between
Mr. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Riva,
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
Doble A Promociones
S.A,
▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇,
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
and
Madrid, 15 March 2004
INDEX
1. SALE AND PURCHASE 9
2. PURCHASE PRICE PAYMENT. 10
3. ESCROW ACCOUNT 10
4. REPRESENTATIONS AND WARRANTIES 17
5. INDEMNITY 39
6. PERIOD BETWEEN SIGNING AND CLOSING DATE 46
7. JOINT COMPANY FOR NEW PROJECTS 50
8. EXCHANGE RATE (EURO-US$) 50
9. CONDITIONS PRECEDENT TO CLOSING 51
10. CLOSING AND CLOSING DATE 55
11. OTHER OBLIGATIONS OF THE PURCHASER 58
12. CONFIDENTIALITY 58
13. ASSIGNMENT 59
14. NEW BUSINESS 59
15. SOLE AGREEMENT. WAIVER 60
16. PUBLIC INSTRUMENT. SCHEDULES 60
17. SEVERABILITY 61
18. TAXES AND EXPENSES 61
19. SELLERS' REPRESENTATIVE. 61
20. NOTICES 63
21. LANGUAGE 64
22. APPLICABLE LAW. JURISDICTION 64
In Madrid on March 15,
2004.
BY AND BETWEEN
ON THE ONE HAND,
MR.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, a Spanish citizen, of legal age, married
on separation of states, resident at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇, ▇▇▇▇▇▇ (▇▇▇▇▇), and
bearing National Identity no. 35208700-R, acting in his own name and in the name
and on behalf of: (i) the Spanish company Naviera ▇. ▇▇▇▇▇▇, S.A. in his
capacity as authorised representative by virtue of a deed granted before the
Notary of Madrid, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Lomo, on September 20, 2000 with
number 2363 of the Notary’s Protocol, for the purposes of Clause of 9,
(hereinafter
"▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇")
▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Spanish citizen, of legal age,
married on separation of states, resident at ▇▇▇▇▇▇▇▇▇, ▇, ▇▇▇▇▇▇ (▇▇▇▇▇), and
bearing National Identity no. 12752964-U, acting in her own name.
(▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be
jointly referred in this agreement as the “NUFER Sellers”)
DOBLE A PROMOCIONES, S.A., a
Spanish company with registered office in ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, and entered at
the Commercial Registry of Madrid on Volume 1878, Leaf 199, sheet M-33754, represented by
▇▇. ▇▇▇▇▇▇▇▇ de Arriba ▇▇▇▇▇▇, a Spanish citizen, of legal age, married, resident
at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇,, ▇▇▇▇▇▇ (▇▇▇▇▇), and bearing National Identity no.
10546259-T, by virtue of a deed granted before the Spanish Notary Mr. ▇▇▇▇
▇▇▇▇▇ de Prada Guaita on 16 December 2003 with number 4942 of the Notary’s
Protocol.
▇▇.
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, a Spanish citizen, of legal age, married on joint
property, resident at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇ ▇▇▇ ▇▇▇▇ (▇▇▇▇▇), and bearing
National Identity no. 35927487-S, acting in his own name and in the name of his
wife, ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of legal age, married on joint
property, with domicile at Calle Doctor Cadaval, 4 bis Vigo, with NIF
35970410-O, by virtue of the public deed of power of attorney granted before the
Notary of La Coruña, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ on July 3,
2000, with number 1224 of the Notary’s Protocol.
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a Spanish citizen, of legal age, married in
joint property, resident at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇, ▇▇, ▇▇▇▇, (▇▇▇▇▇),
and bearing National Identity no. 35877918-B, acting in his own name and in the
name of his wife, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, with by virtue of the public deed of
power of attorney granted before the Notary of La Coruña, ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ on August 13, 1958 with number 1932 of the Notary’s Protocol.
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, a Spanish citizen, of legal age, married in
joint property, resident at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇, ▇▇ ▇▇▇▇▇▇,
(▇▇▇▇▇), and bearing National Identity no. 32103487-H, represented by her
husband, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Caramelo, a Spanish citizen, of legal
age, married, with domicile at ▇/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇ ▇ ▇, ▇▇ ▇▇▇▇▇▇,
and D.N.I. number 32471638-P, by virtue of the public deed of power of attorney
granted before the Notary Public of La Coruña ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ on November 17, 1992, with number 2887 of his protocol..
(Doble A Promociones, S.A., ▇▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall be
jointly referred in this agreement as the "Minority Sellers").
(The NUFER Sellers and the Minority
Sellers shall be jointly referred in this Agreement as the “Sellers”).
▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ RIVA, a Spanish citizen, of legal age,
married, resident at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇), and bearing
National Identity no. 5204539-F, as owner of one share of Naviera ▇. ▇▇▇▇▇▇ Gas,
S.A,
AND ON THE OTHER HAND,
TEEKAY SHIPPING CORPORATION, a
company organized under the laws of the ▇▇▇▇▇▇▇▇ Islands, with its head office at TK
House, West Bay St., & Blake Road, Nassau, The Bahamas, represented by ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇, Executive Vicepresident and Chief Financial Officer (hereinafter the
“Purchaser”)
Purchaser and Sellers are hereinafter
individually referred to as a “Party” and collectively as the
“Parties”.
The Parties, as they act, mutually
declare to one another that they have the sufficient legal capacity to enter into this
agreement (the “Share Purchase Agreement” or the
“Agreement”).
WHEREAS
| |
I. |
The NUFER Sellers are the sole and lawful owners of the quotas representing 100%
of the capital of ▇▇▇▇▇ IBERIA, SL (the “▇▇▇▇▇ Quotas”), a
Spanish company with its registered office in Madrid, C/ Musgo, nº 5, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, Spain, and entered at the Commercial Registry of Madrid on Volume
18323, Leaf 55, Page M-317738 (hereinafter “▇▇▇▇▇”). |
| |
▇▇▇▇▇ owns, among other shareholdings, 72.809% of the share capital of Naviera ▇. ▇▇▇▇▇▇, S.A.
(hereinafter “the NFT ▇▇▇▇▇ Shares”), a Spanish company with its
registered office in Madrid, C/ Musgo, nº 5, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Spain, and entered at
the Commercial Registry of Madrid on Volume 8043, Leaf 88, Page 77488 (hereinafter
“NFT”). The NUFER Sellers declare that ▇▇▇▇▇ was incorporated in 2002 and
since its incorporation it has acted as a holding company owning the NFT ▇▇▇▇▇ Shares and
shares in two other companies, with no other material assets and liabilities. |
| |
The Minority Sellers own the remaining 27.191% of the share capital of NFT, in the proportions
set out in Schedule I.1 (the “NFT Minority Shares”). |
| |
All
and only all the NFT ▇▇▇▇▇ Shares and the NFT Minority Shares are referred hereinafter
collectively as the “NFT Shares”) |
| |
Schedule
I.2 describes the numbers and titles or deeds of ownership of the ▇▇▇▇▇ Quotas, the NFT
▇▇▇▇▇ Shares and the NFT Minority Shares respectively held by the NUFER Sellers, ▇▇▇▇▇ and
NFT Minority Sellers. |
| |
(The
▇▇▇▇▇ Quotas and the NFT Minority Shares shall be jointly referred to in this Agreement as
the “Shares”). |
| |
II. |
NFT owns and operates an oil shipping business (referred to as the
“Tanker Business”) which consists of: |
| |
1. |
the oil tankers listed in Schedule II.1 (this Schedule includes the M/V
“▇▇▇▇ ▇▇▇▇▇▇”, which as of the date of this Agreement is owned by a
subsidiary of NFT, but which will be transferred to and owned directly by NFT
prior to the Closing Date, as defined in Clause Eleven) (each referred to as an
“Oil Tanker” and collectively as the “Oil
Tankers”); |
| |
2. |
charter party agreements relating to the Oil Tankers listed in Schedule II.2
(the “Oil Tankers Charter Party Agreements”); |
| |
3. |
financing agreements and related guarantees relating to the Oil Tankers listed
in Schedule II.3 (the “Oil Tankers Financing Agreements”); |
| |
4. |
agreements for the construction and delivery of certain new oil tankers listed
in Schedule II.4 (the “Oil Tankers Shipbuilding Agreements”);
and |
| |
5. |
all other agreements entered into in the ordinary course of business, and all
business and accounting records, including the office furniture (with the
exception of the office furniture corresponding to the office and meeting room
of ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇) and the right to occupy the office premises, relating
to the operation of the Tanker Business as a going concern. |
| |
III. |
NFT also owns and operates a LNG shipping business (the “LNG
Business”) which consists of: |
| |
1. |
four 99.99%owned Spanish subsidiaries namely Naviera ▇. ▇▇▇▇▇▇ GAS, S.A.,
Naviera ▇. ▇▇▇▇▇▇ GAS II, S.A., Naviera ▇. ▇▇▇▇▇▇ GAS III, S.A. and Naviera ▇.
▇▇▇▇▇▇ GAS IV, S.A. (the “LNG Companies”) which are beneficial
owners and legal owners or have full possession and hold an exclusive and
legally enforceable purchase option, which option is described in Schedule III.1
(a), to become legal owners, as the case may be, of the LNG vessels as listed in
Schedule III.1 (b) (hereinafter the “LNG Vessels”). |
| |
2. |
charter party agreements relating to the LNG Vessels as listed in Schedule III.2
(the “LNG Charter Party Agreements”); |
| |
3. |
financing agreements and related guarantees as listed in Schedule III.3 (the
“LNG Financing Agreements”); |
| |
4. |
agreements for the construction and delivery of certain new building LNG vessels
as listed in Schedule III.4 (the “LNG Shipbuilding
Agreements”); |
| |
5. |
Naviera ▇. ▇▇▇▇▇▇ Servicios Marítimos, S.A, a Spanish company with
registered office in Madrid, C/ Musgo, nº 5 , ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Spain, and
entered at the Commercial Registry of Madrid on Volume 19038, Leaf 10, Page
M-332816 (owned by each of the four LNG Companies in equal 25% stakes) mainly
engaged in the crewing of LNG Vessels (“NFT Servicios
Marítimos”); and |
| |
6. |
all other agreements entered into in the ordinary course of business, and all
business and accounting records and other assets, including office furniture
(with the exception of the office furniture corresponding to the office and
meeting room of ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇), and right to occupy the office premises
relating to the operation of the LNG Business as a going concern. |
| |
IV. |
The Tanker Business and the LNG Business are hereinafter jointly referred to as
the “Shipping Business”). NFT owns and operates the Shipping
Business directly and indirectly through the subsidiary companies listed in
Schedule IV.1, (the Schedule shall exclude NFT´s subsidiary, Naviera
Nellamar España, S.L. for which company no representations and warranties
shall be made) (the subsidiary companies are collectively referred to as the
“NFT Subsidiaries”). |
| |
NFT
together with NFT Subsidiaries are hereinafter collectively referred to as the
“NFT Group”. Any and all references made in this Agreement to NFT Group
should be deemed to be made to NFT, each of the LNG Companies and NFT Servicios
Marítimos, collectively and/or individually as appropriate. |
| |
NFT
owns, among other shareholdings, 99.99% of the share capital of each and all of the LNG
Companies. The 0,01% of the share capital of the LNG Companies is owned by ▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Riva (hereinafter the
“NFT Subsidiaries Shares”). |
| |
Schedule
IV.2 describes the numbers and titles or deeds of ownership of the NFT Subsidiaries
Shares. |
| |
▇. |
▇▇▇▇▇ holds, as of the date of today, certain other assets and liabilities, as
described in Schedule V.1., which are not related to the Shipping Business and
which shall be sold and transferred by ▇▇▇▇▇ prior to the Closing Date of the
transaction contemplated in this Agreement (the “▇▇▇▇▇ Non
Related Assets and Liabilities”) so that on the Closing Date ▇▇▇▇▇ will
only hold the NFT ▇▇▇▇▇ Shares. |
| |
NFT
holds, as of the date of today, certain other assets and liabilities, as described in
Schedule V.2., which are not related to the Shipping Business and which shall be sold and
transferred by NFT prior to the Closing Date of the transaction contemplated in this
Agreement (the “NFT Non Related Assets and Liabilities”) so that on the
Closing Date NFT will only hold the Shipping Business. |
| |
The
▇▇▇▇▇ Non Related Assets and Liabilities and NFT Non Related Assets and Liabilities are
hereinafter collectively referred to as “Non Related Assets and
Liabilities”. |
| |
VI. |
The Purchaser has carried out before the execution of this Agreement a limited
due diligence on the legal, tax, financial and technical aspects of the Shipping
Business . Also, a physical examination of certain of the Oil Tankers and the
LNG Vessels has been carried out by the Purchaser (the “Due
Diligence”). |
| |
VII. |
The Purchaser wishes to acquire the Shipping Business as a going concern by
means of the acquisition of the Shares from the Sellers and by these means
indirectly acquire the NFT Subsidiaries Shares and the Sellers wish to sell the
Shipping Business to the Purchaser by means of the transfer of the Shares and by
these means indirectly sell the NFT Subsidiaries Shares. For such purposes, the
Purchaser and the Sellers have maintained conversations which have led to the
execution of the Offer Letter dated February 27, 2004, and in connection
therewith the Purchaser and the Sellers enter into this Share Purchase Agreement |
CLAUSES
| |
The
purpose of this Agreement is the transfer, by way of the sale and purchase of the Shares,
of the ownership of 100% of ▇▇▇▇▇, the ownership of 100% of NFT, directly and indirectly,
and, by these means indirectly 100% of NFT Subsidiaries and any other rights, obligations
and legal relationships of these companies, excluding the Non Related Assets and
Liabilities, and including the M/V “▇▇▇▇ ▇▇▇▇▇▇” |
| |
1.2. |
Subject to the Conditions Precedent set out in Clause 9.3, the Purchaser hereby
purchases the ▇▇▇▇▇ Quotas from the NUFER Sellers and the NFT Minority Shares
from the Minority Sellers and the NUFER Sellers and the Minority Sellers, as
fully legal owners thereof hereby respectively sell to the Purchaser the ▇▇▇▇▇
Quotas and the NFT Minority Shares, with all rights, free from any liens and
encumbrances whatsoever, as a means to acquire ▇▇▇▇▇, the NFT Group and
consequently the Shipping Business. |
| |
1.3. |
This sale and purchase of the Shares (the “Sale and Purchase”)
shall be completed on the Closing Date (as such term is defined in Clause 10
below) by means of the transfer of title of the Shares and payment of the
Purchase Price, subject to the terms and conditions of this Agreement. |
| |
1.4. |
Prior to the Closing Date, the Non Related Assets and Liabilities shall be sold
and transferred by NFT and ▇▇▇▇▇ so that on said date NFT will only hold the
Shipping Business and ▇▇▇▇▇ will only hold the NFT ▇▇▇▇▇ Shares. Furthermore,
NFT shall own and operate at Closing Date the M/V “▇▇▇▇ ▇▇▇▇▇▇”. |
| |
1.5. |
The Sale and Purchase is conditional upon the simultaneous sale of all the
Shares, subject notwithstanding to the provisions of Clause 9 below. |
| |
2. |
PURCHASE PRICE PAYMENT. |
| |
2.1 |
The price of the Shares is fixed at US DOLLARS TWO HUNDRED AND SEVENTY FIVE MILLION (USD
275,000,000). |
| |
2.2 |
The price for the Sale and Purchase of the Shares shall be equal to the sum of the amounts
indicated in paragraph 2.1, paragraph 2.3 and the Price Adjustment (as defined under
paragraph 2.5.) (the “Purchase Price”), net and free of banking charges,
to be distributed among Sellers in the proportions set forth in Schedule 2.2. |
| |
2.3 |
The price indicated in 2.1. above shall be increased by the interest rate of 5% per annum
(which interest shall form an integral part of the Purchase Price) accrued during the
period between January 1, 2004 and the Closing Date. This interest shall be calculated and
accrued on the Purchase Price minus the allocated value indicated in Schedule 2.3 to the
LNG Vessels and Oil Tankers under construction and minus the Payment on Account. |
| |
2.4 |
The Purchase Price less the Payment on Account shall be paid as of the Closing Date, value
same date, by wire transfer to the bank account as designated by the Sellers for such
purposes against transfer to Purchaser of full title of the Shares. The Sellers shall
acknowledge full receipt at the Closing Date of the total Purchase Price. Simultaneously
the Sellers shall settle any related-party amounts payable to NFT or ▇▇▇▇▇ on the Closing
Date. |
| |
2.5 |
Closing price
adjustments |
| |
|
On
the date of this Agreement, the Minority Sellers and/or the NUFER Sellers, as the case may
be, have provided the Purchaser with: |
| |
(i) |
the December 31, 2003 draft statutory balance sheets, prepared as required by
Spanish Law, of NFT and of NFT Subsidiaries (the “NFT Draft Balance
Sheet” and, the “NFT Subsidiaries Draft Balance
Sheet” referred, collectively, as the “NFT Group Draft
Balance Sheet”) and the NFT Group consolidated draft balance sheets
(the “NFT Consolidated Draft Balance Sheet”) which are
attached herewith as Schedule 2.5.(i) |
| |
(ii) |
the December 31, 2003 draft statutory balance sheet, prepared as required by
Spanish Law, of ▇▇▇▇▇ (the “▇▇▇▇▇ Draft Balance Sheet”) which
is attached herewith as Schedule 2.5.(ii). |
| |
(iii) |
the December 31, 2003 consolidated draft proforma balance sheets, prepared as
required by Spanish Law, of NFT Group which shall be prepared following the same
structure as the NFT Consolidated Draft Balance Sheet and shall comprise the NFT
Draft Consolidated Balance Sheet after making the necessary adjustments upwards
or downwards to dispose of the NFT non-related assets and liabilities and the
acquisition of the M/V “▇▇▇▇ ▇▇▇▇▇▇” (the “NFT Consolidated
Draft Proforma Balance Sheet”) which are attached herewith as Schedule
2.5 (iii). The seller has prepared a Draft list of non-related assets and
liabilities and a proforma adjustments list for illustrative purposes attached
as schedule 2.5 (iv). |
| |
(iv) |
the December 31, 2003 draft proforma balance sheets, prepared as required by
Spanish Law, of ▇▇▇▇▇ which shall be prepared following the ▇▇▇▇▇ Draft Balance
Sheet structure and shall comprise the ▇▇▇▇▇ Draft Balance Sheet after making
the necessary adjustments upwards or downwards to dispose of the ▇▇▇▇▇
non-related assets and liabilities (the “▇▇▇▇▇ Draft Proforma Balance
Sheet”) which are attached herewith as Schedule 2.5.(v). The seller has
prepared a draft list of non-related assets and liabilities and a proforma
adjustment list for illustrative purposes attached as schedule 2.5 (vi). |
| |
|
The NFT Consolidated Draft Proforma
Balance Sheet and ▇▇▇▇▇ Draft Proforma Balance Sheet to be referred, collectively,
as the “Draft Proforma Balance Sheet.“As stated in clause 2.6 the Sellers
shall provide the Purchasers with : |
| |
(i) |
the audited NFT Consolidated Statutory Accounts, the audited ▇▇▇▇▇ Statutory
Accounts, and the NFT Final Consolidated Proforma Balance Sheet and the ▇▇▇▇▇
Final Proforma Balance Sheet, both as defined below; |
| |
(ii) |
a preliminary calculation made by Sellers in good faith and following strictly
the criteria described in this clause 2.5, of the adjustments to be made in
order to calculate the Purchase Price.; and |
| |
|
These 2003 the audited NFT
Consolidated Statutory Accounts and the audited ▇▇▇▇▇ Statutory Accounts audited
Statements shall then be adjusted to reflect the actual net proceeds realised upon the
disposal of the Non-Related Assets and Liabilities net of the acquisition of the M/V
“▇▇▇▇ ▇▇▇▇▇▇”; and adjusted for any unadjusted audit differences in excess of
10,000 Euros, not reflected in the 2003 audited Statutory Accounts, in order to form the
Final Proforma NFT Consolidated and ▇▇▇▇▇ Balance Sheets (the “NFT Final Consolidated
Proforma Balance Sheet and the ▇▇▇▇▇ Final Proforma Balance Sheet”). These
adjustments shall include the related tax burden duly justified, if any, resulting from
the disposal of the Non-Related Assets and Liabilities, always provided that NFT will
apply the reinvestment relief to capital gains triggered in the disposal of reference
since M/V “▇▇▇▇ ▇▇▇▇▇▇” will be the eligible asset in which NFT will reinvest
the sale proceeds for tax purposes as stated in clause 6.1. |
| |
|
The Purchase Price shall then be
adjusted (the “Price Adjustment”) taking into account the NFT Final
Consolidated Proforma Balance Sheet and the ▇▇▇▇▇ Final Proforma Balance Sheet, and items
2(c) and 2(d) below which refer to the period subsequent to December 31, 2003 up to and on
April 15th 2004, from which date the Sellers commit not to pay or approve any
dividend, extraordinary bonus or distribution ,as follows: |
| |
|
For NFT consolidated
Proforma Balance Sheet: |
| |
(a) |
Inventories (Existencias – F1), Debtors (Deudores – F2),
Short term financial investements (Inversiones financieras temporales
– F3), Cash and banks (Tesorería – F4+E) and Short term
Deferred expenses (Ajustes por periodificacion – F5), included
within the Current Assets caption; |
| |
(b) |
Accrued interest (Gastos a distribuir en varios ejercicios – Intereses
Diferidos Prestamos — C); |
| |
(c) |
Restricted Long term deposits (B4.2) in Naviera ▇. ▇▇▇▇▇▇ Gas, SA and Naviera ▇.
▇▇▇▇▇▇ Gas II, SA and Naviera ▇. ▇▇▇▇▇▇ Gas III, SA, as set forth in Schedule
2.5.(v) minus US Dollars 8 million translated at the closing exchange rate as of
December 31, 2003; and |
| |
(d) |
Debt as set forth in Schedule 2.5 (vii) . For clarity purposes the parties
acknowledge that this amount does not correspond with any accounting caption
contained in the 2003 NFT Draft Consolidated Proforma Balance Sheet. The US
dollar debt as set forth in this Schedule shall be translated at the exchange
rates used in the NFT Final Consolidated Proforma Balance Sheet and the ▇▇▇▇▇
Final Proforma Balance Sheet, if any. For greater clarity if the US dollar debt
as set forth in the Schedule is equal to the actual US dollar debt owed by the
NFT Group as stated in the Loan agreements there should no be Price Adjustment
as a result of exchange rate differences. This rule shall prevail on any
adjustment that could result from any other provision in this contract.(2)
downwards by: |
| |
(a) |
Total Liabilities and Shareholders Equity (Pasivo) minus: |
| |
(i) |
Shareholders Equity (Fondos Propios — Z); |
| |
(ii) |
Subsidies (Subvenciones – Y.2); |
| |
(iii) |
Unrealized foreign exchange gains related to the NFT Group’s financing)
(Diferencias positivas de cambio Y.1); and |
| |
(iv) |
Provision for drydockings and repairs subsequent to Dec 31, 2003 (Prov. Para
obras y reparac. Extraordinarias — X); |
| |
(b) |
Agreed minimum working capital figure of Euro 0 million; |
| |
(c) |
Dividends paid or approved to be paid after December 31, 2003 up to and
including the Closing Date; and |
| |
(d) |
Extraordinary bonus or distributions paid or approved to be paid after December
31, 2003 up to and including the Closing Date. |
| |
|
For illustration purposes and with no
effect whatsoever in order to make Price Adjustments calculation, the parties based on the
2003 NFT Consolidated Draft Proforma Balance Sheet (set forth in Schedule 2.5.(viii)) the
net adjustment would be Euro 12.26 million (upwards) . |
| |
|
Schedule 2.5 (ix) sets forth the
remaining contractual payment of the NFT Group at December 31 2003. The extent to which
the actual remaining contractual payments are different than those listed on the Schedule
2.5 (viii) it shall be an adjustment to the Purchase Price. |
| |
|
The Purchase Price shall also be
adjusted (the “Price Adjustment”) taking into account ▇▇▇▇▇ Final
Proforma Balance Sheet, and items 2(c) and 2(d) below which refer to the period subsequent
to December 31, 2003 up to and on April 15th 2004, from which date the Sellers
commit not to pay or approve any dividend, extraordinary bonus or distribution, as
follows: |
| |
(a) |
Inventories (Existencias), Debtors (Deudores), Short term
financial investements (Inversiones financieras temporales), and Cash and
banks (Tesoreia) included within the Current Assets caption; |
| |
(a) |
Total Liabilities and Shareholders Equity (Pasivo) minus: |
| |
(i) |
Shareholders Equity (Patrimonio Neto); |
| |
(b) |
Dividends paid or approved to be paid after December 31, 2003 up to and
including the Closing Date; and |
| |
(c) |
Extraordinary bonus or distributions paid or approved to be paid after December
31, 2003 up to and including the Closing Date. |
| |
|
A further adjustment to be made downwards by: |
| |
(a) |
Total bank debt, including any cancelation costs, in ▇▇▇▇▇ as provided for under
Clause 9.7. in the amount as described in the relevant bank certificates to be
issued in accordance to such Clause 9.7 to the extent not included in the Final
▇▇▇▇▇ Proforma Balance Sheet and not adjusted by the above adjustment. |
| |
2.6 |
To enable the Purchaser to calculate the adjustment to the Purchase Price, the Minority
Sellers and the NUFER Sellers shall deliver to Purchaser on or prior to April 15th, 2004,: |
| |
(i) |
the audited 2003 NFT Consolidated Statutory Accounts, the audited 2003 ▇▇▇▇▇
Statutory Accounts, and the NFT Final Consolidated Proforma Balance Sheet and
the ▇▇▇▇▇ Final Proforma Balance Sheet, both as defined under Clause 6.3.; |
| |
(ii) |
together with a preliminary calculation made by Sellers in good faith and
following strictly the criteria described in clause 2.5, of the adjustments to
be made in order to calculate the Price Adjustment.; and |
| |
(iii) |
any bank certificates to be provided pursuant to Clause 9.7. |
| |
On or before April 27th, ▇▇▇▇ ▇▇▇▇▇ & Young will issue a special report on (i) the NFT
Final Consolidated Proforma Balance Sheet, (ii) the ▇▇▇▇▇ Final Proforma Balance Sheet and
(iii) the Sellers´ calculation of the Price Adjustment. In connection with this
process, the Sellers will obtain not later than by April 15, 2004 (x) an authorisation
from NFT Group statutory auditors to allow Ernst & Young full access to its 2003 audit
working papers, (y) full access to NFT Group management and any relevant documentation
that might be deemed necessary to carry out its review of the Price Adjustment made by the
Sellers and (z) the calculation of the Price Adjustment made by NFT Group statutory
auditors. |
| |
The Sellers calculation of the Price Adjustment shall be reviewed by Ernst & Young based
on the criteria described in Clause 2.5. |
| |
On or before 27 April ▇▇▇▇, ▇▇▇▇▇ & Young shall present to the Parties the new Price
Adjustment and the Purchase Price shall have to be adjusted according to it for Closing on
the Closing Date |
| |
However, if either party does not agree with the determination of the Price Adjustment as presented
by Ernst & Young, the Parties shall appoint, -within a term of five (5) business days
as from the Closing Date- an additional independent auditing firm to issue a new
calculation of the Price Adjustment, such firm to be one of the big four international
auditing firms (the “New Auditor”. The New Auditor shall have access to
the documents referred to in this paragraph, may consult with the Ernst & Young and
with the Seller’s auditor and management and shall, then, issue its calculation of
the price adjustment (the “Final Price Adjustment”) which shall
be binding among the parties. The difference between the result of the Price Adjustment as
calculated by Ernst & Young and the result of the Final Price Adjustment shall be paid
or reimbursed, as the case may be, within the term of five (5) business days from receipt
of final report of the New Auditor containing the Final Price Adjustment. |
| |
The Ernst &Young’s and the New Auditor’s fees shall be paid among the parties on
fifty percent basis. |
| |
3.1 |
▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ will open an escrow account (the “Escrow
Account”) with a bank (the “Bank”), pursuant to certain escrow
agreement to be entered by ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Purchaser and the Bank (the
“Escrow Agreement”) attached herein in Schedule 3.1., and ▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall give notice to the Purchaser that the Escrow Agreement has
been formalised by the Bank and shall provide all relevant baking details. Within four
business days as from receipt by the Purchaser of such notice, the Purchaser will deposit
in the Escrow Account the amount of US Dollars THIRTY MILLION (USD 30,000,000) (the
“Payment on Account”) as Payment on Account of the Purchase Price
of the ▇▇▇▇▇ Quotas, owned by NUFER Sellers. |
| |
|
The Payment on Account shall be released to NUFER Sellers on the Closing Date as a part of the
Purchase Price of the ▇▇▇▇▇ Quotas owned by NUFER Sellers, together with the interest
accrued on the amount deposited from the date of this Agreement until the Closing Date.
The remaining part of the Purchase Price of the ▇▇▇▇▇ Quotas owned by NUFER Sellers,
together with the interest accrued thereon pursuant to the provisions of Clause 2.3 above
shall be effectively paid to and received by NUFER Sellers on and as of the Closing Date,
value same date, by wire transfer to the bank account designated by NUFER Sellers for such
purposes. |
| |
3.2 |
The Payment on Account shall act as a guaranty of the obligations of the Purchaser under
this Agreement, subject to the fulfilment of the Conditions Precedent indicated in Clause
9.3, so that in case the Sellers file or notify a claim to the Purchaser due to breach by
Purchaser of such obligations, the Payment on Account, together with all interest accrued,
shall be withheld in the manner set out in the Escrow Agreement until such claim has been
resolved. |
| |
|
Should
the Conditions Precedent listed on Clause 9.3 of this Agreement not be fulfilled by the
Sellers as of the Closing Date the Payment on Account, together with the interest accrued
thereof, shall be released forthwith to the Purchaser to an account specified by the
Purchaser for that purpose free of any cost, fees, charges retention, etc. |
| |
4. |
REPRESENTATIONS AND
WARRANTIES |
| |
4.1. |
The Sellers make to the Purchaser the representations and warranties set out
below in respect of NFT, NFT ▇▇▇▇▇ Shares, NFT Minority Shares, NFT
Subsidiaries, NFT Subsidiaries Shares and the Shipping Business. No
representations and warranties are made by the Sellers with respect to the NFT
Non Related Assets and Liabilities, including Naviera Nellamar España,
S.L., provided always that these are transferred and excluded in the terms as
provided in this Agreement. |
| |
|
▇▇▇▇▇ and the Minority Sellers are the lawful and sole owners of the shares representing 100% of
the issued subscribed and paid up share capital of NFT (the “NFT
Shares”). |
| |
|
NFT, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Riva are, directly or
indirectly, the lawful and sole owners of the share capital of the NFT Subsidiaries Shares
as set forth in Schedule 4.1 (A). |
| |
|
The LNG Companies are the lawful and sole owners of NFT Servicios Marítimos.
|
| |
|
All the NFT Shares and NFT Subsidiary Shares are issued, subscribed and paid up.
|
| |
|
All
the NFT Shares and the NFT Subsidiary Shares are free and clear of restrictions to the
exercise of the rights vested in them and of any claims, encumbrances, withholdings,
liens, charges, reservations of ownership, options and claims of third parties, except as
set forth in Schedule 4.1(B). |
| |
|
The
Sellers have full capacity to execute and perform this Agreement, as well as the
obligations contained herein, which does not infringe their corporate by-laws or any other
legislation, administrative regulation, agreement, contract or undertaking by which they
are bound. All the obligations arising from this Agreement are valid and binding for the
Sellers and enforceable against them. |
| |
(i) |
NFT Group are business corporations with limited liability, duly organized and
validly existing under the laws of Spain, and they comply with the legal
requirements of Company Law applicable to them. |
| |
(ii) |
The NFT Group has not resolved upon their dissolution, merger or spin off and is
not required by law to effect such a dissolution. |
| |
(iii) |
The NFT Group has the capacity and authority to carry on their businesses in the
manner they do so at present. |
| |
(i) |
All the NFT Shares and the NFT Subsidiaries Shares are validly issued, fully
subscribed and paid up. If and to the extent of the pre-emptive right of
acquisition in the terms set out in the by-laws of the NFT Group, there are no
options or undertakings relating to shares in the NFT Group. There are no sale,
purchase and sale option agreements, nor agreements which guarantee preferential
rights of any kind to related and/or third parties and thus no person nor entity
has the right to acquire shares of the NFT Group except as set forth in Schedule
4.1(E)(i). Neither are there increases or reductions of capital pending
registration or in progress. |
| |
(ii) |
The NFT Group has not issued nor agreed the issue of “bonos de
disfrute” (founder’s shares), debentures or any other kind of security
or financial instrument convertible into shares, unless otherwise indicated in
Schedule 4.1(E)(ii). |
| |
(iii) |
Since 31 December 2003 (the “Date of the Accounts”), the NFT
Group has not distributed nor agreed to distribute any final or interim
dividends neither have they distributed or agreed to distribute profits,
reserves or funds in any other manner, or paid or agreed to pay any bonuses or
other extraordinary payments or made or agreed to make any acquisitions,
redemptions or reclassification of the shares in the NFT Group, except as set
forth in Schedule 4.1(E)(iii) and as provided for in Clause 6 of this Agreement. |
| |
(iv) |
The NFT Group does not own or hold as security shares of its own or of its
controlling company. |
| |
(v) |
The NFT Group has not furnished sureties, guaranties or bonds of any kind to
third parties, except for those set out in Schedule 4.1(E)(v). |
| |
(vi) |
Except as set forth in Schedule 4.1(E)(vi), since the Date of the Accounts and
until the date of the Agreement, the NFT Group has not: |
| |
(a) |
Issued or resolved to issue shares, debentures, options, warrants or any other
securities. |
| |
(b) |
Changed their corporate by-laws. |
| |
(c) |
Increased or agreed to increase the compensation or established benefits of any
kind in favour of any of the members of the body of administration. |
| |
(vii) |
The NFT Group has been depositing their annual accounts with the Commercial
Registry in compliance with existing legislation. |
| |
(viii) |
The books or registers of any kind of the NFT Group are up to date and
maintained in accordance with the legal requirements applicable, except where
the non maintenance of such books and registers would not have a material
adverse effect on the NFT Group. |
| |
|
In particular, the Minute Books of each of the companies of the NFT Group are duly legalised
and contain the companies’ resolutions taken by the corporate bodies of the same from
the date of its incorporation, except where the non legalisation and fulfilment of such
Minutes Books would not have a material adverse effect on the NFT Group, and none of said
companies’ resolutions having been challenged. |
| |
|
Such books and registers and whatever other documents (including documents relating to
ownership and copies of all other resolutions which are in force to which any NFT Group
was a party) which are the property of each NFT Group or which should be within their
control or under their control, are within their effective power and under their control. |
| |
|
No
notice has been received or claim made relating to the material incorrectness of any
corporate document, or which must be corrected. |
| |
|
All
of the resolutions and documents which must be delivered have been delivered or filed at
the Mercantile Registry, except if the non or later delivery or filing of such resolutions
and, documents would not have a material adverse effect on the NFT Group. |
| |
The
NFT Draft Balance Sheet, the NFT Subsidiaries Draft Balance Sheet, NFT Group Draft Balance
Sheet and the NFT Consolidated Draft Balance Sheet (collectively, the “NFT Draft
Balance Sheet”) and the NFT Consolidated Draft Proforma Balance Sheet on the date
of this Agreement: |
| |
(a) |
are complete, accurate and true and have been prepared in accordance with the
applicable law and regulations and in accordance with SGAAP, as these have been
applied by the NFT Group in previous fiscal years, except with respect to the
NFT Non Related Assets and Liabilities, provided however that any such
inaccuracy or lack of completeness under no event adversely affect the
Purchaser’s rights under this Agreement ; |
| |
(b) |
provide a true, fair and complete view of the equity and the financial
situation of the NFT Group on the date of the same and of the results of its
operations for the period closed on said date; |
| |
(c) |
Duly set out all of the debts and debentures of the NFT Group |
| |
(d) |
Duly set out and provide for all of the provisions which must be made or which
should be made with respect to the NFT Group NFT Draft Balance Sheet; |
| |
On the Closing Date
Since the Date of the Accounts: |
| |
(a) |
there has been no occurrence in relation to the NFT Group which, in material
terms, has adversely affected or could affect the equity, financial situation,
results, assets goodwill or commercial operations of the NFT Group as reflected
in the NFT Draft Balance Sheet nor in the NFT Draft Proforma Balance Sheet. |
| |
(b) |
the NFT Group has with respect to the NFT Group continued to record all their
assets, liabilities, operations, income and expenditure in their financial
statements and in their books of account consistently with that indicated in the
accounting principles set out in the NFT Draft Balance Sheet and the NFT Draft
Proforma Balance Sheet . |
| |
(c) |
there has been no change in the accounting policy nor in the valuation criteria
applied by the NFT Group, except with respect to the NFT Non Related Assets and
Liabilities provided however that any such change under no event adversely
affects the Purchaser’s rights under this Agreement ; and |
| |
(d) |
Unless otherwise indicated in Schedule 4.1.(F), no act or operation outside the
scope of the ordinary course of business or market practice normally followed by
the NFT Group has been commenced, effected, adopted or concluded, and the NFT
Group has developed their activity as it has done in the past years. |
| |
(G) |
Contracts, Agreements and Practices. |
| |
Schedule
4.1.(G) (i) is a list of all of the material contracts to which the NFT Group is a party,
true copies of which were made available to the Purchaser for review during the limited
Due Diligence and all of which are in full force and NFT Group has not taken any action to
modify them or agreed to modify them and is not aware of any breach or action that would
give rise to a breach of such contracts. |
| |
(H) |
Subsequent Activities. |
| |
Since
the Date of the Accounts and until the date of the Agreement, the NFT Group has not (a)
Assumed any material obligation or liability outside the normal course of their
businesses(b) Sold, assigned or otherwise disposed of or made subject to charges or
encumbrances any of their assets, except in the normal course of their business.(c)
Assumed any additional indebtedness, granted securities or changed the terms or conditions
of those existing, given moneys on loan, advanced payments to any third party, outside the
normal course of their respective businesses.(d) Cancelled any credit.(e) Sustained any
labour dispute or other labour circumstances having a material adverse effect on the
business, assets or results of the NFT Group operations.Changed the accounting principles
except in the ordinary course of business of the NFT Group |
| |
(I) |
Compliance with laws. Litigation |
| |
The
NFT Group has conducted at all times its business in accordance with the substantial
aspects of the laws and regulations applicable in those countries in which it carries on
business, except where such failure would not have a material adverse effect on the NFT
Group. |
| |
The
Sellers to the best of their knowledge are not aware of any facts or circumstances that
could give rise to a claim against the NFT Group which could reasonably be deemed to be
material in relation to the transaction. |
| |
(J) |
Payroll and
Service Agreements |
| |
(i) |
Attached hereto as Schedule 4.1(J)(i) is a list of the payrolls of the NFT
Group, stating the length of service of the employees, their remunerations (for
the purposes of this Agreement “remuneration” includes salary;
remuneration in kind; extraordinary payments, bonuses; repayment of expenses;
incentives; stock options, profit share schemes, travel, accident, sickness,
invalidity, life or medical insurance; pensions schemes; company vehicles;
loans; luncheon vouchers; or any other condition or benefit connected with
employment (whether in cash or in kind), received by an employee, executive,
manager or director of the NFT Group), whether they are permanent, temporary or
other, and other conditions applicable to each category of employee. No
substantial changes in respect of said conditions have occurred or are being
negotiated neither is there any undertaking to substantially change them.
Consequently, save for what is described in paragraph 4.1(J)(iii) below, the NFT
Group does not have any other employees apart from those indicated in Schedules
4.1(J)(i), and/or the NFT Group has not entered into any commitment to to employ
any other employee apart from those set out in Schedules 4.1(J)(i). |
| |
|
Unless otherwise in Schedule 4.1(J)(i), the contracts of employment have been executed
and implemented complying with all substantial aspects of the legal and
statutory requirements. |
| |
(ii) |
The NFT Group has at all times complied with the law and regulations relating to
the Social Security and health and safety at work, and has punctually and
correctly made all of the payments due, and have provided the documentation due
(including forms TC-1 and TC-2) and communications and information required,
unless where such failure would not have a material adverse effect on the NFT
Group. |
| |
|
Unless
otherwise indicated in Schedule 4.1(K)(ii), the NFT Group complies, in all substantial
aspects, with the provisions of all applicable statutory legislation, Collective
Agreements in force and the employment contracts in force. The NFT Group does not have
Pension Plans or other benefit plans nor is required by law to have them. |
| |
(iii) |
Schedule 4.1(K)(iii) also sets out all the employment, executive and service
contracts that the NFT Group has in effect with personnel not included in
paragraph (i). |
| |
|
The
NFT Group is up to date in performance of the obligations under the abovementioned
contracts, which have been executed and implemented complying in all substantial aspects
with the legal and statutory requirements. |
| |
(iv) |
Except as set forth in Schedule 4.1(K)(iv), no substantial change has been made
since the Date of the Accounts in the conditions of employment or in the
contracts with officers or for services of the NFT Group except for those
changes mandatory by law or under the applicable Collective Agreements, neither
has the NFT Group engaged any additional personnel, outside the ordinary course
of business. |
| |
(v) |
Unless otherwise stated in Schedule 4.1(J)(v), no present or past employee,
officer, manager or director of the NFT Group has the right to an indemnity for
termination of the contract of employment or dismissal in excess of that which
is established by the law or regulations or by the applicable collective
bargaining agreements. |
| |
Unless
otherwise stated in Schedule 4.1(J)(vi), the NFT Group is not involved in any court or
arbitration procedure on labour matters |
| |
(K) |
By-laws and powers of attorney |
| |
The
existing By-laws of the NFT Group are as recorded in the relevant Commercial registries
and no act amending the By-laws is pending registration. |
| |
The
persons holding general powers of attorney to act representing the NFT Group and/or to
draw from its bank accounts are those listed in Schedule 4.1(M). A copy of all said powers
of attorney is enclosed to Schedule 4.1(M). |
| |
(L) |
Subsidiaries and Branches |
| |
The
NFT Group has no interests in other companies, subsidiaries or branches, except as set
forth in Schedule 4.1(N). |
| |
(M) |
Vessels and Spare Parts |
| |
(i) |
Schedule 4.1(P)(i) indicates the Oil Tankers and the LNG Vessels which are all
the transport shipping vessels which beneficial ownership corresponds to NFT,
directly or indirectly, through the NFT Subsidiaries, together with their
respective structure of ownership and correlative description. The Oil Tankers
and the LNG Vessels are free from all charters, encumbrances, mortgages and
maritime liens, except as set forth in Schedule 4.1(P)(i)bis. |
| |
(ii) |
The conditions and the class of the Oil Tankers and the LNG Vessels are those
described in their classification and trading certificates issued by the
relevant Classification Societies attached herewith as Schedule 4.1(P)(ii) and
at the time of the Closing, all such classification and trading certificates
will be clear and valid. |
| |
(iii) |
The Oil Tankers and the LNG Vessels are as they substantially were at the time
of inspection by the Purchaser, fair wear and tear excepted. |
| |
(iv) |
The Oil Tankers and the LNG Vessels are free of average damage affecting their
class. |
| |
(v) |
The Oil Tankers and the LNG Vessels have all their classification trading and
statutory certificates and national certificates, as well as all other
certificates, plans and technical documentation the Vessels had at the time of
inspection by the Purchaser. |
| |
(vi) |
The Oil Tankers and the LNG Vessels’ spare parts are in levels consistent
with operational needs and are in the aggregate usable in the ordinary course of
business and substantially at the same level of the time of inspection. |
| |
This
Agreement will create valid, binding and enforceable obligations for the Sellers on all
its terms. |
| |
The
execution and performance of this Agreement and of the other documents which are to be
executed or performed in accordance with the terms of this Agreement, together with the
performance of all of the operations contemplated in this Agreement or in said documents,
by the Sellers or by the NFT Group: |
| |
(a) |
do not entail the breach of material laws, regulations, orders, norms or
judgement applicable to the Sellers or the NFT Group; |
| |
(b) |
to the best of the knowledge of the Sellers´ as of this date, do not
require the Sellers to obtain any consent, approval or authorisation by the
public authorities; |
| |
(c) |
do not entail the breach of the provisions of the Articles of Association of the
Sellers, as the case may be, or of the NFT Group. |
| |
The
above representations and warranties (the “Representations and Warranties
concerning the NFT Group”) are true and accurate as of the date of this
Agreement as well as of the Closing Date and any reference to date of the Agreement shall
be made, mutatis mutandi, to the Closing Date and any reference to the NFT Draft
Balance Sheet or the NFT Draft Proforma Balance Sheet shall be made to the NFT Group
Statutory Accounts, the NFT Consolidated Statutory Accounts and the NFT Final Consolidated
Proforma Balance Sheet (for which purpose the Sellers shall issue the statements listed in
Clause 10.2) and the Sellers shall modify accordingly the Schedules to this Agreement. For
the sake of clarity, each representation and warranty made with respect to the NFT Group
is made with respect to each company within the NFT Group, as if the representation and
warranty had been repeated for each company within the NFT Group. |
| |
4.2 |
The NUFER Sellers make to the Purchaser the following representations and warranties with
respect to ▇▇▇▇▇ (the “Representations and Warranties concerning ▇▇▇▇▇”).
No representation and warranties are made by the Sellers with respect to the ▇▇▇▇▇ Non
Related Assets and Liabilities, provided always that these are transferred and excluded in
the terms as provided in this Agreement. |
| |
|
The
NUFER Sellers are the lawful and sole owners of the ▇▇▇▇▇ Quotas, which constitute one
hundred per cent (100%) of the issued, subscribed and paid in capital of ▇▇▇▇▇. |
| |
The
▇▇▇▇▇ Quotas are free and clear of restrictions to the exercise of the rights vested in
them and of any claims, encumbrances, withholdings, liens, charges, reservations of
ownership, options and claims of third parties, except as set forth in Schedule 4.2(B). |
| |
The
NUFER Sellers have full capacity to execute and perform this Agreement, as well as the
obligations contained herein, which does not infringe any legislation, administrative
regulation, agreement, contract or undertaking by which they are bound. All the
obligations arising from this Agreement are valid and binding for the NUFER Sellers and
enforceable against them. |
| |
(i) |
▇▇▇▇▇ is a business corporation with limited liability, duly organized and
validly existing under the laws of Spain, and it complies with the legal
requirements of Company Law applicable to it. |
| |
(ii) |
▇▇▇▇▇ has not resolved upon its dissolution, merger or spin off and is not
required by law to effect such a dissolution. |
| |
(iii) |
▇▇▇▇▇ has the capacity and authority to carry on its businesses in the manner it
does so at present. |
| |
(i) |
All the ▇▇▇▇▇ Quotas are validly issued, fully subscribed and paid up. If and to
the extent of the pre-emptive right of acquisition in the terms set out in the
by-laws of ▇▇▇▇▇, there are no options or undertakings relating to the ▇▇▇▇▇
Quotas. There exist no sales, purchase and sales options agreements, nor
agreements which guarantee preferential rights of any kind to third parties and
thus no person nor entity has the right to acquire shares of ▇▇▇▇▇ except as set
forth in Schedule 4.2.E.(i). Neither are there increases or reductions of
capital pending registration or in progress. |
| |
(ii) |
Since the Date of the Accounts, ▇▇▇▇▇ has not distributed nor agreed to
distribute any final or interim dividends neither has it distributed nor agreed
to distribute profits, reserves or funds in any other manner or paid or agreed
to pay any bonuses or other extraordinary payments or made or agreed to make any
acquisitions, redemptions or reclassification of the quotas in ▇▇▇▇▇, except as
set forth in Schedule 4.2(E)(iii). |
| |
(iii) |
▇▇▇▇▇ does not own or hold as security quotas of its own. |
| |
(iv) |
▇▇▇▇▇ has not furnished sureties, guaranties or bonds of any kind to third
parties, except for those set out in Schedule 4.2(E)(iv). |
| |
(v) |
Except as set forth in Schedule 4.2(E)(v), since the Date of the Accounts and
until the date of the Agreement, ▇▇▇▇▇ has not: |
| |
(a) |
Issued or resolved to issue quotas . |
| |
(b) |
Changed its corporate by-laws. |
| |
(vii) |
▇▇▇▇▇ has been depositing its annual accounts with the Commercial Registry in
compliance with existing legislation. |
| |
(viii) |
The books or registers of any kind of ▇▇▇▇▇ are up to date and maintained in
accordance with the legal requirements applicable, except where the non
maintenance of such books and registers would not have a material adverse effect
on ▇▇▇▇▇. |
| |
In
particular, the Minute Books of ▇▇▇▇▇ are duly legalized and contain the company
resolutions taken by the distinct corporate bodies of the same from the date of its
incorporation, except where the non legalisation and fulfilment of such Minutes Books
would not have a material adverse effect on ▇▇▇▇▇ and none of said company resolutions
having been challenged. |
| |
Such
books and registers and whatever other documents (including documents relating to
ownership and copies of all other resolutions which are in force to which ▇▇▇▇▇ was a
party) which are the property of ▇▇▇▇▇ or which should be within its control or under its
control, are within its effective power and under its control. |
| |
No
notice has been received or claim made relating to the material incorrectness of any
document, or which must be corrected. |
| |
All
of the resolutions and documents which must be delivered have been delivered or filed at
the Mercantile Registry, except if the non or later delivery or filing of such resolutions
and documents would not have a material adverse effect on ▇▇▇▇▇. |
| |
(F) |
Financial Statements. |
| |
|
The ▇▇▇▇▇ Draft Balance Sheet and the ▇▇▇▇▇ Draft Proforma Balance Sheet: |
| |
(a) |
are complete, accurate and true and have been prepared in accordance with the
applicable law and regulations and with SGAAP, as these have been applied by
▇▇▇▇▇ in previous fiscal years, except with respect to the ▇▇▇▇▇ Non Related
Assets and Liabilities, provided however that any such inaccuracy or lack of
completeness under no event adversely affect the Purchaser’s rights under
this Agreement; |
| |
(b) |
provide a true, fair and complete view of the equity and the financial
situation of ▇▇▇▇▇ comprising the NFT ▇▇▇▇▇ Shares on the date of the same. |
| |
All
of the debts and debentures of ▇▇▇▇▇ are duly set out in the ▇▇▇▇▇ Draft Balance Sheet in
accordance with SGAAP and their assets are valued in accordance with SGAAP. |
| |
All
of the provisions which must be made or which should be made in accordance with SGAAP and
relating to the NFT ▇▇▇▇▇ Shares have been duly entered and provided for in the ▇▇▇▇▇
Balance Sheet.
Since the Date of the Accounts:
|
| |
(a) |
there has been no occurrence in relation to ▇▇▇▇▇ which, in material terms, has
adversely affected or could affect the equity, financial situation, results,
assets goodwill or commercial operations of ▇▇▇▇▇ as they are reflected in the
▇▇▇▇▇ Draft Balance Sheet nor the ▇▇▇▇▇ Draft Proforma Balance Sheet . |
| |
(b) |
▇▇▇▇▇ has continued with respect to the NFT ▇▇▇▇▇ Shares to record all its
assets, liabilities, operations, income and expenditure in their financial
statements and in their books of account in the same way as that indicated in
the accounting principles set out in the ▇▇▇▇▇ Draft Balance Sheet or the ▇▇▇▇▇
Draft Proforma Balance Sheet |
| |
(c) |
there has been no change in the accounting policy nor in the valuation criteria
applied by ▇▇▇▇▇¸ except with respect to the NFT Non Related Assets and
Liabilities, provided however that any such change under no event adversely
affects the Purchaser’s rights under this Agreement ; and |
| |
(d) |
no act or operation outside the scope of the ordinary course of business or
market practice normally followed by ▇▇▇▇▇ has been commenced, effected, adopted
or concluded, and ▇▇▇▇▇ has developed its activity as it has done in the past
years. |
| |
(G) |
Contracts, Agreements and Practices. |
| |
As
of the date of the Agreement ▇▇▇▇▇ and unless otherwise indicated in Schedule 4.2.(G) is
not party any agreement1 neither has it assumed any existing undertaking other
than this Agreement or as reflected in the ▇▇▇▇▇ Draft Balance Sheet. |
| |
(H) |
Subsequent Activities |
| |
Except
as set forth in Schedule 4.2(H), since the Date of the Accounts and until the date of the
Agreement, ▇▇▇▇▇ has not: |
| |
(a) |
Assumed any material obligation or liability outside the normal course of its
business. |
| |
(b) |
Sold, assigned or otherwise disposed of or made subject to charges or
encumbrances any of their assets, except in the normal course of its business. |
| |
(c) |
Assumed any additional indebtedness, granted securities or changed the terms or
conditions of those existing, given moneys on loan, advanced payments to any
third party, outside the normal course of its business. |
| |
(d) |
Cancelled any credit. |
| |
(e) |
Sustained any labour dispute or other labour circumstances having a material
adverse effect on the business, assets or results of ▇▇▇▇▇’▇ operations. |
| |
(f) |
Changed the accounting principles except in the ordinary course of business of
▇▇▇▇▇. |
| |
(I) |
Compliance with laws. Litigation |
| |
▇▇▇▇▇
has conducted at all times its business in accordance with all substantial aspects of the
laws and regulations applicable in Spain, except where such failure would not have a
material adverse effect on ▇▇▇▇▇. |
| |
The
Sellers to the best of their knowledge are not aware of any facts or circumstances that
could give rise to a claim against ▇▇▇▇▇ which could reasonably be deemed to be material
in relation to the transaction. |
| |
(J) |
By-laws and powers of attorney |
| |
(i) |
The existing By-laws of ▇▇▇▇▇ are as recorded in the relevant Commercial
Registry and no act amending the By-laws is pending registration. |
| |
(ii) |
The persons holding general powers of attorney to act representing ▇▇▇▇▇ and/or
to draw from their bank accounts are those listed in Schedule 4.2(J). A copy of
said powers of attorney is enclosed to Schedule 4.2(J). |
| |
(K) |
Subsidiaries and Branches |
| |
▇▇▇▇▇
has no interests in other companies, subsidiaries or branches, except as set forth in
Schedule 4.2(K). |
| |
This
Agreement will create valid, binding and enforceable obligations for the NUFER Sellers. |
| |
The
execution and performance of this Agreement and of the other documents which are to be
executed or performed in accordance with the terms of this Agreement, together with the
performance of all of the operations contemplated in this Agreement or in said documents,
by the NUFER Sellers or ▇▇▇▇▇: |
| |
(a) |
do not entail the breach of material laws, regulations, orders, norms or
judgement applicable to the NUFER Sellers or ▇▇▇▇▇; |
| |
(d) |
to the best of the knowledge of the Sellers´ as of this date, do not
require the Sellers to obtain any consent, approval or authorisation by the
public authorities; |
| |
(b) |
do not entail the breach of the provisions of the Articles of Association of
▇▇▇▇▇ |
| |
The
above Representations and Warranties concerning ▇▇▇▇▇ made by the NUFER Sellers shall be
true and accurate as of the date of this Agreement as well as of the Closing Date and any
reference to date of the Agreement shall be made, mutatis mutandi, to the Closing
Date and any reference to the ▇▇▇▇▇ Draft Balance Sheet or the ▇▇▇▇▇ Draft Proforma
Balance Sheet shall be made to the ▇▇▇▇▇ Statutory Accounts and the ▇▇▇▇▇ Final Proforma
Balance Sheet (for which purposes the NUFER Sellers shall issue the statements
listed in Clause 10.2.) |
| |
4.3 |
The Purchaser makes to the Sellers the representations and warranties set out below (the
“Representations and Warranties of Purchaser”). |
| |
(A) |
The Purchaser is a business corporation duly organized, validly existing and in
good standing under the laws of the ▇▇▇▇▇▇▇▇ Islands, and it complies with the
legal requirements of Company Law applicable to it. |
| |
(B) |
The Purchaser has not resolved upon its dissolution, merger or spin off. |
| |
(C) |
The Purchaser has full capacity and standing to execute and perform this
Agreement, which does not infringe its corporate by-laws or any other
legislation, administrative regulation, agreement, contract or undertaking by
which it is bound. |
| |
(D) |
The Purchaser has adopted all such corporate or other resolutions that may be
necessary to execute and implement this Agreement, including all required
resolutions to be adopted by its bodies of administration. |
| |
(E) |
The representative of the Purchaser is authorized to execute this Agreement for
and on behalf of the Purchaser. |
| |
(F) |
This Agreement will create valid and binding obligations for the Purchaser on
all their terms. |
| |
(G) |
The execution and performance of this Agreement and of the other documents which
are to be executed or performed in accordance with the terms of this Agreement,
together with the performance of all of the operations contemplated in this
Agreement or in said documents, by the Purchaser: |
| |
(a) |
do not entail the breach of material laws, regulations, orders, norms or
judgement applicable to the Purchaser; |
| |
(b) |
to the best of the knowledge of the Purchaser as of this date, do not require
the Purchaser to obtain any consent, approval or authorisation by the public
authorities; |
| |
(c) |
do not entail the breach of the provisions of the Articles of Association of the
Purchaser. |
| |
4.4 |
Other undertakings in relation to the Representations and Warranties. |
| |
4.4.1 |
The Representations and Warranties concerning NFT Group and the Representations and
Warranties concerning ▇▇▇▇▇ are collectively referred to in this Agreement as the
“Representations and Warranties”. |
| |
4.4.2 |
Continuance of the Representations and Warranties. |
| |
The
Representations and Warranties set out in clause 4 shall remain in force upon the
execution of this Agreement and shall be deemed to be repeated on the Closing Date in the
form as defined in Clause 10.2 (v). |
| |
The
existence of the Due Diligence does not limit in any way the aforementioned
Representations and Warranties. |
| |
At
the Closing, the Purchaser shall deliver to the Sellers a certificate certifying that it
does not have any actual knowledge of any actual loss that will not be adjusted for in the
Price Adjustments. |
| |
4.4.3 |
Essential character of the Representations and Warranties |
| |
These
Representations and Warranties are an essential part of the entering into of this
Agreement by the Purchaser and the Sellers. |
| |
4.4.4 |
Representations and Warranties set out in this Agreement are complete and
accurate. |
| |
5.1.1 |
In this Clause 5, references to the Purchaser shall include the NFT Group and/or ▇▇▇▇▇,
the Sellers shall be liable to the Purchaser for: |
| |
(i) |
any declared or hidden liabilities of NFT Group not set forth in the NFT
Consolidated Proforma Balance Sheet arising from or in connection with events,
acts or omissions originating before the Closing Date and; |
| |
(ii) |
any declared or hidden liabilities not set forth in the NFT Consolidated
Proforma Balance Sheet arising from the NFT Non Related Assets and Liabilities
and/or its transfer and sale; |
| |
(iii) |
any declared or hidden liabilities of NFT Group arising from the draft Tax
Income Return referred to in Clause 10.2 (vii). |
| |
(iv) |
any losses and damages with respect to environmental incidents (unlawful
discharge of a hazardous substance into the environment or the failure to record
or report it in case it has occurred) that have taken place prior to the Closing
Date. The Sellers shall not be liable with respect to environmental incidents
that have taken place after the Closing Date, regardless that they are caused by
acts or omissions originated before the Closing Date. |
| |
5.1.2 |
Additionally, the NUFER Sellers shall be liable to the Purchaser and/or ▇▇▇▇▇ within the
framework of this Agreement for: |
| |
(i) |
any declared or hidden liabilities of ▇▇▇▇▇ not set forth in the ▇▇▇▇▇ Proforma
Balance Sheet arising from or in connection with events, acts or omissions
originating before the Closing Date and, |
| |
(ii) |
any declared or hidden liabilities not set forth in the ▇▇▇▇▇ Proforma Balance
Sheet arising from the ▇▇▇▇▇ Non Related Assets and Liabilities and/or its
transfer and sale. |
| |
(iii) |
any declared or hidden liabilities of ▇▇▇▇▇ arising from the draft Tax Income
Return referred to in Clause 10.2 (vii). |
| |
5.1.3 |
Neither the Sellers nor the NUFER Sellers shall be obliged to indemnify the Purchaser
until the losses and damages subject to indemnification have been quantified and are due
and owing, so that contingent liabilities shall not be subject to indemnification until
they become actual liabilities. |
| |
In
the event that any claim or liability interferes or may interfere with the normal business
of the NFT Group or ▇▇▇▇▇ in the cases indicated in Schedule 5.1.3, the Sellers shall be
obliged to post a security for such claim or liability, as soon as practicable, to enable
NFT Group or ▇▇▇▇▇ to carry on its business and, thereafter, seek indemnity from the
Sellers. Should the Sellers fail to comply with this obligation, the Purchaser shall be
entitled to post the required security at the Sellers’ cost and expense. |
| |
5.1.4 |
The Sellers´ and NUFER Sellers ´ liability for indemnification and
Purchaser’s rights to indemnification shall be governed only by the express
provisions of this Clause. |
| |
5.1.5 |
Under no event shall any matter be subject of double indemnification by making the
relevant claim in relation with both NFT and ▇▇▇▇▇. |
| |
5.1.6 |
In respect of third party claims , the Purchaser shall always have the final decision as
to whether settle or contest the claim, provided that should this final decision be
contrary to Sellers decision, the Purchaser shall indemnify and hold harmless the Sellers
of any additional losses, costs and expenses that the Sellers may suffer as a consequence
of contesting or settling the claim following the Purchaser’s decision |
| |
5.1.7 |
Rights of Purchaser to claim indemnity under this section 5 shall in no event be limited
by any qualifications made the Sellers and/or the NUFER Sellers in section 4, such as,
material adverse effect, substantially or similar terms. |
| |
5.2 |
Admissibility of claims |
| |
5.2.1 |
For the purpose of section 5.1. above, the Sellers shall not be obliged to indemnify the
Purchaser for claim to the extent the failure of the Purchaser to comply with the
notification requirements set forth in Clause 5 prevents the ability for the Sellers to
defend the claim being made by a third party. |
| |
5.2.2 |
The rights of the Purchaser to claim shall expire: |
| |
(i) |
As regards claims related to the Oil Tankers and/or LNG Vessels and the
contracts indicated in Schedules II.2 and III.2 of the NFT Group, 90 days after
the Closing Date; |
| |
(ii) |
As regards tax, social security and labor claims upon the expiration of the
statute of limitation of the underlying tax, social security or labor
legislation obligations; |
| |
(iii) |
As regards environmental claims, on the fifth (5) anniversary of the Closing
Date; |
| |
(iv) |
All other claims, on the first anniversary of the Closing Date;. |
| |
The
time barring of said periods under the above-agreed statute of limitation shall be
interrupted in the case that liabilities or claims are detected and duly notified by the
Purchaser to the Sellers´ Representative (as such term is defined in Clause 19
below) or the NUFER Sellers, as may be the case, within the referred periods. |
| |
Under
no event, the Sellers or the NUFER Sellers´ liability shall arise if the claim or
liability responds to changes in the legislation made after the Closing Date. |
| |
5.3 |
Specification of the Liability |
| |
5.3.1 |
For the convenience of the parties the Purchaser agrees to aggregate all claims for
indemnity into Euros 100,000 lots prior to presenting such claims to the Sellers for
payment. At the expiration of the indemnity period the Purchaser shall present the Sellers
with the remainder of the claims for payments, even if such lot is less than Euros
100,000. Notwithstanding the aggregation of claims the Purchaser shall advice the Sellers
of claims in accordance with Clause 5.4. |
| |
5.3.2 |
When quantifying the Sellers’ and the NUFER Sellers’ liability hereunder, the
following items or amounts shall always be deducted: |
| |
(i) |
Any amount in respect of indemnification actually collected (or that although
collectable, non collected due to the non diligence of the Purchaser) from an
insurance company or any other third party by the NFT Group or ▇▇▇▇▇, or the
Purchaser, in respect of the occurrence of the loss that gave rise to the claim
or liability. |
| |
(ii) |
The amount of any tax savings actually realized of the NFT Group and/or ▇▇▇▇▇
and/or the Purchaser related to the claim or liability. |
| |
(iii) |
The amount actually collected (or that although collectable, non collected due
to the non diligence of the Purchaser) resulting from any hidden assets
described in Schedule 5.3.2. of the NFT Group or ▇▇▇▇▇ originating from events
that occurred before the Closing Date. If not deducted, said amount shall be
kept by NFT Group or ▇▇▇▇▇, as applicable, until the expiration of the time
limits indicated above for claims when it shall then be returned to the Sellers. |
| |
5.3.3 |
The total amount to be paid by the Sellers plus the NUFER Sellers to the Purchaser and/or
the NFT Group and/or ▇▇▇▇▇ under the provisions of this Clause may never exceed a sum
equal to FIFTY MILLION US DOLLARS. The foregoing notwithstanding, claims related to the
Oil Tankers and/or LNG Vessels and the related contracts of the NFT Group will have a
total maximum limit of 100% of the Purchase Price, provided however that in the event that
the Purchaser files a claim, within the period of ninety days after Closing Date, in an
amount equal to or higher than FIFTY MILLION US DOLLARS related to the Oil Tankers and/or
LNG Vessels and/or said contracts, the Sellers may, at their option, elect to either
indemnify pursuant to this Agreement or to resolve the transaction. In this case, the
Sellers shall return to the Purchaser the Purchase Price and the Purchaser shall return to
the Sellers the Shares, as received at Closing Date, and through the Shares, the Purchaser
shall return to the Seller, the business of the NFT Group without any material change. The
above notwithstanding, claims related to the title of ownership of the Shares will have no
maximum limit. |
| |
5.4.1. |
The Purchaser shall promptly (and in any event no later than twenty days after
the Purchaser becomes aware of facts sufficient to show a claim exists) remit
that claim in writing together with the relevant documentation to the
Sellers´ Representative. The notice shall describe in sufficient detail
the events or circumstances giving rise to the liability. |
| |
Upon
receipt of the claim by the Sellers´ Representative, a term of twenty (20) business
days shall commence during which the parties shall attempt to reach an agreement on the
particular claim. In so attempting to reach an agreement the parties may seek the opinion
of their respective auditors. On expiration of this term and if the Parties have not
reached an agreement, the course for the settlement of disputes stipulated in Clause 22
below shall become available. Should the parties reach an agreement, the Sellers or the
NUFER Sellers, as applicable, shall pay the amount stipulated in that agreement within
twenty (20) business days after the date of the relevant agreement, unless otherwise
decided by the parties. |
| |
5.4.2. |
In addition to the obligation contained in the previous section, the Purchaser
shall inform the Sellers´ Representative, of the existence of any third
party claim or tax audit notice that may lead to an admissible claim within a
period of seven business days as from the date in which the the Purchaser has
knowledge of them or in that other period which does not prevent the Sellers
and/or the NUFER Sellers in exercising their rights. Failure by the Purchaser to
comply with the obligation of notification set out in sections 5.4.1. and 5.4.2.
shall result in the inadmissibility of the claim against the Sellers or the
NUFER Sellers. |
| |
5.4.3. |
Once it has been notified, the Sellers´ Representative may at his
discretion assert and conduct all available recourses, actions and defenses to
refute or oppose any third party claim or those administrative acts apt to lead
to its liability hereunder, before any Administration and court. |
| |
Particularly
and without limitation to the above, the Sellers´ Representative may carry out
discussions, contacts, allegations and other formalities within the framework of any
action or inspection by the responsible administrative or judicial agency. The
Sellers´ Representative may make use of these authorities through the advisors it
designates, upon whom the Purchaser and the NFT Group and ▇▇▇▇▇ shall ▇▇▇▇▇▇ the ▇▇▇▇▇▇ of
attorney or authorities necessary for the discharge of their duties, in the understanding
that the Sellers or the NUFER Sellers, as applicable, shall meet all the costs of the
advisors in the relevant proceedings and shall reimburse the Purchaser, the NFT Group or
▇▇▇▇▇ of any costs in respect to such proceedings; provided however, that in the event
that any of the NFT Group or ▇▇▇▇▇ or the Purchaser are awarded fees and costs of any
nature in respect to such proceedings, such amounts shall be promptly referred to the
Sellers or the NUFER Sellers, as applicable. |
| |
The
Sellers´ Representative shall keep the Purchaser informed at all times of its
actions under this paragraph and shall consult with the Purchaser on the taking of any
relevant decision. |
| |
5.4.4. |
The Sellers or the NUFER Sellers, as may apply, may also settle the third party
claim on the condition that, before or at the time it becomes bound by the
settlement, it makes available to the Purchaser or the NFT Group or ▇▇▇▇▇ the
funds that the Purchaser or the NFT Group or ▇▇▇▇▇ have to pay to the third
party in accordance with the settlement. |
| |
5.4.5 |
The Sellers or the NUFER Sellers, as applicable, will pay any amount to be paid according
to the relevant final decision or award which gives termination to such third party claim
or administrative act within twenty (20) business days after the date upon which such
decision or award becomes definitively final and conclusive. |
| |
As
security for the Purchaser’s indemnity rights under this section 5, the Purchaser
shall have the right to deduct, from the sum pending to be contributed by the Purchaser to
the Joint Company TT, the amounts not paid by the Sellers or the NUFER Sellers, pursuant
to Clause 5 . |
| |
Should
the Sellers or the NUFER Sellers not comply with their obligations pursuant to Clause 5,
after the date the Purchaser has contributed to the Joint Company TT the amounts
contemplated in Clause 7 below, the Purchaser shall be entitled to any dividend and/or
reimbursement to which the Sellers (through a company) may be entitled in the Joint
Company TT, as shareholders thereof, in the amount that sufficiently covers the obligation
of the Sellers, as per the pledge of dividends agreement (the “Pledge of Dividends
Agreement”) that shall be entered into between the Sellers and the Purchaser , in
a form substantially similar to that attached in Schedule 5.5 (to be negotiated in good
faith between the parties), at Closing Date. |
| |
6. |
PERIOD BETWEEN SIGNING AND CLOSING DATE
Prior to the Closing Date: |
| |
6.1 |
The Non Related Assets and Liabilities shall be excluded and transferred by the Sellers
from NFT and by the NUFER Sellers from ▇▇▇▇▇, so that, on the Closing Date, NFT will only
own NFT Subsidiaries Shares together with the Shipping Business and ▇▇▇▇▇ will only own
the NFT ▇▇▇▇▇ Shares. |
| |
In
the event that any contingency of whatsoever nature arises for NFT from the transfer and
exclusion of the Non Related Assets and Liabilities and the Purchaser suffers a loss or
damage, the Sellers shall be liable to the Purchaser for said loss or damage, which
liability shall be governed by the provisions of Clause 5 above. |
| |
In
the event that any contingency of whatsoever nature arises for ▇▇▇▇▇ from the transfer and
exclusion of the Non Related Assets and Liabilities and the Purchaser suffers a loss or
damage, the NUFER Sellers shall be liable to the Purchaser for said loss or damage, which
liability shall be governed by the provisions of Clause 5 above. |
| |
When
quantifying the liability arising from the above referred contingencies, the Parties agree
that the amount to be paid to the Purchaser will be the net amount taking into account the
tax credits that may be applicable arising from the exclusion of the Non Related Assets
and Liabilities (i.e. if the transfer of certain asset produces a capital gain and the
transfer of another asset produces a loss, the amount to be paid to the Purchaser will be
the net effect for the relevant company). |
| |
6.2 |
Pursuant to Clause 1.4 the M/V “▇▇▇▇ ▇▇▇▇▇▇” will be transferred from Naviera
Nellamar España, S.L. (a subsidiary of NFT forming part of the NFT Non Related
Assets and Liabilities) to NFT together with the financing agreements and related
guarantees as listed and described in Schedule 6.2, and free from any other liabilities,
liens, charges and/or any other encumbrances, except those described in Schedule 6.2. and
any cash payment due to the above mentioned transfer that shall be considered in the NFT
Final Proforma Balance Sheet. |
| |
In
the event that any contingency of whatsoever nature arises for NFT from the transfer of
M/V “▇▇▇▇ ▇▇▇▇▇▇” and the Purchaser suffers a loss or damage, the Sellers shall
be liable to the Purchaser for said loss or damage, which liability shall be governed by
the provisions of Clause 5 above. |
| |
6.3 |
The Sellers shall cause the current directors of NFT Group and NFT Subsidiaries to draw
each of the statutory accounts and the Sellers shall approve the audited statutory
accounts of the NFT and of NFT Subsidiaries to be compulsory filed before the Spanish
Commercial Registry in accordance with Spanish law , respectively closed as of December
31, 2003 (the “NFT Statutory Accounts” and, the “NFT
Subsidiaries Statutory Accounts” referred, collectively as the “NFT
Group Statutory Accounts”) |
| |
The
Sellers shall cause the current directors of NFT Group to draw the statutory consolidated
accounts which shall be audited and the Sellers shall approve the audited consolidated
statutory accounts of the NFT Group to be compulsory filed before the Spanish Commercial
Registry in accordance with Spanish law, respectively closed as of December 31, 2003 (the
“NFT Consolidated Statutory Accounts”). |
| |
The
NUFER Sellers shall cause the current directors of ▇▇▇▇▇ to draw the statutory accounts
and the NUFER Sellers shall approve the audited statutory accounts of ▇▇▇▇▇ to be
compulsory filed before the Spanish Commercial Registry in accordance with Spanish law ,
respectively closed as of December 31, 2003 (the “▇▇▇▇▇ Statutory
Accounts”). |
| |
The
Sellers and the NUFER Sellers shall provide the Purchaser with the NFT Group Statutory
Accounts, the NFT Consolidated Statutory Accounts and the ▇▇▇▇▇ Statutory Accounts no
later than April 15, 2004. |
| |
Additionally,
and also no later than April 15, 2004 the Sellers and the NUFER Sellers shall prepare and
provide the Purchaser with the adjusted NFT Final Consolidated Proforma Balance Sheet and
the ▇▇▇▇▇ Final Proforma Balance Sheet. |
| |
The
NFT Final Consolidated Proforma Balance Sheet and the ▇▇▇▇▇ Final Proforma Balance Sheet
will comprise a balance sheet and the related notes regarding the accounting principles
used for its preparation. |
| |
6.4 |
The Sellers shall do everything in their power so that the NFT Group, and the operation of
the Oil Tankers and the LNG Vessels, continue in the ordinary course of business and shall
not, without the prior written consent of the Purchaser: |
| |
(a) |
enter into any material agreement or agreement with a term exceeding Six (6)
months or agreement for an amount in excess of ONE MILLION EURO (1,000,000)
and/or agreements of any kind that could negatively affect the present financial
status of the NFT Group or leave them in a materially worse commercial position;
the Purchaser shall procure to provide to the Sellers the best reasonably
possible market conditions regarding the Vessels´ insurance policies,
acquisition of equipment and maintenance and the Sellers shall elect the
proposal of the Purchaser in case it is more favourable. |
| |
(b) |
dispose of, encumber, assign, transfer, sale and/or any asset, except as
otherwise foreseen in this Agreement, nor will they make substantial changes in
the manner the day to day business is conducted. Likewise, the Sellers will not
give or take options of any kind, modify or voluntarily terminate any lease,
contract, agreement or commitment in force with a material adverse effect on the
Shipping Business; |
| |
(c) |
invest, borrow money, enter into any loan, commit themselves to any credit,
repay in advance any debt nor issue any guarantees; |
| |
(d) |
hire new employees, advisors, managers nor will they dismiss with indemnities or
redundancy payments beyond the limits provided for by the applicable laws and
regulations. |
| |
(e) |
modify the existing remuneration conditions of the employees. |
| |
6.5 |
The NUFER Sellers will proceed in the same manner as provided in Clause 6.4 above with
respect to ▇▇▇▇▇. |
| |
6.6 |
To the extent that it may depend on the Sellers, they shall cause the NFT Group to adopt
the appropriate measures to preserve and protect the Shipping Business, in particular and
without limitation, the Oil Tankers and the LNG Vessels. The NUFER Sellers will proceed in
the same manner with respect to ▇▇▇▇▇. |
| |
7. |
JOINT COMPANY FOR NEW PROJECTS |
| |
7.1 |
On the date of this Agreement the Sellers and Purchaser have entered into a joint venture
agreement (the “Joint Venture Agreement”) which shall become effective at
Closing Date. |
| |
7.2 |
The Parties acknowledge that NFT is currently participating in a bidding process for the
acquisition of a subsidiary of the Portuguese company, GALP ENERGY. In the event that said
bid is awarded to NFT, the project will be offered to the Joint Company TT. In the event
the Joint Company TT elects not to undertake the project, the Sellers shall be obligated
to assume all rights, liabilities and obligations in connection with the performance of
the said project. |
| |
8. |
EXCHANGE RATE (EURO-US$) |
| |
|
The Purchaser has agreed to pay the
Purchase Price in United States Dollars. This notwithstanding, the Sellers may, at any
time up to five (5) business days before the Closing, elect to convert the payment of some
or all of the Purchase Price into Euros by notifying the Purchaser in writing of such
election and the amount of United States Dollars that the Sellers wish to receive in Euros
(the “Election”). The Purchaser shall, within two (2) business days of receiving
such notification, enter into a forward purchase contract to acquire Euros in the amount
of the Election, with a settlement date within three (3) business days of the Closing
Date. On the Closing Date, the Parties shall calculate the Purchase Price in United States
Dollars in accordance with the terms of this Agreement. The Purchase Price, as adjusted,
shall be paid by the Purchaser: |
| |
(i) |
up to the Election Amount, in Euros based on the exchange rate actually obtained
by the Purchaser at the time of the Election; and |
| |
(ii) |
the balance, if any, in United States Dollars. |
| |
|
In the event that the Closing Date is
extended at the request of the Sellers, the settlement date of the forward contract shall
be automatically extended within three (3) business days of the amended Closing Date and
any costs and losses related to such extension and the forward contract shall be borne by
the Sellers. If the Closing does not take place do to a default of the Sellers, the
Sellers shall indemnify and hold harmless the Purchaser for all costs and losses
associated with unwinding of the forward contract. |
| |
9. |
CONDITIONS PRECEDENT TO CLOSING |
| |
9.1 |
The execution of the Sale and Purchase which is the purpose of this Agreement (payment of
the price and delivery of the Shares), and thus the closing of the transaction which is
the purpose of this Agreement are expressly conditional on the fulfilment of the
provisions of this clause prior to the Closing Date (as such term is defined in clause
10). |
| |
9.2 |
The Conditions Precedent listed in Clause 9.3 (i), (ii) and (iii)(b) are for the sole
benefit of the Purchaser except with respect to the consent provided for in Schedule 9.2,
and the express waiver of the Conditions by Purchaser shall be equivalent to their
performance for the purposes of this Agreement. In the event that the consent provided for
in Schedule 9.2 has not been obtained: (i) the Purchaser will not be entitled to waive
such condition 9.3(i) in respect of the consent contain in Schedule 9.2 and, (ii) Sellers
shall not be entitled to sell or otherwise dispose of the Oil Tankers to which the
consents in Schedule 9.2 refer for a period of one (1) year as from the Closing Date.
Disposal or sale by Sellers in breach of (ii) above, shall entitle Purchaser to a penalty
amounting to US Dollars THIRTY MILLION (30,000,000). |
| |
9.3 |
The obligations of the Purchaser to complete the transaction contemplated in this
Agreement shall be subject to: |
| |
(i) |
satisfaction of the condition that the counterparties to the agreements
indicated in Schedule 9.3 attached herewith, grant their written consent to the
change of control that will result from the transaction contemplated in this
Agreement, |
| |
(ii) |
▇▇▇▇▇ and NFT having transferred and excluded the Non Related Assets and
Liabilities pursuant to Clause 6.1; and |
| |
(iii) |
no material adverse change in the business and undertaking of the NFT Group
shall have occurred after the 31st of December of 2003. For these purposes,
material adverse change is defined as (a) the loss of any of the Oil Tankers or
the LNG Vessels and/or (b) the termination or material modification of either of
the Oil Tankers Financing Agreements, the Oil Tankers Charter Party Agreements,
the LNG Financing Agreements and/or LNG Charter Party Agreements, and/or (c) any
oil spill having material and substantial adverse consequences and/or (d) any
other material event which prevents the operation of the Oil Tankers or the LNG
Vessels.
(collectively the “Conditions Precedent”).
|
| |
9.4 |
The Parties shall use their best joint efforts in order to obtain as soon as possible the
consents and authorizations referred to in Clause 9.3 above and both Parties shall
diligently cooperate in preparing and executing any actions and documents which may be
required to such effect. |
| |
9.5 |
The Seller’s Representative shall provide the Purchaser not less than five [5]
business days prior to Closing Date with: (a) written confirmation that the Non Related
Assets and Liabilities have been transferred and excluded from NFT and ▇▇▇▇▇ and (b)
documentary evidence showing the consents obtained pursuant to Clause 9.3. (i). |
| |
9.6 |
Save for the exception provided for in Clause 9.7 below, in the event that five [5]
business days prior to the Closing Date, the Conditions Precedent referred to in Clause
9.3 (i) and Clause 9.3 (ii) above have not been met, the Purchaser may elect at its sole
option either to; |
| |
(a) |
waive the non fulfillment of such Conditions Precedent except as provided for
in Clause 9.2 and continue with the performance of this Agreement; or |
| |
(b) |
terminate this Agreement, in which case the Purchaser shall recover the amount
of the Payment on Account together with the interest accrued thereof and,
additionally, the Sellers shall, only in the case of non fulfillment of the
Condition Precedent provided in Clause 9.3(ii) and subject to clause 9.7,
indemnify the Purchaser by means of a penalty on the amount of THIRTY MILLION
DOLLARS USD 30,000,000 |
| |
9.7 |
Should the exclusion of the Non Related Assets and Liabilities have not been carried out
five [5] business days prior to the Closing Date, the Sellers may notify in writing to the
Purchaser, no later than three (3) days prior to the Closing Date, that the said exclusion
has not been carried out and that an extension is needed in order to proceed with the
exclusion. In such a case, the Closing Date shall be postponed for a period of ninety [90]
calendar days upon the expiration of which if the exclusion of the Non Related Assets and
Liabilities has not taken place, the Purchaser may elect at its sole option to proceed as
established in Clause 9.6 (a) or Clause 9.6 (b) above. |
| |
The
non exclusion from ▇▇▇▇▇ or NFT of bank debts amounting in aggregate up to 25,000,000 US$,
will not be considered as a non fulfillment of the condition precedent 9.3 (ii). Should
the Sellers decide that such debts are to remain in ▇▇▇▇▇ or NFT at Closing Date, then:
(i) any and all costs related to such debts’ early amortization will be borne
entirely by the Sellers; (ii) the Sellers shall provide a certificate issued by the
relevant bank to which the credit stands containing a statement on the exact amount,
including but not limited to any related costs and expenses, required to fully amortize
the relevant debt as on Closing Date (iii) such bank certificates will be included by the
Sellers in the notice to be sent to Purchaser on April 15, 2004, together with any further
information as described under Clause 2.6 and shall be taken into account in order to
calculate the Price Adjustments pursuant to Clause 2.5.
|
| |
Additionally,
the Sellers shall indemnify the Purchaser by means of a penalty in the amount of THIRTY
MILLION DOLLARS USD 30,000,000 in case that, the Conditions Precedent above having been
fulfilled, the Sellers breach their obligation to execute the Sale and Purchase which is
the purpose of this Agreement. |
| |
9.8 |
In the event that the consents referred to in paragraph 9.3.(i) in relation to the
transfer of the Oil Tankers have not been obtained by the Closing Date, but all the
consents corresponding to the LNG Vessels have been granted, then either of the parties
may elect that the transactions contemplated in this Agreement be completed with respect
to the LNG Business, for a price of USD ONE HUNDRED AND SEVENTY MILLION (USD 170,000,000)
to be adjusted in accordance with Clause 2.5. |
| |
For
the purposes of this Clause 9.8, the references contained in this Agreement to the
Shipping Business shall be deemed to be made, mutatis mutandi, to the LNG Business.
In this event, any reference made in this Agreement to the Sellers shall be deemed to be
made, mutatis mutandi, to NFT. |
| |
As
security for the Purchaser’s and the Sellers’ rights under this Clause 10.7,
respectively, NFT hereby grants to the Purchaser a Call Option (the “LNG Call
Option”) and the Purchaser hereby grants to NFT a Put Option (the “LNG
Put Option”) as a means to purchase and sale all and only all the NFT
Subsidiaries Shares under the same terms and conditions, mutatis mutandi, of this
Agreement, as a means to acquire and transfer the LNG Business. The LNG Call Option will
be exercised within a term of 15 business days after Closing Date. The LNG Put Option will
be exercised within a term of 15 days after the expiration of the term of exercise of the
LNG Call Option. |
| |
9.9 |
In the event that the consents referred to in paragraph 9.3.(i) referred to the transfer
of the LNG Vessels have not been obtained by the Closing Date, the Purchaser may elect
that the transactions contemplated in this Agreement be completed with respect to the LNG
Business, for a price of USD ONE HUNDRED AND SEVENTY MILLION (USD 170,000,000) to be
adjusted in accordance with Clause 2.5., and in this case, the Purchaser shall indemnify
the Sellers of any costs, expenses, losses and damages vis a vis the banks due to such
lack of consent. |
| |
For
the purposes of this Clause 9.9, the references contained in this Agreement to the
Shipping Business shall be deemed to be made, mutatis mutandi, to the LNG Business.
In this event, any reference made in this Agreement to the Sellers shall be deemed to be
made, mutatis mutandi, to NFT. |
| |
As
security for the Purchaser’s rights under this Clause 9.9, NFT hereby grants to the
Purchaser a Call Option (the “Second LNG Call Option”) as a means to
purchase and sale all and only all the NFT Subsidiaries Shares under the same terms and
conditions, mutatis mutandi, of this Agreement, as a means to acquire and transfer
the LNG Business. The Second LNG Call Option will be exercised within a term of 15
business days after Closing Date. |
| |
10. |
CLOSING AND CLOSING DATE |
| |
10.1 |
The Parties, acknowledging that the Board of Directors of the Purchaser has already
approved the transaction and to the extent of the absence of any material adverse changes
in the Shipping Business during the period of January 1, 2004 to the date of today, agree
that the payment of the price and the delivery of the Shares (the
“Closing”) shall take place, subject to the satisfaction of the
conditions precedent referred to in Clause 10, no later than April 30, 2004, unless such
date is extended by written agreement between the Parties (the “Closing
Date”). |
| |
10.2 |
At the Closing Date, the Parties shall carry out the following actions: |
| |
(i) |
The Sellers and the Purchaser shall appear before a Notary Public in the city of
Madrid to be designated jointly by the Sellers and the Purchaser in order to
execute the transfer of the ▇▇▇▇▇ Quotas by the NUFER Sellers and the NFT
Minority Shares by the Minority Sellers and the shares of the LNG Companies
owned by ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Riva in the terms and conditions contained in this Agreement. |
| |
(ii) |
The Sellers shall deliver to the Purchaser the share certificates or provisional
share certificates or title or deed of ownership, as the case may be,
representing the Shares and making the appropriate entries in the Stock
Registers of ▇▇▇▇▇ and NFT. Likewise, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall deliver to the
Purchaser, the share certificates or provisional share certificates or title or
deed of ownership, as the case may be, representing the shares he owns in each
of the LNG Companies and making the appropriate entries in the Stock Registers
of each of the LNG Companies. |
| |
(iii) |
The Purchaser shall pay to the Sellers the Purchase Price (after deducting the
Payment on Account with respect to the ▇▇▇▇▇ Quotas owned by ▇▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇) in the proportions set forth in Schedule 10.2 (iii), by means of a money
transfer of immediately available funds, value same day, to the bank account
that the Sellers shall have designated. |
| |
(iv) |
▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Sellers, as the case may be, shall issue a
statement in writing as of the Closing Date certifying that the Non related
Assets and Liabilities have been sold, transferred and excluded from ▇▇▇▇▇ and
NFT as the case may be; |
| |
(v) |
The Sellers shall issue a statement in writing dated as of Closing Date
certifying the accuracy and correctness of the Representations and Warranties of
the Sellers set out in Clauses 4.1 and 4.2 as they apply to the NFT Consolidated
Statutory Accounts, the NFT Final Proforma Balance Sheet, the ▇▇▇▇▇ Statutory
Accounts and the ▇▇▇▇▇ Final Proforma Balance Sheet; |
| |
(vi) |
The Sellers shall deliver or shall make available to the Purchaser the following
documentation concerning the Oil Tankers and the LNG Vessels: |
| |
(a) |
Certificate of ownership. |
| |
(b) |
Certificate of encumbrances. |
| |
(c) |
All documentation pertaining to the each of the Vessels, including but not
limited to the previous Confirmation of Class regarding the Oil Tankers and the
LNG Vessels, the plans as well as other technical documentation. |
| |
(vii) |
The Sellers shall deliver a draft duly completed of Corporate Income Tax return
for fiscal year 2003 for NFT Group and for ▇▇▇▇▇, which shall be accurate and
complete and will not contain any incorrect entry or omission. |
| |
(viii) |
The Sellers will cause the members of the Board of ▇▇▇▇▇ and the NFT Group to
deliver their dismissal letters waiving any possible right to compensation , and
the Purchaser will, and will cause ▇▇▇▇▇ and the NFT Group to, release the Board
Members in writing of any liability relating to such offices. |
| |
11. |
OTHER OBLIGATIONS OF THE PURCHASER |
| |
|
Promptly after Closing Date and in
any event within thirty business days as from the Closing Date, the Purchaser shall rename
the companies within the NFT Group, and it shall rename the Oil Tankers and the LNG
Vessels as soon as practical and in any event no later than the next dry dock, in order to
discontinue using the names “▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”, “▇. ▇▇▇▇▇▇” or
“▇▇▇▇▇▇”. ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ may request from the Purchaser copies of
the relevant documentation supporting such renaming, which copies shall not be
unreasonably withheld by the Purchaser. |
| |
12.1. |
The Purchaser shall keep confidential all the information and documentation
furnished to it by the Sellers or its advisors until the Closing Date. If the
Sale and Purchase is not consummated or if this Agreement is terminated for any
cause, the Purchaser shall destroy or return to the Sellers all the information
received from the Sellers in the possession of any of the directors, employees
or advisors of the Purchaser and the Purchaser may never use such information
for commercial ends. Such destruction or returning of the information referred
above shall be certified in writing by the Purchaser. |
| |
12.2. |
The Purchaser and the Sellers shall not disclose any details of this Agreement
and of the negotiations leading to its signing until the Closing Date, except as
to mandatory communications required by the applicable laws, provided however
that any party making such communication shall provide to the other party a
draft of the communication not less than 48 hours prior to its release and shall
reasonable agree with the amendments thereto that such other party may
reasonably request. |
| |
12.3. |
The Purchaser and the Sellers shall use their best efforts to cause their
directors, employees and advisors to comply with the contents of this Clause. |
| |
|
The Purchaser may assign to any of
its wholly owned and controlled subsidiaries any of its rights and obligations contained
herein. Assignor and assignee shall be jointly and severally liable for the performance of
the obligations arising from this Agreement and will execute such undertaking in writing
simultaneously with the assignment. The Sellers will cooperate to the extent required to
complete any assignment as and when reasonably required by the Purchaser. |
| |
14.1. |
For so long as a Seller is involved in the Joint Company TT, that Seller shall
refer to the Joint Company TT all their new business projects concerning the
Spanish market or to operations of, or led by, Spanish clients or whose parent
company is Spanish and related to the maritime transport of gas and, all period
charters regardless of term relating to the transportation of oil and oil
derived products. Should the approval of a Business Project be denied by the
Joint Company TT, the Seller having proposed it shall be entitled to undertake
such Business Project in the same terms as described in the Joint Venture
Agreement. |
| |
14.2. |
In the event that a Seller voluntarily leaves the Joint Company TT, then for a
period of three (3) years as from Closing Date, other than as contemplated by
the Joint Venture Agreement referred to in Clause 7, such Seller shall not be
involved nor undertake business in any way whatsoever, individually or
collectively, whether directly or indirectly, in the maritime transport of gas
and all period charters, regardless of length, in relation to the transportation
of oil and oil derived products, in particular, but not limited to the
following, the Sellers, directly or indirectly, |
| |
(i) |
shall not have nor constitute any business or company, nor acquire any business
or shareholding in companies, nor collaborate or maintain an employment
relationship, provide services, or maintain a management or advisory
relationship with the same, in the maritime transport of gas and all period
charters, regardless of length, in relation to the transportation of oil and oil
derived products; |
| |
(ii) |
shall not undertake or promote offers of employment or provision of services,
nor employ employees or persons connected with any of the NFT Group, without the
prior written consent of the Purchaser |
| |
15. |
SOLE AGREEMENT. WAIVER |
| |
15.1 |
This Agreement is the only valid document between the Parties and it replaces any other
document, report, letter and communication existing before it. The relations between the
Parties arising from this Sale and Purchase shall therefore be governed only according to
this Agreement, particularly as regards the system of liability of the Sellers, and
Purchaser’s rights of indemnity. |
| |
15.2 |
The failure of any party to insist upon strict performance of any of the terms or
provisions of this Agreement or to exercise any right or remedy herein contained shall not
be construed as a waiver or as a relinquishment for the future of such term, provision,
right or remedy, or of any other, but the same shall continue and remain in full force and
effect. No waiver by any party of any term or condition hereof shall be deemed to have
been made unless expressed in writing and signed or initialled by an authorized
representative of such party. |
| |
16. |
PUBLIC INSTRUMENT. SCHEDULES |
| |
|
This Agreement shall be granted into
public deed on or before Closing Date. |
| |
|
The Schedules to this Agreement shall
be countersigned by the Purchaser and by ▇▇. ▇▇▇▇▇▇, in representation of the Sellers. |
| |
|
If any provision herein, or the
application thereof to any circumstance of this Agreement, is held to be unenforceable,
invalid or illegal by any court, arbitration tribunal, government agency or regulatory
body of competent jurisdiction, (i) such provision shall be deemed deleted from this
Agreement or not applicable to such circumstance, as the case may be, and the
enforceability, validity and legality of the other provisions of this Agreement shall not
be affected or impaired thereby; and (ii) the parties shall negotiate in good faith to
agree on replacement terms that shall be enforceable, valid, legal, and consistent with
the initial intent of the parties. |
| |
|
Each party shall pay all the taxes,
expenses, brokerage commission and fees incurred by them in connection with this
transaction and this Agreement. |
| |
|
The fees of the Notary Public
attesting the documents that will be executed at the Closing Date shall be borne by the
parties on a fifty-fifty basis. |
| |
19. |
SELLERS' REPRESENTATIVE. |
| |
19.1 |
For all purposes provided in this Agreement, the Sellers hereby
appoint, on an irrevocable basis until the expiry of the time limits for making
or receiving any claim under this Agreement, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as
representation of each and every one of the Sellers (hereinafter, the
“Sellers’ Representative”). ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby
accepts his appointment as Sellers’ Representative on the terms hereof and
undertakes to perform the duties of representation on the terms of this
Agreement, including, but not limited those of the Escrow Agreement. |
| |
19.2 |
Acts of the Sellers through the Sellers’ Representative: All notices, decisions, acts
and agreements with the Purchaser or with the Bank and the Sellers’ Representative
shall be binding on each and every one of the Sellers. The Sellers’ Representative
shall hold the widest powers of representation of all the Sellers in relation to the
performance of this Agreement. In particular, the Seller’s Representative is
authorized to: |
| |
(a) |
receive or send any notice from or to the Purchaser or from or to the Bank; |
| |
(b) |
bring or defend any claim or proceeding, in or out of court or by arbitration,
vis-à-vis the Purchaser; |
| |
(c) |
receive and defend any claim or proceeding, in or out of court or by
arbitration, brought by the Purchaser; |
| |
(d) |
name advisors, incur expenses, drop proceedings and reach settlements; |
| |
(e) |
carry out any action on behalf and for the account of the Sellers. |
| |
The
appointment of the Sellers’ Representative by the Sellers shall not be construed to
any extent whatsoever to limit each of the Sellers personal financial liability under this
Agreement. |
| |
19.3. |
All of the above such that any notice, claim, proceeding or act of the Purchaser or of the
Bank sent to, brought against or made with the Sellers’ Representative shall bind all
and each of the Sellers; and any notice, claim, proceedings or act of the Sellers sent to,
brought against or made with the Purchaser or the Bank shall only be valid if sent,
brought or made by the Sellers’ Representative. |
| |
19.4 |
Similarly, in the event that the Sellers’ Representative is unable to continue acting
as such for whatever reason, including death, incapacity or some other, the Sellers
undertake to appoint as soon as possible another Sellers’ Representative and
immediately to notify the Purchaser of the name of that new Sellers’ Representative.
In the event that the Sellers do not name a new Sellers’ Representative the Purchaser
and the Bank shall send the notices provided in this Agreement to the other Sellers. |
| |
19.5 |
For the purposes of this Agreement, communications and notices sent by the Sellers shall
have no effect or validity whatsoever unless sent through the Sellers’
representative. |
| |
20.1 |
Any notice to be served
hereunder shall be served in writing to the following addresses: |
| |
(i) |
If addressed to the Sellers’ Representative,
Attention Mr. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Calle Lanzahita n°8.
Madrid. España
Fax number: ▇▇▇.▇▇.▇▇▇.▇▇.▇▇
|
| |
(ii) |
If addressed to the Purchaser,
TEEKAY SHIPPING CORPORATION
2100 - ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention General Counsel
Fax number ▇-▇▇▇-▇▇▇-▇▇▇▇
With copy to:
Uría & ▇▇▇▇▇▇▇▇
Attention ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇
▇▇▇▇▇ ▇▇▇▇▇▇
Fax number: ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇
|
| |
20.2 |
The Parties may only change the above addresses and fax numbers by serving written notice
addressed to the other party for its full knowledge. All notices and communications sent
to the above addresses shall be deemed validly sent to the addressee unless the latter has
notified the other party three [3] days prior to the notice in question of a change of
address or fax numbers. |
| |
20.3 |
Notices may be served by registered or certified mail or by facsimile, or delivered in
hand or by courier with evidence of receipt and shall be deemed to have been served on the
date of its receipt at the address of the party to which it is addressed. |
| |
|
This agreement is executed in English
language. Attached herewith as schedule 21 is the Spanish translation of the agreement.
The Spanish translation is a convenience translation only and shall not be utilized to
construe the meaning of the agreement. |
| |
22. |
APPLICABLE LAW.
JURISDICTION |
| |
22.1 |
This Agreement shall be governed by and construed under the laws of Spain. |
| |
22.2 |
Any dispute arising out of or in connection with this Agreement, including any question
regarding its existence, validity or termination, shall be referred to the exclusive
jurisdiction of the High Court of England and Wales in London. All proceeding shall be
conducted in the English language. |
| |
|
And in witness whereof, the Parties
have signed this document in two counterparts in the place and on the date first written
above. |
| |
____________________________________
Mr. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
____________________________________
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| |
____________________________________
Doble A Promociones S.A |
____________________________________
▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
| |
____________________________________
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Moure |
____________________________________
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| |
____________________________________
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Riva |
____________________________________
TEEKAY SHIPPING CORPORATION |
