SHARE PURCHASE AGREEMENT Dated April 7, 2009 between CAPITAL MARITIME & TRADING CORP. and CAPITAL PRODUCT PARTNERS L.P.
Exhibit
4.23
|
Dated
April 7, 2009
between
CAPITAL
MARITIME & TRADING CORP.
and
|
SHARE
PURCHASE AGREEMENT (the “Agreement”), dated as
of April 7, 2009, by and between CAPITAL MARITIME & TRADING CORP.
(“CMTC”), a
corporation organized under the laws of the Republic of the Xxxxxxxx Islands,
and CAPITAL PRODUCT PARTNERS L.P. (“CPLP”), a limited
partnership organized under the laws of the Republic of the Xxxxxxxx
Islands.
RECITAL
WHEREAS, CPLP wishes to purchase from
CMTC, and CMTC wishes to sell to CPLP, the five hundred (500) shares of common
stock (the “Shares
A”) representing all of the issued and outstanding shares of common stock
of Mango Finance Corp., a corporation organized under the laws of the Republic
of the Xxxxxxxx Islands (the “Vessel A Owning
Subsidiary”).
WHEREAS, the Vessel A Owning Subsidiary
is the registered owner of the Liberian flagged motor tanker “Agamemnon II” (the
“Vessel
A”).
WHEREAS, CMTC wishes to transfer to
CPLP all rights, title and interest in the Vessel A, and retain all assets,
other than the Vessel A, the Contracts A (as defined below) and any necessary
permits, and all liabilities of the Vessel A Owning Subsidiary.
WHEREAS, the Vessel A is subject to a
time charter party agreement (type BPTIME3) dated 7th
August 2008 and entered into by the Vessel A Owning Subsidiary and BP Shipping
Limited (the “Charterer A”) for a
period of 3 years (plus/minus 30 days at Charterer A’s option) from January
23rd 2009
(the “Charter
A”).
WHEREAS, CMTC wishes to purchase from
CPLP, and CPLP wishes to sell to CMTC, the five hundred (500) shares of common
stock (the “Shares
B”) representing all of the issued and outstanding shares of common stock
of Canvey Shipmanagement Co., a corporation organized under the laws of the
Republic of the Xxxxxxxx Islands (the “Vessel B Owning
Subsidiary”).
WHEREAS, the Vessel B Owning Subsidiary
is the registered owner of the Liberian flagged motor tanker “Assos” (the “Vessel
B”).
WHEREAS, CPLP wishes to transfer to
CMTC all rights, title and interest in the Vessel B, and retain all assets,
other than the Vessel B and any necessary permits, and all liabilities of the
Vessel B Owning Subsidiary.
WHEREAS, contemporaneously with the
execution of this Agreement, CPLP and Capital Ship Management Corp. (“CSM”) will execute an
amendment to the Management Agreement dated as of April 3, 2007, as subsequently
amended, and entered into between CPLP and CSM (the “Amendment to the Management
Agreement”).
WHEREAS Vessel A Owning Subsidiary and
Vessel B Owning Subsidiary, have elected to be treated as disregarded entities
for U.S. federal income tax purposes, the Parties intend for this transaction to
be treated, for U.S. federal income tax purposes, as a tax-free exchange of
Vessel A for Vessel B under Section 1031 of the Internal Revenue Code of 1986,
as amended.
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
I
Interpretation
SECTION
1.01 Definitions. In this Agreement, unless
the context requires otherwise or unless otherwise specifically provided herein,
the following terms shall have the respective meanings set out below and
grammatical variations of such terms shall have corresponding
meanings:
“Additional
Consideration” has the meaning given to it in
Section 2.04;
“Agreement” means this
Agreement, including its recitals and schedules, as amended, supplemented,
restated or otherwise modified from time to time;
“Amendment to the Management
Agreement” has the meaning given to it in the recitals;
“Applicable Law” in
respect of any Person, property, transaction or event, means all laws, statutes,
ordinances, regulations, municipal by-laws, treaties, judgments and decrees
applicable to that Person, property, transaction or event and, whether or not
having the force of law, all applicable official directives, rules, consents,
approvals, authorizations, guidelines, orders, codes of practice and policies of
any Governmental Authority having or purporting to have authority over that
Person, property, transaction or event and all general principles of common law
and equity;
“CPLP” has the meaning
given to it in the preamble;
“CPLP Entities” means
CPLP and its subsidiaries;
“CPLP Indemnitees” has
the meaning given to it in Section 9.01;
“Charter A” has the
meaning given to it in the recitals;
“Charterer A” has the
meaning given to it in the recitals;
“Closing” has the
meaning given to it in Section 2.02;
“Closing Date” has the
meaning given to it in Section 2.02;
“Commitment” means (a)
options, warrants, convertible securities, exchangeable securities, subscription
rights, conversion rights, exchange rights or other contracts that could require
a Person to issue any of its equity interests or to sell any equity interests it
owns in another Person (other than this Agreement and the related transaction
documents); (b) any other securities convertible into, exchangeable or
exercisable for, or representing the right to subscribe for any equity interest
of a Person or owned by a Person; and (c) stock appreciation rights, phantom
stock, profit participation, or other similar rights with respect to a
Person;
“Contracts A” has the
meaning given to it in Section 5.08;
“CSM” has the meaning
given to it in the recitals;
“Encumbrance” means
any mortgage, lien, charge, assignment, adverse claim, hypothecation,
restriction, option, covenant, condition or encumbrance, whether fixed or
floating, on, or any security interest in, any property whether real, personal
or mixed, tangible or intangible, any pledge or hypothecation of any property,
any deposit arrangement, priority, conditional sale agreement, other title
retention agreement or equipment trust, capital lease or other security
arrangements of any kind;
“Equity Interest”
means (a) with respect to any entity, any and all shares of capital stock or
other ownership interest and any Commitments with respect thereto, (b) any other
direct equity ownership or participation in a Person and (c) any Commitments
with respect to the interests described in (a) or (b);
“Governmental
Authority” means any domestic or foreign government, including federal,
provincial, state, municipal, county or regional government or governmental or
regulatory authority, domestic or foreign, and includes any department,
commission, bureau, board, administrative agency or regulatory body of any of
the foregoing and any multinational or supranational organization;
“Losses” means, with
respect to any matter, all losses, claims, damages, liabilities, deficiencies,
costs, expenses (including all costs of investigation, legal and other
professional fees and disbursements, interest, penalties and amounts paid in
settlement) or diminution of value, whether or not involving a claim from a
third party, however specifically excluding consequential, special and indirect
losses, loss of profit and loss of opportunity;
“Notice” means any
notice, citation, directive, order, claim, litigation, investigation,
proceeding, judgment, letter or other communication, written or oral, actual or
threatened, from any Person;
“Organizational Documents
A” has the meaning given to it in Section 5.03;
“Organizational Documents
B” has the meaning given to it in Section 5.17;
“Parties” means all
parties to this Agreement and “Party” means any one
of them;
“Partnership
Agreement” means the Amended and Restated Agreement of Limited
Partnership of CPLP dated April 3, 2007.
“Person” means an
individual, entity or association, including any legal personal representative,
corporation, body corporate, firm, partnership, trust, trustee, syndicate, joint
venture, unincorporated organization or Governmental Authority;
“Permits” has the
meaning given to it in Section 5.13;
“SEC Documents” means
the Prospectus of CPLP dated March 29, 2007 and filed with the U.S. Securities
and Exchange Commission and all filings CPLP is required to make pursuant to the
Securities Act and the Securities Exchange Act of 1934, as amended from time to
time;
“Securities Act” means
the Securities Act of 1933, as amended from time to time;
“CMTC” has the meaning
given to it in the preamble;
“CMTC Entities” means
CMTC and its affiliates other than the CPLP Entities;
“CMTC Indemnities” has
the meaning given to it in Section 9.02;
“Shares A” has the
meaning given to it in the recitals;
“Shares B” has the
meaning given to it in the recitals;
“Shares” means
together Shares A and Shares B;
“Taxes” means all
income, franchise, business, property, sales, use, goods and services or value
added, withholding, excise, alternate minimum capital, transfer, excise,
customs, anti-dumping, stumpage, countervail, net worth, stamp, registration,
franchise, payroll, employment, health, education, business, school, property,
local improvement, development, education development and occupation taxes,
surtaxes, duties, levies, imposts, rates, fees, assessments, dues and charges
and other taxes required to be reported upon or paid to any domestic or foreign
jurisdiction and all interest and penalties thereon;
“Vessel A Owning
Subsidiary” has the meaning given to it in the recitals;
“Vessel B Owning
Subsidiary” has the meaning given to it in the recitals;
“Vessel A” has the
meaning given to it in the recitals;
and
“Vessel B” has the
meaning given to it in the recitals.
ARTICLE
II
Purchase
and Sale of Shares; Closing
SECTION
2.01 Purchase
and Sale of Shares A and Shares B. CMTC agrees to sell and
transfer to CPLP, and CPLP agrees to purchase from CMTC in accordance with and
subject to the terms and conditions set forth in this Agreement, the
Shares A which in turn
shall result in CPLP indirectly owning the Vessel A.
CPLP agrees to sell and transfer to
CMTC, and CMTC agrees to purchase from CPLP in accordance with and subject to
the terms and conditions set forth in this Agreement, the Shares B which in turn
shall result in CMTC indirectly owning the Vessel B.
SECTION
2.02 Closing. On the terms of this
Agreement, the sale and transfer of the Shares and payment of the Purchase Price
shall take place on the date hereof (the “Closing
Date”). The
sale and transfer of the Shares is hereinafter referred to as “Closing.”
SECTION
2.03 Place of
Closing. The
Closing shall take place at the premises of CSM at 0 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxx.
SECTION
2.04 Consideration
for Shares. On
the Closing Date, (i) CPLP shall pay to CMTC (to such account as CMTC shall
nominate) the amount of US Dollars $ 4,000,000 (the “Additional
Consideration”) and
transfer the Shares B in exchange and as consideration for the Shares A
and (ii) CMTC shall transfer the Shares A in exchange for payment of
the Additional Consideration and the Shares B. CPLP shall have no
responsibility or liability hereunder for CMTC’s allocation and distribution of
the Additional Consideration among the CMTC Entities.
SECTION
2.05 Payment of
the Additional Consideration. The Additional
Consideration will be paid by CPLP to CMTC by wire transfer of immediately
available funds to an account designated in writing by CMTC.
ARTICLE
III
Representations
and Warranties of CPLP
CPLP
represents and warrants to CMTC that as of the date hereof:
SECTION
3.01 Organization
and Limited Partnership Authority. CPLP is duly formed,
validly existing and in good standing under the laws of the Republic of the
Xxxxxxxx Islands, and has all requisite limited partnership power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by CPLP, has been
effectively authorized by all necessary action, limited partnership or
otherwise, and constitutes legal, valid and binding obligations of CPLP. No
meeting has been convened or resolution proposed or petition presented and no
order has been made to wind up CPLP.
SECTION
3.02 Agreement
Not in Breach of Other Instruments. The execution and delivery
of this Agreement, the consummation of the transactions contemplated hereby and
the fulfillment of the terms hereof will not result in a breach of any of the
terms or provisions of, or constitute a default under, or conflict with, any
agreement or other instrument to which CPLP is a party or by which it is bound,
the Certificate of Formation and the Partnership Agreement, any judgment,
decree, order or award of any court, governmental body or arbitrator by which
CPLP is bound, or any law, rule or regulation applicable to CPLP which
would have a material effect on the transactions contemplated
hereby.
SECTION
3.03 No Legal
Bar. CPLP is
not prohibited by any order, writ, injunction or decree of any body of competent
jurisdiction from consummating the transactions contemplated by this Agreement
and no such action or proceeding is pending or, to the best of its knowledge and
belief, threatened against CPLP which questions the validity of this Agreement,
any of the transactions contemplated hereby or any action which has been taken
by any of the parties in connection herewith or in connection with any of the
transactions contemplated hereby.
SECTION
3.04 Independent
Investigation. CPLP has had the
opportunity to conduct to its own satisfaction independent investigation, review
and analysis of the business, operations, assets, liabilities, results of
operations, financial condition and prospects of the Vessel A Owning Subsidiary
and, in making the determination to proceed with the transactions contemplated
hereby, has relied solely on the results of its own independent investigation
and the representations and warranties set forth in Articles IV, V and
VI.
SECTION 3.05 Good and
Marketable Title to Shares B. CPLP is the owner (of
record and beneficially) of all of the Shares B and has good and marketable
title to the Shares B, free and clear of any and all
Encumbrances. The Shares B constitute 100% of the issued and
outstanding Equity Interests of the Vessel B Owning
Subsidiary.
SECTION 3.06 The Shares
B. Assuming
CMTC has the requisite power and authority to be the lawful owner of the Shares
B, upon delivery to CMTC at the Closing of certificates representing the Shares
B, duly endorsed by CPLP for transfer to CMTC or accompanied by appropriate
instruments sufficient to evidence the transfer from CPLP to CMTC of the Shares
B under the Applicable Laws of the relevant jurisdiction, or delivery of such
Shares B by electronic means, CMTC shall own good and valid title to the Shares
B, free and clear of any Encumbrances, other than those arising from acts of the
CMTC Entities. Other than this Agreement and any related transaction
documents, the Organizational Documents B and restrictions imposed by Applicable
Law, at the Closing, the Shares B will not be subject to any voting trust
agreement or other contract, agreement, arrangement, commitment or understanding
restricting or otherwise relating to the voting, dividend rights or disposition
of the Shares B, other than any agreement to which any CMTC Entity is a
party.
ARTICLE
IV
Representations
and Warranties of CMTC
CMTC represents and warrants to CPLP
that as of the date hereof:
SECTION
4.01 Organization
and Corporate Authority. CMTC is duly incorporated,
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 this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by CMTC,
has been effectively authorized by all necessary action, corporate or otherwise,
and constitutes legal, valid and binding obligations of CMTC. No meeting has
been convened or resolution proposed or petition presented and no order has been
made to wind up CMTC.
SECTION
4.02 Agreement
Not in Breach. The execution and delivery
of this Agreement, the consummation of the transactions contemplated hereby and
the fulfillment of the terms hereof will not result in a breach of any of the
terms or provisions of, or constitute a default under, or conflict with, any
agreement or other instrument to which CMTC is a party or by which it is bound,
the Articles of Incorporation and Bylaws of CMTC, any judgment, decree, order or
award of any court, governmental body or arbitrator by which CMTC is bound, or
any law, rule or regulation applicable to CMTC which would have a material
effect on the transactions contemplated hereby.
SECTION
4.03 No Legal
Bar. CMTC is
not prohibited by any order, writ, injunction or decree of any body of competent
jurisdiction from consummating the transactions contemplated by this Agreement
and no such action or proceeding is pending or, to the best of its knowledge and
belief, threatened against CMTC which questions the validity of this Agreement,
any of the transactions contemplated hereby or any action which has been taken
by any of the parties in connection herewith or in connection with any of the
transactions contemplated hereby.
SECTION 4.04 Independent
Investigation. CMTC has had the
opportunity to conduct to its own satisfaction independent investigation, review
and analysis of the business, operations, assets, liabilities, results of
operations, financial condition and prospects of the Vessel B Owning Subsidiary
and, in making the determination to proceed with the transactions contemplated
hereby, has relied solely on the results of its own independent investigation
and the representations and warranties set forth in Articles IV, V and
VI.
SECTION
4.05 Good and
Marketable Title to Shares A. CMTC is the owner (of
record and beneficially) of all of the Shares A and has good and marketable
title to the Shares A, free and clear of any and all
Encumbrances. The Shares constitute 100% of the issued and
outstanding Equity Interests of the Vessel A Owning
Subsidiary.
SECTION
4.06 The Shares
A. Assuming
CPLP has the requisite power and authority to be the lawful owner of the Shares
A, upon delivery to CPLP at the Closing of certificates representing the Shares
A, duly endorsed by CMTC for transfer to CPLP or accompanied by appropriate
instruments sufficient to evidence the transfer from CMTC to CPLP of the Shares
A under the Applicable Laws of the relevant jurisdiction, or delivery of such
Shares A by electronic means, and upon CMTC’s receipt of the Purchase Price,
CPLP shall own good and valid title to the Shares A, free and clear of any
Encumbrances, other than those arising from acts of the CPLP
Entities. Other than this Agreement and any related transaction
documents, the Organizational Documents A and restrictions imposed by Applicable
Law, at the Closing, the Shares A will not be subject to any voting trust
agreement or other contract, agreement, arrangement, commitment or understanding
restricting or otherwise relating to the voting, dividend rights or disposition
of the Shares A, other than any agreement to which any CPLP Entity is a
party.
ARTICLE
V
(i)
Representations and Warranties of CMTC
Regarding the Vessel A Owning Subsidiary
CMTC represents and warrants to CPLP
that as of the date hereof:
SECTION
5.01 Organization
Good Standing and Authority. The Vessel A Owning
Subsidiary is a corporation duly incorporated, validly existing and in good
standing under the laws of the Republic of the Xxxxxxxx Islands. The
Vessel A Owning Subsidiary has full corporate power and authority to carry on
its business as it is now, and has since its incorporation been, conducted, and
is entitled to own, lease or operate the properties and assets it now owns,
leases or operates and to enter into legal and binding contracts. No
meeting has been convened or resolution proposed or petition presented and no
order has been made to wind up the Vessel A Owning
Subsidiary.
SECTION
5.02 Capitalization. The Shares A consist of
the 500 shares of common stock without par value and have been duly authorized
and validly issued and are fully paid and non-assessable, and constitute the
total issued and outstanding capital stock of the Vessel A Owning
Subsidiary. There are not outstanding (i) any options, warrants
or other rights to purchase from the Vessel A Owning Subsidiary any capital
stock of such Vessel A Owning Subsidiary, (ii) any securities convertible
into or exchangeable for shares of the capital stock of the Vessel A Owning
Subsidiary or (iii) any other commitments of any kind for the issuance of
additional shares of capital stock or options, warrants or other securities of
the Vessel A Owning Subsidiary.
SECTION
5.03 Organizational
Documents. CMTC
has supplied to CPLP true and correct copies of the organizational documents of
the Vessel A Owning Subsidiary, as in effect as of the date hereof (the
“Organizational
Documents A”).
SECTION
5.04 Agreement
Not in Breach. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will violate, or result in a breach of, any of the terms and provisions
of, or constitute a default under, or conflict with, or give any other party
thereto a right to terminate any agreement or other instrument to which the
Vessel A Owning Subsidiary is a party or by which it is bound including, without
limitation, any of the Organizational Documents A, or any judgment, decree,
order or award of any court, governmental body or arbitrator applicable to the
Vessel A Owning Subsidiary.
SECTION
5.05 Litigation.
(a). There
is no action, suit or proceeding to which the Vessel A Owning Subsidiary is a
party (either as a plaintiff or defendant) pending before any court or
governmental agency, authority or body or arbitrator; there is no action, suit
or proceeding threatened against the Vessel A Owning Subsidiary; and, to the
best knowledge of CMTC, there is no basis for any such action, suit or
proceeding;
(b). The
Vessel A Owning Subsidiary has not been permanently or temporarily enjoined by
any order, judgment or decree of any court or any governmental agency, authority
or body from engaging in or continuing any conduct or practice in connection
with its respective business, assets, or properties; and
(c). There
is not in existence any order, judgment or decree of any court or other tribunal
or other agency enjoining or requiring the Vessel A Owning Subsidiary to take
any action of any kind with respect to its respective business, assets or
properties.
SECTION
5.06 Indebtedness
to and from Officers, etc. The Vessel A Owning
Subsidiary will not be indebted, directly or indirectly, to any person who is an
officer, director, stockholder or employee of CMTC or any spouse, child, or
other relative or any affiliate of any such person, nor shall any such officer,
director, stockholder, employee, relative or affiliate be indebted to the Vessel
A Owning Subsidiary.
SECTION
5.07 Personnel. The Vessel A Owning
Subsidiary has no employees.
SECTION
5.08 Contracts
and Agreements. Other than the Charter A
and the Amendment to the Management Agreement (together, the “Contracts
A”), there are no material
contracts or agreements, written or oral, to which the Vessel A Owning
Subsidiary is a party or by which any of the assets of the Vessel A Owning
Subsidiary are bound.
(a) Each
of the Contracts A is a valid and binding agreement of the Vessel A Owning
Subsidiary, and to the best knowledge of CMTC, of all other parties
thereto;
(b) The
Vessel A Owning Subsidiary has fulfilled all material obligations required
pursuant to its Contracts A to have been performed by it prior to the date
hereof and has not waived any material rights thereunder; and
(c) There
has not occurred any material default on the part of the Vessel A Owning
Subsidiary under any of the Contracts A, or to the best knowledge of CMTC, on
the part of any other party thereto nor has any event occurred which with the
giving of notice or the lapse of time, or both, would constitute any material
default on the part of the Vessel A Owning Subsidiary under any of the Contracts
A nor, to the best knowledge of CMTC, has any event occurred which with the
giving of notice or the lapse of time, or both, would constitute any material
default on the part of any other party to any of the Contracts A.
SECTION
5.09 Compliance
with Law. The
conduct of business by the Vessel A Owning Subsidiary does not and the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby will not violate any laws, statutes, ordinances, rules,
regulations, decrees, orders, permits or other similar items in force
(including, but not limited to, any of the foregoing relating to employment
discrimination, environmental protection or conservation) of any country,
province, state or other governing body, the enforcement of which would
materially and adversely affect the business, assets, condition (financial or
otherwise) or prospects of the Vessel A Owning Subsidiary taken as a whole, nor
has the Vessel A Owning Subsidiary received any notice of any such
violation.
SECTION
5.10 No
Undisclosed Liabilities. The Vessel A Owning
Subsidiary (and the Vessel A owned by it) has no liabilities or obligations of
any nature, whether absolute, accrued, contingent or otherwise, and whether due
or to become due (including, without limitation, any liability for Taxes and
interest, penalties and other charges payable with respect to any such liability
or obligation). Notwithstanding the foregoing, the Parties acknowledge and agree
that there may be obligations under the Contracts A that are not due and payable
as of the date hereof and that will be the responsibility of CMTC pursuant to
Section 9.01(c) of this Agreement.
SECTION 5.11 Disclosure
of Information. CMTC has disclosed to CPLP
all material information on, and about, the Vessel A Owning Subsidiary and the
Vessel A and all such information is true, accurate and not misleading in any
material respect. Nothing has been withheld from the material provided to CPLP
which would render such information untrue or misleading.
SECTION
5.12 Payment of
Taxes. The
Vessel A Owning Subsidiary has filed all foreign, federal, state and local
income and franchise tax returns required to be filed, which returns are correct
and complete in all material respects, and has timely paid all taxes due from
it, and the Vessel A is in good standing with respect to the payment of past and
current Taxes, fees and other amounts payable under the laws of the jurisdiction
where it is registered as would affect its registry with the ship registry of
such jurisdiction.
SECTION
5.13 Permits. The Vessel A Owning
Subsidiary has such permits, consents, licenses, franchises, concessions,
certificates and authorizations (“Permits”) of, and has all declarations and
filings with, and is qualified and in good standing in each jurisdiction of, all
federal, provincial, state, local or foreign Governmental Authorities and other
Persons, as are necessary to own or lease its properties and to conduct its
business in the manner that is standard and customary for a business of its
nature other than such Permits the absence of which, individually or in the
aggregate, has not and could not reasonably be expected to materially or
adversely affect the Vessel A Owning Subsidiary. The Vessel A Owning
Subsidiary has fulfilled and performed all its obligations with respect to such
Permits which are or will be due to have been fulfilled and performed by such
date and no event has occurred that would prevent the Permits from being renewed
or reissued or that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results or would result in any impairment
of the rights of the holder of any such Permit, except for such non-renewals,
non-issues, revocations, terminations and impairments that would not,
individually or in the aggregate, materially or adversely affect the Vessel A
Owning Subsidiary, and none of such Permits contains any restriction that is
materially burdensome to the Vessel A Owning Subsidiary.
SECTION
5.14 No Material
Adverse Change in Business. Since December 31,
2008, there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, properties,
business affairs or business prospects of the Vessel A Owning Subsidiary,
whether or not arising in the ordinary course of business, that would have or
could reasonably be expected to have a material adverse effect on the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Vessel A Owning Subsidiary.
(ii) Representations and Warranties
of CPLP Regarding the Vessel B Owning Subsidiary
CPLP
represents and warrants to CMTC that as of the date hereof:
SECTION 5.15 Organization
Good Standing and Authority. The Vessel B Owning
Subsidiary is a corporation duly incorporated, validly existing and in good
standing under the laws of the Republic of the Xxxxxxxx Islands. The
Vessel B Owning Subsidiary has full corporate power and authority to carry on
its business as it is now, and has since its incorporation been, conducted, and
is entitled to own, lease or operate the properties and assets it now owns,
leases or operates and to enter into legal and binding contracts. No
meeting has been convened or resolution proposed or petition presented and no
order has been made to wind up the Vessel B Owning
Subsidiary.
SECTION 5.16 Capitalization. The Shares B consist of
the 500 shares of common stock without par value and have been duly authorized
and validly issued and are fully paid and non-assessable, and constitute the
total issued and outstanding capital stock of the Vessel B Owning
Subsidiary. There are not outstanding (i) any options, warrants
or other rights to purchase from the Vessel B Owning Subsidiary any capital
stock of such Vessel B Owning Subsidiary, (ii) any securities convertible
into or exchangeable for shares of the capital stock of the Vessel B Owning
Subsidiary or (iii) any other commitments of any kind for the issuance of
additional shares of capital stock or options, warrants or other securities of
the Vessel B Owning Subsidiary.
SECTION 5.17 Organizational
Documents. CPLP
has supplied to CMTC true and correct copies of the organizational documents of
the Vessel B Owning Subsidiary, as in effect as of the date hereof (the
“Organizational
Documents B”).
SECTION 5.18 Agreement
Not in Breach. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will violate, or result in a breach of, any of the terms and provisions
of, or constitute a default under, or conflict with, or give any other party
thereto a right to terminate any agreement or other instrument to which the
Vessel B Owning Subsidiary is a party or by which it is bound including, without
limitation, any of the Organizational Documents B, or any judgment, decree,
order or award of any court, governmental body or arbitrator applicable to the
Vessel B Owning Subsidiary.
SECTION 5.19 Litigation.
(a) There
is no action, suit or proceeding to which the Vessel B Owning Subsidiary is a
party (either as a plaintiff or defendant) pending before any court or
governmental agency, authority or body or arbitrator; there is no action, suit
or proceeding threatened against the Vessel B Owning Subsidiary; and, to the
best knowledge of CPLP, there is no basis for any such action, suit or
proceeding;
(b) The
Vessel B Owning Subsidiary has not been permanently or temporarily enjoined by
any order, judgment or decree of any court or any governmental agency, authority
or body from engaging in or continuing any conduct or practice in connection
with its respective business, assets, or properties; and
(c). There
is not in existence any order, judgment or decree of any court or other tribunal
or other agency enjoining or requiring the Vessel B Owning Subsidiary to take
any action of any kind with respect to its respective business, assets or
properties.
SECTION 5.20 Indebtedness
to and from Officers, etc. The Vessel B Owning
Subsidiary will not be indebted, directly or indirectly, to any person who is an
officer, director, stockholder or employee of CPLP or any spouse, child, or
other relative or any affiliate of any such person, nor shall any such officer,
director, stockholder, employee, relative or affiliate be indebted to the Vessel
B Owning Subsidiary.
SECTION 5.21 Personnel. The Vessel B Owning
Subsidiary has no employees.
SECTION 5.22 Contracts
and Agreements. There are no material
contracts or agreements, written or oral, to which the Vessel B Owning
Subsidiary is a party or by which any of the assets of the Vessel B Owning
Subsidiary are bound.
SECTION 5.23 Compliance
with Law. The
conduct of business by the Vessel B Owning Subsidiary does not and the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby will not violate any laws, statutes, ordinances, rules,
regulations, decrees, orders, permits or other similar items in force
(including, but not limited to, any of the foregoing relating to employment
discrimination, environmental protection or conservation) of any country,
province, state or other governing body, the enforcement of which would
materially and adversely affect the business, assets, condition (financial or
otherwise) or prospects of the Vessel B Owning Subsidiary taken as a whole, nor
has the Vessel B Owning Subsidiary received any notice of any such
violation.
SECTION 5.24 No
Undisclosed Liabilities. The Vessel B Owning
Subsidiary (and the Vessel B owned by it) has no liabilities or obligations of
any nature, whether absolute, accrued, contingent or otherwise, and whether due
or to become due (including, without limitation, any liability for Taxes and
interest, penalties and other charges payable with respect to any such liability
or obligation). Notwithstanding the foregoing, the Parties acknowledge and agree
that there may be obligations under the Contracts B that are not due and payable
as of the date hereof and that will be the responsibility of CPLP pursuant to
Section 9.01(c) of this Agreement.
SECTION 5.25 Disclosure
of Information. CPLP has disclosed to CMTC
all material information on, and about, the Vessel B Owning Subsidiary and the
Vessel and all such information is true, accurate and not misleading in any
material respect. Nothing has been withheld from the material provided to CMTC
which would render such information untrue or misleading.
SECTION 5.26 Payment of
Taxes. The
Vessel B Owning Subsidiary has filed all foreign, federal, state and local
income and franchise tax returns required to be filed, which returns are correct
and complete in all material respects, and has timely paid all taxes due from
it, and the Vessel B is in good standing with respect to the payment of past and
current Taxes, fees and other amounts payable under the laws of the jurisdiction
where it is registered as would affect its registry with the ship registry of
such jurisdiction.
SECTION 5.27 Permits. The Vessel B Owning
Subsidiary has such Permits of, and has all declarations and filings with, and
is qualified and in good standing in each jurisdiction of, all federal,
provincial, state, local or foreign Governmental Authorities and other Persons,
as are necessary to own or lease its properties and to conduct its business in
the manner that is standard and customary for a business of its nature other
than such Permits the absence of which, individually or in the aggregate, has
not and could not reasonably be expected to materially or adversely affect the
Vessel B Owning Subsidiary. The Vessel B Owning Subsidiary has
fulfilled and performed all its obligations with respect to such Permits which
are or will be due to have been fulfilled and performed by such date and no
event has occurred that would prevent the Permits from being renewed or reissued
or that allows, or after notice or lapse of time would allow, revocation or
termination thereof or results or would result in any impairment of the rights
of the holder of any such Permit, except for such non-renewals, non-issues,
revocations, terminations and impairments that would not, individually or in the
aggregate, materially or adversely affect the Vessel B Owning Subsidiary, and
none of such Permits contains any restriction that is materially burdensome to
the Vessel B Owning Subsidiary.
SECTION 5.28 No Material
Adverse Change in Business. Since December 31,
2008, there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, properties,
business affairs or business prospects of the Vessel B Owning Subsidiary,
whether or not arising in the ordinary course of business, that would have or
could reasonably be expected to have a material adverse effect on the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Vessel B Owning Subsidiary.
ARTICLE
VI
(i) Representations and Warranties of CMTC
regarding the Vessel A
CMTC
represents and warrants to CPLP that as of the date hereof:
SECTION
6.01 Title to
Vessel. (a) The
Vessel A Owning Subsidiary is the owner (beneficially and of record) of the
Vessel A and has good and marketable title to the Vessel.
SECTION
6.02 No
Encumbrances. The Vessel A Owning
Subsidiary and the Vessel A are free of all Encumbrances other than the
Encumbrances arising under the Charter A.
SECTION
6.03 Condition. The Vessel A is (i)
adequate and suitable for use by the Vessel A Owning Subsidiary in the manner
that is standard and customary for a vessel of its type, ordinary wear and tear
excepted; (ii) seaworthy in all material respects for hull and machinery
insurance warranty purposes and in good running order and repair; (iii) insured
against all risks, and in amounts, consistent with common industry practices;
(iv) in compliance with maritime laws and regulations; and (v) in compliance in
all material respects with the requirements of its class and classification
society; and all class certificates of the Vessel are clean and valid and free
of recommendations affecting class; and CPLP acknowledges and agrees that,
subject only to the representations and warranties in this Agreement, it is
acquiring the Vessel A on an “as is, where is” basis.
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(ii)
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Representations
and Warranties of CPLP regarding the Vessel
B
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CPLP
represents and warrants to CMTC that as of the date hereof:
SECTION 6.04 Title to
Vessel. (a) The
Vessel B Owning Subsidiary is the owner (beneficially) of the Vessel B and has
good and marketable title to the Vessel.
SECTION 6.05 No
Encumbrances. The Vessel B Owning
Subsidiary and the Vessel B are free of all Encumbrances.
SECTION 6.06 Condition. The Vessel B is (i)
adequate and suitable for use by the Vessel B Owning Subsidiary in the manner
that is standard and customary for a vessel of its type, ordinary wear and tear
excepted; (ii) seaworthy in all material respects for hull and machinery
insurance warranty purposes and in good running order and repair; (iii) insured
against all risks, and in amounts, consistent with common industry practices;
(iv) in compliance with maritime laws and regulations; and (v) in compliance in
all material respects with the requirements of its class and classification
society; and all class certificates of the Vessel are clean and valid and free
of recommendations affecting class;
Notwithstanding
the above it is agreed that the Vessel B shall be delivered to
CMTC:
a) Free
of cargo, hot washed and free of slops with gas free tanks together with a gas
free certificate suitable for man entry, and
b) CMTC
will have the right, at its own risk, time and expense, to carry out an
inspection of the Vessel B’s underwater parts by class approved divers. CPLP
shall arrange at its own expense to have a class surveyor attending such diving
inspection. If any damage is found to the Vessel’s underwater parts which the
Vessel B’s classification society confirms is affecting the Vessel B’s clean
certificate of class, then CPLP shall repair such damage to the reasonable
satisfaction of the Vessel B’s class society and of CMTC, at CPLP’s time and
expense.
c) CPLP
shall be responsible for repairs or renewals occasioned by latent defects in the
Vessel B, her machinery or appurtenances, existing at the time of delivery under
this Agreement, provided such defects have manifested themselves within six (6)
months after delivery.
d) CPLP
shall at its own cost supply the Vessel B with all parts for the proper and safe
running of the Vessel B.
ARTICLE
VII
Covenants
SECTION
7.01 Financial
Statements.
(i)
CMTC agrees to cause the Vessel A Owning Subsidiary to provide access to the
books and records of the Vessel A Owning Subsidiary to allow CPLP’s outside
auditing firm to prepare at CPLP’s expense any information, review or audit CPLP
reasonably believes is required to be furnished or provided by CPLP pursuant to
applicable securities laws. CMTC will (A) direct its auditors to
provide CPLP’s auditors access to the auditors’ work papers and (B) use its
commercially reasonable efforts to assist CPLP with any such information, review
or audit and to provide other financial information reasonably requested by CPLP
or its auditors, including the delivery by CMTC Entities of any information,
letters and similar documentation, including reasonable “management
representation letters” and attestations.
(ii) CPLP agrees to cause the Vessel
B Owning Subsidiary to provide access to the books and records of the Vessel A
Owning Subsidiary to allow CMTC’s outside auditing firm to prepare at CMTC’s
expense any information, review or audit CMTC reasonably believes is required to
be furnished or provided by CMTC pursuant to applicable securities
laws. CPLP will (A) direct its auditors to provide CMTC’s auditors
access to the auditors’ work papers and (B) use its commercially reasonable
efforts to assist CMTC with any such information, review or audit and to provide
other financial information reasonably requested by CMTC or its auditors,
including the delivery by CPLP Entities of any information, letters and similar
documentation, including reasonable “management representation letters” and
attestations.
ARTICLE
VIII
Amendments
and Waivers
SECTION
8.01 Amendments
and Waivers. This Agreement may not be
amended except by an instrument in writing signed on behalf of each parties
hereto. By an instrument in writing CPLP, on the one hand, or CMTC,
on the other hand, may waive compliance by the other with any term or provision
of this Agreement that such other party was or is obligated to comply with or
perform.
ARTICLE
IX
Indemnification
SECTION
9.01 Indemnity
by the Parties.
CMTC
shall be liable for, and shall indemnify CPLP and each of its subsidiaries and
each of their directors, employees, agents and representatives (the “CPLP Indemnitees”)
against and hold them harmless from, any Losses, suffered or incurred by such
CPLP Indemnitee:
(a) by
reason of, arising out of or otherwise in respect of any inaccuracy in, or
breach of, any representation or warranty (without giving effect to any
supplement to the schedules or qualifications as to materiality or dollar amount
or other similar qualifications), or a failure to perform or observe any
covenant, agreement or obligation of, CMTC in or under this Agreement or in or
under any document, instrument or agreement delivered pursuant to this Agreement
by CMTC;
(b) any
fees, expenses or other payments incurred or owed by CMTC or the Vessel A Owning
Subsidiary to any brokers, financial advisors or comparable other persons
retained or employed by it in connection with the transactions contemplated by
this Agreement; or
(c) by
reason of, arising out of or otherwise in respect of obligations, liabilities,
expenses, cost and claims relating to, arising from or otherwise attributable to
the assets owned by the Vessel A Owning Subsidiary or the assets, operations,
and obligations of the Vessel A Owning Subsidiary or the businesses thereof, in
each case, to the extent relating to, arising from, or otherwise attributable to
facts, circumstances or events occurring prior to the Closing Date.
CPLP
shall be liable for, and shall indemnify CMTC and each of its subsidiaries and
each of their directors, employees, agents and representatives (the “CMTC Indemnitees”)
against and hold them harmless from, any Losses, suffered or incurred by such
CMTC Indemnitee:
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(a)
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by
reason of, arising out of or otherwise in respect of any inaccuracy in, or
breach of, any representation or warranty (without giving effect to any
supplement to the schedules or qualifications as to materiality or dollar
amount or other similar qualifications), or a failure to perform or
observe any covenant, agreement or obligation of, CPLP in or under this
Agreement or in or under any document, instrument or agreement delivered
pursuant to this Agreement by CPLP;
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(b)
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any
fees, expenses or other payments incurred or owed by CPLP or the Vessel B
Owning Subsidiary to any brokers, financial advisors or comparable other
persons retained or employed by it in connection with the transactions
contemplated by this Agreement; or
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(c)
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by
reason of, arising out of or otherwise in respect of obligations,
liabilities, expenses, cost and claims relating to, arising from or
otherwise attributable to the assets owned by the Vessel B Owning
Subsidiary or the assets, operations, and obligations of the Vessel B
Owning Subsidiary or the businesses thereof, in each case, to the extent
relating to, arising from, or otherwise attributable to facts,
circumstances or events occurring prior to the Closing
Date.
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SECTION
9.02 Exclusive
Post-Closing Remedy. After the Closing, and
except for any non-monetary, equitable relief to which any Party may be
entitled, or any remedies for willful misconduct or actual fraud, the rights and
remedies set forth in this Article IX shall constitute the sole and exclusive
rights and remedies of the Parties under or with respect to the subject matter
of this Agreement.
ARTICLE
X
Miscellaneous
SECTION
10.01 Governing
Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York applicable to contracts made and to be performed wholly
within such jurisdiction without giving effect to conflict of law principles
thereof other than Section 5-1401 of the New York General Obligations Law,
except to the extent that it is mandatory that the law of some other
jurisdiction, wherein the Vessel is located, shall apply.
SECTION
10.02 Counterparts. This Agreement may be
executed simultaneously in one or more counterparts, each of which shall be
deemed an original, but all of which shall constitute but one and the same
instrument.
SECTION
10.03 Complete
Agreement. This
Agreement and Schedules hereto contain the entire agreement between the parties
hereto with respect to the transactions contemplated herein and, except as
provided herein, supersede all previous oral and written and all contemporaneous
oral negotiations, commitments, writings and understandings.
SECTION
10.04 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.
SECTION
10.05 Severability. If any of the provisions
of this Agreement are held by any court of competent jurisdiction to contravene,
or to be invalid under, the laws of any governmental body having jurisdiction
over the subject matter hereof, such contravention or invalidity shall not
invalidate the entire Agreement. Instead, this Agreement shall be
construed as if it did not contain the particular provision or provisions held
to be invalid, and an equitable adjustment shall be made and necessary provision
added so as to give effect, as nearly as possible, to the intention of the
Parties as expressed in this Agreement at the time of execution of this
Agreement.
SECTION
10.06 Third Party
Rights. Except
to the extent provided in Article
IX, a Person who is not a
party to this Agreement has no right to enforce or to enjoy the benefit of any
term of this Agreement.
SECTION
10.07 Notices. Any notice, claim or
demand in connection with this Agreement shall be delivered to the parties at
the following addresses (or at such other address or facsimile number for a
party as may be designated by notice by such party to the other
party):
(a). if
to Capital Maritime & Trading Corp., as follows:
c/o
Capital Ship Management Corp., 0 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx
Attention: Nikolaos
Syntichakis
Facsimile: x00
000 000 0000
(b). if
to Capital Product Partners L.P., as follows:
c/o
Capital Ship Management Corp., 0 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx
Attention: Xxxxxxx
X. Xxxxxxxxx
Facsimile: x00
000 000 0000
and any
such notice shall be deemed to have been received (i) on the next working
day in the place to which it is sent, if sent by facsimile or (ii) forty
eight (48) hours from the time of dispatch, if sent by courier.
SECTION
10.08 Representations
and Warranties to Survive. All representations and
warranties of CPLP and CMTC contained in this Agreement shall survive the
Closing and shall remain operative and in full force and effect after the
Closing, regardless of (a) any investigation made by or on behalf of any Party
or its affiliates, any Person controlling any Party, its officers or directors,
and (b) delivery of and payment for the Shares.
SECTION
10.09 Remedies. Except as expressly
provided in Section 9.02, the rights, obligations and remedies created by this
Agreement are cumulative and in addition to any other rights, obligations or
remedies otherwise available at law or in equity. Except as expressly
provided in this Agreement, nothing in this Agreement will be considered an
election of remedies.
SECTION
10.10 Non-recourse
to General Partner. Neither CPLP’s general
partner nor any other owner of Equity Interests in CPLP shall be liable for the
obligations of CPLP under this Agreement or any of the related transaction
documents, including, in each case, by reason of any payment obligation imposed
by governing partnership statutes.
IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be signed as of the date first above
written.
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CAPITAL
MARITIME & TRADING CORP.
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By:
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Name:
Xxxxxxxxx X. Xxxxxxxxx
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Title:
President and Chief Executive Officer
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By:
Capital GP L.L.C., its general partner
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By:
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Name: Xxxxxxx
X. Xxxxxxxxx
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Title:
Chief Executive Officer and Chief
Financial
Officer of Capital GP, L.L.C.
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