AMENDMENT NO. 1 TO ACQUISITION AGREEMENT
AMENDMENT NO. 1, dated as of June 15, 1998, (the "Amendment"), to the
Acquisition Agreement (the "Acquisition Agreement"), dated as of September 15,
1997, by and among OMI Corp., a Delaware corporation ("OMI"), Universal Bulk
Carriers, Inc., a Liberian corporation ("UBC"), Marine Transport Lines, Inc., a
Delaware corporation (the "Company"), and the persons set forth on Exhibit A
attached thereto (each a "Shareholder" and collectively, the "Shareholders").
Capitalized terms used and not otherwise defined herein have the meanings
assigned to them in the Acquisition Agreement.
WHEREAS, OMI, UBC, the Company and the Shareholders desire to amend certain
provisions of the Acquisition Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
Amendments to Acquisition Agreement
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The Acquisition Agreement is hereby amended as hereinafter provided in this
Article 1, effective as of June 15, 1998.
1.1 Amendments to Article I of the Acquisition Agreement.
(a) The definition of Domestic Business set forth in Section 1.01
of the Acquisition Agreement is hereby amended by deleting clause
(vii)(a) thereof and adding a new clause (ix) as follows:
"(ix) a promissory Note issued by Argosy Ventures Ltd. to
Challenger Transport Inc. having a face amount of
$9,000,000."
1.2 Amendments to Article VI of the Acquisition Agreement.
(a) ss.6.1 of the Acquisition Agreement is hereby amended by
deleting sub clause (h) in its entirety, and substituting in its place
the following:
"(h) refrain from declaring, setting aside, making or paying
any distribution in redemption of stock or a dividend,
payable in cash, stock, property or otherwise, with respect
to any class of the capital stock of the Company, except (i)
a redemption of stock for cash not in excess of $2,500,000
(less any cash fees paid by the Company to First Stanford and
DNB pursuant to the Consulting Agreement) plus any amounts
distributed pursuant to Section 2.2(c)(iii) in redemption of
Common Stock immediately preceding the Acquisition and (ii) a
redemption of stock for the proceeds from the sale of the
interests of Marine LNG I, Inc. and Marine LNG II, Inc. in
the vessels LNG AQUARIUS and LNG ARIES, respectively, such
proceeds to be used for redemption of Common Stock."
(b) ss.6.19 of the Acquisition Agreement is hereby amended by
deleting clause (i) in its entirety, and substituting in its place the
following:
"(i) $17,155,957 of Common Stock prior to the First Closing
Date; provided, however, prior thereto the Company shall have
certified to the Acquiror that the Company has complied with
the requirements of Section 6.23 of this Agreement; and"
1.3 Amendments to Article VII of the Acquisition Agreement.
(a) ss.7.1(a)(vi) of the Acquisition Agreement is hereby amended
by deleting said condition in its entirety.
(b) ss.7.2(g) of the Acquisition Agreement is hereby amended by
deleting clause (i) in its entirety, and substituting in its place the
following:
"(i) Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel to the
Company and to the Shareholders listed in the first paragraph
of the opinion, shall have furnished the Acquiror with an
opinion, dated the First Closing Date, in form and substance
reasonably satisfactory to the Acquiror."
(c) ss.7.2(g) of the Acquisition Agreement is hereby further
amended by deleting clause (iii) in its entirety.
(d) ss.7.3 of the Acquisition Agreement is hereby amended by
deleting clause (f) in its entirety, and substituting in its place the
following:
"(f) Opinion of Counsel. The Acquiror shall have furnished to
the Shareholders and the Company (i) an opinion, dated the
First Closing Date, of White & Case, special counsel to the
Acquiror and (ii) an opinion, dated the First Closing Date,
of ▇▇▇▇▇▇▇ ▇. London, Esq., General Counsel of the Acquiror,
each of (i) and (ii) in form and substance reasonably
satisfactory to the Shareholders and the Company."
(e) ss.7.3 of the Acquisition Agreement is hereby further amended
by deleting clause (i) in its entirety, and substituting in its place
the following:
"(i) $17,155,957 in redemption for certain shares of Stock
provided, however, prior thereto the Company shall have
certified to the Acquiror that the Company has complied with
the requirements of Section 6.23 of this Agreement, and"
1.4 Amendments to Exhibits.
(a) Exhibit A to the Acquisition Agreement is hereby amended
by deleting said Exhibit in its entirety, and substituting in
its place Exhibit A hereto.
(b) Exhibit I to the Acquisition Agreement is hereby amended
by deleting said Exhibit in its entirety, and substituting in
its place Exhibit I hereto.
(c) Exhibit V to the Acquisition Agreement is hereby amended
by deleting said Exhibit in its entirety, and substituting in
its place Exhibit V hereto.
(d) Exhibit M to the Acquisition Agreement is hereby amended
by deleting said Exhibit in its entirety.
ARTICLE 2
Certain Additional Covenants and Agreements
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2.2 OMI hereby agrees to include among the Domestic Businesses' assets as
of the Second Closing Date two workboats (OMS MAVRICK and OMS ▇▇▇▇▇▇) currently
used by OMI Petrolink Corp.
2.3 OMI Corporation hereby agrees to pay on the Second Closing Date by wire
transfer, in immediately available funds, the sum of $1,360,000 to the account
of OMI Corp., which amount shall not be included in the working capital of OMI
Corp. on the Acquiror's Closing Balance Sheet.
2.4 The parties agree that the fair market value of the furniture and
fixtures located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (which is referred to in the Notes to Exhibit
I and the definition of Domestic Businesses) shall be $305,000.
2.5 OMI Corporation shall be responsible for and shall indemnify OMI Corp.
for any and all costs and expenses of OMI Corp. related to (i) the termination
of any one or more of the employees of OMI Corp. currently dedicated to the
business of OMI Ship Management Inc. (the "Ship Management Employees"), (ii) the
employment of the Ship Management Employees by a temporary employee leasing
company in furtherance of OMI's run-off of its current contracts with the U.S.
Maritime Administration (the "OMI MARAD Contracts"), the revenues of which shall
continue to be assets of OMI Corp, (iii) maintaining OMI Ship Management's
office through termination of all of the MARAD contracts, and (iv) the closure
of OMI Ship Management's office and (v) the lease of office space for OMI Ship
Managment.
ARTICLE 3
Certain Waivers
In consideration of the agreements of OMI and OMI Corporation contained in
Section 1.3(a) and Article 2 hereof and subject to consummation of the
transactions to be completed at the First Closing, the Shareholders hereby agree
(i) to waive their rights arising under Section 7.3(a) of the Acquisition
Agreement as a result of the changes referred to in the letter dated June 14,
1998 from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ addressed to the Acquiror (to the extent
such changes may be deemed to constitute material adverse changes), which
changes the Company believed (as of the date of such letter) constitute a
material adverse change in the Condition of the Domestic Businesses, and are
limited to the losses resulting from the loss of the Sea River contract, the
losses resulting from the failure of OMI Ship Management to receive any
contracts from the U.S. Maritime Administration, the additional expense incurred
by OMI Ship Management in hiring in personnel to manage the OMI Columbia and the
COURIER, PATRIOT and ROVER, the severence payments, rent and office payments
attributable to OMI Ship Management and the double counting of interest income
related to the cash flow projections of the OMI Columbia and (ii) to waive any
breaches of any representations or warranties as a result of any of the matters
referred to in clause (i).
ARTICLE 4
Certain Additional Covenants and Agreements
4.1 Except as expressly amended hereby, the Acquisition Agreement and all
other agreements, documents, instruments and certificates executed in connection
therewith remain in full force and effect in accordance with their respective
terms.
4.2 This Amendment may be executed in two or more counterparts, all of
which taken together shall constitute one instrument. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be as
effective as delivery of a manually executed counterpart of this Amendment.
4.3 THE INTERPRETATION AND CONSTRUCTION OF THIS AMENDMENT, AND ALL MATTERS
RELATING HERETO, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS EXECUTED AND TO BE PERFORMED SOLELY WITHIN SUCH STATE
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
4.4 This Amendment shall not constitute a consent or waiver to or
modification of any other provision, term or condition of the Acquisition
Agreement. All terms, provisions, covenants, representations, warranties,
agreements and conditions contained in the Acquisition Agreement, as amended
hereby, remain in full force and effect.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the Company, the Acquiror and UBC have caused their
corporate names to be hereunto subscribed by their duly authorized respective
officers and each of the Shareholders has signed this Agreement, all as of the
day and year first above written.
MARINE TRANSPORT LINES, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. du Moulin
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Name:
Title:
OMI CORP.
By:/s/▇▇▇▇▇▇▇ de Sostoa
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Name:
Title:
OMI CORPORATION, as successor-in-
interest to UNIVERSAL BULK
CARRIERS, INC.
By:/s/▇▇▇▇▇▇▇ de Sostoa
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Name:
Title:
SHAREHOLDERS
/s/▇▇▇▇▇▇▇ ▇. du Moulin /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. du Moulin ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ s/▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
as registered owner
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
The ▇▇▇▇▇▇▇ Descendants'
1983 Trust
/s/ Biniamine Amoyelle
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By: Biniamine Amoyelle
Title: Trustee
Steamboat Road Holdings, Inc. Larchmont Partners, L.P.
/s/▇▇▇▇▇▇▇ ▇. du Moulin /s/▇▇▇▇▇▇▇ ▇. du Moulin
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By: By:
Title: Title:
Harrowston Corporation /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
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/s/▇▇▇ ▇▇▇▇▇
------------------------ ▇▇▇▇▇▇▇ ▇. du Moulin
▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
as Trustees under the
Trust Agreement dated
September 12, 1997
between the Company and
the Trustees
By:/s/▇▇▇▇▇▇▇ ▇. du Moulin
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▇▇▇▇▇▇▇ ▇. du Moulin
By:/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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