SHARE PURCHASE AGREEMENT Dated April 13th , 2009 between CAPITAL MARITIME & TRADING CORP. and CAPITAL PRODUCT PARTNERS L.P.
Exhibit
4.24
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Dated
April 13th , 2009
between
CAPITAL
MARITIME & TRADING CORP.
and
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SHARE
PURCHASE AGREEMENT (the “Agreement”),
dated as of April 13th, 2009, by and between CAPITAL MARITIME &
TRADING CORP. (“CMTC”), a
corporation organized under the laws of the Republic of the ▇▇▇▇▇▇▇▇
Islands, and CAPITAL PRODUCT PARTNERS L.P. (“CPLP”), a
limited partnership organized under the laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands.
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RECITAL
WHEREAS,
CPLP wishes to purchase from CMTC, and CMTC wishes to sell to CPLP, the five
hundred (500) shares of common stock (the “Shares A”)
representing all of the issued and outstanding shares of common stock of ▇▇▇▇▇▇▇
International S.A., a corporation organized under the laws of the Republic of
the ▇▇▇▇▇▇▇▇ Islands (the “Vessel A Owning
Subsidiary”).
WHEREAS,
the Vessel A Owning Subsidiary is the registered owner of the Liberian flagged
motor tanker “▇▇▇▇▇▇ ▇▇” (the “Vessel
A”).
WHEREAS,
CMTC wishes to transfer to CPLP all rights, title and interest in the Vessel A,
and retain all assets, other than the Vessel A, the Contracts A (as defined
below) and any necessary permits, and all liabilities of the Vessel A Owning
Subsidiary.
WHEREAS,
the Vessel A is subject to a time charter party agreement (type BPTIME3) dated
7th August 2008
and entered into by the Vessel A Owning Subsidiary and BP Shipping Limited (the
“Charterer A”)
for a period of three (3) years (plus/minus 30 days at Charterer A’s option)
from 10th April 2009
(the “Charter
A”).
WHEREAS,
CMTC wishes to purchase from CPLP, and CPLP wishes to sell to CMTC, the one
hundred (100) shares of common stock (the “Shares B”)
representing all of the issued and outstanding shares of common stock of
Epicurus Shipping Company, a corporation organized under the laws of the
Republic of the ▇▇▇▇▇▇▇▇ Islands (the “Vessel B Owning
Subsidiary”).
WHEREAS,
the Vessel B Owning Subsidiary is the registered owner of the Liberian flagged
motor tanker “Atrotos” (the “Vessel
B”).
WHEREAS,
CPLP wishes to transfer to CMTC all rights, title and interest in the Vessel B,
and retain all assets, other than the Vessel B and any necessary permits, and
all liabilities of the Vessel B Owning Subsidiary.
WHEREAS,
contemporaneously with the execution of this Agreement, CPLP and Capital Ship
Management Corp. (“CSM”) will execute an
amendment to the Management Agreement dated as of April 3, 2007, as subsequently
amended, and entered into between CPLP and CSM (the “Amendment to the Management
Agreement”).
WHEREAS
Vessel A Owning Subsidiary and Vessel B Owning Subsidiary, have elected to be
treated as disregarded entities for U.S. federal income tax purposes, the
Parties intend for this transaction to be treated, for U.S. federal income tax
purposes, as a tax-free exchange of Vessel A for Vessel B under Section 1031 of
the Internal Revenue Code of 1986, as amended.
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
I
Interpretation
SECTION
1.01 Definitions. In
this Agreement, unless the context requires otherwise or unless otherwise
specifically provided herein, the following terms shall have the respective
meanings set out below and grammatical variations of such terms shall have
corresponding meanings:
“Additional
Consideration” has the meaning given to it in Section 2.04;
“Agreement” means this
Agreement, including its recitals and schedules, as amended, supplemented,
restated or otherwise modified from time to time;
“Amendment to the Management
Agreement” has the meaning given to it in the recitals;
“Applicable Law” in
respect of any Person, property, transaction or event, means all laws, statutes,
ordinances, regulations, municipal by-laws, treaties, judgments and decrees
applicable to that Person, property, transaction or event and, whether or not
having the force of law, all applicable official directives, rules, consents,
approvals, authorizations, guidelines, orders, codes of practice and policies of
any Governmental Authority having or purporting to have authority over that
Person, property, transaction or event and all general principles of common law
and equity;
“CPLP” has the meaning
given to it in the preamble;
“CPLP Entities” means
CPLP and its subsidiaries;
“CPLP Indemnitees” has
the meaning given to it in Section 9.01;
“Charter A” has the
meaning given to it in the recitals;
“Charterer A” has the
meaning given to it in the recitals;
“Closing” has the
meaning given to it in Section 2.02;
“Closing Date” has the
meaning given to it in Section 2.02;
“Commitment” means (a)
options, warrants, convertible securities, exchangeable securities, subscription
rights, conversion rights, exchange rights or other contracts that could require
a Person to issue any of its equity interests or to sell any equity interests it
owns in another Person (other than this Agreement and the related transaction
documents); (b) any other securities convertible into, exchangeable or
exercisable for, or representing the right to subscribe for any equity interest
of a Person or owned by a Person; and (c) stock appreciation rights, phantom
stock, profit participation, or other similar rights with respect to a
Person;
“Contracts A” has the
meaning given to it in Section 5.08;
“CSM” has the meaning
given to it in the recitals;
“Encumbrance” means
any mortgage, lien, charge, assignment, adverse claim, hypothecation,
restriction, option, covenant, condition or encumbrance, whether fixed or
floating, on, or any security interest in, any property whether real, personal
or mixed, tangible or intangible, any pledge or hypothecation of any property,
any deposit arrangement, priority, conditional sale agreement, other title
retention agreement or equipment trust, capital lease or other security
arrangements of any kind;
“Equity Interest”
means (a) with respect to any entity, any and all shares of capital stock or
other ownership interest and any Commitments with respect thereto, (b) any other
direct equity ownership or participation in a Person and (c) any Commitments
with respect to the interests described in (a) or (b);
“Governmental
Authority” means any domestic or foreign government, including federal,
provincial, state, municipal, county or regional government or governmental or
regulatory authority, domestic or foreign, and includes any department,
commission, bureau, board, administrative agency or regulatory body of any of
the foregoing and any multinational or supranational organization;
“Losses” means, with
respect to any matter, all losses, claims, damages, liabilities, deficiencies,
costs, expenses (including all costs of investigation, legal and other
professional fees and disbursements, interest, penalties and amounts paid in
settlement) or diminution of value, whether or not involving a claim from a
third party, however specifically excluding consequential, special and indirect
losses, loss of profit and loss of opportunity;
“Notice” means any
notice, citation, directive, order, claim, litigation, investigation,
proceeding, judgment, letter or other communication, written or oral, actual or
threatened, from any Person;
“Organizational Documents
A” has the meaning given to it in Section 5.03;
“Organizational Documents
B” has the meaning given to it in Section 5.17;
“Parties” means all
parties to this Agreement and “Party” means any one
of them;
“Partnership
Agreement” means the Amended and Restated Agreement of Limited
Partnership of CPLP dated April 3, 2007.
“Person” means an
individual, entity or association, including any legal personal representative,
corporation, body corporate, firm, partnership, trust, trustee, syndicate, joint
venture, unincorporated organization or Governmental Authority;
“Permits” has the
meaning given to it in Section 5.13;
“SEC Documents” means
the Prospectus of CPLP dated March 29, 2007 and filed with the U.S. Securities
and Exchange Commission and all filings CPLP is required to make pursuant to the
Securities Act and the Securities Exchange Act of 1934, as amended from time to
time;
“Securities Act” means
the Securities Act of 1933, as amended from time to time;
“CMTC” has the meaning
given to it in the preamble;
“CMTC Entities” means
CMTC and its affiliates other than the CPLP Entities;
“CMTC Indemnities” has
the meaning given to it in Section 9.02;
“Shares A” has the
meaning given to it in the recitals;
“Shares B” has the
meaning given to it in the recitals;
“Shares” means
together Shares A and Shares B;
“Taxes” means all
income, franchise, business, property, sales, use, goods and services or value
added, withholding, excise, alternate minimum capital, transfer, excise,
customs, anti-dumping, stumpage, countervail, net worth, stamp, registration,
franchise, payroll, employment, health, education, business, school, property,
local improvement, development, education development and occupation taxes,
surtaxes, duties, levies, imposts, rates, fees, assessments, dues and charges
and other taxes required to be reported upon or paid to any domestic or foreign
jurisdiction and all interest and penalties thereon;
“Vessel A Owning
Subsidiary” has the meaning given to it in the recitals;
“Vessel B Owning
Subsidiary” has the meaning given to it in the recitals;
“Vessel A” has the
meaning given to it in the recitals; and
“Vessel B” has the
meaning given to it in the recitals.
ARTICLE
II
Purchase and Sale of
Shares; Closing
SECTION
2.01 Purchase and Sale of Shares
A and Shares B. CMTC agrees to sell and transfer to CPLP, and
CPLP agrees to purchase from CMTC in accordance with and subject to the terms
and conditions set forth in this Agreement, the Shares A which in turn shall
result in CPLP indirectly owning the Vessel A.
CPLP
agrees to sell and transfer to CMTC, and CMTC agrees to purchase from CPLP in
accordance with and subject to the terms and conditions set forth in this
Agreement, the Shares B which in turn shall result in CMTC indirectly owning the
Vessel B.
SECTION
2.02 Closing. On
the terms of this Agreement, the sale and transfer of the Shares and payment of
the Purchase Price shall take place on the date hereof (the “Closing Date”). The
sale and transfer of the Shares is hereinafter referred to as “Closing.”
SECTION
2.03 Place
of Closing. The Closing shall take place at the premises of
CSM at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
SECTION
2.04 Consideration for
Shares. On the Closing Date, (i) CPLP shall pay to CMTC (to
such account as CMTC shall nominate) the amount of US Dollars $ 4,000,000 (the
“Additional
Consideration”) and transfer the Shares B in exchange and as
consideration for the Shares A and (ii) CMTC shall transfer the Shares A in
exchange for payment of the Additional Consideration and the Shares B. CPLP
shall have no responsibility or liability hereunder for CMTC’s allocation and
distribution of the Additional Consideration among the CMTC
Entities.
SECTION
2.05 Payment of the Additional
Consideration. The Additional Consideration will be paid by
CPLP to CMTC by wire transfer of immediately available funds to an account
designated in writing by CMTC.
ARTICLE
III
Representations and
Warranties of CPLP
CPLP
represents and warrants to CMTC that as of the date hereof:
SECTION
3.01 Organization and Limited
Partnership Authority. CPLP is duly formed, validly existing
and in good standing under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands, and
has all requisite limited partnership power and authority to enter into this
Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by CPLP,
has been effectively authorized by all necessary action, limited partnership or
otherwise, and constitutes legal, valid and binding obligations of CPLP. No
meeting has been convened or resolution proposed or petition presented and no
order has been made to wind up CPLP.
SECTION
3.02 Agreement Not in Breach of
Other Instruments. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and the
fulfillment of the terms hereof will not result in a breach of any of the terms
or provisions of, or constitute a default under, or conflict with, any agreement
or other instrument to which CPLP is a party or by which it is bound, the
Certificate of Formation and the Partnership Agreement, any judgment, decree,
order or award of any court, governmental body or arbitrator by which CPLP is
bound, or any law, rule or regulation applicable to CPLP which would have a
material effect on the transactions contemplated hereby.
SECTION
3.03 No
Legal Bar. CPLP is not prohibited by any order, writ,
injunction or decree of any body of competent jurisdiction from consummating the
transactions contemplated by this Agreement and no such action or proceeding is
pending or, to the best of its knowledge and belief, threatened against CPLP
which questions the validity of this Agreement, any of the transactions
contemplated hereby or any action which has been taken by any of the parties in
connection herewith or in connection with any of the transactions contemplated
hereby.
SECTION
3.04 Independent
Investigation. CPLP has had the opportunity to conduct to its
own satisfaction independent investigation, review and analysis of the business,
operations, assets, liabilities, results of operations, financial condition and
prospects of the Vessel A Owning Subsidiary and, in making the determination to
proceed with the transactions contemplated hereby, has relied solely on the
results of its own independent investigation and the representations and
warranties set forth in Articles IV, V and VI.
SECTION
3.05 Good
and Marketable Title to Shares B. CPLP is the owner (of record
and beneficially) of all of the Shares B and has good and marketable title to
the Shares B, free and clear of any and all Encumbrances. The Shares B
constitute 100% of the issued and outstanding Equity Interests of the Vessel B
Owning Subsidiary.
SECTION
3.06 The
Shares B. Assuming CMTC has the requisite power and authority
to be the lawful owner of the Shares B, upon delivery to CMTC at the Closing of
certificates representing the Shares B, duly endorsed by CPLP for transfer to
CMTC or accompanied by appropriate instruments sufficient to evidence the
transfer from CPLP to CMTC of the Shares B under the Applicable Laws of the
relevant jurisdiction, or delivery of such Shares B by electronic means, CMTC
shall own good and valid title to the Shares B, free and clear of any
Encumbrances, other than those arising from acts of the CMTC
Entities. Other than this Agreement and any related transaction
documents, the Organizational Documents B and restrictions imposed by Applicable
Law, at the Closing, the Shares B will not be subject to any voting trust
agreement or other contract, agreement, arrangement, commitment or understanding
restricting or otherwise relating to the voting, dividend rights or disposition
of the Shares B, other than any agreement to which any CMTC Entity is a
party.
ARTICLE
IV
Representations and
Warranties of CMTC
CMTC
represents and warrants to CPLP that as of the date hereof:
SECTION
4.01 Organization and Corporate
Authority. CMTC is duly incorporated, validly existing and in
good standing under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands, and has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by CMTC, has been effectively authorized by all
necessary action, corporate or otherwise, and constitutes legal, valid and
binding obligations of CMTC. No meeting has been convened or
resolution proposed or petition presented and no order has been made to wind up
CMTC.
SECTION
4.02 Agreement Not in
Breach. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions of,
or constitute a default under, or conflict with, any agreement or other
instrument to which CMTC is a party or by which it is bound, the Articles of
Incorporation and Bylaws of CMTC, any judgment, decree, order or award of any
court, governmental body or arbitrator by which CMTC is bound, or any law, rule
or regulation applicable to CMTC which would have a material effect on the
transactions contemplated hereby.
SECTION
4.03 No
Legal Bar. CMTC is not prohibited by any order, writ,
injunction or decree of any body of competent jurisdiction from consummating the
transactions contemplated by this Agreement and no such action or proceeding is
pending or, to the best of its knowledge and belief, threatened against CMTC
which questions the validity of this Agreement, any of the transactions
contemplated hereby or any action which has been taken by any of the parties in
connection herewith or in connection with any of the transactions contemplated
hereby.
SECTION
4.04 Independent
Investigation. CMTC has had the opportunity to conduct to its
own satisfaction independent investigation, review and analysis of the business,
operations, assets, liabilities, results of operations, financial condition and
prospects of the Vessel B Owning Subsidiary and, in making the determination to
proceed with the transactions contemplated hereby, has relied solely on the
results of its own independent investigation and the representations and
warranties set forth in Articles IV, V and VI.
SECTION
4.05 Good
and Marketable Title to Shares A. CMTC is the owner (of record
and beneficially) of all of the Shares A and has good and marketable title to
the Shares A, free and clear of any and all Encumbrances. The Shares constitute
100% of the issued and outstanding Equity Interests of the Vessel A Owning
Subsidiary.
SECTION
4.06 The
Shares A. Assuming CPLP has the requisite power and authority
to be the lawful owner of the Shares A, upon delivery to CPLP at the Closing of
certificates representing the Shares A, duly endorsed by CMTC for transfer to
CPLP or accompanied by appropriate instruments sufficient to evidence the
transfer from CMTC to CPLP of the Shares A under the Applicable Laws of the
relevant jurisdiction, or delivery of such Shares A by electronic means, and
upon CMTC’s receipt of the Purchase Price, CPLP shall own good and valid title
to the Shares A, free and clear of any Encumbrances, other than those arising
from acts of the CPLP Entities. Other than this Agreement and any related
transaction documents, the Organizational Documents A and restrictions imposed
by Applicable Law, at the Closing, the Shares A will not be subject to any
voting trust agreement or other contract, agreement, arrangement, commitment or
understanding restricting or otherwise relating to the voting, dividend rights
or disposition of the Shares A, other than any agreement to which any CPLP
Entity is a party.
ARTICLE
V
(i) Representations and Warranties of CMTC Regarding the
Vessel A Owning Subsidiary
CMTC
represents and warrants to CPLP that as of the date hereof:
SECTION
5.01 Organization Good Standing
and Authority. The Vessel A Owning Subsidiary is a corporation
duly incorporated, validly existing and in good standing under the laws of the
Republic of the ▇▇▇▇▇▇▇▇ Islands. The Vessel A Owning Subsidiary has
full corporate power and authority to carry on its business as it is now, and
has since its incorporation been, conducted, and is entitled to own, lease or
operate the properties and assets it now owns, leases or operates and to enter
into legal and binding contracts. No meeting has been convened or
resolution proposed or petition presented and no order has been made to wind up
the Vessel A Owning Subsidiary.
SECTION
5.02 Capitalization. The
Shares A consist of the 500 shares of common stock without par value and have
been duly authorized and validly issued and are fully paid and non-assessable,
and constitute the total issued and outstanding capital stock of the Vessel A
Owning Subsidiary. There are not outstanding (i) any options,
warrants or other rights to purchase from the Vessel A Owning Subsidiary any
capital stock of such Vessel A Owning Subsidiary, (ii) any securities
convertible into or exchangeable for shares of the capital stock of the Vessel A
Owning Subsidiary or (iii) any other commitments of any kind for the issuance of
additional shares of capital stock or options, warrants or other securities of
the Vessel A Owning Subsidiary.
SECTION
5.03 Organizational
Documents. CMTC has supplied to CPLP true and correct copies
of the organizational documents of the Vessel A Owning Subsidiary, as in effect
as of the date hereof (the “Organizational Documents
A”).
SECTION
5.04 Agreement Not in
Breach. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will violate, or
result in a breach of, any of the terms and provisions of, or constitute a
default under, or conflict with, or give any other party thereto a right to
terminate any agreement or other instrument to which the Vessel A Owning
Subsidiary is a party or by which it is bound including, without limitation, any
of the Organizational Documents A, or any judgment, decree, order or award of
any court, governmental body or arbitrator applicable to the Vessel A Owning
Subsidiary.
SECTION
5.05 Litigation.
(a) There
is no action, suit or proceeding to which the Vessel A Owning Subsidiary is a
party (either as a plaintiff or defendant) pending before any court or
governmental agency, authority or body or arbitrator; there is no action, suit
or proceeding threatened against the Vessel A Owning Subsidiary; and, to the
best knowledge of CMTC, there is no basis for any such action, suit or
proceeding;
(b)
The Vessel A Owning
Subsidiary has not been permanently or temporarily enjoined by any order,
judgment or decree of any court or any governmental agency, authority or body
from engaging in or continuing any conduct or practice in connection with its
respective business, assets, or properties; and
(c) There
is not in existence any order, judgment or decree of any court or other tribunal
or other agency enjoining or requiring the Vessel A Owning Subsidiary to take
any action of any kind with respect to its respective business, assets or
properties.
SECTION
5.06 Indebtedness to and from
Officers, etc. The Vessel A Owning Subsidiary will not be
indebted, directly or indirectly, to any person who is an officer, director,
stockholder or employee of CMTC or any spouse, child, or other relative or any
affiliate of any such person, nor shall any such officer, director, stockholder,
employee, relative or affiliate be indebted to the Vessel A Owning
Subsidiary.
SECTION
5.07 Personnel. The
Vessel A Owning Subsidiary has no employees.
SECTION
5.08 Contracts and
Agreements. Other than the Charter A and the Amendment to the
Management Agreement (together, the “Contracts A”), there
are no material contracts or agreements, written or oral, to which the Vessel A
Owning Subsidiary is a party or by which any of the assets of the Vessel A
Owning Subsidiary are bound.
(a) Each
of the Contracts A is a valid and binding agreement of the Vessel A Owning
Subsidiary, and to the best knowledge of CMTC, of all other parties
thereto;
(b) The
Vessel A Owning Subsidiary has fulfilled all material obligations required
pursuant to its Contracts A to have been performed by it prior to the date
hereof and has not waived any material rights thereunder; and
(c) There
has not occurred any material default on the part of the Vessel A Owning
Subsidiary under any of the Contracts A, or to the best knowledge of CMTC, on
the part of any other party thereto nor has any event occurred which with the
giving of notice or the lapse of time, or both, would constitute any
material default on the part of the Vessel A Owning Subsidiary under any of the
Contracts A nor, to the best knowledge of CMTC, has any event occurred which
with the giving of notice or the lapse of time, or both, would constitute any
material default on the part of any other party to any of the Contracts
A.
SECTION
5.09 Compliance with
Law. The conduct of business by the Vessel A Owning Subsidiary
does not and the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not violate any laws, statutes,
ordinances, rules, regulations, decrees, orders, permits or other similar items
in force (including, but not limited to, any of the foregoing relating to
employment discrimination, environmental protection or conservation) of any
country, province, state or other governing body, the enforcement of which would
materially and adversely affect the business, assets, condition (financial or
otherwise) or prospects of the Vessel A Owning Subsidiary taken as a whole, nor
has the Vessel A Owning Subsidiary received any notice of any such
violation.
SECTION
5.10 No
Undisclosed Liabilities. The Vessel A Owning Subsidiary (and
the Vessel A owned by it) has no liabilities or obligations of any nature,
whether absolute, accrued, contingent or otherwise, and whether due or to become
due (including, without limitation, any liability for Taxes and interest,
penalties and other charges payable with respect to any such liability or
obligation). Notwithstanding the foregoing, the Parties acknowledge
and agree that there may be obligations under the Contracts A that are not due
and payable as of the date hereof and that will be the responsibility of CMTC
pursuant to Section 9.01(c) of this Agreement.
SECTION
5.11 Disclosure of
Information. CMTC has disclosed to CPLP all material
information on, and about, the Vessel A Owning Subsidiary and the Vessel A and
all such information is true, accurate and not misleading in any material
respect. Nothing has been withheld from the material provided to CPLP which
would render such information untrue or misleading.
SECTION
5.12 Payment of
Taxes. The Vessel A Owning Subsidiary has filed all foreign,
federal, state and local income and franchise tax returns required to be filed,
which returns are correct and complete in all material respects, and has timely
paid all taxes due from it, and the Vessel A is in good standing with respect to
the payment of past and current Taxes, fees and other amounts payable under the
laws of the jurisdiction where it is registered as would affect its registry
with the ship registry of such jurisdiction.
SECTION
5.13 Permits. The
Vessel A Owning Subsidiary has such permits, consents, licenses, franchises,
concessions, certificates and authorizations (“Permits”) of, and has
all declarations and filings with, and is qualified and in good standing in each
jurisdiction of, all federal, provincial, state, local or foreign Governmental
Authorities and other Persons, as are necessary to own or lease its properties
and to conduct its business in the manner that is standard and customary for a
business of its nature other than such Permits the absence of which,
individually or in the aggregate, has not and could not reasonably be expected
to materially or adversely affect the Vessel A Owning Subsidiary. The
Vessel A Owning Subsidiary has fulfilled and performed all its obligations with
respect to such Permits which are or will be due to have been fulfilled and
performed by such date and no event has occurred that would prevent the Permits
from being renewed or reissued or that allows, or after notice or lapse of time
would allow, revocation or termination thereof or results or would result in any
impairment of the rights of the holder of any such Permit, except for such
non-renewals, non-issues, revocations, terminations and impairments that would
not, individually or in the aggregate, materially or adversely affect the Vessel
A Owning Subsidiary, and none of such Permits contains any restriction that is
materially burdensome to the Vessel A Owning Subsidiary.
SECTION
5.14 No
Material Adverse Change in Business. Since December 31, 2008,
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, properties, business affairs or business
prospects of the Vessel A Owning Subsidiary, whether or not arising in the
ordinary course of business, that would have or could reasonably be expected to
have a material adverse effect on the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Vessel A Owning
Subsidiary.
(ii) Representations and Warranties of CPLP Regarding the
Vessel B Owning Subsidiary
CPLP
represents and warrants to CMTC that as of the date hereof:
SECTION
5.15 Organization Good Standing
and Authority. The Vessel B Owning Subsidiary is a corporation
duly incorporated, validly existing and in good standing under the laws of the
Republic of the ▇▇▇▇▇▇▇▇ Islands. The Vessel B Owning Subsidiary has
full corporate power and authority to carry on its business as it is now, and
has since its incorporation been, conducted, and is entitled to own, lease or
operate the properties and assets it now owns, leases or operates and to enter
into legal and binding contracts. No meeting has been convened or
resolution proposed or petition presented and no order has been made to wind up
the Vessel B Owning Subsidiary.
SECTION
5.16 Capitalization. The
Shares B consist of the 100 shares of common stock without par value and have
been duly authorized and validly issued and are fully paid and non-assessable,
and constitute the total issued and outstanding capital stock of the Vessel B
Owning Subsidiary. There are not outstanding (i) any options,
warrants or other rights to purchase from the Vessel B Owning Subsidiary any
capital stock of such Vessel B Owning Subsidiary, (ii) any securities
convertible into or exchangeable for shares of the capital stock of the Vessel B
Owning Subsidiary or (iii) any other commitments of any kind for the issuance of
additional shares of capital stock or options, warrants or other securities of
the Vessel B Owning Subsidiary.
SECTION
5.17 Organizational
Documents. CPLP has supplied to CMTC true and correct copies
of the organizational documents of the Vessel B Owning Subsidiary, as in effect
as of the date hereof (the “Organizational Documents
B”).
SECTION
5.18 Agreement Not in
Breach. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will violate, or
result in a breach of, any of the terms and provisions of, or constitute a
default under, or conflict with, or give any other party thereto a right to
terminate any agreement or other instrument to which the Vessel B Owning
Subsidiary is a party or by which it is bound including, without limitation, any
of the Organizational Documents B, or any judgment, decree, order or award of
any court, governmental body or arbitrator applicable to the Vessel B Owning
Subsidiary.
SECTION
5.19 Litigation.
(a) There
is no action, suit or proceeding to which the Vessel B Owning Subsidiary is a
party (either as a plaintiff or defendant) pending before any court or
governmental agency, authority or body or arbitrator; there is no action, suit
or proceeding threatened against the Vessel B Owning Subsidiary; and, to
the best knowledge of CPLP, there is no basis for any such action, suit or
proceeding;
(b) The
Vessel B Owning Subsidiary has not been permanently or temporarily enjoined by
any order, judgment or decree of any court or any governmental agency, authority
or body from engaging in or continuing any conduct or practice in connection
with its respective business, assets, or properties; and
(c) There
is not in existence any order, judgment or decree of any court or other tribunal
or other agency enjoining or requiring the Vessel B Owning Subsidiary to take
any action of any kind with respect to its respective business, assets or
properties.
SECTION
5.20 Indebtedness to and from
Officers, etc. The Vessel B Owning Subsidiary will not be
indebted, directly or indirectly, to any person who is an officer, director,
stockholder or employee of CPLP or any spouse, child, or other relative or any
affiliate of any such person, nor shall any such officer, director, stockholder,
employee, relative or affiliate be indebted to the Vessel B Owning
Subsidiary.
SECTION
5.21 Personnel. The
Vessel B Owning Subsidiary has no employees.
SECTION
5.22 Contracts and
Agreements. There are no material contracts or agreements,
written or oral, to which the Vessel B Owning Subsidiary is a party or by which
any of the assets of the Vessel B Owning Subsidiary are bound.
SECTION
5.23 Compliance with
Law. The conduct of business by the Vessel B Owning Subsidiary
does not and the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not violate any laws, statutes,
ordinances, rules, regulations, decrees, orders, permits or other similar items
in force (including, but not limited to, any of the foregoing relating to
employment discrimination, environmental protection or conservation) of any
country, province, state or other governing body, the enforcement of which would
materially and adversely affect the business, assets, condition (financial or
otherwise) or prospects of the Vessel B Owning Subsidiary taken as a whole, nor
has the Vessel B Owning Subsidiary received any notice of any such
violation.
SECTION
5.24 No
Undisclosed Liabilities. The Vessel B Owning Subsidiary (and
the Vessel B owned by it) has no liabilities or obligations of any nature,
whether absolute, accrued, contingent or otherwise, and whether due or to become
due (including, without limitation, any liability for Taxes and interest,
penalties and other charges payable with respect to any such liability or
obligation). Notwithstanding the foregoing, the Parties acknowledge and agree
that there may be obligations under the Contracts B that are not due and payable
as of the date hereof and that will be the responsibility of CPLP pursuant to
Section 9.01(c) of this Agreement.
SECTION
5.25 Disclosure of
Information. CPLP has disclosed to CMTC all material
information on, and about, the Vessel B Owning Subsidiary and the Vessel and all
such information is true, accurate and not misleading in any material respect.
Nothing has been withheld from the material provided to CMTC which would render
such information untrue or misleading.
SECTION
5.26 Payment of
Taxes. The Vessel B Owning Subsidiary has filed all foreign,
federal, state and local income and franchise tax returns required to be filed,
which returns are correct and complete in all material respects, and has timely
paid all taxes due from it, and the Vessel B is in good standing with respect to
the payment of past and current Taxes, fees and other amounts payable under the
laws of the jurisdiction where it is registered as would affect its registry
with the ship registry of such jurisdiction.
SECTION
5.27 Permits. The
Vessel B Owning Subsidiary has such Permits of, and has all declarations and
filings with, and is qualified and in good standing in each jurisdiction of, all
federal, provincial, state, local or foreign Governmental Authorities and other
Persons, as are necessary to own or lease its properties and to conduct its
business in the manner that is standard and customary for a business of its
nature other than such Permits the absence of which, individually or in the
aggregate, has not and could not reasonably be expected to materially or
adversely affect the Vessel B Owning Subsidiary. The Vessel B Owning
Subsidiary has fulfilled and performed all its obligations with respect to such
Permits which are or will be due to have been fulfilled and performed by such
date and no event has occurred that would prevent the Permits from being renewed
or reissued or that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results or would result in any impairment
of the rights of the holder of any such Permit, except for such non-renewals,
non-issues, revocations, terminations and impairments that would not,
individually or in the aggregate, materially or adversely affect the Vessel B
Owning Subsidiary, and none of such Permits contains any restriction that is
materially burdensome to the Vessel B Owning Subsidiary.
SECTION
5.28 No
Material Adverse Change in Business. Since December 31, 2008,
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, properties, business affairs or business
prospects of the Vessel B Owning Subsidiary, whether or not arising in the
ordinary course of business, that would have or could reasonably be expected to
have a material adverse effect on the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Vessel B Owning
Subsidiary.
ARTICLE
VI
(i) Representations and
Warranties of CMTC regarding the Vessel A
CMTC
represents and warrants to CPLP that as of the date hereof:
SECTION
6.01 Title
to Vessel. (a) The Vessel A Owning Subsidiary is
the owner (beneficially and of record) of the Vessel A and has good and
marketable title to the Vessel.
SECTION
6.02 No
Encumbrances. The Vessel A Owning Subsidiary and the Vessel A
are free of all Encumbrances other than the Encumbrances arising under the
Charter A.
SECTION
6.03 Condition. The
Vessel A is (i) adequate and suitable for use by the Vessel A Owning Subsidiary
in the manner that is standard and customary for a vessel of its type, ordinary
wear and tear excepted; (ii) seaworthy in all material respects for hull and
machinery insurance warranty purposes and in good running order and repair;
(iii) insured against all risks, and in amounts, consistent with common industry
practices; (iv) in compliance with maritime laws and regulations; and (v) in
compliance in all material respects with the requirements of its class and
classification society; and all class certificates of the Vessel are clean and
valid and free of recommendations affecting class; and CPLP acknowledges and
agrees that, subject only to the representations and warranties in this
Agreement, it is acquiring the Vessel A on an “as is, where is”
basis.
(ii) Representations and
Warranties of CPLP regarding the Vessel B
CPLP
represents and warrants to CMTC that as of the date hereof:
SECTION
6.04 Title
to Vessel. (a) The Vessel B Owning Subsidiary is
the owner (beneficially) of the Vessel B and has good and marketable title to
the Vessel.
SECTION
6.05 No
Encumbrances. The Vessel B Owning Subsidiary and the Vessel B
are free of all Encumbrances.
SECTION
6.06 Condition. The
Vessel B is (i) adequate and suitable for use by the Vessel B Owning Subsidiary
in the manner that is standard and customary for a vessel of its type, ordinary
wear and tear excepted; (ii) seaworthy in all material respects for hull and
machinery insurance warranty purposes and in good running order and repair;
(iii) insured against all risks, and in amounts, consistent with common industry
practices; (iv) in compliance with maritime laws and regulations; and (v) in
compliance in all material respects with the requirements of its class and
classification society; and all class certificates of the Vessel are clean and
valid and free of recommendations affecting class;
Notwithstanding
the above it is agreed that the Vessel B shall be delivered to
CMTC:
a) Free
of cargo, hot washed and free of slops with gas free tanks together with a gas
free certificate suitable for man entry, and
b) CMTC
will have the right, at its own risk, time and expense, to carry out an
inspection of the Vessel B’s underwater parts by class approved divers. CPLP
shall arrange at its own expense to have a class surveyor attending such diving
inspection. If any damage is found to the Vessel’s underwater parts which the
Vessel B’s classification society confirms is affecting the Vessel B’s clean
certificate of class, then CPLP shall repair such damage to the reasonable
satisfaction of the Vessel B’s class society and of CMTC, at CPLP’s time and
expense.
c) CPLP
shall be responsible for repairs or renewals occasioned by latent defects in the
Vessel B, her machinery or appurtenances, existing at the time of delivery under
this Agreement, provided such defects have manifested themselves within six (6)
months after delivery.
d) CPLP
shall at its own cost supply the Vessel B with all parts for the proper and safe
running of the Vessel B.
ARTICLE
VII
Covenants
SECTION
7.01 Financial
Statements.
(i) CMTC
agrees to cause the Vessel A Owning Subsidiary to provide access to the books
and records of the Vessel A Owning Subsidiary to allow CPLP’s outside auditing
firm to prepare at CPLP’s expense any information, review or audit CPLP
reasonably believes is required to be furnished or provided by CPLP pursuant to
applicable securities laws. CMTC will (A) direct its auditors to provide CPLP’s
auditors access to the auditors’ work papers and (B) use its commercially
reasonable efforts to assist CPLP with any such information, review or audit and
to provide other financial information reasonably requested by CPLP or its
auditors, including the delivery by CMTC Entities of any information, letters
and similar documentation, including reasonable “management representation
letters” and attestations.
(ii) CPLP
agrees to cause the Vessel B Owning Subsidiary to provide access to the books
and records of the Vessel A Owning Subsidiary to allow CMTC’s outside auditing
firm to prepare at CMTC’s expense any information, review or audit CMTC
reasonably believes is required to be furnished or provided by CMTC pursuant to
applicable securities laws. CPLP will (A) direct its auditors to provide CMTC’s
auditors access to the auditors’ work papers and (B) use its commercially
reasonable efforts to assist CMTC with any such information, review or audit and
to provide other financial information reasonably requested by CMTC or its
auditors, including the delivery by CPLP Entities of any information, letters
and similar documentation, including reasonable “management representation
letters” and attestations.
ARTICLE
VIII
Amendments and
Waivers
SECTION
8.01 Amendments and
Waivers. This Agreement may not be amended except by an
instrument in writing signed on behalf of each parties hereto. By an
instrument in writing CPLP, on the one hand, or CMTC, on the other hand, may
waive compliance by the other with any term or provision of this Agreement that
such other party was or is obligated to comply with or perform.
ARTICLE
IX
Indemnification
SECTION
9.01 Indemnity by the
Parties.
CMTC
shall be liable for, and shall indemnify CPLP and each of its subsidiaries and
each of their directors, employees, agents and representatives (the “CPLP Indemnitees”) against and hold
them harmless from, any Losses, suffered or incurred by such CPLP
Indemnitee:
(a) by
reason of, arising out of or otherwise in respect of any inaccuracy in, or
breach of, any representation or warranty (without giving effect to any
supplement to the schedules or qualifications as to materiality or dollar amount
or other similar qualifications), or a failure to perform or observe any
covenant, agreement or obligation of, CMTC in or under this Agreement or in or
under any document, instrument or agreement delivered pursuant to this Agreement
by CMTC;
(b) any
fees, expenses or other payments incurred or owed by CMTC or the Vessel A Owning
Subsidiary to any brokers, financial advisors or comparable other persons
retained or employed by it in connection with the transactions contemplated by
this Agreement; or
(c) by
reason of, arising out of or otherwise in respect of obligations, liabilities,
expenses, cost and claims relating to, arising from or otherwise attributable to
the assets owned by the Vessel A Owning Subsidiary or the assets, operations,
and obligations of the Vessel A Owning Subsidiary or the businesses thereof, in
each case, to the extent relating to, arising from, or otherwise attributable to
facts, circumstances or events occurring prior to the Closing Date.
CPLP
shall be liable for, and shall indemnify CMTC and each of its subsidiaries and
each of their directors, employees, agents and representatives (the “CMTC Indemnitees”)
against and hold them harmless from, any Losses, suffered or incurred by such
CMTC Indemnitee:
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(a)
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by
reason of, arising out of or otherwise in respect of any inaccuracy in, or
breach of, any representation or warranty (without giving effect to any
supplement to the schedules or qualifications as to materiality or dollar
amount or other similar qualifications), or a failure to perform or
observe any covenant, agreement or obligation of, CPLP in or under this
Agreement or in or under any document, instrument or agreement delivered
pursuant to this Agreement by CPLP;
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(b)
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any
fees, expenses or other payments incurred or owed by CPLP or the Vessel B
Owning Subsidiary to any brokers, financial advisors or comparable other
persons retained or employed by it in connection with the transactions
contemplated by this Agreement; or
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(c)
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by
reason of, arising out of or otherwise in respect of obligations,
liabilities, expenses, cost and claims relating to, arising from or
otherwise attributable to the assets owned by the Vessel B Owning
Subsidiary or the assets, operations, and obligations of the Vessel B
Owning Subsidiary or the businesses thereof, in each case, to the extent
relating to, arising from, or otherwise attributable to facts,
circumstances or events occurring prior to the Closing
Date.
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SECTION
9.02 Exclusive Post-Closing
Remedy. After the Closing, and except for any non-monetary,
equitable relief to which any Party may be entitled, or any remedies for willful
misconduct or actual fraud, the rights and remedies set forth in this Article IX
shall constitute the sole and exclusive rights and remedies of the Parties under
or with respect to the subject matter of this Agreement.
ARTICLE
X
Miscellaneous
SECTION
10.01 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made
and to be performed wholly within such jurisdiction without giving effect to
conflict of law principles thereof other than Section 5-1401 of the New York
General Obligations Law, except to the extent that it is mandatory that the law
of some other jurisdiction, wherein the Vessel is located, shall
apply.
SECTION
10.02 Counterparts. This
Agreement may be executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which shall constitute but one and
the same instrument.
SECTION
10.03 Complete
Agreement. This Agreement and Schedules hereto contain the
entire agreement between the parties hereto with respect to the transactions
contemplated herein and, except as provided herein, supersede all previous oral
and written and all contemporaneous oral negotiations, commitments, writings and
understandings.
SECTION
10.04 Interpretation. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
SECTION
10.05 Severability. If
any of the provisions of this Agreement are held by any court of competent
jurisdiction to contravene, or to be invalid under, the laws of any governmental
body having jurisdiction over the subject matter hereof, such contravention or
invalidity shall not invalidate the entire Agreement. Instead, this
Agreement shall be construed as if it did not contain the particular provision
or provisions held to be invalid, and an equitable adjustment shall be made and
necessary provision added so as to give effect, as nearly as possible, to the
intention of the Parties as expressed in this Agreement at the time of execution
of this Agreement.
SECTION
10.06 Third
Party Rights. Except to the extent provided in Article IX, a Person who is not a
party to this Agreement has no right to enforce or to enjoy the benefit of any
term of this Agreement.
SECTION
10.07 Notices. Any
notice, claim or demand in connection with this Agreement shall be delivered to
the parties at the following addresses (or at such other address or facsimile
number for a party as may be designated by notice by such party to the other
party):
(a) if
to Capital Maritime & Trading Corp., as follows:
c/o
Capital Ship Management Corp., ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: Nikolaos
Syntichakis
Facsimile: ▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
(b) if
to Capital Product Partners L.P., as follows:
c/o
Capital Ship Management Corp., ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
and any
such notice shall be deemed to have been received (i) on the next working day in
the place to which it is sent, if sent by facsimile or (ii) forty eight (48)
hours from the time of dispatch, if sent by courier.
SECTION
10.08 Representations and
Warranties to Survive. All representations and warranties of
CPLP and CMTC contained in this Agreement shall survive the Closing and shall
remain operative and in full force and effect after the Closing, regardless of
(a) any investigation made by or on behalf of any Party or its affiliates, any
Person controlling any Party, its officers or directors, and (b) delivery of and
payment for the Shares.
SECTION
10.09 Remedies. Except
as expressly provided in Section 9.02, the rights, obligations and remedies
created by this Agreement are cumulative and in addition to any other rights,
obligations or remedies otherwise available at law or in equity. Except as
expressly provided in this Agreement, nothing in this Agreement will be
considered an election of remedies.
SECTION
10.10 Non-recourse to General
Partner. Neither CPLP’s general partner nor any other owner of
Equity Interests in CPLP shall be liable for the obligations of CPLP under this
Agreement or any of the related transaction documents, including, in each case,
by reason of any payment obligation imposed by governing partnership
statutes.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed as of the date first above written.
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CAPITAL
MARITIME & TRADING CORP.
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By:
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/s/
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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Title:
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By:
Capital GP L.L.C., its general partner
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Chief
Executive Officer and Chief
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Financial
Officer of Capital GP, L.L.C.
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