AGREEMENT
AGREEMENT
THIS
AGREEMENT (this “Agreement”) is made
and entered into as of June 17, 2009 but shall be effective as of the Effective
Date (defined herein), by and among III to I Maritime Partners Cayman I, L.P.
(the “Partnership”), III to
I International Maritime Solutions Cayman, Inc. (the “General Partner”),
IMS Capital Partners, LLC (“IMS Capital
Partners”) and Kronos Shipping I, Ltd. (“Kronos”).
Recitals
WHEREAS, IMS Holdings and the Xxxxxxx
Group (“Xxxxxxx”) have
entered into that certain Memorandum of Agreement dated as of November 13, 2007
between III to I IMS Holdings LLC (“IMS Holdings”) and
Xxxxxxx, as amended by Addendum No. 1 dated as of July 6, 2008 (as amended,
supplemented, amended and restated, the “Original MOA”)
whereby IMS Holdings or its nominee agreed to place an order for one IMO II
Chemical/Product tanker (the “Tanker”) from Nantong
Mingde Heavy Industry Stock Co., Ltd. through Xxxxxxx;
WHEREAS, Kronos, a wholly owned
subsidiary of the Partnership, has entered into that certain Memorandum of
Agreement dated as of April 25, 2009 between Kronos and Xxxxxx Shipping Co. Ltd.
(“Xxxxxx”), an
affiliate of Xxxxxxx, whereby the Original MOA was amended and restated in its
entirety and is attached hereto as Exhibit A (as
amended, the “MOA”);
WHEREAS, IMS Capital Partners has paid
amounts totaling $4,138,946.23 to Xxxxxx (and any other third parties as
identified on Exhibit
A) pursuant to the Original MOA and in the amounts and times set forth as
on Exhibit B
(the “Amounts
Paid”);
WHEREAS, in order to fund the Amounts
Paid, certain inter company loans were made and notes were issued by (i) IMS
Capital Partners in favor of IMS Holdings and (ii) IMS Holdings in favor of the
Partnership, as set forth in Exhibit C (the “Notes”);
WHEREAS, the Partnership desires for
any and all rights and obligations in connection with the Original MOA, the MOA
and the Amounts Paid owned by IMS Capital Partners and IMS Holdings to be
transferred and assigned to its wholly owned subsidiary, Kronos (the “Transfer”);
WHEREAS, as consideration for the
Transfer, each of IMS Holdings and IMS Capital Partners shall no longer have any
rights or obligations in connection with the Tanker or the MOA; and
WHEREAS, in order to give effect to the
Transfer and as consideration, (i) the Partnership has agreed to assign those
certain Notes payable to it by IMS Holdings and the underlying amounts
receivable in connection therewith, totaling $4,138,946.23 including interest
accrued thereon, to IMS Capital Partners in exchange for IMS Capital Partner’s
consent to the execution of the MOA and the transfer of the rights thereby, and
any right to the return of any Amounts Paid to Kronos and (ii) Kronos will
accept transfer of said rights and credit the Partnership with additional paid
in capital in the amount of $4,138,946.23 (the “Contribution”).
Agreement
In
consideration of the premises, mutual promises, representations, warranties,
covenants and conditions set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledge, the parties hereto hereby agree as follows:
ARTICLE
I
CONTRIBUTION
1.1 Transfer. On
the terms and subject to the conditions of this Agreement, upon the Effective
Date the Transfer and Contribution shall be deemed to be
consummated. Each party hereto acknowledges receipt of the
consideration set for in the Recitals above as to be received by such
party.
1.2 Effects of
Transfer. Immediately
upon the consummation of the Transfer and Contribution, legal title to the
Original MOA, the MOA, and all rights and obligations in connection therewith
and in connection with the Tanker shall be deemed to be transferred to and
assumed by Kronos, and IMS Holdings and IMS Capital Partners shall have no
further rights or obligations with respect to the Original MOA, the MOA or the
Tanker.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES
As a
material inducement for each party to enter into this Agreement, each of the
parties below hereby severally represents and warrants that:
2.1 Authorization. Such
party has full power and authority to enter into this Agreement and this
Agreement constitutes its valid and legally binding obligation, enforceable in
accordance with its terms.
2.2 Rights in
MOA. Each
of IMS Holdings and IMS Capital Partners represents that such entity is
transferring all of its rights in connection with the Original MOA and the MOA
to Kronos.
ARTICLE
III
MISCELLANEOUS
3.1 Effective
Date. This Agreement shall be effective as of April 25, 2009,
the date upon which the MOA was entered into (the “Effective
Date”).
2
3.2 Further
Actions. Each of IMS Holdings and IMS Capital Partners hereby agrees
that each entity will do any and all acts requested by the Partnership or Kronos
in the future to give effect to the Transfer and the Contribution, including the
execution of any documents necessary to give such effect.
3.3 Amendment and
Waiver. This
Agreement may be amended and any provision of this Agreement may be waived only
if such amendment or waiver is set forth in writing and executed by each of the
Partnership, IMS Capital Partners and Kronos and acknowledged by IMS
Holdings. No course of dealing between or among any persons having
any interest in this Agreement will be deemed effective to modify, amend or
discharge any part of this Agreement or any rights or obligations of any party
under or by reason of this Agreement.
3.4 Binding Agreement;
Assignment. The provisions of this Agreement shall inure to the
benefit of and be binding upon the Partnership, IMS Holdings, IMS Capital
Partners and Kronos and their respective successors and assigns, whether or not
any such person shall have become a party to this Agreement; provided, however,
that no party may assign its rights or delegate its duties hereunder without the
prior written consent of the other parties hereto. Any purported
assignment in violation of this Section 3.4 shall be void and of no force or
effect.
3.5 Severability. Whenever
possible, each provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or the
remaining provisions of this Agreement.
3.6 No Strict
Construction. The
language used in this Agreement will be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any person.
3.7 Headings;
Interpretation. The
headings used in this Agreement are for convenience of reference only and do not
constitute a part of this Agreement and will not be deemed to limit,
characterize or in any way affect any provision of this Agreement, and all
provisions of this Agreement will be enforced and construed as if no caption had
been used in this Agreement. Whenever the term “including” is used in
this Agreement (whether or not that term is followed by the phrase “but not
limited to” or “without limitation” or words of similar effect) in connection
with a listing of one or more items or matters, that listing will be interpreted
to be illustrative only and will not be interpreted as a limitation on, or an
exclusive listing of, such items or matters.
3.8 Entire
Agreement. This
Agreement and the documents referred to herein contain the entire agreement
between the parties and supersede any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way.
3.9 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which taken together will constitute one and the
same instrument.
3
3.10 Governing
Law. THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
LAWS OF THE STATE OF TEXAS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE LAWS OF THE STATE OF
TEXAS.
3.11 Parties in
Interest. Nothing
in this Agreement, express or implied, is intended to confer on any person other
than the parties and their respective successors and assigns any rights or
remedies under or by virtue of this Agreement.
[Signature
Pages Follow]
4
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
|
EXECUTED
AS A DEED BY
|
|
|
THE
PARTNERSHIP:
|
|
|
III
TO I MARITIME PARTNERS CAYMAN I, L.P.
|
|
|
By:
|
III
to I International Maritime Solutions
Cayman,
Inc., its General Partner
|
|
By:
|
/s/
|
|
Xxxxxxx
X. Xxxx, Chief Executive
Officer
|
|
In the
presence of:
|
/s/
|
|
Witness
|
|
EXECUTED
AS A DEED BY
|
|
|
THE GENERAL
PARTNER:
|
|
|
III
TO I INTERNATIONAL MARITIME SOLUTIONS CAYMAN, INC.
|
|
|
By:
|
/s/
|
|
Xxxxxxx
X. Xxxx, Chief Executive
Officer
|
|
In the
presence of:
|
/s/
|
|
Witness
|
|
EXECUTED
AS A DEED BY:
|
|
|
KRONOS
SHIPPING I, LTD.
|
|
|
By:
|
/s/
|
|
Name:
|
|
|
Title:
|
|
In the
presence of:
|
/s/
|
|
Witness
|
|
EXECUTED
AS A DEED BY:
|
|
|
IMS
CAPITAL PARTNERS, LLC
|
|
|
By:
|
/s/
|
|
Name:
|
|
|
Title:
|
|
In the
presence of:
|
/s/
|
|
Witness
|
|
ACKNOWLEDGMENT
AND ACCEPTANCE
|
|
|
EXECUTED
AS A DEED BY:
|
|
|
III TO
I IMS HOLDINGS LLC
|
|
|
By:
|
/s/
|
|
Name:
|
|
|
Title:
|
|
In the
presence of:
|
Witness
|
EXHIBIT
A
[SEE
FORM 10 EXHIBIT 10.8]
EXHIBIT
B
Amounts
Paid
|
Pavor
|
Date
|
Amount
|
||||
|
IMS
Capital Partners
|
12/14/2007
|
83,000.00 | ||||
|
IMS
Capital Partners
|
1/10/2008
|
3,000,000.00 | ||||
|
IMS
Capital Partners
|
6/27/2008
|
163,200.00 | ||||
|
IMS
Capital Partners
|
6/27/2008
|
81,600.00 | ||||
|
IMS
Capital Partners
|
7/11/2008
|
7,000.00 | ||||
|
IMS
Capital Partners
|
10/8/2008
|
30,000.00 | ||||
|
Tanker
Costs
|
3,364,800.00 | |||||
|
IMS
Capital Partners
|
1/10/2008
|
109,678.17 | ||||
|
IMS
Capital Partners
|
4/30/2008
|
75,433.70 | ||||
|
IMS
Capital Partners
|
7/22/2008
|
76,515.21 | ||||
|
IMS
Capital Partners
|
10/22/2008
|
77,561.61 | ||||
|
IMS
Capital Partners
|
12/10/2008
|
52,501.65 | ||||
|
Tanker
Costs - Interest
|
391,690.34 | |||||
|
IMS
Capital Partners
|
11/29/2007
|
10,000.00 | ||||
|
IMS
Capital Partners
|
4/29/2008
|
12,921.30 | ||||
|
IMS
Capital Partners
|
10/7/2008
|
3,845.67 | ||||
|
IMS
Capital Partners
|
10/20/2008
|
200.00 | ||||
|
IMS
Capital Partners
|
12/18/2008
|
2,336.25 | ||||
|
Legal
|
29,303.22 | |||||
|
IMS
Capital Partners
|
2/26/2008
|
600.00 | ||||
|
IMS
Capital Partners
|
12/14/2007
|
20.00 | ||||
|
IMS
Capital Partners
|
10/20/2008
|
20.00 | ||||
|
IMS
Capital Partners
|
10/29/2008
|
200.00 | ||||
|
IMS
Capital Partners
|
7/22/2008
|
5,000.00 | ||||
|
IMS
Capital Partners
|
3/6/2008
|
10,000.00 | ||||
|
IMS
Capital Partners
|
2/19/2008
|
2,711.29 | ||||
|
IMS
Capital Partners
|
11/14/2008
|
503.00 | ||||
|
Miscellaneous
|
19,054.29 | |||||
|
IMS
Capital Partners
|
334,098.38 | |||||
|
Interest
on intercompany loan
|
334,098.38 | |||||
|
Total:
|
$ | 4,138,946.23 | ||||
EXHIBIT
C
Schedule of Notes and
Advances
|
Maker
|
Payee
|
Date
|
Amount Paid
|
|||||
|
IMS
Holdings
|
The
Partnership
|
11/29/2007
|
$ | 100,000.00 | ||||
|
IMS
Holdings
|
The
Partnership
|
1/10/2008
|
$ | 3,200,000.00 | ||||
|
IMS
Holdings
|
The
Partnership
|
4/29/2008
|
$ | 75,000.00 | ||||
|
IMS
Holdings
|
The
Partnership
|
6/27/2008
|
$ | 350,000.00 | ||||
|
IMS
Holdings
|
The
Partnership
|
7/30/2008
|
$ | 100,000.00 | ||||
|
IMS
Holdings
|
The
Partnership
|
10/7/2008
|
$ | 90,000.00 | ||||
|
IMS
Holdings
|
The
Partnership
|
11/7/2008
|
$ | 10,000.00 | ||||
|
IMS
Holdings
|
The
Partnership
|
12/10/2008
|
$ | 60,000.00 | ||||
|
IMS
Holdings
|
The
Partnership
|
12/12/2008
|
$ | 10,000.00 | ||||
| $ | 3,995,000.00 | |||||||
|
IMS
Capital Partners
|
IMS
Holdings
|
11/29/2007
|
$ | 100,000.00 | ||||
|
IMS
Capital Partners
|
IMS
Holdings
|
1/10/2008
|
$ | 3,200,000.00 | ||||
|
IMS
Capital Partners
|
IMS
Holdings
|
4/29/2008
|
$ | 75,000.00 | ||||
|
IMS
Capital Partners
|
IMS
Holdings
|
6/27/2008
|
$ | 350,000.00 | ||||
|
IMS
Capital Partners
|
IMS
Holdings
|
7/30/2008
|
$ | 100,000.00 | ||||
|
IMS
Capital Partners
|
IMS
Holdings
|
10/7/2008
|
$ | 90,000.00 | ||||
|
IMS
Capital Partners
|
IMS
Holdings
|
11/7/2008
|
$ | 10,000.00 | ||||
|
IMS
Capital Partners
|
IMS
Holdings
|
12/10/2008
|
$ | 60,000.00 | ||||
|
IMS
Capital Partners
|
IMS
Holdings
|
12/12/2008
|
$ | 10,000.00 | ||||
| $ | 3,995,000.00 | |||||||
