DATED 18 November 2014 NAVIOS MARITIME MIDSTREAM PARTNERS L.P. (1) as Beneficiary and NAVIOS MARITIME ACQUISITION CORPORATION (2) as Obligor BACKSTOP AGREEMENT
EXHIBIT 4.10
DATED 18 November 2014
NAVIOS MARITIME MIDSTREAM PARTNERS L.P. (1)
as Beneficiary
and
NAVIOS MARITIME ACQUISITION CORPORATION (2)
as Obligor
This Agreement is made as of 18th of November 2014 by:
| (1) | NAVIOS MARITIME MIDSTREAM PARTNERS L.P., a limited partnership formed in the ▇▇▇▇▇▇▇▇ Islands and having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the “Beneficiary”); |
| (2) | NAVIOS MARITIME ACQUISITION CORPORATION, a corporation incorporated in the ▇▇▇▇▇▇▇▇ Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the “Obligor”). |
(individually, a “Party” and collectively the “Parties”)
WHEREAS:
| A. | The Obligor, the Beneficiary, Aegean Sea Maritime Holdings Inc., a ▇▇▇▇▇▇▇▇ Islands corporation and wholly owned subsidiary of the Obligor (“Aegean”), Navios Maritime Midstream Partners GP LLC, a ▇▇▇▇▇▇▇▇ Islands limited liability company and general partner of the Beneficiary, and Navios Maritime Midstream Operating LLC, a ▇▇▇▇▇▇▇▇ Islands limited liability company and wholly owned subsidiary of the Beneficiary (“OLLC”), have entered into a series of share purchase agreements dated November 18, 2014, (the “SPAs”), whereby the Beneficiary may elect to purchase all of the outstanding shares of capital stock of the vessel-owning subsidiaries as set forth in Schedule A hereto (the “Vessel-Owning Subsidiaries”). |
| B. | The respective Vessel-Owning Subsidiaries own the respective Vessels as described in Schedule A hereto (the “Vessels”), which are each subject to a respective charterparty (a “Charterparty”). |
| C. | Each Charterparty is subject to the respective floor rates as set forth on Schedule A hereto (the “Floor Rates”). |
| D. | Pursuant to and in consideration for the SPAs, the Obligor has agreed to provide a backstop commitment to the Beneficiary with respect to the Floor Rates on the terms set out in this Agreement. |
NOW IT IS HEREBY AGREED:
| 1. | The Obligor (or its guaranteed nominee) hereby irrevocably and unconditionally undertakes and agrees that it shall, beginning from the redelivery of each Vessel from its current charterer under its respective Charterparty until two years after the Scheduled Redelivery (as set forth in Schedule A hereto) for the ▇▇▇▇ ▇▇▇▇▇▇▇ and four years after the Scheduled Redelivery for the ▇▇▇▇ Quasar and the ▇▇▇▇ Galactic, following receipt of the Beneficiary’s notice (a “Notice”) that a rate greater to or equal to the Floor Rate is not available in the open market, charter the vessel from the relevant Vessel-Owning Subsidiary on terms substantially the same as the Charterparty in respect of the Vessel, provided that the Obligor shall not be required to pay hire at the respective Floor Rate. |
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| 2. | Any Notice hereunder shall be tendered not later than 15 days prior to the Scheduled Redelivery of the Vessel and be accompanied by written details of the facts giving rise to such notice and a statement that such Floor Rate on terms substantially similar to the respective Charterparty is not available in the open market. |
| 3. | Following the receipt of a Notice, the Obligor and the Beneficiary (or its nominee) shall conclude the charterparty of the Vessel by the Scheduled Redelivery. |
| 4. | Any Notice hereunder shall be deemed to have been given, and shall take effect, when delivered by hand or transmitted by fax or electronic mail in full legible form to the Obligor at 7 Avenue de Grande Bretagne, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Fax no.: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇. |
| 5. | This Agreement shall be binding upon, and inure for the benefit of, the Beneficiary and its successors in title, and the Beneficiary may assign, nominate or transfer any of its rights under this Agreement to its financing banks without the consent of the Obligor. |
| 6. | The agreement constituted by this Agreement and any non-contractual obligations arising out of or in connection with it is governed by, and shall be construed in accordance with, English law. |
| 7. | The Obligor agrees, for the benefit of the Beneficiary, that any legal action or proceedings arising out of or in connection with this Agreement (and any non-contractual obligations arising out of or in connection with its formation) against the Obligor or any of its assets may be brought in the English courts. The Obligor irrevocably and unconditionally submits to the jurisdiction of such courts and irrevocably designates, appoints and empowers HFW Nominees Ltd at present of Friary Court, 65 Crutched Friars, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ to receive for it and on its behalf, service of process issued out of the English courts in any such legal action or proceedings. The submission to such jurisdiction shall not (and shall not be construed so as to) limit the rights of the Beneficiary to take any proceedings against the Obligor in the courts of any other competent jurisdiction nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not. |
| 8. | All parties agree that each Vessel-Owning Subsidiary shall be, and is hereby, named as an express third-party beneficiary of this Agreement, with full rights as such, including enforcement rights. |
| 9. | Other than pursuant to paragraph 8, no term of this Agreement is enforceable under the provisions of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ by a person who is not a party to this undertaking. |
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed all as of the date first written above.
| by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ |
) | |
| the duly authorised representative | ) | |
| for and on behalf of | ) | |
| NAVIOS MARITIME MIDSTREAM | ) | |
| PARTNERS L.P. | ) |
| by /s/ Leonidas Korres |
) | |
| the duly authorised representative | ) | |
| for and on behalf of | ) | |
| NAVIOS MARITIME | ) | |
| ACQUISITION CORPORATION | ) |
Acknowledged this day of November 2014
| by /s/ Leonidas Korres |
) | |
| the duly authorised representative | ) | |
| for and on behalf of | ) | |
| SIKINOS SHIPPING CORPOPRATION | ) |
| by /s/ Leonidas Korres |
) | |
| the duly authorised representative | ) | |
| for and on behalf of | ) | |
| KERKYRA SHIPPING CORPORATION | ) |
| by /s/ Leonidas Korres |
) | |
| the duly authorised representative | ) | |
| for and on behalf of | ) | |
| ZAKYNTHOS SHIPPING CORPORATION | ) |
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SCHEDULE A
| Vessel-Owning Subsidiary |
Vessel | Floor Rate | Scheduled Redelivery | |||
| Sikinos Shipping Corporation |
▇▇▇▇ ▇▇▇▇▇▇▇ | USD 42,075 | December 2016 | |||
| Kerkyra Shipping Corporation |
▇▇▇▇ Galactic | USD 35,000 | February ▇▇▇▇ | |||
| ▇▇▇▇▇▇▇▇▇ Shipping Corporation |
▇▇▇▇ Quasar | USD 35,000 | February 2015 |