EXHIBIT 10.4
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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
ULTRAPETROL (BAHAMAS) LIMITED,
as Buyer
and
CROSSTRADE MARITIME INC.
and
CROSSTREES MARITIME INC.,
as Sellers
Dated as of March 20, 2006
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TABLE OF CONTENTS
PAGE
ARTICLE I PURCHASE OF OWNERSHIP INTEREST............................1
1.1 Purchase of Ravenscroft Shares by Buyer......................1
1.2 Purchase Price...............................................2
1.3 Closing......................................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER..................2
2.1 Power and Authority..........................................2
2.2 Authorization and Enforceability.............................2
2.3 No Conflicts.................................................3
2.4 No Consents..................................................3
2.5 Company Organization and Capitalization......................3
2.6 Subsidiaries.................................................4
2.7 Litigation; Observance of Agreements, Statutes and Orders....4
2.8 Title to Property; Leases....................................5
2.9 Intellectual Property........................................5
2.10 ERISA........................................................6
2.11 Financial Statements.........................................6
2.12 Taxes........................................................7
2.13 Indebtedness; Other Liabilities..............................7
2.14 Material Contracts...........................................7
2.15 No Material Misstatements or Omissions; Disclosure...........8
2.16 Broker's or Finder's Fees....................................8
2.17 Employees and Labor Relations................................8
2.18 Affiliate Transactions.......................................8
2.19 Compliance with Laws.........................................8
2.20 Environmental Matters........................................9
2.21 Insurance....................................................9
2.22 Minute Books.................................................9
2.23 Securities Law...............................................9
2.24 Registration Under Exchange Act..............................9
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE III REPRESENTATIONS AND WARRANTIES OF BUYER..................10
3.1 Representations and Warranties of Buyer.....................10
3.2 Organization, Power and Authority...........................10
3.3 Authorization and Enforceability............................10
3.4 No Conflicts................................................10
3.5 Consents....................................................11
3.6 Litigation; Observance of Agreements, Statutes
and Orders...............................................11
3.7 Investment Intent...........................................11
3.8 Accredited Investor.........................................11
3.9 Brokers' or Finders' Fees...................................11
ARTICLE IV CERTAIN COVENANTS........................................12
4.1 Cooperation.................................................12
4.2 Buyer's Access and Inspection...............................12
4.3 Conduct of Company Business.................................12
ARTICLE V PUT/CALL OPTION..........................................13
5.1 Buyer's Put Option..........................................13
5.2 Notification................................................13
5.3 Exercise of Put Option......................................14
5.4 Conditions Precedent to Exercise of Put Option..............14
ARTICLE VI CONDITIONS TO CLOSING....................................15
6.1 Conditions Precedent to Obligations of Buyer................15
6.2 Conditions Precedent to Obligations of Sellers..............16
ARTICLE VII INDEMNIFICATION..........................................16
7.1 Survival of Representations, Warranties and Indemnities.....16
7.2 Indemnification.............................................16
7.3 Third-Party Claims..........................................17
ARTICLE VIII MISCELLANEOUS............................................18
8.1 Notices.....................................................18
8.2 Entire Agreement............................................18
8.3 Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies.................................19
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TABLE OF CONTENTS
(continued)
PAGE
8.4 Assignability; Binding Effect...............................19
8.5 Governing Law; Submission to Jurisdiction Waiver
of Jury Trial............................................19
8.6 Counterparts................................................20
8.7 Further Assurances..........................................20
8.8 Severability................................................20
8.9 Exhibit and Schedules.......................................20
8.10 Captions....................................................20
8.11 Interpretation..............................................20
8.12 Third Parties...............................................21
8.13 Expenses....................................................21
8.14 Knowledge...................................................21
8.15 Specific Performance........................................21
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TABLE OF CONTENTS
(continued)
Schedules
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Schedule I Defined Terms
Schedule 2.6 Subsidiaries
Schedule 2.9(a) Assets
Schedule 2.9(b) Real Property/Leaseholds
Schedule 2.13 Indebtedness; Other Liabilities
Schedule 2.14 Material Contracts
Schedule 2.17 Employees
Schedule 2.18 Transactions with Affiliates
Exhibits
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Exhibit A Form of Note
Exhibit B Form of Pledge
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of March 20, 2006 (this "Agreement"), by and
between (i) ULTRAPETROL (BAHAMAS) LIMITED, a Bahamas corporation ("Buyer"), as
buyer, (ii) CROSSTRADE MARITIME INC., a Liberian corporation ("Crosstrade"), and
CROSSTREES MARITIME INC., a Liberian corporation ("Crosstrees", and together
with Crosstrade, the "Sellers"), as sellers.
W I T N E S S E T H
WHEREAS, Crosstrade is the record and beneficial owner of 250 shares of
common stock, par value $1,000 per share, of Ravenscroft Shipping (Bahamas)
S.A., a Bahamas corporation ("Ravenscroft"), which represents, in the aggregate,
fifty percent (50%) of the issued and outstanding capital stock in Ravenscroft
(the "Crosstrade Ravenscroft Shares");
WHEREAS, Crosstrees is the record and beneficial owner of 250 shares of
common stock, par value $1,000 per share, of Ravenscroft, which represents, in
the aggregate, fifty percent (50%) of the issued and outstanding capital stock
in Ravenscroft (the "Crosstrees Ravenscroft Shares", and together with the
Crosstrade Ravenscroft Shares, the "Ravenscroft Shares");
WHEREAS, Sellers desire to sell and transfer to Buyer the Ravenscroft
Shares, and Buyer wishes to purchase the Ravenscroft Shares, upon the terms and
subject to the conditions herein contained; and
WHEREAS, capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in Schedule I hereto.
NOW, THEREFORE, in consideration of the mutual covenants described
below and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby covenant and agree as follows:
ARTICLE I
PURCHASE OF OWNERSHIP INTEREST
1.1 Purchase of Ravenscroft Shares by Buyer.
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Upon the terms and subject to the conditions of this Agreement, Sellers
shall, at the Closing, sell and transfer the Ravenscroft Shares to Buyer, free
and clear of any and all Liens, and Buyer shall purchase the Ravenscroft Shares
for the consideration provided for in Section 1.2, which shall represent,
immediately after Closing and the consummation of all of the other transactions
contemplated hereunder, one hundred percent (100%) of the issued and outstanding
capital stock of Ravenscroft. Sellers and Buyer shall execute and deliver at the
Closing all documentation reasonably necessary to effect the sale and transfer
of the Ravenscroft Shares as provided for in this Agreement.
1.2 Purchase Price.
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In consideration of the sale and transfer of the Ravenscroft Shares as
set forth in Section 1.1, Buyer shall pay to Sellers the sum of Eleven Million
Five Hundred Thousand United States Dollars (US$11,500,000) (the "Purchase
Price"), which amount shall be payable as follows: At the Closing, Buyer shall
issue to each Seller a promissory note (the "Notes") in the form attached hereto
as Exhibit A, in the amount of Five Million Seven Hundred Fifty Thousand United
States Dollars (US$5,750,000). Each Note shall be due and payable upon the
earlier of (i) the initial public offering of the common stock of the Buyer on a
recognized stock exchange (the "IPO") and (ii) September 30, 2006. The Notes
shall be non-interest-bearing and shall be secured by a first-ranking pledge
over, respectively, the Crosstrade Ravenscroft Shares and the Crosstrees
Ravenscroft Shares, such Pledge to be substantially in the form of Exhibit B
hereto.
1.3 Closing.
--------
Subject to satisfaction or waiver of the conditions set forth in
Article VI, the sale and transfer of the Ravenscroft Shares shall take place on
such date on or prior to March 24, 2006, as may be designated in writing on not
less five (5) days' prior notice from Buyer to Sellers, at the offices of ▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at a closing
(the "Closing") at 10:00 a.m., local time, or, or such other place, time or date
as the parties may mutually agree in writing (such time and date being referred
to herein as the "Closing Date").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
2.1 Representations and Warranties of Sellers.
------------------------------------------
Each Seller hereby represents and warrants as to the matters pertaining
solely to itself and as to Ravenscroft, its subsidiaries, and to any other
matter below, to Buyer that:
2.2 Power and Authority.
--------------------
Each Seller has the full right, power and authority to enter into this
Agreement and to transfer, convey and sell to Buyer at the Closing its
respective Ravenscroft Shares. Each Seller is the sole owner of, and has good,
valid, and marketable title to its respective Ravenscroft Shares, free and clear
of any and all Liens and, upon consummation of the purchase contemplated hereby,
Buyer will acquire from Sellers good, valid and marketable title to the
Ravenscroft Shares, free and clear of all Liens.
2.3 Authorization and Enforceability.
---------------------------------
The execution, delivery and performance of this Agreement has been duly
authorized by all necessary action on the part of each Seller, and constitutes a
legal, valid and binding obligation of each Seller, enforceable against each
Seller in accordance with its terms, except as such enforceability may be
limited by: (i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
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generally; and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
2.4 No Conflicts.
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Neither the execution, delivery and performance of this Agreement nor
the consummation of any of the transactions contemplated hereunder will:
(a) conflict with or result in any violation of or constitute a breach
of any of the terms or provisions of, or result in the acceleration of any
obligation under, or constitute a default under any provision of, the articles
of incorporation or bylaws or other organizational document of either Seller or
Ravenscroft, or any mortgage, bond, indenture, agreement, franchise, license,
permit or other instrument or obligation to which either Seller or any
Ravenscroft Entity is a party or subject or by which any of their respective
assets or properties may be bound;
(b) result in the creation of any Lien upon any of the assets or
properties of either Seller or any Ravenscroft Entity; or
(c) violate any Legal Requirement against, affecting or binding upon,
Sellers or any Ravenscroft Entity or upon any of their respective assets or
properties.
2.5 No Consents.
------------
All consents, approvals or authorizations of, or registrations, filings
or declarations with, any Governmental Authority or any other Person, if any,
required in connection with the execution, delivery or performance by either
Seller of this Agreement or the transactions provided for herein have been or at
the Closing will have been obtained by such Seller and will be in full force and
effect.
2.6 Company Organization and Capitalization.
----------------------------------------
(a) Ravenscroft is a corporation, duly organized, validly existing and
in good standing under the laws of the Commonwealth of the Bahamas and is duly
qualified to do business and is in good standing in each jurisdiction in which
such qualification is required by law, other than those jurisdictions as to
which the failure to be so qualified or in good standing could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Ravenscroft has the power and authority to own or hold under lease the
properties it purports to own or hold under lease, to transact the business it
transacts and proposes to transact. Other than the articles of incorporation and
the by-laws of Ravenscroft, there are no other agreements or documents to which
Ravenscroft or either Seller is a party with respect to the governance or
capitalization of Ravenscroft.
(b) The authorized capital stock of Ravenscroft consists solely of 500
shares of common stock, par value $5,000 each. As of the date hereof and as of
the Closing Date, there are and shall be 500 shares of common stock issued and
outstanding and such shares shall constitute all of the issued and outstanding
shares of the capital stock of Ravenscroft. All such shares have been duly
authorized, validly issued and are fully paid and non-assessable. Upon
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consummation of the Closing, Buyer will own 100% of the issued and outstanding
capital stock of Ravenscroft.
(c) There are no outstanding obligations, warrants, options or other
rights to subscribe for or purchase from Ravenscroft, or other contracts or
commitments providing for the issuance of or the granting of rights to acquire,
any equity interest in Ravenscroft, or any securities or other instruments
convertible into or exchangeable for the foregoing.
(d) Except for the rights of Buyer hereunder, no Person has any right
of first refusal, preemptive right, subscription right or similar right with
respect to any stock, securities or equity interest in Ravenscroft.
2.7 Subsidiaries.
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(a) Exhibit 2.7 sets forth a complete and accurate organizational chart
of Ravenscroft and all of its Subsidiaries, listing for each Subsidiary its
name, indicating its type of entity, the jurisdiction of its incorporation or
organization, and its ownership structure.
(b) Other than the Subsidiaries, there are no other corporations,
partnerships, joint ventures, associations or other entities in which
Ravenscroft or any Subsidiary owns, of record or beneficially, any direct or
indirect equity or other interest or any right (contingent or otherwise) to
acquire the same. Neither Ravenscroft nor any Subsidiary is a member of any
partnership nor is Ravenscroft or any Subsidiary a participant in any joint
venture or similar arrangement.
(c) Each Subsidiary: (i) is a corporation duly organized, validly
existing and in good standing under the Laws of its jurisdiction of
incorporation, (ii) has all necessary power and authority to own, operate or
lease the properties and assets owned, operated or leased by such Subsidiary and
to carry on its business as it has been and is currently conducted by such
Subsidiary, and (iii) is duly licensed or qualified to do business and is in
good standing in each jurisdiction in which the properties owned or leased by it
or the operation of its business makes such licensing or qualification necessary
or desirable, other than those jurisdictions as to which the failure to be so
licensed, qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(d) All corporate actions taken by each Subsidiary have been duly
authorized and no Subsidiary has taken any action that in any respect conflicts
with, constitutes a default under or results in a violation of any provision of
its Certificate of Incorporation or By-laws (or similar organizational
documents).
2.8 Litigation; Observance of Agreements, Statutes and Orders.
----------------------------------------------------------
(a) There are no actions, investigations, demands, suits or proceedings
pending or, to the Knowledge of Sellers, threatened against or affecting any
Ravenscroft Entity, any officer, director or employee of any Ravenscroft Entity
or any property or business of any Ravenscroft Entity, the validity of this
Agreement or the rights of Sellers to enter into this Agreement or consummate
the transactions contemplated hereby in any court or agency or
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before any arbitrator of any kind or before or by any Governmental
Authority, that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
(b) No Ravenscroft Entity is in default under or in violation of any
term of any agreement or instrument to which it is a party or by which it is
bound, or any Legal Requirement, which default or violation, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
(c) As of the date hereof and as of the Closing Date, no officer,
director or employee of any Ravenscroft Entity is or will be subject to any
non-competition agreement, restrictive covenant or any other agreement
restricting such person's ability to work for, provide services to, or otherwise
participate in such Ravenscroft Entity's business as currently contemplated.
2.9 Title to Property; Leases.
--------------------------
(a) Each Ravenscroft Entity has good and sufficient title to its
respective owned personal properties, tangible and intangible, and valid,
binding and enforceable leasehold interests in its leased personal properties
that individually or in the aggregate are Material, in each case free and clear
of Liens. All such personal property is in working condition, ordinary wear and
tear excepted. Such properties constitute all of the personal properties
necessary to operate such Ravenscroft Entity's business as currently conducted.
All leasehold interests and agreements of each Ravenscroft Entity to such
personal property are subsisting and enforceable in accordance with their terms
and to the Knowledge of Sellers, there does not exist thereunder any default or
event or condition which, after notice or lapse of time or both, would
constitute a default thereunder or which would have a Material Adverse Effect on
such Ravenscroft Entity. Schedule 2.9(a) sets forth a brief description of all
of the assets of each Ravenscroft Entity having a value in excess of Ten
Thousand Dollars ($10,000.00).
(b) Each Ravenscroft Entity has good and marketable title to all of its
owned real property, if any, and valid, binding and enforceable leasehold
interests in its leased real property, if any, that individually or in the
aggregate are Material, in each case free and clear of all Liens. Schedule
2.9(b) sets forth a description of all real property owned by any Ravenscroft
Entity and any policy or contract of insurance held thereby in respect of such
property. All leasehold interests and agreements of such Ravenscroft Entity to
its respective real property are subsisting and to the Knowledge of Sellers,
there does not exist thereunder any default or event or condition which, after
notice or lapse of time or both, would constitute a default thereunder or which
would have a Material Adverse Effect on such Ravenscroft Entity. Each
Ravenscroft Entity enjoys peaceful and undisturbed possession under its
respective leases of real property. Schedule 2.9(b) sets forth a description of
all leasehold interests in real property held by each Ravenscroft Entity.
2.10 Intellectual Property.
----------------------
No Ravenscroft Entity owns any registered trademark, copyright, logo or
patent other than the registered domain name for its respective internet
website. Each Ravenscroft Entity is the exclusive owner of its respective
Intellectual Property free and clear of any Liens.
5
To the Knowledge of the Sellers, the rights of each Ravenscroft Entity in
the Intellectual Property it owns do not conflict with or infringe on the rights
of any other Person, and the Sellers have not received any claim or written
notice from any Person to such effect.
2.11 ERISA.
------
The execution and delivery of this Agreement and the consummation of
the transactions hereunder will not involve any prohibited transaction within
the meaning of ERISA or Section 4975 of the Code and no condition exists or
event or transaction has occurred in connection with any Plan maintained or
contributed to by any Ravenscroft Entity or any ERISA Affiliate resulting from
the failure to comply with ERISA insofar as ERISA applies thereto which is
reasonably likely to result in a Ravenscroft Entity or any ERISA Affiliate
incurring any liability, fine or penalty which individually or in the aggregate
would have a material adverse effect on the Ravenscroft Group.
2.12 Financial Statements.
---------------------
(a) Sellers have delivered to Buyer copies of the unaudited financial
statements of the Ravenscroft Group as of March 20, 2006 (the "Financial
Statements"). Such Financial Statements are accurate, correct, complete and in
accordance with the books of account and records of such Ravenscroft Entity,
fairly present in all material respects the financial condition and the results
of operations of such Ravenscroft Entity as of the respective dates specified in
such Financial Statements and the results of operations and cash flows for the
respective periods so specified.
(b) There are no Material special or non-recurring items of income or
expense during the periods covered by the Financial Statements and the balance
sheets included in the Financial Statements do not reflect any write-up or
revaluation increasing the book value of any assets. The Financial Statements
reflect all adjustments necessary for a fair presentation of the financial
information contained therein in accordance with GAAP. There have been no
transactions involving the businesses of any Ravenscroft Entity which properly
should have been set forth in the Financial Statements and which have not been
accurately so set forth.
(c) Since March 20, 2006: (i) there has been no change in the condition
(financial or otherwise), business, net worth, assets, properties, liabilities
or obligations (fixed, contingent, known, unknown or otherwise) with respect to
any Ravenscroft Entity which has had a Material Adverse Effect, and there has
been no occurrence, circumstance or combination thereof which might reasonably
be expected to result in any such Material Adverse Effect before or after the
Closing Date and (ii) no Ravenscroft Entity has declared or paid any dividend,
or made any distribution in respect of its outstanding equity interests, or any
direct or indirect redemption, purchase or other acquisition of any kind of the
equity interests of any other Person.
2.13 Taxes.
------
(a) Each Ravenscroft Entity has correctly prepared and filed all tax
returns or reports that are required to have been filed in any jurisdiction, and
has timely paid in full all Taxes due and payable with respect thereto and all
other taxes and assessments levied upon it or its properties, assets, income or
franchises or otherwise payable by it, to the extent such taxes and
6
assessments have become due and payable and before they have become delinquent,
except for any taxes and assessments: (i) the amount of which is not
individually or in the aggregate Material; or (ii) the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which such Ravenscroft Entity has established
adequate reserves. No tax Liens have been filed with respect to any property,
business or asset of any Ravenscroft Entity and no claims are being asserted
with respect to any Taxes.
(b) All Taxes required to be withheld by or on behalf of any
Ravenscroft Entity in connection with amounts paid or owing to any employee,
independent contractor, creditor or other Person have been withheld and such
withheld Taxes have either been duly and timely paid to the proper Governmental
Authorities or shown as payables on the Financial Statements except for any
taxes and assessments: (i) the amount of which is not individually or in the
aggregate Material; or (ii) the amount, applicability or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which such Ravenscroft Entity has established adequate reserves.
(c) There is no Tax litigation, administrative appeal, investigation or
audit pending or, to the Knowledge of Sellers, threatened against or relating to
any Ravenscroft Entity.
2.14 Indebtedness; Other Liabilities.
--------------------------------
Schedule 2.14 sets forth a complete and correct statement of the
Indebtedness of Ravenscroft Entity as of the date hereof. No Ravenscroft Entity
is in default with respect to any such Indebtedness, or any instrument or
agreement relating thereto. No Ravenscroft Entity has any Indebtedness or
liability, absolute or contingent, liquidated or unliquidated, whether due or to
become due, which is not reflected on Schedule 2.14.
2.15 Material Contracts.
-------------------
Schedule 2.15 sets forth a list of Material Contracts of each
Ravenscroft Entity as of the date hereof. Sellers have made available to Buyer
for its review a correct and complete copy of each such Material Contract. With
respect to each such Material Contract: (i) such contract is legal, valid,
binding, enforceable, and in full force and effect, (ii) such contract will
continue to be legal, valid, binding, enforceable, and in full force and effect
on identical terms following the consummation of the transactions contemplated
hereby, and (iii) to the Knowledge of Sellers, no party is in breach or default,
and no event has occurred which with notice or lapse of time or both would
constitute a breach or default, or permit termination, modification, or
acceleration, under such contract.
2.16 No Material Misstatements or Omissions; Disclosure.
---------------------------------------------------
No representation or warranty of Sellers in this Agreement contains or
will contain any untrue statement of a material fact nor shall such
representations and warranties taken as a whole omit any statement necessary in
order to make any material statement contained herein not misleading. To the
Knowledge of Sellers, there is no fact that has not been disclosed hereunder to
Buyer that might reasonably be expected to have or result in a Material Adverse
Effect on or with respect to the Ravenscroft Group.
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2.17 Broker's or Finder's Fees.
--------------------------
No broker, finder or similar agent has been employed by or on behalf of
Sellers, and no person or entity with which Sellers has had any dealings or
communications of any kind is entitled to any brokerage commission, finder's fee
or any similar compensation, in connection with this Agreement or the
transactions contemplated hereby.
2.18 Employees and Labor Relations.
------------------------------
There is no labor strike, work stoppage or slowdown, picketing,
boycott, lockout or other labor dispute either pending or, to the Knowledge of
Sellers, threatened, against any Ravenscroft Entity or affecting their
respective business or which would in any way interfere with or impair in any
Material respect the operation or the conduct of the Ravenscroft Group's
business. Each Ravenscroft Entity is in compliance in all Material respects with
all applicable federal, state, and local laws respecting employment, fair
employment practices and fair labor standards, including, without limitation,
race, age, sex, religion, color, national origin, disability and sexual
orientation. Schedule 2.18 sets forth a list of all employees of each
Ravenscroft Entity and includes all pension plans and other agreements
benefiting such employees. No employees of any Ravenscroft Entity are subject to
any employment agreement with any Ravenscroft Entity. There are no unfunded
obligations of any kind including, without limitation, pension and other benefit
plans in respect of any employee.
2.19 Affiliate Transactions.
-----------------------
Schedule 2.19 contains an accurate and complete listing of all
contracts, leases, agreements or understandings, whether written or oral, with
or on behalf of any Affiliate of any Ravenscroft Entity to which such
Ravenscroft Entity is a party or is otherwise bound. None of such contracts,
leases, agreements or understandings contain terms that are more favorable than
terms that would be obtainable from a Person other than an Affiliate or that
have been entered into by such Ravenscroft Entity other than in the ordinary
course of business. Except as disclosed on Schedule 2.19, no Ravenscroft Entity
has any agreement, arrangement or understanding with any of its Affiliates, the
cancellation or termination of which would have a Material Adverse Effect on the
Ravenscroft Group.
2.20 Compliance with Laws.
---------------------
Each Ravenscroft Entity is in Material compliance with all Legal
Requirements and no Ravenscroft Entity has received notice of any complaint or
order alleging any Material non-compliance by such Ravenscroft Entity with
respect to any such Legal Requirements.
2.21 Environmental Matters.
----------------------
Sellers have no knowledge of any claim and has not received any notice
of any claim, and no proceeding has been instituted raising any claim against
any Ravenscroft Entity or any of their respective properties now or formerly
owned, leased or operated by their or other assets, alleging any damage to the
environment or violation of any Environmental Laws, except, in each case, such
as could not reasonably be expected to result in a Material Adverse Effect.
Sellers have no knowledge of any facts which would give rise to any claim,
public or private, of
8
violation of Environmental Laws or damage to the environment emanating from,
occurring on or in any way related to properties now or formerly owned, leased
or operated by any Ravenscroft Entity or to other assets or their use, except,
in each case, such as could not reasonably be expected to result in a Material
Adverse Effect. No Ravenscroft Entity has stored any Hazardous Materials on
properties now or formerly owned, leased or operated by it nor has it disposed
of any Hazardous Materials in a manner contrary to any Environmental Laws in
each case in any manner that could reasonably be expected to result in a
Material Adverse Effect. All buildings on all real properties now owned, leased
or operated by any Ravenscroft Entity are in compliance with applicable
Environmental Laws, except where failure to comply could not reasonably be
expected to result in a Material Adverse Effect.
2.22 Insurance.
----------
Sellers have delivered to Buyer true and complete copies of all
policies of insurance to which a Ravenscroft Entity is a party or under which
such Ravenscroft Entity is covered. All such policies are valid, outstanding and
enforceable and taken together provide adequate insurance coverage for the
assets and the operations of such Ravenscroft Entity for all risks normally
insured against by a similarly situated person carrying on the same business as
such Ravenscroft Entity. Each Ravenscroft Entity has paid all premiums due
thereon, and no Ravenscroft Entity has received any notice that any insurance
policy has been cancelled.
2.23 Minute Books.
-------------
The minutes books of each Ravenscroft Entity, as previously made
available to Buyer, accurately reflect all formal corporate action of the
stockholders and Board of Directors of such Ravenscroft Entity.
2.24 Securities Law.
---------------
In reliance on the investment representations contained in Sections 3.7
and 3.8, the offer, issuance, sale and delivery of the Ravenscroft Shares, as
provided in this Agreement, are exempt from the registration requirements of the
Securities Act and all applicable state securities laws, and are otherwise in
compliance with such laws. Neither Ravenscroft nor any Person acting on its
behalf has taken or will take any action which might subject the sale or
transfer of the Ravenscroft Shares to the registration requirements of Section 5
of the Securities Act.
2.25 Registration Under Exchange Act.
--------------------------------
Ravenscroft has not registered any class of its securities pursuant to
Section 12 of the Exchange Act and no such registration is required by the
Exchange Act. Ravenscroft is not under any obligation to register, under the
Securities Act, any of its presently outstanding securities or any securities
which may hereafter be issued.
2.26. Vessel Management
-----------------
Each Ravenscroft Entity complies (when necessary) with the requirements
of the ISM Code including (but not limited to) the maintenance and renewal of
valid certificates
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pursuant thereto, and there is no threatened or actual withdrawal of the DOC or
SMC held by any Ravenscroft Entity.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
3.1 Representations and Warranties of Buyer.
----------------------------------------
Buyer hereby represents and warrants to Sellers that:
3.2 Organization, Power and Authority.
----------------------------------
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the Bahamas, and is duly qualified to do business and
is in good standing in each jurisdiction in which such qualification is required
by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Buyer has the power
and authority to transact the business it transacts and Buyer has the power and
authority to execute and deliver this Agreement and to perform the provisions
hereof.
3.3 Authorization and Enforceability.
---------------------------------
The execution, delivery and performance of this Agreement has been duly
authorized by all necessary corporate action on the part of Buyer, and
constitutes the legal, valid and binding obligation of Buyer enforceable against
Buyer in accordance with its terms, except as such enforceability may be limited
by: (i) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally; and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.4 No Conflicts.
----------
Neither the execution, delivery and performance of this Agreement nor
the consummation of any of the transactions contemplated hereunder will:
(a) conflict with or result in any violation of or constitute a breach
of any of the terms or provisions of, or result in the acceleration of any
obligation under, or constitute a default under any provision of, the articles
of incorporation or bylaws or other organizational document of Buyer, or any
mortgage, bond, indenture, agreement, franchise, license, permit or other
instrument or obligation to which Buyer is a party or subject or by which any of
its respective assets or properties may be bound; or
(b) violate any Legal Requirement against, affecting or binding upon
Buyer or upon any of its respective assets or properties.
10
3.5 Consents.
---------
All consents, approvals or authorizations of, or registrations, filings
or declarations with, any Governmental Authority or any other Person, if any,
required in connection with the execution, delivery or performance by Buyer of
this Agreement or the transactions provided for herein have been or at the
Closing will have been obtained by Buyer and will be in full force and effect.
3.6 Litigation; Observance of Agreements, Statutes and Orders.
----------------------------------------------------------
(a) There are no actions, investigations, demands, suits or proceedings
pending or, to the Knowledge of Buyer, threatened against or affecting Buyer
that, individually or in the aggregate, could reasonably be expected materially
to impair the ability of Buyer to perform its obligations under this Agreement
or affect the validity or enforceability of this Agreement.
(b) Buyer is not in default under any term of any agreement or
instrument to which it is a party or by which it is bound, or any order,
judgment, decree or ruling of any court, arbitrator or Governmental Authority or
is in violation of any applicable law, ordinance, rule or regulation of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected materially to impair the ability of
Buyer to perform its obligations under this Agreement or affect the validity or
enforceability of any of this Agreement.
3.7 Investment Intent.
------------------
Buyer is acquiring the Ravenscroft Shares for its own account, for
investment purposes and not with a view to its distribution within the meaning
of the Securities Act and the rules and regulations promulgated thereunder.
Buyer will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of any of the Ravenscroft Shares (or solicit
any offers to buy, purchase, or otherwise acquire any of the Ravenscroft
Shares), except in compliance with the Securities Act.
3.8 Accredited Investor.
--------------------
Buyer is an "accredited investor" (as that term is defined in Rule 501
of Regulation D under the Securities Act) and by reason of its business and
financial experience, it has such knowledge, sophistication and experience in
business and financial matters as to be capable of evaluating the merits and
risks of the prospective investment, is able to bear the economic risk of such
investment and is able to afford a complete loss of such investment. Buyer has
had an opportunity to investigate the business and financial condition of
Ravenscroft, to ask questions of Ravenscroft and to obtain such information as
Buyer requires from Ravenscroft.
3.9 Brokers' or Finders' Fees.
--------------------------
No broker, finder or similar agent has been employed by or on behalf of
Buyer, and no person or entity with which Buyer has had any dealings or
communications of any kind is
11
entitled to any brokerage commission, finder's fee or any similar compensation,
in connection with this Agreement or the transactions contemplated hereby.
ARTICLE IV
CERTAIN COVENANTS
4.1 Cooperation.
------------
Each of the parties shall use its respective reasonable best efforts
and will cooperate with each other to secure all necessary consents, approvals,
authorizations, assumptions and waivers from third parties as shall be required
in order to enable the transactions contemplated hereby to be effected, and each
of the parties shall otherwise use its respective reasonable best efforts to
cause the consummation of such transactions in accordance with the terms and
conditions hereof and to cause all conditions contained in this Agreement over
which it has control to be satisfied.
4.2 Buyer's Access and Inspection.
------------------------------
Sellers shall cause the Ravenscroft Entities to allow Buyer and its
authorized representatives reasonable access from and after the date hereof and
prior to the Closing Date to the properties, books, Material Contracts, and
records of such Ravenscroft Entity for the purpose of making such investigation
as Buyer may reasonably desire, and Sellers shall cause the Ravenscroft Entities
to furnish Buyer such information concerning such Ravenscroft Entity and its
affairs as Buyer may reasonably require.
4.3 Conduct of Company Business.
----------------------------
After the date of this Agreement and through the Closing Date, except
with the consent of Buyer, Sellers agree to, and after the Closing Date through
the date that is the earlier of (i) the exercise of Buyer's Put Option, and (ii)
satisfaction of all obligations under the Note, except with the written consent
of the Sellers, Buyer agrees to, and shall cause each Ravenscroft Entity, to:
(a) operate in the ordinary course of business;
(b) refrain from making or causing to be made any change in the
certificate of incorporation, bylaws and any other organizational documents of
such Ravenscroft Entity;
(c) not acquire by merging or consolidating with, or agreeing to merge
or consolidate with, or purchase substantially all of the stock or assets of, or
otherwise acquire, any business or any corporation, partnership, association or
other business organization or division thereof;
(d) not enter into any partnership, joint venture or similar type of
arrangement;
12
(e) not issue or agree to issue any additional shares of the capital
stock of such Ravenscroft Entity or ownership interests or other equity
interests or securities convertible into or exchangeable for or other rights
with respect to ownership interests or other equity interests of such
Ravenscroft Entity;
(f) not declare or pay any dividends or make any other distribution in
cash or property on its capital stock or purchase or redeem, directly or
indirectly, any shares of its capital stock;
(g) except as otherwise provided by law or GAAP, refrain from making or
causing to be made any change in the accounting methods, principles or practices
of such Ravenscroft Entity;
(h) not enter into, terminate or modify any contract, transaction, or
commitment, other than in the ordinary course of business or pursuant to
presently existing plans, arrangements or agreements disclosed herein or in a
schedule hereto;
(i) not: (i) sell, transfer, license, lease or otherwise dispose of or
encumber any of its properties or assets, other than in the ordinary course of
business or pursuant to presently existing plans, arrangements or agreements
disclosed herein or in a schedule hereto; (ii) cancel any debt or waive or
compromise any claim or right, except in the ordinary course of business or
pursuant to presently existing plans, arrangements or agreements disclosed
herein or in a schedule hereto; (iii) enter into any employment agreement or
grant any increase in the compensation of officers or employees, (iv) make any
capital expenditure or commitment, other than pursuant to presently existing
plans, arrangements or agreements disclosed herein or in a schedule hereto; (v)
establish any new Plan; and (vi) incur, assume or guarantee any Indebtedness
which will constitute a liability of such Ravenscroft Entity as of the Closing
Date other than such Indebtedness incurred in the ordinary course of business;
and
(j) take any action, or by inaction permit any action to be taken or
event to occur, which would cause any representation or warranty made in or
pursuant to Article II of this Agreement to be untrue as of the Closing Date.
ARTICLE V
PUT OPTION
5.1 Buyer's Put Option.
-------------------
Sellers hereby grants to Buyer an irrevocable option (the "Put Option")
to cause Sellers (or a wholly owned subsidiary of Sellers to be designated by
Sellers) to purchase from Buyer all, but not less than all, of the Ravenscroft
Shares for the Purchase Price (the "Purchase Price"). The Purchase Price may be
paid in full by Sellers surrendering the Notes to Buyer. The Put Option shall
commence on the first Business Day following the Closing and shall terminate
upon the earlier of (i) the IPO, (ii) September 30, 2006, and (iii) satisfaction
of all obligations under the Note.
13
5.2 Notification.
-------------
From and after the date hereof and prior to the Closing Date, Sellers
shall promptly notify Buyer at any time that Sellers become aware that any
representation or warranty made by Sellers in or pursuant to this Agreement is
untrue or inaccurate in any Material respect and shall promptly notify Buyer of
any Material Adverse Effect on the Ravenscroft Group and of any governmental
complaints, investigations, hearings or proceedings which would have a Material
Adverse Effect on the Ravenscroft Group. Without limiting the generality of the
foregoing, Sellers shall promptly notify Buyer of any of the events, conditions
or circumstances described in Sections 2.8 (a), (b) and (c), in each case
without regard to any qualification as to Material Adverse Effect.
5.3 Exercise of Put Option.
-----------------------
The Put Option shall be exercised by the Buyer's delivery to Sellers of
a written notice no later September 23, 2006 of the Buyer's intent to cause
Sellers (or its designee) to purchase all, but not less than all, of the
Ravenscroft Shares (the "Put Option Notice"). Upon the exercise of the Put
Option, Sellers (or their designee) shall purchase, and the Buyer shall sell no
earlier than seven days after the date of the Put Option Notice and no later
than September 30, 2006 (the "Put Option Closing Date"), the Ravenscroft Shares,
free and clear of any Liens, at which time the Note shall be cancelled and the
certificates for the Ravenscroft Shares shall be delivered to Sellers, together
with such instruments of transfer as are necessary to vest title to the
Ravenscroft Shares in Sellers.
5.4 Conditions Precedent to Exercise of Put Option.
-----------------------------------------------
Buyer and Sellers hereby agree that it shall be a condition precedent
to the exercise of the Put Option that the IPO process shall have been
terminated by mutual agreement of Buyer's shareholders or, in any event, the IPO
shall not have occurred by September 15, 2006.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 Conditions Precedent to Obligations of Buyer.
---------------------------------------------
The obligation of Buyer to purchase the Ravenscroft Shares pursuant to
this Agreement is subject to the fulfillment, prior to or at the Closing, of
each of the following conditions (any or all of which may be waived in whole or
in part by Buyer):
(a) all representations and warranties made by Sellers to Buyer shall
be true and correct in all material respects as of the date hereof and as of the
time of the Closing with the same effect as though made again at and as of that
time;
(b) Sellers shall have performed and complied in all material respects
with all obligations and covenants required by this Agreement to be performed or
complied with by Sellers prior to or at the Closing;
14
(c) there shall be no actions, suits or proceedings pending or, to
Sellers' Knowledge, threatened against or affecting Sellers or any member of the
Ravenscroft Group or any property of any member of the Ravenscroft in any court
or before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect;
(d) all notifications, consents, authorizations, approvals and
clearances from the Board of Directors of Buyer and each Governmental Authority
and any other Person required to be made or obtained, in connection with the
transactions provided for in this Agreement shall have been made or obtained on
terms satisfactory to Buyer;
(e) all proceedings to be taken in connection with the transactions
contemplated by this Agreement and all documents incident thereto shall be
reasonably satisfactory in form and substance to Buyer and its counsel, and
Buyer shall have received copies of all such documents and other evidence as it
or its counsel may reasonably request in order to establish the consummation of
such transactions and the taking of all proceedings in connection therewith;
(f) since the date of this Agreement there shall have been no Material
Adverse Effect to the Ravenscroft Group; and
(g) Sellers shall have delivered, to Buyer, stock certificates
representing the Ravenscroft Shares, accompanied by powers duly endorsed or
executed in blank, and all other documents necessary to transfer to Buyer the
Ravenscroft Shares free and clear of any Lien.
6.2 Conditions Precedent to Obligations of Sellers.
-----------------------------------------------
The obligation of Sellers to sell and transfer the Ravenscroft Shares
pursuant to this Agreement is subject to the fulfillment, prior to or at the
Closing, of each of the following conditions (any or all of which may be waived
in whole or in part by Sellers):
(a) all representations and warranties of Buyer to Sellers shall be
true and correct in all material respects as of the date hereof and at and as of
the time of the Closing with the same effect as though those representations and
warranties had been made at and as of that time;
(b) Buyer shall have performed and complied in all material respects
with all obligations and covenants required by this Agreement to be performed or
complied with by Buyer prior to or at the Closing; and
(c) Buyer shall have duly executed and delivered the Notes to Sellers
as set forth in Section 1.2 hereof.
15
ARTICLE VII
INDEMNIFICATION
7.1 Survival of Representations, Warranties and Indemnities.
--------------------------------------------------------
The representations and warranties of Sellers and Buyer contained in
Articles II and III, respectively, shall survive the Closing for a period of
three (3) years.
7.2 Indemnification.
--------------------
(a) Sellers agree to indemnify, defend and hold harmless Buyer, its
Affiliates and, if applicable, their respective directors, officers,
shareholders, employees, attorneys, accountants, agents and representatives and
their heirs, successors and assigns from and against any and all Damages based
upon, arising out of or otherwise in respect of (i) any inaccuracy in or any
breach of any representation or warranty, of Sellers contained in this
Agreement, (ii) the failure of Sellers to perform or observe fully any covenant,
agreement or provision to be performed or observed by Sellers pursuant to this
Agreement, or (iii) any Third-Party Claim arising out of or in connection with
the operation of the business of Ravenscroft on or before September 30, 2006.
Notwithstanding anything to the contrary contained herein, Sellers shall not be
entitled to seek indemnification or reimbursement from any Ravenscroft Entity
for any indemnification obligations owing by Sellers to an Indemnified Party
hereunder.
(b) Buyer agrees to indemnify, defend and hold harmless Sellers, their
Affiliates and, if applicable, their respective directors, officers,
shareholders, employees, attorneys, accountants, agents and representatives and
their heirs, successors and assigns from and against any and all Damages based
upon, arising out of or otherwise in respect of (i) any inaccuracy in or any
breach of any representation or warranty, of Buyer contained in this Agreement,
or (ii) the failure of Buyer to perform or observe fully any covenant, agreement
or provision to be performed or observed by Buyer pursuant to this Agreement.
7.3 Third-Party Claims.
-------------------
(a) If any party entitled to be indemnified pursuant to Section 7.2 (an
"Indemnified Party") receives notice of the assertion of any claim in respect of
Damages, such Indemnified Party shall give the party who may become obligated to
provide indemnification hereunder (the "Indemnifying Party") written notice
describing such claim or fact in reasonable detail (the "Notice of Claim")
promptly (and in any event within 10 Business Days after receiving any written
notice from a third party). The failure by the Indemnified Party to timely
provide a Notice of Claim to the Indemnifying Party shall not relieve the
Indemnifying Party of any liability, except to the extent that the Indemnifying
Party is prejudiced by the Indemnified Party's failure to provide timely notice
hereunder.
(b) In the event any Indemnifying Party notifies the Indemnified Party
within ten (10) Business Days after the Indemnified Party has given notice of
the matter that the Indemnifying Party is assuming the defense thereof: (i) the
Indemnifying Party will defend the Indemnified Party against the matter with
counsel of its choice reasonably satisfactory to the Indemnified Party; (ii) the
Indemnified Party may retain separate co-counsel at its sole cost and
16
expense (except that the Indemnifying Party will be responsible for the fees and
expenses of the separate co-counsel to the extent the Indemnified Party
reasonably concludes that the counsel the Indemnifying Party has selected has a
conflict of interest); (iii) the Indemnified Party will not consent to the entry
of any judgment or enter into any settlement with respect to the matter without
the written consent of the Indemnifying Party which consent shall not be
unreasonably withheld; and (iv) the Indemnifying Party will not consent to the
entry of any judgment with respect to the matter, or enter into any settlement
which does not include a provision whereby the plaintiff or claimant in the
matter releases the Indemnified Party from all liability with respect thereto,
and, in a settlement or compromise which does not involve only the payment of
money by the Indemnifying Party, without the prior written consent of the
Indemnified Party which consent shall not be unreasonably withheld.
(c) In the event the Indemnifying Party does not notify the Indemnified
Party within ten (10) Business Days after the Indemnified Party has received a
Notice of Claim that the Indemnifying Party is assuming the defense thereof,
then the Indemnified Party shall have the right, subject to the provisions of
this Article, to undertake the defense, compromise or settlement of such Claim
for the account of the Indemnifying Party. Unless and until the Indemnifying
Party assumes the defense of any Claim, the Indemnifying Party shall advance to
the Indemnified Party any of its reasonable attorneys' fees and other costs and
expenses incurred in connection with the defense of any such action or
proceeding. Each Indemnified Party shall agree in writing prior to any such
advance that, in the event it receives any such advance, such Indemnified Party
shall reimburse the Indemnifying Party for such fees, costs and expenses to the
extent that it shall be determined that it was not entitled to indemnification
under this Article VI.
(d) In the event that the Indemnifying Party undertakes the defense of
any Claim, the Indemnifying Party will keep the Indemnified Party advised as to
all material developments in connection with such Claim, including, but not
limited to, promptly furnishing the Indemnified Party with copies of all
material documents filed or served in connection therewith.
ARTICLE VIII
MISCELLANEOUS
8.1 Notices.
--------
Any notice or other communications hereunder must be in writing and
shall be deemed to have been duly given and received on the day on which it is
served by personal delivery upon the party for whom it is intended, on the third
Business Day after it is mailed by registered or certified mail, return receipt
requested, on the Business Day after it is delivered to a national courier
service for next day delivery addressed to the party for whom it is intended, or
on the Business Day on which it is sent by facsimile; provided that the telecopy
is promptly confirmed by telephone confirmation thereof, to the person at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
17
To Buyer:
Ultrapetrol (Bahamas) Limited
Ocean Centre, Montague Foreshore
▇▇▇▇ ▇▇▇ ▇▇.
▇.▇. ▇▇▇ ▇▇-▇▇▇▇▇
Nassau, Bahamas
Attn: Assistant Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Sellers:
c/o Ravenscroft Ship Management Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
8.2 Entire Agreement.
-----------------
This Agreement (including the Exhibit and Schedules attached hereto or
referred to herein) contains the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof and supersede all prior
agreements, written or oral, with respect thereto.
8.3 Waivers and Amendments; Non-Contractual Remedies; Preservation of Remedies.
---------------------------------------------------------------------------
This Agreement may be amended, superseded, cancelled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by the parties or, in the case of a waiver, by the party waiving
compliance. No delay on the part of either Sellers or Buyer in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of either Sellers or Buyer of any such right, power or
privilege, or any single or partial exercise of any such right, power or
privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege.
8.4 Assignability; Binding Effect.
------------------------------
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns; provided, however,
that this Agreement and the rights and obligations of the parties hereunder
shall not be assignable by a party hereto without the prior written consent of
the other party.
8.5 Governing Law; Submission to Jurisdiction Waiver of Jury Trial.
---------------------------------------------------------------
(a) THE INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT SHALL BE
CONTROLLED BY AND CONSTRUED UNDER THE LAWS OF
18
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(b) ANY JUDICIAL PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT MUST
BE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK OR ANY COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK LOCATED IN
THE CITY OF NEW YORK, AND, EACH PARTY: (I) ACCEPTS UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY RELATED APPELLATE COURT, AND
AGREES TO BE BOUND BY ANY FINAL, NON-APPEALABLE JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AGREEMENT; (II) IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM PROVIDED, HOWEVER,
THAT SUCH CONSENT TO JURISDICTION IS SOLELY FOR THE PURPOSE REFERRED TO IN THIS
SECTION 7.5 (B) AND SHALL NOT BE DEEMED TO BE A GENERAL SUBMISSION TO THE
JURISDICTION OF SAID COURTS OR THE STATE OF NEW YORK OTHER THAN FOR SUCH
PURPOSE; AND (III) AGREES THAT PROCESS IN ANY SUCH ACTION, IN ADDITION TO ANY
OTHER METHOD PERMITTED BY LAW, MAY BE SERVED UPON IT BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH PARTY AT THE ADDRESS
DESIGNATED BY SUCH PARTY IN SECTION 7.1 HEREOF, AND SUCH SERVICE SHALL BE DEEMED
EFFECTIVE AS IF PERSONAL SERVICE HAD BEEN MADE UPON IT WITHIN NEW YORK COUNTY.
(c) THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING
OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT.
8.6 Counterparts.
-------------
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one and
the same instrument.
8.7 Further Assurances.
-------------------
Each of Sellers and Buyer shall, at the request of the other party, at
any time and from time to time following the Closing promptly execute and
deliver, or cause to be executed and delivered, all such further instruments and
take all such further action as each party may reasonably request to confirm or
carry out the provisions and intent of this Agreement.
8.8 Severability.
-------------
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
19
8.9 Exhibit and Schedules.
----------------------
All Schedules and Exhibits attached hereto are hereby incorporated in
and made a part of this Agreement as if set forth in full herein. All references
herein to the Exhibits and Schedules shall be deemed references to such parts of
this Agreement, unless the context shall otherwise require.
8.10 Captions.
---------
The article and section titles or captions contained in this Agreement
or in any Schedule or Exhibit attached hereto or referred to herein are for
convenience only, shall not be deemed a part of this Agreement and shall not
affect the meaning or interpretation of this Agreement. All references herein to
Sections shall be deemed references to such parts of this Agreement, unless the
context shall otherwise require.
8.11 Interpretation.
---------------
The words "hereof", "herein" and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provision of this Agreement. The terms "Dollars" and
"$" shall mean United States dollars. Personal pronouns, when used in this
Agreement, whether in the masculine, feminine or neuter gender, shall include
all other genders, and the singular shall include the plural, and vice versa.
8.12 Third Parties.
--------------
Except as specifically set forth or referred to herein, nothing herein
expressed or implied is intended or shall be construed to confer upon or give to
any Person other than the parties hereto and their successors or assigns and the
beneficiaries of contractual indemnification expressly set forth herein, any
rights or remedies under or by reason of this Agreement.
8.13 Expenses.
---------
Buyer shall bear any and all transfer taxes in connection with the sale
and transfer of the Ravenscroft Shares to Buyer. Except as otherwise provided
for in this Agreement, Sellers, on the one hand, and Buyer, on the other hand,
shall each pay its respective costs and expenses incurred by each of them or on
their behalf in connection with the negotiation, execution and delivery of this
Agreement and the transactions contemplated hereby, including, without
limitation, the fees and expenses of their own financial consultants,
accountants and counsel.
8.14 Knowledge.
----------
As used in this Agreement, "Knowledge" means the actual knowledge of
the subject entity.
20
8.15 Specific Performance.
---------------------
The parties agree and acknowledge that money damages are not an
adequate remedy for violations of this Agreement and each of the Sellers and
Buyer may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance of this Agreement.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
ULTRAPETROL (BAHAMAS) LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
CROSSTRADE MARITIME INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
CROSSTREES MARITIME INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
SCHEDULE I
DEFINED TERMS
-------------
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Affiliate" means, at any time, and with respect to any Person, (a) any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any Person beneficially owning or holding, directly
or indirectly, 50% or more of any class of voting or equity interests of
Ravenscroft or any Subsidiary or any Person of which Ravenscroft and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
50% or more of any class of voting or equity interests. As used in this
definition, "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an "Affiliate"
is a reference to an Affiliate of Ravenscroft.
"Agreement" has the meaning set forth in the preamble.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which commercial banks in New York City are required or authorized to be
closed.
"Buyer" has the meaning set forth in the preamble.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Closing" has the meaning set forth in Section 1.3.
"Closing Date" has the meaning as set forth in Section 1.3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Damages" means any and all losses, liabilities, obligations, demands,
claims, actions, cause of actions, costs, expenses, damages and judgments,
including, without limitation, reasonable attorneys' fees and expenses.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution or the protection of the
environment including, but not limited to, ambient air, surface water, ground
water, navigable waters, waters of the contiguous zone, ocean waters and
international waters or the release of any materials into the environment,
including but not limited to those related to hazardous substances or wastes,
air emissions and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means a trade or business (whether or not
incorporated) which is under common control with any member of the Ravenscroft
Group within the meaning of Sections 414(b), (c), (m) or (o) of the Code.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Financial Statements" has the meaning set forth in Section 2.11
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America, consistently applied except as
otherwise disclosed.
"Governmental Authority" means with respect to any Person,
(a) the government of
(i) the United States of America or any state or other
political subdivision thereof; or
(ii) any jurisdiction in which such Person or any of its
Subsidiaries conducts all or any part of its business, or which
asserts jurisdiction over any properties of such Person or any of
its Subsidiaries; or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of
such indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such indebtedness or
obligation;
2
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness
or obligation of the ability of any other Person to make payment of
the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or
obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the
obligor under any Guaranty, the indebtedness or other obligations that are the
subject of such Guaranty shall be assumed to be direct obligations of such
obligor.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law.
"Indebtedness" with respect to any Person means, at any time, without
duplication,
(a) its liabilities for borrowed money and its redemption
obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the
ordinary course of business but including all liabilities created or
arising under any conditional sale or other title retention agreement
with respect to any such property);
(c) all liabilities appearing on its balance sheet in accordance
with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has
assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not
representing obligations for borrowed money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a
type described in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of such
Person of the character described in clauses (a) through (g) to the extent such
Person remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.
3
"Indemnified Party" has the meaning set forth in Section 7.3.
"Indemnifying Party" has the meaning set forth in Section 7.3.
"IPO" has the meaning set forth in Section 1.2.
"Intellectual Property" means all of the following: patents, patent
rights, copyrights, works which are the subject matter of copyrights,
trademarks, tradenames, tradestyles, patent and trademark applications and
licenses and rights thereunder, and all other rights under any of the foregoing,
all extensions, renewals, reissues, divisions, continuations, and
continuations-in-part of any of the foregoing, and all rights to ▇▇▇ for past,
present, and future infringement of any of the foregoing; inventions, trade
secrets, formulae, processes, compounds, drawings, designs, blueprints, surveys,
reports, manuals, and operating standards; goodwill, customer and other lists,
in whatever form maintained; and trade secret rights, copyright rights, patent
rights, rights in works of authorship, and contract rights relating to computer
software programs, in whatever form created or maintained.
"Intellectual Property Rights" means the rights or interest of any
Person in or to any Intellectual Property.
"Legal Requirement" means all laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of Governmental Authorities.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance or rights of others, or any
interest or title of any vendor, lessor, lender or other secured party to or of
such Person under any conditional sale or other title retention agreement or
Capital Lease, upon or with respect to any property or asset of such Person
(including in the case of stock, stockholder agreements, voting trust agreements
and all similar arrangements).
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of the
Ravenscroft Group.
"Material Adverse Effect" means with respect to a Person, a material
adverse effect on (a) the business, operations, affairs, financial condition,
assets, properties or prospects of such Person and its Subsidiaries taken as a
whole, or (b) the ability of such Person to perform its obligations under this
Agreement, or (c) the validity or enforceability of this Agreement.
"Material Contract" means:
(i) any agreement for the lease of personal property to or from
any Ravenscroft Entity providing for lease payments in
excess of $12,000 per annum;
(ii) any agreement for the purchase or sale of raw materials,
commodities, supplies, products, or other personal
property, or for the furnishing or receipt of services, the
performance of which will extend over a period of more than
one year or involve
4
consideration in excess of $10,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement under which a Ravenscroft Entity has created,
incurred, assumed, or guaranteed any indebtedness for
borrowed money, or any capitalized lease obligation, in
excess of $12,000 or under which it has granted a Lien with
respect to any of its assets;
(v) any collective bargaining agreement;
(vi) any agreement for the employment of any individual on a
full-time, part-time, consulting, or other basis providing
annual compensation in excess of $100,000; and
(vii) any other agreement the performance of which involves
consideration in excess of $12,000.
"Notice of Claim" has the meaning set forth in Section 7.3.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or any other
company or entity or a government or agency or political subdivision thereof.
"Plan" means any employee benefit plan as defined in Section 3(3) of
ERISA.
"Preferred Stock" means any class of capital stock or other equity
interests of a Person that is preferred over any other class of capital stock or
equity interests of such Person as to the payment of dividends or the payment of
any amount upon liquidation or dissolution of such Person.
"Purchase Price" has the meaning set forth in Section 1.2.
"Ravenscroft Entity" means a member of the Ravenscroft Group.
"Ravenscroft Group" means Ravenscroft, Ravenscroft Ship Management
Inc., Ravenscroft Holdings Inc. and Elysian Ship Management Inc.
"Ravenscroft Shares" has the meaning set forth in the second recital.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Sellers" has the meaning set forth in the preamble.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership, limited liability
company or
5
joint venture if more than a 50% interest in the profits or capital thereof is
owned by such Person or one or more of its Subsidiaries or such Person and one
or more of its Subsidiaries (unless such partnership, limited liability company
or joint venture can and does ordinarily take major business actions without the
prior approval of such Person or one or more of its Subsidiaries). Unless the
context otherwise clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of Ravenscroft.
"Swaps" means, with respect to any Person, payment obligations with
respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
Swap provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined.
"Taxes" means (A) all income taxes (including any tax on or based upon
net income, gross income, income as specially defined, earnings, profits or
selected items of income, earnings or profits) and all gross receipts, sales,
use, ad valorem, transfer, franchise, license, withholding, payroll, employment,
excise, severance, stamp, occupation, premium, property or windfall profits
taxes, alternative or add-on minimum taxes, customs duties and other taxes of
any kind whatsoever, together with all interest and penalties, additions to tax
and other additional amounts imposed by any taxing authority (domestic or
foreign) on such entity, and (B) any liability for the payment of any amount of
the type described in the immediately preceding clause (A) as a result of being
a "transferee" (within the meaning of Section 6901 of the Code or any other
applicable law) of another entity, a member of an affiliated or combined group,
a contract or otherwise.
SCHEDULE 2.7
SUBSIDIARIES
RAVENSCROFT STRUCTURE AS SOLD TO ULTRAPETROL - MARCH 06
---------------------------------------------------
| Ravenscroft Shipping (Bahamas) S.A. |
| |
| Bahamas |
---------------------------------------------------
---------------- ------------------ ----------------- -------------------- -------------
Revenscroft Ship Zulia Shipping Inc Tecnical Services Ravenscroft Holdings Elysian Ship
Management Ltd (Dormant) S.A. Inc Management Ltd
Bahamas Panama Uruguay Florida Bahamas
--------------- ----------------- ---------------- ------------------- -------------
/ \
--------------- ----------------- / \
Revenscroft Ship | Zulia Ship | / \
Management Ltd | Management Ltd | / \
UK | Bahamas | / \
--------------- ---------------- / \
--------------- ------------
Revenscroft Ship Elysian Ship
Management Inc Management
Florida Florida
---------------- -------------
/ \
------------ -----------------
| Field Office| | ▇▇▇▇▇▇▇ Office |
| Brazil | | India |
------------- ----------------
Ravenscroft Shipping (Bahamas) S.A. Bahamas
1 Ravenscroft Holdings Inc Florida
2 Ravenscroft Ship Management Inc. Florida
3 Ravenscroft Ship Management Ltd Bahamas
4 Ravenscroft Ship Management Ltd UK
5 Elysian Ship Management Inc. Florida
6 Elysian Ship Management Ltd Bahamas
7 Tecnical Services S.A. Uruguay
8 Zulia Ship Management Ltd. Bahamas
9 Zulia Shipping Inc Panama
7
SCHEDULE 2.9(a)
ASSETS
NONE
8
SCHEDULE 2.9(b)
REAL PROPERTY/LEASEHOLDS
THE COMMERCIAL BUILDING LOCATED AT:
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THE BUILDING IS VALUED $4.5 MILLION BUT HAS AN EMBEDDED TAX LIABILITY OF
$1,158,647.
DESCRIBED AS FOLLOWS:
▇▇▇▇ ▇, ▇ & ▇, ▇▇ ▇▇▇▇▇ 6, OF CORAL GABLES COCONUT GROVE SECTION, PART ONE,
ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 14, PAGE 25, OF THE
PUBLIC RECORDS OF DADE COUNTY, FLORIDA
POLICY CARRIER POLICY# RENEWAL
DATE
1 Boiler & Machinery Hartford Stream Boiler FBP4904133 1/3/2006 - 1/3/2007
2 General Liability St ▇▇▇▇ Fire&Marine Ins. Co BK01989378 1/17/06-1/17/07
Includes Employee Liability
*Note: Certificates
listed below
CERTIFICATES OF
LIABILITY INSURANCE:
Pitney ▇▇▇▇▇ Credit Corp 1/17/06-1/17/07
Miami Dade County Port of Miami 1/17/06-1/17/08
The CIT Group 1/17/06-1/17/09
G Finance Holding Corp 1/17/06-1/17/10
ThyssenKrupp Elevator 1/17/06-1/17/11
3 Umbrella/Excess
Liability Zurich American Guarantee AUC 5327480-02 1/20/06-1/20/07
4 Employer Liability Federal Insurance Co. 6802-2605 2/25/06 -2/25/07
5 Group Travel Insurance Harford Life Insurance ETB200037 7/15/06-7/1/06
3-Year Rate Guarantee
6 ▇▇▇▇▇▇▇'▇ Comp Commerce & Industry WC 00584653600 10/7/05-10/7/06
Insurance Company
A.I.G.
7 Fiduciary Travelers Casualty & Surety 103115187 11/1/05-11/1/06
(401K Fiduciary Bond) Company America
8 International Advantage Ace American Insurance Co. PHF055207 10/7/05-10/7/06
(travelers insurance) Global Package
9
SCHEDULE 2.14
INDEBTEDNESS; OTHER LIABILITES
NONE
10
SCHEDULE 2.15
MATERIAL CONTRACTS
SHIP MANAGEMENT AGREEMENTS
VESSEL NAME DATE OF EFFECTIVE OWNER MANAGER
AGREEMENT DATE
1 Miranda I 7-Jul-05 7-Jul-05 ▇▇▇▇▇▇▇▇ SHIPPING INC. Ravenscroft Ship Management Ltd. Bahamas
2 Princess ▇▇▇▇▇▇▇▇▇ 5-May-00 30-Jun-00 MAJESTIC MARITIME LTD. Ravenscroft Ship Management Ltd. Bahamas
3 Princess Marina 1-Feb-03 1-Feb-03 MARITIMA SIPSA ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ Ship Management Ltd. Bahamas
4 Princess Nadia 16-Apr-98 8-May-98 KINGLY SHIPPING LTD. Ravenscroft Ship Management Ltd. Bahamas
5 Princess ▇▇▇▇▇▇ 10-Jun-98 10-Jun-98 NOBLE SHIPPING LTD. Ravenscroft Ship Management Ltd. Bahamas
6 Alianza ▇▇▇▇▇▇▇/G3 1-Dec-97 1-Dec-97 ULTRAPETROL ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ Ship Management Ltd. Bahamas
7 UP ▇▇▇▇▇▇▇▇▇ 26-May-05 26-May-05 CORNAMUSA Ravenscroft Ship Management Ltd London
8 UP Safira 30-Jun-05 30-Jun-05 CORNAMUSA Ravenscroft Ship Management Ltd London
9 UP Agua-Marinha 20-Mar-06 20-Mar-06 UP OFFSHORE APOIO MARITIMO Ravenscroft Ship Management Inc. Florida
LTDA.
10 New Flamenco 24-Mar-05 24-Mar-05 ▇▇▇▇▇▇ SHIPPING INC. Elysian Ship Management Ltd, Bahamas
11 Grand Victoria 19-Apr-05 19-Apr-05 PELORUS MARITIME INC. Elysian Ship Management Ltd, Bahamas
12 Yacu Puma ▇-▇▇▇-▇▇ ▇-▇▇▇-▇▇ ▇▇▇▇▇▇▇ YACU PUMA ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Ship Management Ltd. Bahamas
13 ▇▇▇▇▇▇▇ 30-Jun-03 24-Jun-03 ▇▇▇▇▇▇▇ SHIPPING INC Ravenscroft Ship Management Ltd. Bahamas
14 DBC* 1-Aug-05 1-Sep-05 ▇▇▇▇▇▇▇ BROTHERS, LIMITED Ravenscroft Ship Management Inc. Florida
*Purchase Supply & Accounting Agreement
SUB-MANAGEMENT AGREEMENTS
DATE OF EFFECTIVE
AGREEMENT DATE MANAGER SUB-MANAGER
1 20-Mar-06 20-Mar-06 Ravenscroft Ship Management Ltd - Bahamas Ravenscroft Ship Management Inc - Florida
2 20-Mar-06 20-Mar-06 Ravenscroft Ship Management Ltd - UK Ravenscroft Ship Management Inc - Florida
3 20-Mar-06 20-Mar-06 Elysian Ship Management Ltd - Bahamas Elysian Ship Management Inc - Florida
11
OTHER AGREEMENTS
DATE OF EFFECTIVE
VESSEL/COMPANY CONTRACT TYPE AGREEMENT DATE OWNER/OPERATOR CONCESSIONAIRE
New Flamenco Food and Beverage 4-Jan-06 20-Mar-06 Elysian Ship Mangement Inc, European Cruise Management SRL, as
Operator of m/v New Flamenco concessionaire
New Flamenco Enterainment 9-Jan-06 20-Mar-06 Elysian Ship Mangement Inc, Openwide International
Operator of m/v New Flamenco USA LLC
New Flamenco Video Concession 6-Mar-06 20-Mar-06 Elysian Ship Mangement Inc. SPI VIDEO
Agreement
New Flamenco Photograph Concession 6-Mar-06 20-Mar-06 Elysian Ship Mangement Inc. Ocean Images (UK) Ltd.
Revenscroft
Shipping Inc. Fx Trading 16-Jul-04 16-Jul-04 Revenscroft Shipping Inc. HSBC Bank USA,
National Association
New Flamenco On Board Services 24-Mar-05 24-Mar-05 ▇▇▇▇▇▇ Shipping Inc. Elysian Ship Management
Agreement Ltd. Bahamas
Grand Victoria On Board Services 19-Apr-05 19-Apr-05 Pelorus Maritime Inc. Elysian Ship Management
Agreement Ltd. Bahamas
12
SCHEDULE 2.18
EMPLOYEES
--------------------
---------------------------------------- ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ --------------------------------------------
| GENERAL MANAGER |
| -------------------- |
| ---------------------- |
| ------------------ ------------------- ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ --------------
| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ---- ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ---- SECRETARY/ VSL ▇▇▇▇ ▇ ▇▇▇▇▇▇
--------------- FINANCIAL ANALYST GENERAL MANAGER --- REGISTRATION VICE PRESIDENT
▇▇▇▇▇▇ ▇▇▇▇▇ ------------------ -- ADMINISTRATION - | ---------------------- ACCOUNTING
VICE PRESIDENT | ------------------- | | ▇▇▇▇ ▇▇▇▇▇▇ --------------
SHIP MANAGEMENT -------- | | | - NETWORK ADMINISTRATOR |
--------------- | | | | ---------------------- |
| | | | --- ADMINISTRATION |
----- --- ---------- ---------------- ------------ |
ECL RSM COMMERCIAL OWNERS OPERATIONS ▇▇▇▇ ▇▇▇▇▇▇▇▇ ------------
----- --- ---------- ---------------- OFFICE MANAGER ▇▇▇▇▇▇ ▇▇▇▇▇
----------- --------- ----------- ------------- SUPERVISOR
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇ ----------- ----------
TECHNICAL MGR CHARTERING MGR MANAGER ▇▇▇▇▇ ▇▇▇▇▇ |
------------ ----------- ------------- ADMIN ASSISTANT ----------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ -------------- ▇▇▇▇ ▇▇▇▇▇▇
MGR - FLEET PERSONNEL SHIPBROKER OPS COORDINATOR ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ACCOUNTS PAYABLE
------------- ---------- -------------- MAINTENANCE/DRIVER ----------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ ----------------- ----------------
MGR - VETTING & OPS RECEPTIONIST ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------- ------------------- ----------- ACCOUNTING CLERK
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ -----------------
SUPERINTENDENT ASST TECHNICAL MGR
-------------- ------------------
▇▇▇▇▇▇▇▇ DRIVER ▇▇▇▇▇▇▇ ▇▇▇▇▇
SUPERINTENDENT SUPERINTENDENT
-------------- ------------------
RAJESH ARIKODI. AL JUMMA
MANAGER - PURCH PURCHASING SUPT.
-------------- ------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ------------------
TECHNICAL ASSISTANT ▇▇ ▇▇▇▇▇
---------------- TECHNICAL ASSISTANT
▇▇▇▇▇ ▇▇▇▇ -------------------
ASST MGR - HUMAN RE. ▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------ ASST MGR FLEET PERSNL
---------------------- ---------------------------
▇▇▇▇▇▇ ▇▇▇▇ ALSO - MUMBAI ▇▇▇▇▇▇▇ OFFICE
TECHNICAL ASSISTANT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
------------- -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ ALSO - RAVENSCROFT BRAZIL
ADMIN ASSISTANT ▇▇▇▇ ▇▇▇▇▇
----------------- TECHNICAL ASSISTANT
▇▇▇▇▇▇ ▇▇▇ -------------------------
SNR ADMIN ASST
---------------
----------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SECRETARY
---------------
RAVENSCROFT EMPLOYEE BENEFIT PLAN SUMMARY
1 Health Insurance Humana Health Insurance HMO Grp# 234459 4/1/05-4/1/06
PPO Grp# 613825
2 Dental Insurance CompBenefits DHMO Grp# CP 3582 6/1/05-6/1/06
PPO Grp# CD 3582
3 Life Insurance U.S. Life - American
General G 234760 5/1/05-5/1/06
Life Insurance 3 X basic Employee
annual salary
Accidental
Death/Dismemberment 3 X basic Employee
annual salary
Long Term Disability 60.00% of basic monthly pay
4 401K Profit Sharing ▇▇▇▇ ▇▇▇▇▇▇▇ Family of Funds Contract# 89857
Plan 100% Match Up
to 6% of Salary
13
SCHEDULE 2.19
TRANSACTIONS WITH AFFILIATES
1. SHIP MANAGEMENT AGREEMENTS
DATE OF EFFECTIVE
VESSEL NAME AGREEMENT DATE OWNER MANAGER
1 Miranda I 7-Jul-05 7-Jul-05 ▇▇▇▇▇▇▇▇ SHIPPING INC. Ravenscroft Ship Management Ltd. Bahamas
2 Princess ▇▇▇▇▇▇▇▇▇ 5-May-00 30-Jun-00 MAJESTIC MARITIME LTD. Ravenscroft Ship Management Ltd. Bahamas
3 Princess Marina 1-Feb-03 1-Feb-03 MARITIMA SIPSA ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ Ship Management Ltd. Bahamas
4 Princess Nadia 16-Apr-98 8-May-98 KINGLY SHIPPING LTD. Ravenscroft Ship Management Ltd. Bahamas
5 Princess ▇▇▇▇▇▇ 10-Jun-98 10-Jun-98 NOBLE SHIPPING LTD. Ravenscroft Ship Management Ltd. Bahamas
6 Alianza ▇▇▇▇▇▇▇/G3 1-Dec-97 1-Dec-97 ULTRAPETROL ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ Ship Management Ltd. Bahamas
7 UP ▇▇▇▇▇▇▇▇▇ 26-May-05 26-May-05 CORNAMUSA Ravenscroft Ship Management Ltd. London
8 UP Safira 30-Jun-05 30-Jun-05 CORNAMUSA Ravenscroft Ship Management Ltd. London
9 UP Agua-Marinha 20-Mar-06 20-Mar-06 UP OFFSHORE APOIO Ravenscroft Ship Management Inc. Florida
. MARITIMO LTDA.
10 New Flamenco 24-Mar-05 24-Mar-05 ▇▇▇▇▇▇ SHIPPING INC. Elysian Ship Management Ltd, Bahamas
11 Grand Victoria 19-Apr-05 19-Apr-05 PELORUS MARITIME INC. Elysian Ship Management Ltd, Bahamas
2. SUB MANAGEMENT AGREEMENTS
DATE OF EFFECTIVE MANAGER SUB-MANAGER
AGREEMENT DATE
1 20-Mar-06 20-Mar-06 Ravenscroft Ship Management Ltd - Bahamas Ravenscroft Ship Management Inc - Florida
2 20-Mar-06 20-Mar-06 Ravenscroft Ship Management Ltd - UK Ravenscroft Ship Management Inc - Florida
3 20-Mar-06 20-Mar-06 Elysian Ship Management Ltd - Bahamas Elysian Ship Management Inc - Florida
3. ON BOARD SERVICES AGREEMENTS
DATE OF EFFECTIVE
AGREEMENT DATE OWNER MANAGER
1 24-Mar-05 24-Mar-05 ▇▇▇▇▇▇ Shipping Inc. Elysian Ship Management Ltd. Bahamas
2 19-Apr-05 19-Apr-05 Pelorus Maritime Inc. Elysian Ship Management Ltd. Bahamas
14
EXHIBIT A
PROMISSORY NOTE
New York, New York US$5,750,000
March 20, 2006
FOR VALUE RECEIVED, the undersigned, ULTRAPETROL (BAHAMAS) LIMITED, a
company organized and existing under the laws of The Bahamas (the "Buyer"),
hereby promises to pay to the order of [CROSSTRADE MARITIME INC., a Liberian
company ("Crosstrade")][CROSSTREES MARITIME INC., a Liberian company] ( the
"Seller") or as it may otherwise direct, the principal sum of Five Million Seven
Hundred Fifty Thousand United States Dollars (US$5,750,000). The Borrower shall
repay the indebtedness represented by this Note as provided in that certain
stock purchase agreement dated as of March 20, 2006 (the "Stock Purchase
Agreement") made by and between (i) the Buyer, (ii) the Seller and
[Crosstrade]/[Crosstrees] Maritime Inc., a Liberian corporation. This Note shall
not bear interest, and may be prepaid on such terms as provided in the Stock
Purchase Agreement.
Words and expressions used herein and defined in the Stock Purchase
Agreement shall have the same meaning herein as therein defined.
This Note is payable in U.S. Dollars to the Seller, as the Sellers may
direct, in immediately available same day funds.
If this Note or any payment required hereunder becomes due and payable
on a day which is not a Banking Day the due date thereof shall be extended until
the next following Banking Day, unless such next following Banking Day falls in
the following month, in which case such payment shall be payable immediately
preceding the Banking Day.
This Note is the Note referred to in, and is entitled to the security
and benefits of, the Stock Purchase Agreement and the Pledge Agreement referred
to therein.
Presentment, demand, protest and notice of dishonor of this Note or any
other notice of any kind are hereby expressly waived.
EACH OF THE BUYER AND, BY THEIR ACCEPTANCE HEREOF, SELLERS HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY
PARTY HERETO OR ANY BENEFICIARY HEREOF ON ANY MATTER WHATSOEVER ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THIS NOTE.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to principles of
conflicts of law.
IN WITNESS WHEREOF, the BUYER has executed and delivered this
Promissory Note on the date and year first above written.
ULTRAPETROL (BAHAMAS) LIMITED
By
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Company Secretary
2
EXHIBIT B
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement") is made this 20th day
of March, 2006, by and among ULTRAPETROL (BAHAMAS) LIMITED, a company organized
under the laws of The Bahamas (the "Pledgor), and CROSSTRADE MARITIME INC., a
company organized under the laws of the Republic of Liberia ("Crosstrade"), and
CROSSTREES MARITIME INC., a company organized under the laws of the Republic of
Liberia ("Crosstrees", and together with Crosstrade, the "Pledgees") as
pledgees, pursuant to the terms of that stock purchase agreement dated as of
March 20, 2006 made by and among the Pledgor, as buyer, and the Pledgees, as
sellers, (the "Stock Purchase Agreement") in connection with the Pledgor's
purchase of 500 shares of common stock of Ravenscroft Shipping (Bahamas) S.A.
("Ravenscroft" or "Pledged Company").
WITNESSETH:
WHEREAS:
Pursuant to the terms of the Stock Purchase Agreement, the Buyer has
executed and delivered promissory note to each Pledgee (the "Notes") of even
date herewith in the amount of $5,750,000 in payment of the purchase price of
the Pledged Shares (as defined below);
As of the date hereof, the Buyer is the registered and beneficial owner
of500 shares of capital stock of Ravenscroft (the "Pledged Shares");
Pursuant to the terms of the Stock Purchase Agreement, the Buyer shall
execute and deliver to the Pledgees, as security for the obligations of the
Buyer under the Stock Purchase Agreement and the Notes, a pledge of all of
Pledgor's right, title and interest in and to the Pledged Shares;
NOW, THEREFORE, in consideration of the premises set forth
herein, the Pledgors agree with the Pledgee as follows:
(a) Defined Terms. Unless otherwise defined herein, terms defined
in the Stock Purchase Agreement shall have the same meanings when used
herein.
(b) Grant of Security. As security for the full and prompt
payment of the Notes to the Pledgees and the performance of the
Pledgor's obligations under the Stock Purchase Agreement
(collectively, the "Obligations"), the Pledgor hereby pledges,
assigns, transfers and delivers to the Pledgees the Pledged Shares and
hereby grants to the Pledgees a first lien on, and first security
interest in, the Pledged Shares. Notwithstanding anything to the
contrary herein provided, the rights of the Pledgees in and to the
Pledged Shares are several and not joint.
(c) Pledge Documents. Concurrently with the execution of this
Pledge Agreement, the Pledgor shall execute and deliver to each
Pledgee an Irrevocable Proxy in favor of each Pledgee in respect of
250 of the Pledged Shares in the form set out in Exhibit A hereto
(each, an "Irrevocable Proxy" and collectively, the "Irrevocable
Proxies") and shall deliver to the Pledgees the certificates
representing such Pledged Shares together with signed, undated
instruments of transfer (the "Instruments of Transfer") pertaining
thereto duly executed in blank.
(d) Representations and Warranties. The Pledgor represents and
warrants that:
(i) it is the legal and beneficial owner of, and has good
and marketable title to, its Pledged Shares, subject to no
pledge, lien, mortgage, hypothecation, security interest, charge,
option or other encumbrance whatsoever, except the lien and
security interest created by this Pledge Agreement and the
delivery of the Pledged Shares to each Pledgee;
(ii) it has full power, authority and legal right to
execute, deliver and perform this Pledge Agreement and to create
the collateral security interest for which this Pledge Agreement
provides;
(iii) the Pledged Shares have been duly and validly created
and issued and are fully paid and nonassessable;
(iv) this Pledge Agreement constitutes a valid obligation of
the Pledgor, legally binding upon it and enforceable in
accordance with its terms;
(v) no consent of any other party that has not been obtained
is required in connection with the execution, delivery,
performance, validity, enforceability or enforcement of this
Pledge Agreement, and no consent, license, approval or
authorization of, or registration or declaration with, any
governmental authority, bureau or agency is required in
connection with the execution, delivery, performance, validity,
enforceability or enforcement of this Pledge Agreement;
(vi) the execution, delivery and performance of this Pledge
Agreement will not violate or contravene any provision of any
existing law or regulation or decree of any court, governmental
authority, bureau or agency having jurisdiction in the premises
or of the charter documents of the Pledgor or of any mortgage,
stock purchase agreement, security agreement, contract,
undertaking or other agreement to which the Pledgor is a party or
which purports to be binding upon it or any of its properties or
assets and will not result in the creation or imposition of any
lien, charge or encumbrance on, or security interest in, any of
its properties or assets pursuant to the provisions of any such
mortgage, stock purchase agreement, security agreement, contract,
undertaking or other agreement;
(e) Covenants. The Pledgor hereby covenants that during the
continuance of this Pledge Agreement:
it shall warrant and defend the right and title of the
Pledgees conferred by this Pledge Agreement in and to its
respective Pledged Shares at the cost of the Pledgor against the
claims and demands of all persons whomsoever;
(i) except as herein provided, without the prior written
consent of the Pledgees, it shall not sell, assign, transfer,
charge, pledge or encumber in any manner any part of its
respective Pledged Shares or suffer to exist any encumbrance on
its respective Pledged Shares;
2
(ii) without the prior written consent of the Pledgees,
other than as contemplated by the Stock Purchase Agreement, it
shall not amend or modify any organizational document, by-law or
other corporate governance agreement (including any shareholders'
agreement) relating to the Pledged Company; and
(iii) without the prior written consent of the Pledgees, it
shall not vote its respective Pledged Shares in favor of the
consolidation, merger, dissolution, liquidation or any other
corporate reorganization of the Pledged Company;
(f) Delivery of Additional Interests. If the Pledgor shall become
entitled to receive or shall receive any share certificates, option or rights,
whether as an addition to, in substitution of, or in exchange for any of the
Pledged Shares, the Pledgor agrees to accept the same as the agent of the
Pledgees and to hold the same in trust for the benefit of the Pledgees and to
deliver the same forthwith to the Pledgees in the exact form received, with the
endorsement of the Pledgor when necessary and/or appropriate undated instruments
of transfer duly executed in blank, and irrevocable proxies to be held by the
Pledgees, subject to the terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the Pledged Shares on the
liquidation or dissolution of any Pledged Company shall be paid over to the
Pledgees to be held by it as additional collateral security for the Obligations.
(g) Collateral. All property at any time pledged to the Pledgees
hereunder by the Pledgor (whether described herein or not) and all income
therefrom and proceeds thereof, are herein collectively sometimes called the
"Collateral".
(h) Voting Rights. The Pledgees shall, as the Pledgees and as the
holders of the Irrevocable Proxies, receive notice to vote the Pledged Shares at
their own discretion at, any annual or special meeting, as the case may be, of
the shareholders of any Pledged Company, provided, however, that the Pledgees
shall not exercise such right to vote until such time that default shall have
occurred in the payment or performance of the Obligations and not been remedied
to the Pledgees' satisfaction or waived in writing or any of the security
created by or pursuant to this Pledge Agreement shall be imperiled or
jeopardized in a manner deemed material by the Pledgees.
9. Incorporation by Reference. This Pledge Agreement shall be read
together with the Stock Purchase Agreement, but in the case of any conflict with
the Stock Purchase Agreement, the Stock Purchase Agreement shall prevail.
10. Enforcement/Satisfaction of Obligation. The security constituted by
this Pledge Agreement shall become immediately enforceable if, subject to the
exercise of the Buyer's Put Option contained in the Stock Purchase Agreement,
the Note shall not have been paid and either (i) the IPO shall not have occurred
by September 30, 2006, or (ii) the IPO shall have been abandoned.
At any time after the security constituted by this Pledge Agreement
shall have become enforceable as aforesaid, whereupon the security constituted
by this Pledge Agreement shall become enforceable, the Pledgees shall be
entitled, without further notice to the Pledgor:
3
(i) to endorse the Instrument of Transfer in its own name and to
cause the Company to register the Pledged Shares in the name of the
Pledgees as owner.
In such event, the Pledgee hereby acknowledges that such transfer of
the Pledged Shares shall constitute satisfaction of the Obligations and the
Pledgor shall be relieved of any further liability or claim hereunder, under the
Stock Purchase Agreement or under the Note.
11. No Duty on Pledgees. The Pledgees shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure to do so or delay in so doing.
12. Termination. When all of the Obligations shall have been fully
satisfied, or upon the successful completion of the IPO, as such term is defined
in the Stock Purchase Agreement, the Pledgees agree that each thereof shall
forthwith release the Pledgor from its Obligations hereunder and the Pledgees,
at the request and expense of the Pledgor, will promptly execute and deliver to
the Pledgor a proper instrument or instruments acknowledging the satisfaction
and termination of this Agreement, and the Irrevocable Proxies shall terminate
forthwith and be delivered to the Pledgor forthwith together with the other
items furnished to the Pledgees pursuant to Section 3 hereof.
13. Changes in Writing; Successors and Assigns. None of the terms or
provisions of this Pledge Agreement may be waived, altered, modified or amended
except by an instrument in writing, duly executed by the Pledgees. This Pledge
Agreement and all obligations of the Pledgor hereunder shall be binding upon the
successors and assigns of the Pledgor and shall, together with the rights and
remedies of the Pledgees hereunder, inure to the benefit of the Pledgees, their
respective successors and assigns.
14. Notices. Every notice or demand under this Agreement shall be in
writing (including prepaid overnight courier, facsimile transmission or similar
writing). Every notice or demand shall be sent as follows:
To Pledgor:
Ultrapetrol (Bahamas) Limited
▇▇▇▇ ▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇-▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Attn: Assistant Secretary
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
To either Pledgee:
c/o Ravenscroft Shipping (Bahamas) S.A.
4
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Each such notice, request or other communication shall be effective (i) if given
by facsimile, when such facsimile is transmitted to the telecopy number
specified in this Section and telephonic confirmation of receipt thereof is
obtained or (ii) if given by mail, prepaid overnight courier or any other means,
when received at the address specified in this Section or when delivery at such
address is refused.
15. Governing Law. This Pledge Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the principles of conflicts of law thereof.
16. Submission to Jurisdiction. The Pledgor hereby irrevocably submits
to the jurisdiction of the courts of the State of New York and of the United
States District Court for the Southern District of New York in any action or
proceeding brought against it by either Pledgee under this Pledge Agreement or
under any document delivered hereunder and hereby irrevocably agrees that valid
service of summons or other legal process on it may be effected by serving a
copy of the summons and other legal process in any such action or proceeding on
the Pledgor by mailing or delivering the same by hand to the Pledgor at the
address indicated for notices in Section 19. The service, as herein provided, of
such summons or other legal process in any such action or proceeding shall be
deemed personal service and accepted by the Pledgor as such, and shall be legal
and binding upon the Pledgor for all the purposes of any such action or
proceeding. Final judgment against the Pledgor in any such legal action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment. The Pledgor will advise each Pledgee promptly of any
change of address for the purpose of service of process. Notwithstanding
anything herein to the contrary, either Pledgee may bring any legal action or
proceeding in any other appropriate jurisdiction.
17. WAIVER OF JURY TRIAL. THE PLEDGOR AND EACH PLEDGEE HEREBY WAIVES
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY
HERETO OR ANY BENEFICIARY HEREOF ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS PLEDGE AGREEMENT.
18. Severability. If any provision hereof is invalid and unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Pledgees in order to carry out the
intentions of the parties hereto as nearly as may be possible; and (ii) the
invalidity and unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
19. Counterparts. This Pledge Agreement may be signed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
5
20. Headings. In this Pledge Agreement, Section headings are inserted
for convenience of reference only and shall be ignored in the interpretation of
this Pledge Agreement.
IN WITNESS whereof, the parties hereto have caused this Pledge
Agreement to be duly executed the day and year first above written.
ULTRAPETROL (BAHAMAS) LIMITED
By:
----------------------------------------
Name:
Title:
CROSSTRADE MARITIME INC.
By:
----------------------------------------
Name:
Title:
CROSSTREES MARITIME INC.
By:
----------------------------------------
Name:
Title:
7
EXHIBIT A
IRREVOCABLE PROXY
The undersigned, the registered and beneficial owner of the below
described shares of capital stock of Ravenscroft Shipping (Bahamas) S.A., a
company incorporated under the laws of the Bahamas (the "Company"), hereby
makes, constitutes and appoints [Crosstrade Maritime Inc.]/[Crosstrees Maritime
Inc.], (the "Pledgee") with full power to appoint a nominee or nominees to act
hereunder from time to time, the true and lawful attorney and proxy of the
undersigned to vote the 250 shares of the issued and outstanding shares of
capital stock in the Company represented by Certificate No. __at all annual and
special meetings of members of the Company or take any action by written consent
with the same force and effect as the undersigned might or could do, hereby
ratifying and confirming all that the said attorney or its nominee or nominees
shall do or cause to be done by virtue hereof.
The said stock has been pledged (the "Pledge") to the Pledgee pursuant
to a Pledge Agreement dated of the date hereof between the undersigned and the
Pledgee.
This power and proxy is coupled with an interest and is irrevocable and
shall remain irrevocable so long as the Pledge is outstanding and is in full
force and effect.
IN WITNESS whereof, the undersigned has caused this instrument to be
duly executed this [ ] day of March , 2006.
ULTRAPETROL (BAHAMAS) LIMITED
By:
-----
Name:
Title:
September 21, 2006
c/o Ravenscroft Ship Management Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: 305-507-2001
RE: LETTER AGREEMENT REGARDING STOCK PURCHASE AGREEMENT BY AND
BETWEEN ULTRAPETROL (BAHAMAS) LIMITED, CROSSTRADE MARITIME INC.
AND CROSSTREES MARITIME INC.
Ladies and Gentlemen:
We refer to that certain stock purchase agreement, dated as of March 21,
2006 (the "Stock Purchase Agreement"), by and between (i) ULTRAPETROL (BAHAMAS)
LIMITED, a Bahamas corporation ("Buyer"), as buyer, (ii) CROSSTRADE MARITIME
INC., a Liberian corporation ("Crosstrade"), and CROSSTREES MARITIME INC., a
Liberian corporation ("Crosstrees", and together with Crosstrade, the
"Sellers"), as sellers.
This letter agreement will confirm that in accordance with Section 8.3 of
the Stock Purchase Agreement and at our request, the Seller hereby consents to
amend (i) Sections 1.2, 5.1, 5.3, 7.2 and 10 of the Stock Purchase Agreement,
replacing "September 30, 2006" with "October 31, 2006" in each instance; (ii)
Section 5.3 of the Stock Purchase Agreement, replacing "September 23, 2006" with
"October 24, 2006" and (iii) Section 5.4 of the Stock Purchase Agreement,
replacing "September 15, 2006" with "October 21, 2006".
This will further confirm that, except as expressly affected hereby, the
Stock Purchase Agreement is in all respects ratified and confirmed and all
terms, provisions and conditions thereof shall remain in full force and effect.
Please signify your agreement to the foregoing by countersigning this
letter in the space provided. This letter agreement may be executed in any
number of counterparts, each of which shall be an original and all of which,
when taken together, shall constitute one agreement. Delivery of an executed
counterpart of a signature page of this letter agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof. This letter agreement shall be governed by, and construed in accordance
with, the laws of the State of New York. Kindly indicate your acceptance and
agreement with the foregoing by executing this letter in the space indicated
below.
Yours faithfully,
ULTRAPETROL (BAHAMAS) LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Accepted and Agreed:
CROSSTRADE MARITIME INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ R.
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ R.
Title: Attorney-in-Fact
CROSSTREES MARITIME INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ R.
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ R.
Title: Attorney-in-Fact