SHARE PURCHASE AGREEMENT Dated March 27, 2008 between CAPITAL MARITIME & TRADING CORP. and CAPITAL PRODUCT PARTNERS L.P.
Exhibit
4.12
EXECUTION
COPY
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Dated
March 27, 2008
between
CAPITAL
MARITIME & TRADING CORP.
and
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SHARE PURCHASE AGREEMENT (the “Agreement”), dated as
of March 27, 2008, by and between CAPITAL MARITIME & TRADING CORP. (the
“Seller”), a
corporation organized under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands,
and CAPITAL PRODUCT PARTNERS L.P. (the “Buyer”), a limited
partnership organized under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands and
recently formed by the Seller.
RECITAL
WHEREAS, the Buyer wishes to purchase
from the Seller, and the Seller wishes to sell to the Buyer, the five hundred
(500) shares of common stock (the “Shares”) representing
all of the issued and outstanding shares of common stock of Baymont Enterprises
Incorporated, a corporation organized under the laws of the Republic of Liberia
(the “Vessel Owning
Subsidiary”).
WHEREAS, the Vessel Owning Subsidiary
is the registered owner of the Liberian flagged motor tanker “Amore Mio II” (the
“Vessel”).
WHEREAS, the Seller wishes to transfer
to the Buyer all right, title and interest in the Vessel, and retain all assets
other than the Vessel, the Contracts (as defined below) and any necessary
permits and all liabilities of the Vessel Owning Subsidiary.
WHEREAS, the Vessel is subject to a
time charter party agreement (type BPTIME3) dated September 27, 2007 and entered
into between Baymont and BP Shipping Limited (the “Charterer”) for a
period of 35 to 37 months from October 1, 2007, the date on which the Amore Mio
II was delivered to the Charterer (the “Charter”).
WHEREAS, contemporaneously with the
execution of this Agreement, the Buyer and Capital Ship Management Corp. (“CSM”) will execute an
amendment to the Management Agreement dated as of April 3, 2007, as amended on
September 24, 2007, and entered into between the Buyer and CSM (the “Amendment to the Management
Agreement”).
NOW, THEREFORE, the parties hereto
agree as follows:
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:
“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;
“Amore Mio II” has the
meaning given to it in the recitals;
“Buyer” has the
meaning given to it in the preamble;
“Buyer Entities” means
the Buyer and its subsidiaries;
“Buyer Indemnitees”
has the meaning given to it in Section 9.01;
“Charter” has the
meaning given to it in the recitals;
“Charterer” 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;
“Common Units” has the
meaning ascribed to such term in the Partnership Agreement.
“Contracts” has the
meaning given to it in Section 5.08;
“Credit Facility”
means the US$350 million credit facility agreement dated March 19, 2008 between
the Buyer and HSH Nordbank AG;
“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” has the meaning given to it in Section 5.03;
“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 the Buyer 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;
“Purchase Price” has
the meaning given to it in Section 2.04;
“SEC Documents” means
the Prospectus of the Buyer dated March 29, 2007 and filed with the U.S.
Securities and Exchange Commission and all filings the
Buyer 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;
“Seller” has the
meaning given to it in the preamble;
“Seller Entities”
means the Seller and its affiliates other than the Buyer Entities;
“Seller Indemnities”
has the meaning given to it in Section 9.02;
“Shares” has the
meaning given to it in the recitals;
“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;
“Transferred Common
Units” has the meaning given to it in Section 2.04;
“Vessel Owning
Subsidiary” has the meaning given to it in the recitals; and
“Vessel” has the
meaning given to it in the recitals.
Purchase and Sale of Shares;
Closing
SECTION 2.01 Purchase and Sale of
Shares. The Seller agrees to sell and transfer to the
Buyer, and the Buyer agrees to purchase from the Seller for the Purchase Price
and in accordance with and subject to the terms and conditions set forth in this
Agreement, the Shares which in turn shall result in the Buyer indirectly owning
the Vessel.
SECTION 2.02 Purchase and Sale of
Shares. 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 Purchase Price for
Shares. On the Closing Date, the Buyer shall pay to the
Seller (to such account as the Seller shall nominate) the amount of US Dollars
$48,000,000 and shall issue to the Seller 2,048,823 Common Units at a price of
US Dollars 22.94 per unit, which equals the volume weighted average price of the
Common Units on the NASDAQ Global Market for the period from October 15, 2007 to
February 15, 2008 (the “Transferred Common
Units” and, together with such cash consideration, the “Purchase Price”) in
exchange for the Shares. The Buyer shall have no responsibility or
liability hereunder for the Seller’s allocation and distribution of the Purchase
Price among the Seller Entities.
SECTION 2.05 Payment
of the Purchase Price. The Purchase Price (i) (to the
extent paid in US Dollars) will be paid by the Buyer to the Seller of the Shares
by wire transfer of immediately available funds to an account designated in
writing by the Seller and (ii) (to the extent paid in Common Units) will be paid
by the Buyer to the Seller of the Shares by delivery of certificates
representing the Transferred Common Units.
Representations and
Warranties of the Buyer
The Buyer represents and warrants to
the Seller that as of the date hereof:
SECTION 3.01 Organization and Limited
Partnership Authority. The Buyer 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 the Buyer, has been
effectively authorized by all necessary action, limited partnership or
otherwise, and constitutes legal, valid and binding obligations of the Buyer. No
meeting has been convened or resolution proposed or petition presented and no
order has been made to wind up the Buyer.
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 the Buyer 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 the Buyer
is bound, or any law, rule or regulation applicable to the Buyer which
would have a material effect on the transactions contemplated
hereby.
SECTION 3.03 No Legal
Bar. The Buyer 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 the
Buyer 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 Issuance of Transferred
Common Units. The Transferred Common Units have been duly
authorized and validly issued and are fully paid and
non-assessable.
SECTION 3.05 The
Transferred Common Units. Assuming the Seller has the
requisite power and authority to be the lawful owner of the Transferred Common
Units, upon delivery to the Seller at the Closing of certificates representing
the Transferred Common Units, or delivery of such Transferred Common Units by
electronic means, and upon the consummation of the purchase contemplated hereby,
the Seller shall own good and valid title to the Transferred Common Units, free
and clear of any Encumbrances, other than those arising from acts of the Seller
Entities. Other than those created by or described in this Agreement
and the related transaction documents, the Buyer’s organizational documents,
restrictions imposed by Applicable Law or as disclosed in the SEC Documents, at
the Closing, the Transferred Common Units 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 Transferred Common Units other than any agreement to which
any Seller Entity is a party.
SECTION 3.06 Securities Act. The Shares purchased by
the Buyer pursuant to this Agreement are being acquired for investment purposes
only and not with a view to any public distribution thereof, and the Buyer shall
not offer to sell or otherwise dispose of the Shares so acquired by it in
violation of any of the registration requirements of the Securities
Act. The Buyer acknowledges that it is able to fend for itself, can
bear the economic risk of its investment in the Shares, and has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of an investment in all of the
Shares. The Buyer is an “accredited investor” as such term is defined
in Regulation D under the Securities Act. The Buyer understands that,
when issued to the Buyer at the Closing, none of the Shares will be registered
pursuant to the Securities Act and that all of the Shares will constitute
“restricted securities” under the federal securities laws of the United
States.
SECTION 3.07 Private
Offering. None of the Buyer, its affiliates and its
representatives has issued, sold or offered any security of the Buyer to any
person under circumstances that would cause the issuance and delivery of the
Transferred Common Units as contemplated by this Agreement to be subject to the
registration requirements of the Securities Act. None of the Buyer,
its affiliates and its representatives will offer the Transferred Common Units
or any part thereof or any similar securities for issuance or sale to, or
solicit any offer to acquire any of the same from, any person so as to make the
issuance and sale of the Transferred Common Units subject to the registration
requirements of the Securities Act. Assuming the representations of
the Seller contained in Section 4.06 are true and correct, the issuance and
delivery of the Transferred Common Units on or prior to the Closing Date will be
exempt from the registration and prospectus delivery requirements of the
Securities Act.
SECTION 3.08 Independent
Investigation. The Buyer 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 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.
Representations and
Warranties of the Seller
The Seller represents and warrants to
the Buyer that as of the date hereof:
SECTION 4.01 Organization and Corporate
Authority. The Seller 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 the
Seller, has been effectively authorized by all necessary action, corporate or
otherwise, and constitutes legal, valid and binding obligations of the Seller.
No meeting has been convened or resolution proposed or petition presented and no
order has been made to wind up the Seller.
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 the Seller is a party
or by which it is bound, the Articles of Incorporation and Bylaws of the Seller,
any judgment, decree, order or award of any court, governmental body or
arbitrator by which the Seller is bound, or any law, rule or regulation
applicable to the Seller.
SECTION 4.03 No Legal
Bar. The Seller 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 the
Seller 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 Good and Marketable Title to
Shares. The Seller is the owner (of record and
beneficially) of all of the Shares and has good and marketable title to the
Shares, free and clear of any and all Encumbrances. The Shares
constitute 100% of the issued and outstanding Equity Interests of the Vessel
Owning Subsidiary.
SECTION 4.05 The
Shares. Assuming the Buyer has the requisite power and
authority to be the lawful owner of the Shares, upon delivery to the Buyer at
the Closing
of
certificates representing the Shares, duly endorsed by the Seller for transfer
to the Buyer or accompanied by appropriate instruments sufficient to evidence
the transfer from the Seller to the Buyer of the Shares under the Applicable
Laws of the relevant jurisdiction, or delivery of such Shares by electronic
means, and upon the Seller’s receipt of the Purchase Price, the Buyer shall own
good and valid title to the Shares, free and clear of any Encumbrances, other
than those arising from acts of the Buyer Entities. Other than this
Agreement and any related transaction documents, the Organizational Documents
and restrictions imposed by Applicable Law, at the Closing, the Shares 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, other than any
agreement to which any Buyer Entity is a party.
SECTION 4.06 Securities Act. The Transferred Common
Units transferred to the Seller pursuant to this Agreement are being acquired
for investment purposes only and not with a view to any public distribution
thereof, and the Seller shall not offer to sell or otherwise dispose of the
Transferred Common Units so acquired by it in violation of any of the
registration requirements of the Securities Act. The Seller
acknowledges that it is able to fend for itself, can bear the economic risk of
its investment in the Transferred Common Units, and has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of an investment in all of the Transferred Common
Units. The Seller is an “accredited investor” as such term is defined
in Regulation D under the Securities Act. The Seller understands
that, when issued to the Seller at the Closing, none of the Transferred Common
Units will be registered pursuant to the Securities Act and that all of the
Transferred Common Units will constitute “restricted securities” under the
federal securities laws of the United States.
SECTION 4.07 Independent
Investigation. The Seller 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 Buyer 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 Article III.
Representations and
Warranties of
the Seller Regarding the
Vessel Owning Subsidiary
The Seller represents and warrants to
the Buyer that as of the date hereof:
SECTION 5.01 Organization Good Standing
and Authority. The Vessel Owning Subsidiary is a
corporation duly incorporated, validly existing and in good standing under the
laws of the Republic of Liberia. The Vessel 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 Owning Subsidiary.
SECTION 5.02 Capitalization. The
Shares 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 Owning
Subsidiary. There are not outstanding (i) any options, warrants
or other rights to purchase from the Vessel Owning Subsidiary any capital stock
of such Vessel Owning Subsidiary, (ii) any securities convertible into or
exchangeable for shares of the capital stock of the Vessel 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
Owning Subsidiary.
SECTION 5.03 Organizational
Documents. The Seller has supplied to the Buyer true and
correct copies of the organizational documents of the Vessel Owning Subsidiary,
as in effect as of the date hereof (the “Organizational
Documents”).
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 Owning
Subsidiary is a party or by which it is bound including, without limitation, any
of the Organizational Documents, or any judgment, decree, order or award of any
court, governmental body or arbitrator applicable to the Vessel Owning
Subsidiary.
(a). There
is no action, suit or proceeding to which the Vessel 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 Owning Subsidiary; and, to the best
knowledge of the Seller, there is no basis for any such action, suit or
proceeding;
(b). The
Vessel 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 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 Owning Subsidiary will not be
indebted, directly or indirectly, to any person who is an officer,
director,
stockholder or employee of the Seller 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 Owning
Subsidiary.
SECTION 5.07 Personnel. The
Vessel Owning Subsidiary has no employees.
SECTION 5.08 Contracts and
Agreements. Other than the Charter and the Amendment to
the Management Agreement (together, the “Contracts”), there
are no material contracts or agreements, written or oral, to which the Vessel
Owning Subsidiary is a party or by which any of the assets of the Vessel Owning
Subsidiary are bound.
(a). Each
of the Contracts is a valid and binding agreement of the Vessel Owning
Subsidiary, and to the best knowledge of the Seller, of all other parties
thereto;
(b). The
Vessel Owning Subsidiary has fulfilled all material obligations required
pursuant to its Contracts 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 Owning
Subsidiary under any of the Contracts, or to the best knowledge of the Seller,
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 Owning Subsidiary under any of the Contracts
nor, to the best knowledge of the Seller, 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.
SECTION 5.09 Compliance with
Law. The conduct of business by the Vessel 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 Owning Subsidiary taken as a
whole, nor has the Vessel Owning Subsidiary received any notice of any such
violation.
SECTION 5.10 No Undisclosed
Liabilities. The Vessel Owning Subsidiary (and the Vessel
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 that are not due and payable as of the date
hereof and that will be the responsibility of the Seller pursuant to Section
9.01(c) of this Agreement.
SECTION 5.11 Disclosure of
Information. The Seller has disclosed to the Buyer all
material information on, and about, the Vessel 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 the Buyer which
would render such information untrue or misleading.
SECTION 5.12 Payment of
Taxes. The Vessel 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 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 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 Owning Subsidiary. The
Vessel 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
Owning Subsidiary, and none of such Permits contains any restriction that is
materially burdensome to the Vessel Owning Subsidiary.
SECTION 5.14 No Material Adverse Change
in Business. Since December 31, 2007, 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 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 Owning Subsidiary.
Representations and
Warranties of
the Seller regarding the
Vessel
The Seller represents and warrants to
the Buyer that as of the date hereof:
SECTION 6.01 Title to
Vessel. (a) The Vessel Owning Subsidiary is the owner
(beneficially and of record) of the Vessel and has good and marketable title to
the Vessel.
SECTION 6.02 No
Encumbrances. The Vessel Owning Subsidiary and the Vessel
are free of all Encumbrances other than the Encumbrances arising under the
Charter or the Credit Facility.
SECTION 6.03 Condition. The
Vessel is (i) adequate and suitable for use by the Vessel 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 the Buyer acknowledges
and agrees that, subject only to the representations and warranties in this
Agreement, it is acquiring the Vessel on an “as is, where is”
basis.
Covenants
SECTION 7.01 Financial
Statements. The Seller agrees to cause the Vessel Owning
Subsidiary to provide access to the books and records of the Vessel Owning
Subsidiary to allow the Buyer’s outside auditing firm to prepare at the Buyer’s
expense any information, review or audit the Buyer reasonably believes is
required to be furnished or provided by the Buyer pursuant to applicable
securities laws. The Seller will (A) direct its auditors to provide
the Buyer’s auditors access to the auditors’ work papers and (B) use its
commercially reasonable efforts to assist the Buyer with any such information,
review or audit and to provide other financial information reasonably requested
by the Buyer or its auditors, including the delivery by the Seller Entities of
any information, letters and similar documentation, including reasonable
“management representation letters” and attestations.
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 the Buyer, on the one hand, or the Seller, 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.
Indemnification
SECTION 9.01 Indemnity by the
Seller. The Seller shall be liable for, and shall
indemnify the Buyer and each of its subsidiaries and each of their directors,
employees, agents and representatives (the “Buyer Indemnitees”)
against and hold them harmless from, any Losses, suffered or incurred by such
Buyer 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, the Seller in or under this Agreement or
in or under any document, instrument or agreement delivered pursuant to this
Agreement by the Seller;
(b). any
fees, expenses or other payments incurred or owed by the Seller or the Vessel
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 Owning Subsidiary or the assets, operations, and obligations of
the Vessel 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.
SECTION 9.02 Indemnity by the
Buyer. The Buyer shall indemnify the Seller and its
subsidiaries other than any Buyer Indemnitees and each of their respective
officers, directors, employees, agents and representatives (the “Seller Indemnitees”)
against and hold them harmless from, any Losses, suffered or incurred by such
Seller Indemnitee 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 occurring after the date hereof 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, the Buyer in or under this Agreement or in or under any document,
instrument or agreement delivered pursuant to this Agreement by the
Buyer.
SECTION 9.03 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.
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: ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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 the Buyer and Seller 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 9.03, 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 the Buyer’s general partner nor any other
owner of Equity Interests in the Buyer shall be liable for the obligations of
the Buyer 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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Name:
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▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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President
and Chief Executive Officer
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By:
Capital GP L.L.C., its general partner
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By:
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Chief
Executive Officer and Chief
Financial
Officer of Capital GP, L.L.C.
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