AMENDMENT TO SHARE PURCHASE AGREEMENT
AMENDMENT
TO SHARE PURCHASE AGREEMENT
This
AMENDMENT TO SHARE PURCHASE AGREEMENT (this “Amendment”), dated as of June 29,
2009, is made by and between ANEMOS MARITIME HOLDINGS INC. (the “Seller”), a
wholly-owned subsidiary of Navios Maritime Holdings Inc. (“NMHI”) and a
corporation organized under the laws of the Republic of the Xxxxxxxx Islands,
and NAVIOS MARITIME PARTNERS L.P. (the “Buyer,” and together with Seller, the
“Parties”), a limited partnership organized under the laws of the Republic of
the Xxxxxxxx Islands.
WITNESSETH:
WHEREAS,
the Parties are currently parties to that certain Share Purchase Agreement,
dated as of November 16, 2007 (the “Share Purchase Agreement”);
WHEREAS, Buyer, NMHI, Navios GP
L.L.C., a Xxxxxxxx Islands limited liability company, and Navios Maritime
Operating L.L.C., a Xxxxxxxx Islands limited liability company (together, the
“Navios Entities”), are currently parties to that certain Omnibus Agreement,
dated as of November 16, 2007 (the “Omnibus Agreement”); and
WHEREAS,
the Parties and the other Navios Entities desire to amend the Share Purchase
Agreement, as set forth herein, and the Omnibus Agreement, as set forth in that
certain Amendment to Omnibus Agreement, dated of even date herewith, in
consideration for the issuance by Buyer to NMHI of 1,000,000 Subordinated Series
A Units of the Buyer pursuant to that certain Subscription Agreement, dated June
9, 2009, attached hereto as Exhibit A;
capitalized terms used herein and not otherwise defined shall have the meanings
given such terms in the Share Purchase Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. The
first recital of the Share Purchase Agreement is hereby deleted in its entirety
and replaced by the following:
“WHEREAS,
the Buyer may wish to purchase from the Seller, and the Seller wishes to sell to
the Buyer, subject to the terms and conditions set forth herein, the shares of
common stock as set forth on Schedule C to this Agreement (the “Shares”)
representing all of the issued and outstanding shares of common stock of the
vessel owning subsidiary that will take delivery of the Capesize vessel (the
“Vessel”) as set forth in Schedule A hereto (the “Vessel Owning
Subsidiary”).”
2. The
following definitions are hereby added to Section 1.01 of the Share Purchase
Agreement:
“Election Notice” has
the meaning given to it in Section 2.01(b); and
“Notice Period” means
the term commencing at 12:01 am, New York time, on June 29, 2009 and ending at
11:59 pm, New York time on June 29, 2010;
3. Article
II of the Share Purchase Agreement is hereby deleted in its entirety and
replaced by the following:
“ARTICLE II
Purchase and Sale of Shares;
Closing
SECTION
2.01 Purchase and Sale of
Shares.
(a) The
Seller agrees to sell and transfer to the Buyer, and, subject to the provisions
of Section 2.01(b), the Buyer agrees to purchase from the Seller for the
Purchase Price and in accordance with and subject to the terms and conditions
set forth in this Agreement, the Shares.
(b) Notwithstanding
the provisions of Section 2.01(a), the Buyer shall not be obligated to purchase
the Shares from the Seller unless the Buyer shall have delivered to the Seller
at any time during the Notice Period a written notice indicating an affirmative
election to purchase the Shares (“Election Notice”). The Buyer shall have the
sole discretion to determine whether to deliver an Election Notice to the
Seller. If the Election Notice has not been delivered by the Buyer to the Seller
at any time during the Notice Period, any and all rights and obligations of the
Buyer and the Seller set forth in this Agreement shall expire and terminate upon
the expiration of the Notice Period.
SECTION
2.02 Closing. On the terms
and subject to the conditions of this Agreement, the sale and transfer of the
Shares and payment of the Purchase Price shall take place on a date that is
within five (5) Business Days of the delivery of the Election Notice by the
Buyer to the Seller as set forth in Section 2.01(b) or on such other date as may
be agreed upon in writing by the Seller and the Buyer (the “Time of Closing”);
provided that
if any such sale and transfer of the Shares is scheduled to occur on the
Delivery Date, the Time of Closing must be after the registration of the Vessel
in the name of the Vessel Owning Subsidiary. The sale and transfer of the Shares
is hereinafter referred to as the “Closing.”
SECTION
2.03 Place
of Closing. The Closing shall occur at a place agreed upon in writing by
the Seller and the Buyer.
SECTION
2.04 Purchase Price for the
Shares. At the Time of Closing, the Buyer shall pay to the Seller (to
such account as the Seller shall nominate) the amount set out on Schedule B
across from the Vessel Owning Subsidiary’s name, for the Shares (the “Purchase
Price”).
SECTION
2.05 Payment of the Purchase
Price. The Purchase Price will be paid by the Buyer to the Seller by wire
transfer of immediately available funds to an account designated in writing by
the Seller.
SECTION
2.06 [Intentionally omitted.]”
4. Section
8.02(d) of the Share Purchase Agreement is hereby deleted in its entirety and
replaced by the following:
“(d) “the
Buyer shall have obtained the funds necessary to consummate the purchase and
sale of the Shares, to refinance all indebtedness the Buyer is required to
refinance as a result of the purchase and sale of the Shares and to pay all
related fees and expenses;”
3. Section
8.02(f) of the Share Purchase Agreement is hereby deleted in its entirety and
replaced by the following:
“(f) the
Buyer shall have delivered the Election Notice to the Seller during the Notice
Period; and
(g) all
proceedings to be taken in connection with the transaction contemplated by this
Agreement and all documents incidental thereto shall be reasonably satisfactory
in form and substance to the Buyer and its counsel, and the Buyer shall have
received copies of all such documents and other evidence as it or its counsel
may reasonably request in order to establish the consummation of such
transaction and the taking of all proceedings in connection
therewith.”
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4. Section
9.01 of the Share Purchase Agreement is hereby deleted in its entirety and
replaced by the following:
“SECTION
9.01 Termination of
Agreement. Notwithstanding anything to the contrary in this Agreement,
this Agreement may be terminated and the purchase and sale of the Vessel Owning
Subsidiary contemplated by this Agreement abandoned at any time prior to the
Closing:
(a) by
mutual written consent of the Seller and the Buyer;
(b) without
any further action by either the Buyer or the Seller if, by the expiration of
the Notice Period, the Election Notice has not been delivered by the Buyer to
the Seller at any time during the Notice Period;
(c) by
the Seller if any of the conditions set forth in Section 8.01 shall have become
incapable of fulfillment, and shall not have been waived by the Seller;
or
(d) by
the Buyer if any of the conditions set forth in Section 8.02 shall have become
incapable of fulfillment, and shall not have been waived by the
Buyer.
provided, however, that the
party seeking termination pursuant to clause (c) or (d) is not then in material
breach of any of its representations, warranties, covenants or agreements
contained in this Agreement.”
5. Section
9.02(b) of the Share Purchase Agreement is hereby deleted in its entirety and
replaced by the following:
“(b) [Intentionally
omitted.]”
6. Schedule
B of the Share Purchase Agreement is hereby deleted in its entirety and replaced
with Exhibit B
hereto.
7. Except
as modified by this Amendment, all other terms and conditions in the Share
Purchase Agreement shall remain in full force and effect.
8. Unless
the context otherwise requires, the Share Purchase Agreement and this Amendment
shall be read together and shall have effect as if the provisions of the Share
Purchase Agreement and this Amendment were contained in one
agreement. After the effective date of this Amendment, all references
in the Share Purchase Agreement to “this Agreement,” “hereto,” “hereof,”
“hereunder” or words of like import referring to the Share Purchase Agreement
shall mean the Share Purchase Agreement as amended by this
Amendment.
9. This
Amendment may be executed in separate counterparts, all of which taken together
shall constitute a single instrument.
10. This
Amendment shall be governed by, and construed in accordance with, the laws of
the Republic of the Xxxxxxxx Islands applicable to contracts made and to be
performed wholly within such jurisdiction without giving effect to conflict of
law principles thereof, except to the extent that it is mandatory that the law
of some other jurisdiction, such as wherein the Vessel is located, shall
apply.
[The remainder of this page has been
intentionally left blank]
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IN WITNESS WHEREOF, the
parties hereto have executed this Amendment as of the day and year first above
written.
| ANEMOS MARITIME HOLDINGS INC. | |||
|
|
By:
|
/s/ Xxxxxx Akhniotis | |
| Name: | Xxxxxx Akhniotis | ||
| Title: | Director/President | ||
| NAVIOS MARITIME PARTNERS L.P. | |||
| By: | /s/ Xxxxxxx XxXxxxx | ||
| Name: | Xxxxxxx XxXxxxx | ||
| Title: | Chief Financial Officer | ||
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Exhibit
A
SUBSCRIPTION
AGREEMENT
Exhibit B
SCHEDULE
B
PURCHASE
PRICE
|
Vessel Owning Subsidiary
|
Purchase Price
(U.S. Dollars)
|
|||
|
Nostos
Shipmanagement Corp.
|
$
|
125,000,000
|
||
|
|
