NOTE CANCELLATION AGREEMENT
THIS NOTE
CANCELLATION AGREEMENT (this “Agreement”) is made
and entered into as of June 17, 2009, but effective as of the Effective Date (as
defined herein), by and among III to I IMS Holdings LLC (“IMS Holdings”) and
IMS Capital Partners, LLC (“IMS Capital
Partners”).
Recitals
WHEREAS, certain inter company loans
were made and notes were issued by (i) IMS Holdings (the “Holdings Notes”) in
favor of III to I Maritime Partners Cayman I, L.P. (the “Partnership”) and
(ii) IMS Capital Partners in favor of IMS Holdings, as set forth in Exhibit A (the “Capital Partners
Notes” and together with the Holdings Notes, the “Notes”) in connection
with the that certain Memorandum of Agreement dated as of April 25, 2009 between
Kronos Shipping I, Ltd. (“Kronos”) and Xxxxxx
Shipping Co. Ltd., an affiliate of Xxxxxxx, which is attached hereto as Exhibit B (as
amended, the “MOA”);
WHEREAS, pursuant to that certain
Agreement, dated as of the date hereof, by and among the Partnership, III to I
International Maritime Solutions Cayman, Inc. (the “General Partner”),
IMS Capital Partners and Kronos, and acknowledged by IMS Holdings, the
Partnership assigned the Holdings Notes and the underlying amounts receivable in
connection therewith, in principal amounts totaling $3,995,000, to IMS Capital
Partners in exchange for the transfer by IMS Capital Partners and IMS Holdings
of all of their rights and interests in the IMO II Chemical/Product tanker and
the MOA to Kronos (the “MOA Transfer
Agreement”);
WHEREAS, as the result of the MOA and
MOA Transfer Agreement being effective, the Holdings Notes are now held by IMS
Capital Partners, and such obligations are directly offset by the Capital
Partners Notes held by IMS Holdings, as evidenced by Exhibit C (the “Offsetting Note
Obligations”); and
WHEREAS, to give effect to the
Offsetting Note Obligations, both IMS Holdings and IMS Capital Partners desire
to cancel each of the Notes and recognize that the cancellation of all of the
Notes will provide mutual consideration for both IMS Holdings and IMS Capital
Partners (the “Cancellation
Transaction”).
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
CANCELLATION OF
NOTES
1.1 Cancellation. On
the terms and subject to the conditions of this Agreement, immediately upon the
execution of this Agreement by all parties signatory hereto, the Cancellation
Transaction 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. Immediately thereafter, each holder of a Note
shall xxxx such Note as cancelled and shall surrender the Note(s) to the maker
or subsequent assignee of such Note.
1.2 Effects of
Cancellation. Immediately
upon the consummation of the Note Cancellation Transaction, all of the Notes
(including all principal and interest thereon) shall be deemed repaid in full
and shall no longer have any legal effect.
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
Notes. Each
of IMS Holdings and IMS Capital Partners represents that such entity is
terminating all of its rights in connection with the Notes.
ARTICLE
III
MISCELLANEOUS
3.1 Effective
Date. This Agreement shall be effective immediately after the
MOA Transfer Agreement becomes effective on April 25, 2009, the date upon which
the MOA was entered into (the “Effective
Date”).
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 Note Cancellation Transaction, 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 IMS
Holdings and IMS Capital Partners. 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.
2
3.4 Binding Agreement;
Assignment. The provisions of this Agreement shall inure to the
benefit of and be binding upon the Partnership, IMS Holdings and IMS Capital
Partners 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.
3.10 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]
3
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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EXECUTED
AS A DEED BY:
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III TO
I IMS HOLDINGS LLC
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By:
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/s/
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Name:
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Title:
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In the
presence of:
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/s/
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Witness
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EXECUTED
AS A DEED BY:
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IMS
Capital Partners, LLC
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By:
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/s/
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Name:
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Title:
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In the
presence of:
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Witness
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EXHIBIT
A
The Memorandum of
Agreement
[SEE
FORM 10 EXHIBIT 10.8]
EXHIBIT
B
Schedule of Notes and
Advances Prior to Execution of the MOA Transfer Agreement
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Maker
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Payee
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Date
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Amount Paid
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|||||
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IMS
Holdings
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The
Partnership
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11/29/2007
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$ | 100,000.00 | ||||
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IMS
Holdings
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The
Partnership
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1/10/2008
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$ | 3,200,000.00 | ||||
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IMS
Holdings
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The
Partnership
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4/29/2008
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$ | 75,000.00 | ||||
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IMS
Holdings
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The
Partnership
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6/27/2008
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$ | 350,000.00 | ||||
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IMS
Holdings
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The
Partnership
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7/30/2008
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$ | 100,000.00 | ||||
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IMS
Holdings
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The
Partnership
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10/7/2008
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$ | 90,000.00 | ||||
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IMS
Holdings
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The
Partnership
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11/7/2008
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$ | 10,000.00 | ||||
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IMS
Holdings
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The
Partnership
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12/10/2008
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$ | 60,000.00 | ||||
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IMS
Holdings
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The
Partnership
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12/12/2008
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$ | 10,000.00 | ||||
| $ | 3,995,000.00 | |||||||
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IMS
Capital Partners
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IMS
Holdings
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11/29/2007
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$ | 100,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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1/10/2008
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$ | 3,200,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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4/29/2008
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$ | 75,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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6/27/2008
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$ | 350,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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7/30/2008
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$ | 100,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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10/7/2008
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$ | 90,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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11/7/2008
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$ | 10,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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12/10/2008
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$ | 60,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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12/12/2008
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$ | 10,000.00 | ||||
| $ | 3,995,000.00 | |||||||
EXHIBIT
C
Schedule of Notes and
Advances After the Execution of the MOA Transfer Agreement
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Maker
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Payee
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Date
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Amount Paid
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IMS
Holdings
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IMS
Capital Partners (assigned by the Partnership)
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11/29/2007
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$ | 100,000.00 | ||||
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IMS
Holdings
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IMS
Capital Partners (assigned by the Partnership)
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1/10/2008
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$ | 3,200,000.00 | ||||
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IMS
Holdings
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IMS
Capital Partners (assigned by the Partnership)
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4/29/2008
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$ | 75,000.00 | ||||
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IMS
Holdings
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IMS
Capital Partners (assigned by the Partnership)
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6/27/2008
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$ | 350,000.00 | ||||
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IMS
Holdings
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IMS
Capital Partners (assigned by the Partnership)
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7/30/2008
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$ | 100,000.00 | ||||
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IMS
Holdings
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IMS
Capital Partners (assigned by the Partnership)
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10/7/2008
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$ | 90,000.00 | ||||
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IMS
Holdings
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IMS
Capital Partners (assigned by the Partnership)
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11/7/2008
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$ | 10,000.00 | ||||
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IMS
Holdings
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IMS
Capital Partners (assigned by the Partnership)
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12/10/2008
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$ | 60,000.00 | ||||
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IMS
Holdings
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IMS
Capital Partners (assigned by the Partnership)
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12/12/2008
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$ | 10,000.00 | ||||
| $ | 3,995,000.00 | |||||||
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IMS
Capital Partners
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IMS
Holdings
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11/29/2007
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$ | 100,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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1/10/2008
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$ | 3,200,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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4/29/2008
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$ | 75,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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6/27/2008
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$ | 350,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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7/30/2008
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$ | 100,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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10/7/2008
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$ | 90,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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11/7/2008
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$ | 10,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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12/10/2008
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$ | 60,000.00 | ||||
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IMS
Capital Partners
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IMS
Holdings
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12/12/2008
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$ | 10,000.00 | ||||
| $ | 3,995,000.00 | |||||||
