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STOCK PURCHASE AGREEMENT
Dated as of October 12, 1995
By and Between
HVIDE MARINE INCORPORATED
and
OMI CORP.
as a Shareholder of
OCEAN SPECIALTY TANKERS CORPORATION
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................................. 2
Section 1.1 Definitions........................................... 2
ARTICLE II SALE OF STOCK; PURCHASE PRICE; CLOSING....................... 4
Section 2.1 Sale of Stock......................................... 4
Section 2.2 Purchase Price........................................ 4
Section 2.3 Allocation of Purchase Price.......................... 5
Section 2.4 Closing............................................... 6
ARTICLE III REPRESENTATIONS OF THE SELLER............................... 6
Section 3.1 Ownership of Stock.................................... 6
Section 3.2 Existence and Good Standing........................... 6
Section 3.3 Authority of Seller................................... 7
Section 3.4 No Violations......................................... 7
Section 3.5 Governmental Authorization............................ 8
Section 3.6 Purchase for Investment............................... 8
ARTICLE IV REPRESENTATIONS OF THE PURCHASER.............................. 8
Section 4.1 Existence and Good Standing; Power and Authority...... 8
Section 4.2 No Violations......................................... 8
Section 4.3 Purchase for Investment............................... 9
Section 4.4 Broker's or Finder's Fees............................. 9
ARTICLE V CONDUCT OF BUSINESS; EXCLUSIVE DEALING; UNION CONTRACTS...... 9
Section 5.1 Conduct of Business of the Company.................... 9
Section 5.2 Exclusive Dealing..................................... 9
Section 5.3 Union Contracts....................................... 9
ARTICLE VI CONDITIONS TO PURCHASER'S OBLIGATIONS........................ 10
Section 6.1 Truth of Representations and Warranties............... 10
Section 6.2 Governmental Approvals................................ 10
Section 6.3 Performance of Agreements............................. 10
(i)
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Section 6.4 Proceedings........................................... 10
Section 6.5 Assignment and Assumption Agreements.................. 10
Section 6.6 GECC Release.......................................... 11
Section 6.7 Memoranda of Agreement................................ 11
Section 6.8 Vessel Transfer Documents............................. 11
Section 6.9 Labor Agreements...................................... 12
Section 6.10 Consummation of the Initial Public Offering........... 12
Section 6.11 Opinion of Seller's Counsel........................... 12
ARTICLE VII CONDITIONS TO THE SELLER'S OBLIGATIONS....................... 12
Section 7.1 Opinion of Purchaser's Counsel........................ 12
Section 7.2 Good Standing Certificates............................ 12
Section 7.3 Truth of Representations and Warranties............... 13
Section 7.4 Governmental Approvals................................ 13
Section 7.5 Performance of Agreements............................. 13
Section 7.6 Proceedings........................................... 13
Section 7.7 Assignment and Assumption Agreements.................. 13
Section 7.8 GECC Release.......................................... 13
Section 7.9 Memoranda of Agreement................................ 14
Section 7.10 Promissory Note....................................... 14
Section 7.11 Labor Agreements...................................... 14
Section 7.12 DNB Release........................................... 14
Section 7.13 Audited Financials.................................... 14
ARTICLE VIII SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION................. 14
Section 8.1 Survival of Representations........................... 14
Section 8.2 Indemnification....................................... 14
ARTICLE IX MISCELLANEOUS................................................ 15
Section 9.1 Expenses.............................................. 15
Section 9.2 Governing Law......................................... 15
Section 9.3 Jurisdiction.......................................... 15
Section 9.4 Captions.............................................. 16
Section 9.5 Publicity............................................. 16
Section 9.6 Notices............................................... 16
Section 9.7 Parties in Interest................................... 17
Section 9.8 Counterparts.......................................... 17
Section 9.9 Entire Agreement...................................... 17
(ii)
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Section 9.10 Amendments........................................... 17
Section 9.11 Severability......................................... 18
Section 9.12 Third Party Beneficiaries............................ 18
Section 9.13 Termination of Agreement............................. 18
EXHIBITS
EXHIBIT A Form of Promissory Note
EXHIBIT B Form of Dynachem Memorandum of Agreement
EXHIBIT C Form of ▇▇▇▇▇▇ Memorandum of Agreement
EXHIBIT D Form of Star Memorandum of Agreement
SCHEDULES
Schedule 1.1(a) Acquired Vessels
(iii)
STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT (this "Agreement") dated as of October 12, 1995 by
and between HVIDE MARINE INCORPORATED, a Florida corporation (the "Purchaser"),
and OMI CORP., a Delaware corporation (the "Seller"), being a shareholder of
OCEAN SPECIALTY TANKERS CORPORATION, a Delaware corporation (the "Company").
WITNESSETH:
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WHEREAS, the Seller is the owner of 5,000 shares of common stock, par value
$.10 per share, of the Company (the "Stock"), representing one-half of the total
issued and outstanding shares of common stock of the Company on the date hereof;
WHEREAS, on the terms and subject to the conditions set forth in this
Agreement and the Ancillary Agreements, the Seller desires to sell, and
Purchaser desires to purchase, the Stock; and
WHEREAS, it is the intention of the parties hereto that, upon consummation
of the purchase and sale of the Stock pursuant to this Agreement and the
Ancillary Agreements, Purchaser shall own all of the outstanding common stock of
the Company;
WHEREAS, the Seller desires to sell or cause to be sold, and the Purchaser
desires to purchase, the Acquired Vessels on the terms and subject to the
conditions contained in the Transaction Documents;
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein that the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
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Section 1.1 Definitions. In addition to the terms defined elsewhere in this
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Agreement, the following terms shall have the respective meanings specified
therefor below:
"Acquired Vessels" shall mean the vessels listed on and described in
Schedule 1.1(a) hereto.
"Agreement" shall mean this Agreement as amended, modified or supplemented
from time to time.
"Ancillary Agreements" shall mean the Promissory Note, the Memoranda of
Agreement, the Assignment and Assumption Agreements, the DNB Release and the
GECC Release.
"Assignment and Assumption Agreements" shall mean the Dynachem Assignment
and Assumption Agreement and the ▇▇▇▇▇▇ Assignment and Assumption Agreement.
"Closing" shall have the meaning specified in Section 2.4 hereof.
"Closing Date" shall have the meaning specified in Section 2.4 hereof.
"Company" shall have the meaning specified in the first paragraph hereof.
"DNB Guaranty" shall mean the Guaranty, dated September 9, 1992, made by
the Seller in favor of Den norske Bank AS regarding the Credit Agreement, dated
September 9, 1992, between the Seller and Den norske Bank AS, as amended.
"DNB Release" shall have the meaning specified in Section 7.15 hereof.
"Dynachem Memorandum of Agreement" shall have the meaning specified in
Section 6.8 hereof.
"Dynachem Assignment and Assumption Agreement" shall have the meaning
specified in Section 6.5 hereof.
"GECC Lease" shall mean the Bareboat Charter Party, dated August 12, 1987,
between OMI Clover Transport, Inc., a subsidiary of the Seller, and The Bank of
New York, as trustee, regarding the charter of the "OMI ▇▇▇▇▇▇".
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"GECC Release" shall have the meaning specified in Section 6.7 hereof.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the rules and regulations thereunder.
"▇▇▇▇▇▇ Assignment and Assumption Agreement" shall have the meaning
specified in Section 6.5 hereof.
"Initial Public Offering" shall mean the contemplated sale by Purchaser of
an indeterminate number of its shares of common stock in an initial public
offering.
"▇▇▇▇▇▇ Memorandum of Agreement" shall have the meaning specified in
Section 6.8 hereof.
"MARAD" shall mean the Maritime Administration established by
Reorganization Plan No. 21 of 1950 and continued by Reorganization Plan No. 7 of
1961, or any body or official which is a successor thereto with respect to a
particular function.
"MARAD Consent" shall have the meaning specified in Section 6.5 hereto.
"Memoranda of Agreement" shall mean the Dynachem Memorandum of Agreement,
the ▇▇▇▇▇▇ Memorandum of Agreement and the Star Memorandum of Agreement.
"Person" shall mean any individual, partnership, limited partnership, joint
venture, corporation, limited liability company, limited liability partnership,
trust, unincorporated organization, governmental body or any subdivision or
agency thereof or any other entity.
"Promissory Note" shall have the meaning specified in Section 2.2 hereof.
"Purchase Price" shall have the meaning specified in Section 2.2 hereof.
"Purchaser" shall have the meaning specified in the first paragraph hereof.
"Seller" shall have the meaning specified in the first paragraph hereof.
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"Seller Affiliate" shall mean any affiliate of the Seller party to the
Ancillary Agreements or the Vessel Transfer Documents.
"Star Memorandum of Agreement" shall have the meaning specified in Section
6.8 hereof.
"Stock" shall have the meaning specified in the preamble hereof.
"Title XI Indebtedness" shall mean indebtedness which is guaranteed
pursuant to Title ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, as amended.
"Transaction Documents" shall mean and include this Agreement, the
Ancillary Agreements and the Vessel Transfer Documents.
"Vessel Transfer Documents" shall have the meaning specified in Section 6.9
hereof
ARTICLE II
SALE OF STOCK; PURCHASE PRICE; CLOSING
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Section 2.1 Sale of Stock. On the terms and subject to conditions of this
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Agreement, the Seller agrees to sell, assign, transfer, convey and deliver to
Purchaser on the Closing Date, and Purchaser agrees to purchase from the Seller
on the Closing Date, all of the Seller's right, title and interest to the Stock.
Section 2.2 Purchase Price. (a)(i) On the Closing Date, Purchaser shall pay
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to the Seller the sum of $1,000, by wire transfer in immediately available funds
to an account designated by the Seller prior to the Closing Date, in
consideration for the purchase by Purchaser of the Stock.
(ii) On the Closing Date, Purchaser shall, in consideration for the
purchase by Purchaser of the "OMI Dynachem" and the "OMI Star" pursuant to the
Dynachem Memorandum of Agreement and the Star Memorandum of Agreement,
respectively, (x) pay to the Seller the sum of $11,512,500, by wire transfer in
immediately available funds to an account designated by the Seller prior to the
Closing Date, (y) assume the Title XI Indebtedness related to the "OMI Dynachem"
pursuant to the Dynachem Assignment and Assumption Agreement and (z) issue to
the Seller a promissory note in
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the principal amount of $8,350,000 in the form of Exhibit A hereto (the
"Promissory Note").
(iii) On the Closing Date, Purchaser shall, in consideration for the
purchase by Purchaser of the "OMI ▇▇▇▇▇▇" pursuant to the ▇▇▇▇▇▇ Memorandum of
Agreement, (x) pay to The Bank of New York the sum of $10,430,000, by wire
transfer in immediately available funds to an account designated by The Bank of
New York or other owner of the vessel prior to the Closing Date, and (y) assume
the Title XI Indebtedness related to the "OMI ▇▇▇▇▇▇" pursuant to the ▇▇▇▇▇▇
Assignment and Assumption Agreement; provided that in the event that the Closing
has not occurred on or prior to November 30, 1995, Purchaser shall pay to Seller
the additional sum of $1,145,000, by wire transfer in immediately available
funds to an account designated by the Seller prior to the Closing Date.
(b) In the event that Purchaser has not consummated the Initial Public
Offering on or prior to the Closing Date, the Purchaser shall pay to the Seller
the aggregate sum of $300,000, payable quarterly in eight (8) equal payments of
$37,500 commencing on the Closing Date and neither party shall have further
obligations under this Agreement.
(c) In the event that Purchaser has completed the Initial Public Offering
on or prior to the Closing Date and an over-allotment (or "green shoe") option
has been exercised by the underwriters in connection therewith, the Purchaser
shall, on the Closing Date, pay to Seller an aggregate sum equal to twenty (20%)
percent of the net proceeds received by Purchaser in connection with the
exercise of the over-allotment option, and the principal amount of the
Promissory Note shall be reduced by such amount; provided that the amounts
payable by Purchaser pursuant to this paragraph (c) shall not exceed $1,350,000.
(d) For purposes of this Agreement, "Purchase Price" shall be deemed to
include all sums paid and indebtedness incurred or assumed pursuant to Sections
2.2(a) and 2.2(c).
Section 2.3 Allocation of Purchase Price. The Seller and the Purchaser
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agree to allocate the Purchase Price in accordance with Section 2.2 hereof and
the Memoranda of Agreement. Neither the Seller nor the Purchaser shall file any
tax return or other document or otherwise take any
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position which is inconsistent with the allocation determined pursuant to this
Section 2.3.
Section 2.4 Closing. (a) The transactions referred to in Section 2.1 (the
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"Closing") shall take place at 10:00 A.M. at the offices of Dyer, Ellis, ▇▇▇▇▇▇
& ▇▇▇▇▇ on the earlier of January 31, 1996 or the date ten (10) business days
after Purchaser has completed the Initial Public Offering. Such date is herein
referred to as the "Closing Date".
(b) On the Closing Date, Seller will deliver or cause to be delivered to
Purchaser the certificates representing the Stock duly endorsed in blank, or
accompanied by stock powers duly executed in blank by the Seller with signatures
guaranteed by a domestic commercial bank or trust company, with all necessary
transfer tax and other revenue stamps, acquired at the Seller's expense, affixed
and cancelled. The Seller agrees to cure any deficiencies with respect to the
endorsement of the certificates representing the Stock owned by the Seller or
with respect to the stock power accompanying any such certificates.
(c) On or prior to the Closing Date, Seller and Purchaser will execute and
deliver or cause to be delivered the Ancillary Agreements and the Vessel
Transfer Documents.
ARTICLE III
REPRESENTATIONS OF THE SELLER
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The Seller represents, warrants and agrees as follows:
Section 3.1 Ownership of Stock. The Seller is the lawful owner of the
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Stock, free and clear of all liens, encumbrances, restrictions and claims of
every kind. The Seller has full legal right, power and authority to enter into
this Agreement and to sell, assign, transfer and convey the Stock so owned by
the Seller pursuant to this Agreement and the delivery to Purchaser of the Stock
pursuant to the provisions of this Agreement will transfer to Purchaser good and
marketable title thereto, free and clear of all liens, encumbrances,
restrictions and claims of every kind.
Section 3.2 Existence and Good Standing. The Seller is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware.
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Section 3.3 Authority of Seller. (a) Seller has full corporate power and
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authority to execute and deliver this Agreement and to sell, assign, transfer
and convey the Stock to Purchaser pursuant to this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement by Seller, and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of Seller. This
Agreement has been duly and validly executed and delivered by Seller and,
assuming due execution and delivery by Purchaser, constitutes a valid and
binding agreement of Seller enforceable against Seller in accordance with its
terms.
(b) The Seller and each of the Seller Affiliates has full corporate power
and authority to execute and deliver the Ancillary Agreements to which each is a
party, to perform their respective obligations thereunder and to consummate the
transactions contemplated thereby. The execution, delivery and performance by
Seller and each of the Seller Affiliates of the Ancillary Agreements to which
each is a party, and the consummation by it of the transactions contemplated
thereby, have been duly authorized by all necessary corporate action on the part
of Seller and the Seller Affiliates. The Ancillary Agreements to which the
Seller and each of the Seller Affiliates is a party have been duly and validly
executed and delivered by Seller and the Seller Affiliates and, assuming due
execution and delivery by Purchaser, as the case may be, constitute valid and
binding agreements of Seller and the Seller Affiliates enforceable against
Seller and the Seller Affiliates in accordance with their terms.
Section 3.4 No Violations. The execution and delivery by the Seller and the
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Seller Affiliates of the Transaction Documents to which each is a party and the
consummation of the transactions contemplated thereby will not (i) violate any
provision of the Certificate of Incorporation or By-Laws of the Seller or the
Seller Affiliates, (ii) any statute, rule, regulation, order or decree of any
public body or authority by which each of the Seller and the Seller Affiliates
or any of their properties or assets is bound and (iii) result in a violation or
breach of, or constitute a default under, any license, franchise, permit,
indenture, agreement or other instrument to which the Seller or any such
affiliates is a party, or by which any the Seller or the Seller Affiliates or
any of their respective assets or properties is bound.
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Section 3.5 Governmental Authorization. Assuming that the conditions set
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forth in Sections 6.2 and 7.4 hereof have been satisfied, no licenses or permits
from, approvals of or filings with any governmental agencies are required to
enable Seller to sell the Stock to Purchaser in accordance with this Agreement
and the Seller Affiliates to sell the Acquired Vessels pursuant to the Ancillary
Agreements and the Vessel Transfer Documents.
Section 3.6 Purchase for Investment. Seller will acquire the Promissory
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Note for its own account for investment and not with a view toward any resale or
distribution thereof; provided, however, that the disposition of Seller's
property shall at all times remain within the sole control of Seller.
ARTICLE IV
REPRESENTATIONS OF THE PURCHASER
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The Purchaser represents, warrants and agrees as follows:
Section 4.1 Existence and Good Standing; Power and Authority. Purchaser is
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a corporation duly organized, validly existing and in good standing under the
laws of the State of Florida. Purchaser has the corporate power and authority to
enter into, execute and deliver this Agreement and the other Transaction
Documents to which it is a party and perform its obligations hereunder and
thereunder. This Agreement and the other Transaction Documents to which the
Purchaser is a party have been duly authorized and approved by all required
corporate action of Purchaser.
Section 4.2 No Violations. The execution and delivery by the Purchaser of
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this Agreement and the other Transaction Documents to which it is a party and
the consummation of the transactions contemplated hereby and thereby will not
(i) violate any provision of the Certificate of Incorporation or By-Laws of the
Purchaser, (ii) any statute, rule, regulation, order or decree of any public
body or authority by which Purchaser or any of its properties or assets is bound
and (iii) result in a violation or breach of, or constitute a default under, any
license, franchise, permit, indenture, agreement or other instrument to which
Purchaser is a party, or by which Purchaser or any of its assets or properties
is bound.
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Section 4.3 Purchase for Investment. Purchaser will acquire the Stock for
its own account for investment and not with a view toward any resale or
distribution thereof; provided, however, that the disposition of Purchaser's
property shall at all times remain within the sole control of Purchaser.
Section 4.4 Broker's or Finder's Fees. No agent, broker, person or firm
acting on behalf of the Purchaser is, or will be, entitled to any commission or
broker's or finder's fees from any of the parties hereto, or from any Person
controlling, controlled by or under common control with any of the parties
hereto, in connection with any of the transactions contemplated by this
Agreement.
ARTICLE V
CONDUCT OF BUSINESS; EXCLUSIVE DEALING; UNION CONTRACTS
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Section 5.1 Conduct of Business of the Company. During the period from the
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date of this Agreement to the Closing Date, the Seller shall not cause the
Company to conduct its operations in any manner not in its ordinary and usual
course of business. The Seller agrees not to take any action, or omit to take
any action, which would cause the representations and warranties contained in
Article III hereof to be untrue or incorrect.
Section 5.2 Exclusive Dealing. During the period from the date of this
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Agreement to the Closing Date, the Seller shall not, and shall cause the Company
to refrain from taking any action to, directly or indirectly, encourage,
initiate or engage in discussions or negotiations with, or provide any
information to, any Person, other than the Purchaser, concerning any purchase of
the Stock or any merger, sale of substantial assets or similar transaction
involving the Company.
Section 5.3 Union Contracts. Seller agrees to discuss with Purchaser or any
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of its designated representatives any contemplated changes to the union
contracts existing on the date hereof to which the unions representing the crews
of the Acquired Vessels are party.
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ARTICLE VI
CONDITIONS TO PURCHASER'S OBLIGATIONS
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The obligation of the Purchaser to purchase the Stock from the Seller and
the Acquired Vessels on the Closing Date is conditioned upon satisfaction, at or
prior to the Closing, or waiver by Purchaser, of the following conditions:
Section 6.1 Truth of Representations and Warranties. The representations
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and warranties of the Seller contained in Article III of this Agreement shall be
true and correct on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of such date, and
the Seller shall have delivered to Purchaser a certificate, dated the Closing
Date, to such effect.
Section 6.2 Governmental Approvals. All governmental and other consents and
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approvals (including the expiration of all applicable time periods under the HSR
Act), if any, necessary to permit the consummation of the transactions
contemplated by this Agreement and the other Transaction Documents shall have
been received and remain in full force and effect on the Closing Date.
Section 6.3 Performance of Agreements. All of the agreements of the Seller
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or the Seller Affiliates to be performed prior to the Closing pursuant to the
terms of the Transaction Documents shall have been duly performed, and the
Seller shall have delivered to the Purchaser a certificate, dated the Closing
Date, to such effect.
Section 6.4 Proceedings. All proceedings to be taken in connection with the
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transactions contemplated by this Agreement and all documents incident thereto
shall be satisfactory in form and substance to the Purchaser and its counsel,
and the Purchaser shall have received copies of all such documents and other
evidences as it or its counsel may reasonably request in order to establish the
consummation of such transactions and the taking of all proceedings in
connection therewith.
Section 6.5 Assignment and Assumption Agreements. (a) Seller shall have
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executed and delivered to Purchaser an assignment and assumption agreement
satisfactory in form to the Seller and Purchaser (the "Dynachem Assignment and
Assumption Agreement") whereby Seller assigns to Purchaser
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and Purchaser assumes the Title XI Indebtedness related to the "OMI Dynachem".
(b) Seller shall have executed and delivered to Purchaser an assignment and
assumption agreement satisfactory in form to the Seller and Purchaser (the
"▇▇▇▇▇▇ Assignment and Assumption Agreement") whereby Seller assigns to
Purchaser and Purchaser assumes the Title XI Indebtedness related to the "OMI
▇▇▇▇▇▇".
(c) Seller shall have obtained all consents and waivers required to give
effect to the transactions contemplated by the Assignment and Assumption
Agreements, including, without limitation, the consent of MARAD in a form
satisfactory to the parties to this Agreement (the "MARAD Consent").
Section 6.6 GECC Release. Seller shall have delivered to Purchaser a
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release signed by the owner of the OMI ▇▇▇▇▇▇ (the "GECC Release") providing for
the release of the GECC Lease.
Section 6.7 Memoranda of Agreement. (a) The Seller shall cause to be
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executed and delivered to the Purchaser a memorandum of agreement substantially
in the form of Exhibit B hereto (the "Dynachem Memorandum of Agreement")
providing for the sale to Purchaser or its designee of the "OMI Dynachem" on the
terms and conditions set forth therein.
(b) The Seller shall cause to be executed and delivered to the Purchaser a
memorandum of agreement substantially in the form of Exhibit C hereto (the
"▇▇▇▇▇▇ Memorandum of Agreement") providing for the sale to Purchaser or its
designee of the "OMI ▇▇▇▇▇▇" on the terms and conditions set forth therein.
(c) The Seller shall cause to be executed and delivered to the Purchaser a
memorandum of agreement substantially in the form of Exhibit D hereto (the "Star
Memorandum of Agreement") providing for the sale to Purchaser or its designee of
the "OMI Star" on the terms and conditions set forth therein.
Section 6.8 Vessel Transfer Documents. Seller shall have executed and
--------------------------
delivered or cause to have been executed and delivered to Purchaser all
documents necessary to transfer title to the Acquired Vessels pursuant to the
Memoranda of Agreement (collectively, the "Vessel Transfer Documents").
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Section 6.9 Labor Agreements. The unions representing the licensed and
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unlicensed crew of the Acquired Vessels (not including radio operators for which
Purchaser shall not undertake any obligation to assume or be otherwise bound by
any collective bargaining agreement pertaining to same) shall have reached an
agreement with Purchaser (or at its option Seller or an independent contractor
selected by it to furnish crews for the Acquired Vessels) to amend each of the
collective bargaining agreements covering the Acquired Vessels, which amendment
shall provide for (i) a term of three (3) years following the Closing, (ii) no
reopening of the collective bargaining agreements during such term and (iii) the
continuation of the same wage structures, terms and working conditions relating
to the Acquired Vessels in effect as of the date hereof, subject only to
reasonable cost of living-related wage increases.
Section 6.10 Consummation of the Initial Public Offering. The Purchaser
--------------------------------------------
shall have consummated the Initial Public Offering at a price set forth in its
amended S-1 Registration Statement on Form S-1 filed with the Securities and
Exchange Commission.
Section 6.11 Opinion of Seller's Counsel. The Seller shall have furnished
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the Purchaser with an opinion, dated the Closing Date, of White & Case in scope,
form and substance reasonably satisfactory to Purchaser.
ARTICLE VII
CONDITIONS TO THE SELLER'S OBLIGATIONS
---------------------------------------
The sale of the Stock and the Acquired Vessels by the Seller on the Closing
Date is conditioned upon satisfaction, at or prior to such date, or waiver by
Seller, of the following conditions:
Section 7.1 Opinion of Purchaser's Counsel. The Purchaser shall have
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furnished the Seller with an opinion, dated the Closing Date, of Dyer, Ellis,
▇▇▇▇▇▇ & ▇▇▇▇▇ in form, scope and substance reasonably satisfactory to Seller.
Section 7.2 Good Standing Certificates. The Purchaser shall have delivered
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to the Seller (i) copies of its Certificate of Incorporation, including all
amendments thereto, certified by the Secretary of State of the State of Florida
and (ii) certificates from the Secretary of State of
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the State of Florida to the effect that Purchaser is in good standing in such
State.
Section 7.3 Truth of Representations and Warranties. The representations
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and warranties of the Purchaser contained in Article IV of this Agreement shall
be true and correct on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of such date, and
Purchaser shall have delivered to the Seller a certificate, dated the Closing
Date, to such effect.
Section 7.4 Governmental Approvals. All governmental consents and approvals
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(including the expiration of all applicable time periods under the HSR Act), if
any, necessary to permit the consummation of the transactions contemplated by
this Agreement and the other Transaction Documents shall have been received and
remain in full force and effect on the Closing Date.
Section 7.5 Performance of Agreements. All of the agreements of the
--------------------------
Purchaser to be performed prior to the Closing pursuant to the terms of the
Transaction Documents shall have been duly performed, and the Purchaser shall
have delivered to the Seller a certificate, dated the Closing Date, to such
effect.
Section 7.6 Proceedings. All proceedings to be taken in connection with the
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transactions contemplated by this Agreement and all documents incident thereto
shall be reasonably satisfactory in form and substance to the Seller and their
counsel, and the Seller shall have received copies of all such documents and
other evidences as they or their counsel may reasonably request in order to
establish the consummation of such transactions and the taking of all
proceedings in connection therewith.
Section 7.7 Assignment and Assumption Agreements. (a) Purchaser shall have
-------------------------------------
executed and delivered to Seller the Assignment and Assumption Agreements.
(b) Purchaser shall have obtained all consents and waivers required to give
effect to the transactions contemplated by the Assignment and Assumption
Agreements.
Section 7.8 GECC Release. Seller shall have obtained a release signed by
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the owner of the "OMI ▇▇▇▇▇▇" (the "GECC Release") providing for the release of
the GECC Lease.
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Section 7.9 Memoranda of Agreement. The Purchaser shall have executed and
----------------------
delivered to the Seller and performed all of its obligations under the Memoranda
of Agreement.
Section 7.10 Promissory Note. Purchaser shall have executed and delivered
---------------
to Purchaser the Promissory Note. Purchaser shall have obtained all consents
required to permit the issuance of the Promissory Note.
Section 7.11 Labor Agreements. (a) The Purchaser (or at its discretion
----------------
Seller or an independent contractor selected by Purchaser to furnish crews for
the Acquired Vessels) shall agree to abide by the collective bargaining
agreements referenced in Section 6.9 of this Agreement with regard to the
employment of personnel on the Acquired Vessels for a period of three (3) years
following the Closing.
(b) No union shall have made an offer to purchase any of the Acquired
Vessels pursuant to and in compliance with the terms of any collective
bargaining agreement to which the Seller is a party.
Section 7.12 DNB Release. Purchaser shall have delivered to Seller a
-----------
release executed by Den norske Bank AS in a form satisfactory to the parties to
this Agreement (the "DNB Release") providing for the release of the DNB
Guaranty. Both parties shall cooperate in obtaining the DNB Release.
Section 7.13 Audited Financials. On or prior to the Closing Date, Purchaser
------------------
shall have reimbursed Seller in full for the costs incurred by Seller or its
affiliates in preparing the audited financial statements of the entities owning
the Acquired Vessels.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
--------------------------------------------
Section 8.1 Survival of Representations. The respective representations and
---------------------------
warranties of the Seller and the Purchaser contained in this Agreement shall
survive the purchase and sale of the Stock pursuant to this Agreement.
Section 8.2 Indemnification. (a) The Seller hereby agrees to indemnify and
---------------
hold the Purchaser and their officers, directors and agents harmless from
damages, losses or expenses (including, without limitation, reasonable
attorneys' fees and expenses), suffered or paid, directly or
-14-
indirectly, through application of the Company's or the Purchaser's assets or
otherwise, as a result of or arising out of the failure of any representation or
warranty made by the Seller in this Agreement or the Memoranda of Agreement to
be true and correct in all respects as of the respective dates thereof and as of
the Closing Date.
(b) The Purchaser agrees to indemnify and hold the Seller harmless from
damages, losses or expenses (including, without limitation, reasonable counsel
fees and expenses), suffered or paid, directly or indirectly, as a result of or
arising out of the failure of any representation or warranty made by the
Purchaser in this Agreement or the Memoranda of Agreement to be true and correct
in all respects as of the respective dates thereof and as of the Closing Date.
(c) The obligations to indemnify and hold harmless pursuant to this Section
8.2 shall survive the consummation of the transactions contemplated by this
Agreement.
ARTICLE IX
MISCELLANEOUS
-------------
Section 9.1 Expenses. The parties hereto shall pay all of their own
--------
expenses relating to the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of their respective counsel and
financial advisers; provided, however, Seller shall pay Purchaser the amount of
$22,500 to reimburse Buyer for one-half of the filing fee paid by Purchaser
under the HSR Act in respect of the OMI ▇▇▇▇▇▇.
Section 9.2 Governing Law. The interpretation and construction of this
-------------
Agreement, 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.
Section 9.3 Jurisdiction. Any judicial proceeding brought against any of
------------
the parties to this Agreement on any dispute arising out of this Agreement or
any matter related hereto may be brought in the courts of the State of New York,
or in the United States District Court for the Southern District of New York,
and, by execution and delivery of this Agreement, each of the parties to this
Agreement accepts the exclusive jurisdiction of such courts, and irrevocably
agrees to be bound by any judgment rendered thereby in con-
-15-
nection with this Agreement. The foregoing consent to jurisdiction shall not
constitute general consents to service of process in the State of New York for
any purpose except as provided above and shall not be deemed to confer rights on
any Person other than the respective parties to this Agreement. The prevailing
party or parties in any such litigation shall be entitled to receive from the
losing party or parties all costs and expenses, including reasonable counsel
fees, incurred by the prevailing party or parties.
Section 9.4 Captions. The Article and Section captions used herein are for
--------
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 9.5 Publicity. Except as otherwise required by law (including
---------
disclosures required in connection with any registration pursuant to the
Securities Act of 1933, as amended, of the common stock of Purchaser), none of
the parties hereto shall issue any press release or make any other public
statement, in each case relating to, connected with or arising out of this
Agreement or the matters contained herein, without obtaining the prior approval
of Purchaser and the Seller to the contents and the manner of presentation and
publication thereof.
Section 9.6 Notices. Any notice or other communication required or
-------
permitted hereunder shall be deemed given on the day when delivered in person or
sent by facsimile transmission (with confirmation of receipt at the number to
which sent), or on the second business day after the day on which sent by means
of any overnight courier service or on the fifth business day after the day on
which sent by air mail, postage prepaid, addressed as follows:
If to Purchaser:
Hvide Marine Incorporated
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President - Legal and General Counsel
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
-16-
If to Seller:
OMI Corp.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. London, Esq.
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
White & Case
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or number as shall be furnished in writing by any such
party to the other party or parties in the manner provided in this Section.
Section 9.7 Parties in Interest. This Agreement may not be transferred,
-------------------
assigned, pledged or hypothecated by any party hereto, other than by operation
of law. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and permitted assigns.
Section 9.8 Counterparts. This Agreement may be executed in two or more
------------
counterparts, all of which taken together shall constitute one instrument.
Section 9.9 Entire Agreement. This Agreement, including the other documents
----------------
referred to herein which form a part hereof, contains the entire understanding
of the parties hereto with respect to the subject matter contained herein and
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
Section 9.10 Amendments. This Agreement may not be changed orally, but only
----------
by an agreement in writing signed by Purchaser and Seller (subject to the
following). This Agreement may be terminated and any provision of this Agreement
can be waived, amended, supplemented or modified by agreement of Purchaser and
the holders or former holders of a majority of the shares of Stock. Action by
the holders or former holders of a majority of the shares of Stock pursuant to
this Section 9.10 shall be binding for all purposes upon all of the Seller.
-17-
Section 9.11 Severability. In case any provision in this Agreement shall be
------------
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
Section 9.12 Third Party Beneficiaries. Each party hereto intends that this
-------------------------
Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereto.
Section 9.13 Termination of Agreement. All parties hereto agree to use
------------------------
their best efforts to fulfill the requirements of Articles VI and VII as soon as
practicable.
IN WITNESS WHEREOF, each of Purchaser and Seller has caused its corporate
name to be hereunto subscribed by its officer thereunto duly authorized, all as
of the day and year first above written.
HVIDE MARINE INCORPORATED
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
OMI CORP.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
-18-
Schedule 1.1(a)
Acquired Vessels
----------------
===========================================================================
Name of Type of Deadweight Year Owner/
Vessel Vessel Flag Metric Tons Built Charterer
---------------------------------------------------------------------------
OMI Chemical/Product U.S. 51,668 1981 OMI ▇▇▇▇▇▇
Dynachem Carrier Transport,
Inc.
---------------------------------------------------------------------------
OMI Chemical/Product U.S. 51,668 1981 OMI Clover
▇▇▇▇▇▇ Carrier Transport,
Inc.
---------------------------------------------------------------------------
OMI Star Chemical/Product U.S. 37,711 1970 Omichem
Carrier Transport,
Inc.
===========================================================================
-19-
EXHIBIT A
---------
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT
OR AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF.
NOTE
No. 1 $8,350,000.00
Dated: ______________, 1995
FOR VALUE RECEIVED, HVIDE MARINE INCORPORATED, a Florida corporation (the
"Company"), hereby promises to pay, to the order of OMI CORP., a Delaware
corporation (the "Payee"), or its registered assigns, at the offices of the
Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other place
as Payee may designate in writing to the Company from time to time (the "Payment
Office"), the aggregate principal sum of EIGHT MILLION THREE HUNDRED FIFTY
THOUSAND DOLLARS ($8,350,000.00) in accordance with the principal repayment
obligations set forth in Section 1(a). The Company also promises to pay interest
on the unpaid principal amount of this Note at the Payment Office from the date
hereof until the principal amount of this Note is paid in full at the rate per
annum set forth in Section 1(b) and in the manner set forth in Section 1(c). The
Company will pay interest quarterly in arrears on December 31, March 31, June 30
and September 30 of each year, commencing December 31, 1995 (each such date an
"Interest Payment Date"). Upon maturity of this Note, whether by acceleration or
otherwise, accrued (and theretofore unpaid) interest on this Note shall be
payable on demand. Any payment of principal of, or (to the extent permitted by
applicable law) interest on this Note, that is not paid when due shall, to the
extent permitted by applicable law, bear interest at the rate of twelve percent
(12%) per annum. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. Interest on this Note (and, to the extent permitted by
applicable law, any defaulted interest) shall accrue from the most recent date
to which interest has been paid, or, if no interest has been paid, from the date
of issuance hereof.
EXHIBIT A
Page 2
Section 1. Payments. (a) On each date set forth below, the Company shall
--------
pay to the Payee the principal amount of the Note as is set forth opposite such
date (each such repayment, a "Principal Repayment" and each such date, a
"Principal Repayment Date"):
Principal
Repayment Date Amount
-------------- ------
October 12, 1996 $500,000
October 12, 1997 $500,000
October 12, 1998 $500,000
October 12, 1999 $500,000
October 12, 2000 $500,000
October 12, 2001 $500,000
October 12, 2002 $5,350,000
(b) The Company shall, for each 12-month period set forth below, pay
interest on the unpaid principal amount of this Note at the rate per annum set
forth opposite such period:
Period Rate
------ ----
October 12, 1995 - October 11, 1996 4%
October 12, 1996 - October 11, 1997 5%
October 12, 1997 - October 11, 1998 5%
October 12, 1998 - October 11, 1999 5%
October 12, 1999 - October 11, 2000 5%
October 12, 2000 - October 11, 2001 5%
October 12, 2001 - October 11, 2002 5%
(c) The Company shall pay to Payee, when due, all principal and interest in
money of the United States of America that is at the time of payment legal
tender for payment of public and private debts; provided that the Company may
pay principal and interest, by mailing a check payable in such money to Payee's
address as designated in Section 6 or in accordance therewith, or by wire
transfer to an account designated in writing by Payee, not less than
EXHIBIT A
Page 3
three (3) business days before such payment becomes due and payable.
(d) Whenever any payment hereunder shall be due on a day that is not a
business day, such payment shall instead be made on the immediately succeeding
business day but no interest will be payable over the period of the extension.
Section 2. Prepayments. The Company shall have the right at any time to
-----------
prepay this Note, without premium or penalty, in whole or in part from time to
time, on the following terms and conditions: (i) the Company shall give the
Payee at least three business days' prior notice of its intent to prepay this
Note and the amount of such prepayment; (ii) each prepayment shall be in an
aggregate principal amount of at least $50,000; (iii) prepayments made pursuant
to this Section 2 shall include all accrued interest to the date of prepayment;
and (iv) each prepayment made pursuant to this Section 2 shall be applied
against the Principal Repayment due October 12, 2002 pursuant to Section 1(a).
Section 3. Covenants. The Company covenants and agrees that until the
---------
principal amount of this Note, together with interest thereon and all other
obligations incurred hereunder, are paid in full, it shall duly and punctually
pay to Payee, when due, all principal of and interest on this Note on the dates
and in the manner provided herein. The Company shall pay interest on overdue
principal at the rate of twelve percent (12%) per annum; it shall pay interest,
including post-petition interest in the event of a proceeding under the
Bankruptcy Laws, on overdue installments of interest at the same rate to the
extent lawful.
Section 4. Assignment; Transfer and Exchange. (a)(i) The Company shall
---------------------------------
maintain at the address specified in Section 6 hereof or such other location as
it shall, from time to time designate, an office where this Note, or any portion
thereof, may be presented for transfer and where the Company will keep a
register of the Note and of its transfer.
(ii) Prior to the time this Note is duly presented for transfer, the
Company shall be entitled to treat the Person in whose name such Note is
registered as the Payee of such Note and neither the Company nor any agent of
the Company shall be affected by the notice to the contrary.
EXHIBIT A
Page 4
(b) The Company shall not, under any circumstances transfer its obligations
under this Note without the express written consent of Payee or its assigns, as
the case may be, which consent may be withheld at the sole discretion of Payee
or its assigns, as the case may be, for any reason or no reason at all. The
Payee shall not, under any circumstances transfer this Note without the express
written consent of the Company or its assigns, as the case may be, except to a
financial institution.
(c) Where this Note is presented to the Company with a request to register
a transfer of this Note (or any portion hereof), the Company shall register such
transfer and issue such new Note upon the order of or as directed by Payee;
provided that any Note presented or surrendered for registration of transfer
shall be duly endorsed or accompanied by a written instruction of transfer in
form reasonably satisfactory to the Company duly executed by Payee or its
attorney duly authorized in writing. No service charge shall be made for any
registration of transfer, but the Company may require payment by Payee of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith.
Section 5. Defaults and Remedies.
---------------------
(a) Events of Default. An "Event of Default," wherever used herein, means
-----------------
any one of the following events (whatever the reason for such Event of Default
and whether it voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) the Company defaults in the payment of interest on this Note when the
same becomes due and payable and such default continues for a period of five (5)
days;
(ii) the Company defaults in the payment of the principal of (and premium,
if any, on) this Note when the same becomes due and payable on any Principal
Repayment Date or otherwise;
EXHIBIT A
Page 5
(iii) the Company fails to comply with any of its other covenants,
agreements or conditions in this Note and such default continues for the period
and after the notice specified in the last sentence of this paragraph (a);
(iv) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(v) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law:
(A) for relief against the Company in an involuntary case or
proceeding,
(B) appointing a Custodian of the Company for all or substantially all
of its property, or
(C) ordering the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days (the term
"Bankruptcy Law" means Title 11 U.S. Code or any similar U.S. Federal or State
law or any similar non-U.S. national, provincial or local law for the relief of
debtors and the term "Custodian" means any receiver, trustee, liquidator or
similar official under any Bankruptcy Law); or
(vi) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company which
remains
EXHIBIT A
Page 6
undischarged for a period (during which execution shall not be
effectively stayed) of thirty (30) days, provided that the aggregate of
all such outstanding judgments exceeds $500,000 (excluding any amounts
covered by insurance as to which the insurer has not denied liability).
A default under clause (iii) of this paragraph (a) is not an Event of Default
until Payee notifies the Company of the default and the default is not cured
within thirty (30) days after receipt of such notice.
(b) Acceleration. If an Event of Default (other than an Event of Default
------------
specified in paragraphs (a)(iv) or (v) of this Section 5) occurs and is
continuing, Payee by notice to the Company, may declare to be due and payable
immediately the principal amount of this Note plus accrued interest to the date
of acceleration. Upon any such declaration, such amount shall be due and payable
immediately, and upon payment of such amount all of the Company's obligations
under this Note, shall terminate. If an Event of Default specified in paragraphs
(a)(iv) or (v) of this Section 5 occurs, all unpaid principal and accrued
interest on this Note then outstanding shall become and be immediately due and
payable without any declaration or act on the part of Payee. Payee, by notice to
the Company may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction.
(c) Other Remedies. If an Event of Default occurs and is continuing, Payee
--------------
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal (and premium, if any) or interest on this Note or to
enforce the performance of any provision of this Note. A delay or omission by
Payee in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of such right or remedy or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
EXHIBIT A
Page 7
Section 6. Miscellaneous.
-------------
(a) Expenses. The Company agrees to pay all reasonable out-of-pocket
--------
expenses of Payee incurred in connection with the enforcement of this Note
including, without limitation, the reasonable fees and expenses of counsel for
Payee. In addition, the Company agrees to pay, and to save Payee harmless from
all liability for, any stamp or other documentary taxes which may be payable in
connection with the Company's execution or delivery of this Note and indemnify
Payee, its affiliates and their respective officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements incurred by any of them as a
result of, or arising out of any investigation, litigation, or other proceeding
(whether or not Payee or any of its affiliates are a party thereto) related to
the entering into and/or performance of this Note including, without limitation,
the reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
liabilities, obligations, losses, etc. to the extent incurred by reason of the
gross negligence, bad faith or willful misconduct of the Person to be
indemnified).
(b) Notices. Except as otherwise expressly provided herein, all notices,
-------
requests, demands, waivers and other communications required or permitted to be
given under this Note shall be in writing and shall be deemed to have been duly
given if delivered in person, by overnight courier, or mailed, or sent by telex,
telegram or telecopier as follows:
(i) if to the Company, to it at:
Hvide Marine Incorporated
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Vice President-Legal and
General Counsel
EXHIBIT A
Page 8
(ii) if to Payee, to it at:
OMI Corp.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. London, Esq.
with a copy to:
White & Case
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, Esq.
or to such other Person or address as either party shall specify by notice in
writing to the other party. Except for a notice of a change of address, which
shall be effective only upon receipt thereof, all such notices, requests,
demands, waivers and communications shall be deemed to have been received on the
date of delivery unless if mailed, in which case on the third Business Day after
the mailing thereof and unless if delivered by overnight courier, in which case,
on the second Business Day after the dispatch thereof.
(c) Benefit of Agreement. This Note shall inure to the benefit of and be
--------------------
binding upon the Company and Payee and their respective successors and assigns.
(d) No Waiver; Remedies Cumulative. No failure or delay on the part of
------------------------------
Payee in exercising any right, power or privilege hereunder and no course of
dealing between the Company or any of its subsidiaries and Payee shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
hereunder or the exercise of any other right, power or privilege hereunder. The
rights, powers and remedies herein expressly provided are cumulative and not
exclusive of any rights, powers or remedies which Payee or the holder of this
Note would otherwise have. No
EXHIBIT A
Page 9
notice to or demand on the Company in any case shall entitle the Company to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of Payee to any other or further action in any
circumstances without notice or demand.
(e) Governing Law; Submission to Jurisdiction; Venue. (i) This Note and the
------------------------------------------------
legal relations between the Company and Payee hereto shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflict of laws rules thereof.
(ii) The Company agrees that any legal action or proceeding with respect to
this Note may be brought in the Courts of the State of New York or the United
States District Court for the Southern District of New York and, by execution
and delivery of this Note, the Company hereby irrevocably submits itself in
respect of its property, generally and unconditionally to the non-exclusive
jurisdiction of the aforesaid courts in any legal action or proceeding arising
out of this Note. The Company hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Note brought in the
courts referred to in the preceding sentence. The Company consents to process
being served in any such action or proceeding by the mailing of a copy thereof
to the address set forth above and agrees that such service upon receipt shall
constitute good and sufficient service of process or notice thereof. Nothing in
this paragraph (e) shall affect or eliminate any right to serve process in any
other matter permitted by law.
(f) Headings Descriptive. The headings of the several sections and
--------------------
subsections of this Note are inserted for convenience only and shall not in any
way affect the meaning or construction of any provision of this Note.
EXHIBIT A
Page 10
(g) Amendment or Waiver. Subject to applicable law, this Note may be
-------------------
amended, modified and supplemented only in a writing executed by Payee and the
Company.
HVIDE MARINE INCORPORATED
By __________________________________
Name:
Title:
AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT made and entered into as of the 31st day of January, 1996 by
an among HVIDE MARINE INCORPORATED (the "Purchaser") and OMI CORP. (the
"Seller")
WITNESSETH:
WHEREAS, Purchaser and Seller have made and entered into that certain Stock
Purchase Agreement dated as of October 12, 1995 (the "Agreement"); and
WHEREAS, the parties desire to amend the Agreement upon the terms and
conditions hereinafter contained.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions set forth herein, the parties agree as follows:
1. Effective as of March 4, 1996 (or the actual date when the
then-current Title XI financing payment for the OMI Dynachem is paid
by Seller), Section 2.2(a)(ii)(x) is amended by changing "11,512,500"
to "$12,775,000".
2. Section 2.4(a) of the Agreement is amended by deleting "January 31"
from the 4th line thereof and inserting "April 30" in its stead.
3. As amended hereby, the Agreement is in all respects ratified and
confirmed.
4. This Amendment may be executed in two or more counterparts, all of
which taken together shall constitute one instrument.
IN WITNESS WHEREOF, each of the Purchaser and Seller has caused its
corporate name to be hereunto subscribed by its officer thereunto duly
authorized, all as of the day and year first above written.
HVIDE MARINE INCORPORATED
By: ___________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
OMI CORP.
By: ___________________________________
Name: ▇▇▇▇▇▇▇ ▇. London
Title: Senior Vice President