|
Powers
and obligations of AMCIC
|
|
|
2.1
|
AMCIC
has the right, power and authority and has taken all action necessary to
execute and deliver, and to exercise its rights and perform its
obligations under, this Agreement and each document to be executed at or
before Completion will, when executed, constitute legal, valid and binding
obligations of AMCIC enforceable in accordance with their respective
terms.
|
|
|
2.2
|
AMCIC
is entitled to sell and transfer or procure the sale and transfer of the
full legal and beneficial ownership in the Xxxxxxxxx Membership Interests
to Bird on the terms set out in this
Agreement.
|
|
|
2.3
|
No
consent, authorisation, licence or approval of any governmental,
administrative, judicial or regulatory body, authority or organisation or
by the holders of the membership interests in Xxxxxxxxx is
required to authorise the execution, delivery, validity, enforceability or
the performance by AMCIC of its obligations under this Agreement or will
be required as a consequence of this
Agreement.
|
|
|
3
|
Compliance
with legal requirements
|
|
|
3.1
|
All
registers and minute books required by law to be kept by Xxxxxxxxx have
been properly written up and contain an accurate and complete record of
the matters which should be recorded in them, and Xxxxxxxxx has not
received any application or request for rectification of its statutory
registers or any notice or allegation that any of them is
incorrect.
|
|
|
3.2
|
Xxxxxxxxx
is conducting and has at all times conducted its business in all respects
in accordance with all applicable laws and regulations in the Republic of
the Xxxxxxxx Islands (including, without limitation, all laws and
regulations pertaining to competition matters) and has no liability for
any unlawful act committed by any other
person.
|
|
|
3.3
|
Xxxxxxxxx
has obtained all licences, permissions, consents and other approvals
(together Permits)
and made all filings required for or in connection with the carrying on of
its business in the places and in the manner in which business is now
carried on; such Permits are in full force and effect, are not limited in
duration or subject to any unusual or onerous conditions and
have
|
13
been
complied with in all respects, and there are no circumstances which exist or
indicate that any of such Permits will or may be revoked or not renewed or which
may confer a right of revocation.
|
|
3.4
|
Xxxxxxxxx
has not been notified that any investigation or enquiry in respect of its
affairs is being or has been conducted by any governmental or other body,
and so far as AMCIC is aware there are no circumstances likely to give
rise to any such investigation or
enquiry.
|
|
|
4
|
Certificate
of membership interests
|
Xxxxxxxxx has not issued any
certificate regarding the Xxxxxxxxx Membership Interests.
14
Schedule 3
The
Bird Warranties
|
|
1
|
Powers
and obligations of Bird
|
|
|
1.1
|
Bird
has the right, power and authority and has taken all action necessary to
execute and deliver, and to exercise its rights and perform its
obligations under, this Agreement and each document to be executed at or
before Completion will, when executed, constitute legal, valid and binding
obligations of Bird enforceable in accordance with their respective
terms.
|
|
|
1.2
|
No
consent, authorisation, licence or approval of any governmental,
administrative, judicial or regulatory body, authority or organisation or
by the holders of the membership interests in Xxxxxxxxx is
required to authorise the execution, delivery, validity, enforceability or
the performance by Bird of its obligations under this Agreement or will be
required as a consequence of this
Agreement.
|
Bird is
the successor in interest by merger to Xxxxxxxx Maritime Limited (Xxxxxxxx) and acquired all
right, title and interest in and to the limited liability company interests in
Xxxxxxxxx owned by it equal to 28.6% of the total limited liability company
interest in Xxxxxxxxx.
15
|
EXECUTED as a DEED by
|
)
|
|
|
|
for
and on behalf of
|
)
|
|
|
|
AMCIC
CAPE HOLDINGS LLC
|
)
|
|
Attorney-in-fact
|
|
in
the presence of:
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Witness
|
|
|
|
|
Name:
|
|
|
|
|
Address:
|
|
|
|
|
Occupation:
|
|
|
|
|
|
|
|
|
|
EXECUTED as a DEED by
|
)
|
|
|
|
for
and on behalf of
|
)
|
|
|
|
BIRD
ACQUISITION CORP.
|
)
|
|
Attorney-in-fact
|
|
in
the presence of:
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Witness
|
|
|
|
|
Name:
|
|
|
|
|
Address:
|
|
|
|
|
Occupation:
|
|
|
|
|
|
|
|
|
16
