SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF THE
SECURITIES EXCHANGE ACT OF 1934
Dated: July 18, 2010
Commission File No. 001-34104
NAVIOS MARITIME ACQUISITION CORPORATION
85 Akti Miaouli Street, Piraeus, Greece 185 38
(Address of Principal Executive Offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form
20-F or Form 40-F:
Form 20-F
þ
Form 40-F
o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(1):
Yes
o
No
þ
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(7):
Yes
o
No
þ
Indicate by check mark whether the registrant by furnishing the information contained in this Form
is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the
Securities Exchange Act of 1934.
Yes
o
No
þ
If Yes is marked, indicate below the file number assigned to the registrant in connection with
Rule 12g3-2(b):
N/A
This Report on Form 6-K is hereby incorporated by reference into the Navios Maritime Acquisition
Corporation Registration Statement on Form F-3, File No. 333-151707.
General Description of the Acquisition
On July 18, 2010, Navios Maritime Acquisition Corporation (the Company, we, Navios
Acquisition) entered into a Securities Purchase Agreement (the Securities Purchase Agreement)
contemplating the purchase of seven vessel-owning companies (the Vessel-Owning Subsidiaries) from
Vanship Holdings Limited (the Seller or Vanship) for $587 million, subject to adjustment for
working capital as of the closing. We intend to finance the purchase price of $587 million as
follows: approximately $453 million with bank debt, approximately $123 million with cash and
approximately $11 million through the issuance of our common stock. Of the purchase price, $11
million (consisting of the shares of common stock used as part of the purchase price, or cash if we
elect the cash option) will be deposited into escrow as follows: (i) $3 million for release to the
Seller if the Seller is able to obtain certain charter extensions, and (ii) $8 million into a
one-year escrow to provide for indemnity or other claims under the agreement.
The indemnity obligations of the parties are capped at $58.7 million, subject to certain
exceptions for matters such as title or fraud, and there is also a $250,000 basket, also subject to
certain exceptions.
If we pay a portion of the purchase price in common stock, which is our current intention, we
are obligated to use reasonable efforts to cause a resale registration statement as to such shares
to become effective within 90 days after closing, and there will be no lock-up restricting sales by
the selling stockholder.
The agreement is terminable if the closing has not occurred by September 15, 2010, but may be
extended to September 22, 2010 by a party if that party has not materially contributed to the
failure to close on September 15, 2010. The agreement is also terminable by the non-breaching party
in the event of breach. If the non-breaching party elects to terminate the agreement (including as
a result of a breach), there shall be no liability on the part of the Seller or us.
Closing is subject to a number of conditions, including consents of lenders, charterers, the
shipbuilder and others; the release of Seller from certain guaranties; receipt of classification
and insurance documentation as to the vessels; termination of swap agreements and extinguishment of
amounts owed to affiliates and other conditions. Accordingly, there is no assurance that the
transaction will close on the terms contemplated by the Securities Purchase Agreement, or at all.
This
Report on Form 6-K contains the audited combined financial statements of the Vessel-Owning
Subsidiaries, but does not include any interim financial statements for the Vessel-Owning
Subsidiaries. With respect to the historical financial statements, over the past three fiscal
years, the Vessel-Owning Subsidiaries have experienced substantial changes from year to year in
revenue and operating income, having generated $65.4 million, $90.4 million and $65.7 million of
revenue in 2007, 2008 and 2009, respectively, and operating income of $12.5 million, $51.2 million
and $24.1 million, respectively, for the same periods. We believe the principal reasons for the
substantial year to year changes were a reduction in the spot market rate for very large crude
carrier (VLCC) single voyage charters, which resulted in profit share for two vessels decreasing
from $16.1 million in 2008 to zero in 2009, and the longer than expected drydocking of the Shinyo
Splendor in 2009, as well as the Shinyo Kannika being off-hire for 24.4 days in 2009 as compared to
no days during 2008.
The foregoing description of the Securities Purchase Agreement and the transactions contemplated thereby does not purport
to be complete and is qualified in its entirety by reference to the Securities Purchase Agreement filed as Exhibit 10.1 to this Report
on Form 6-K and is incorporated herein by reference.
The Securities Purchase Agreement has been included to provide investors and security holders with information regarding
its terms. It is not intended to provide any other factual information about us. The Securities Purchase Agreement contains
representations, warranties and covenants that we and Vanship made to each other as of specific dates. The assertions embodied in
those representations, warranties and covenants were made solely for purposes of the Securities Purchase Agreement between us
and Vanship and may be subject to important qualifications and limitations agreed to by us and Vanship in connection with
negotiating its terms, including being qualified by confidential disclosures exchanged between the parties in connection with the
execution of the Securities Purchase Agreement. Moreover, the representations and warranties may be subject to a contractual
standard of materiality that may be different from what may be viewed as material to investors or security holders, or may have
been used for the purpose of allocating risk between us and Vanship rather than establishing matters as facts. Moreover,
information concerning the subject matter of the representations and warranties may change after the date of the Securities
Purchase Agreement, which subsequent information may or may not be fully reflected in public disclosures. For the foregoing
reasons, no person should rely on the representations and warranties as statements of factual information at the time they were
made or otherwise.
Description of Acquired Vessels
As described above, we entered into an agreement to acquire six double-hull VLCC and one
newbuilding VLCC (the acquired vessels), which newbuilding is under construction and is expected
to be delivered in June 2011. These VLCCs transport crude oil, or are expected to transport crude
oil in the case of the newbuilding, principally from the Middle East and West Africa to Asia. The
seven vessels are expected to have a combined cargo carrying capacity of 2,070,163 deadweight tons.
The average age of the acquired vessels is approximately 8.6 years as of July 16, 2010, including Shinyo Kieran, which we expect will be delivered in June 2011.
1
The six on-the-water acquired vessels are Hong Kong-flagged. The newbuilding will also be Hong
Kong flagged. There are restrictions on what vessels can be flagged in Hong Kong. These
restrictions generally limit ships eligible to be flagged in Hong Kong to those majority-owned or
operated by persons who are ordinarily resident in Hong Kong, incorporated in Hong Kong or
registered with the Companies Registry in Hong Kong, among other requirements.
We believe that having the acquired vessels flagged in Hong Kong will provide us with several
advantages. Vessels flagged in Hong Kong benefit from preferential port dues in Chinese ports. The
Hong Kong Marine Department does not impose any restrictions on the nationality of crew that can
serve onboard Hong Kong-flagged vessels. In addition, the International Transport Workers
Federation does not view the Hong Kong flag as a flag of convenience, which provides us with
additional flexibility in setting wages payable to crew.
Set forth below is summary information concerning the acquired vessels.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capacity
|
|
Year
|
|
|
Vessel Name
|
|
Name of VLCC
|
|
(dwt)
|
|
Built
|
|
Building Yard
|
Shinyo Splendor
|
|
Shinyo Loyalty
Limited
|
|
|
306,474
|
|
|
|
1993
|
|
|
NKK Tsu Works Japan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shinyo Navigator
|
|
Shinyo Navigator
Limited
|
|
|
300,549
|
|
|
|
1996
|
|
|
Hyundai Heavy Industries,
Korea
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C. Dream
|
|
Shinyo Dream Limited
|
|
|
298,570
|
|
|
|
2000
|
|
|
Kyushu Hitachi Zosen
Corp. of TamanaGun,
Kumamoto, Japan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shinyo Kannika
|
|
Shinyo Kannika
Limited
|
|
|
287,175
|
|
|
|
2001
|
|
|
IHI Kure, Hiroshima, Japan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shinyo Ocean
|
|
Shinyo Ocean Limited
|
|
|
281,395
|
|
|
|
2001
|
|
|
IHI Kure, Hiroshima, Japan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shinyo Saowalak
|
|
Shinyo Saowalak
Limited
|
|
|
298,000
|
|
|
|
2010
|
|
|
Dalian Shipbuilding
Industry Co., China
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shinyo Kieran
|
|
Shinyo Kieran
Limited
|
|
|
298,000
|
|
|
|
2011
|
(1)
|
|
Dalian Shipbuilding
Industry Co., China
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
2,070,163
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Denotes the year the vessel is expected to be delivered.
|
The Shinyo Kannika and Shinyo Ocean are sister ships, as are the Shinyo Saowalak and Shinyo
Kieran. As a result of their similar design, sister ships benefit from efficiencies in crew
training and maintenance and repair.
Each of the acquired vessels is classified with a member of the International Association of
Classification Societies (IACS), including American Bureau of Shipping, Lloyds Register, and Det
Norske Veritas.
Time Charters
All of the acquired vessels are committed under time charter agreements with international,
Asia-Pacific-based shipping and petrochemical companies. Pursuant to the charter agreements under
which Shinyo Splendor and Shinyo Navigator operate, the vessels are provided to these companies, or
charterers, at a fixed, per-day charter hire rate, for a specified term. The charter agreements
under which the other four existing VLCCs operate, and the newbuilding is expected to operate,
include profit sharing components that give the applicable vessel owner the opportunity to earn
additional hire when spot rates are high relative to the daily time
2
charter hire rate. The profit
sharing arrangements provide that the vessel owner receives a percentage of the charterers daily
income in excess of a fixed amount of daily income. For purposes of calculating profit share, the
daily income of the charterer of the C. Dream is based on the actual annual net average daily
earnings
received by the charterer. With respect to the other vessels that operate under profit share
arrangements, or are expected to operate under profit share arrangements in the case of the
newbuilding, daily income is deemed to be the market rate for single voyage charters for certain
routes set forth in Baltic International Tanker Routes (BITR), averaged over a one-year period.
The seven acquired vessels have an average remaining charter term of approximately 8.8 years.
The Vessel-Owning Subsidiaries will continue to be party to the charter agreements subsequent to
the consummation of the acquisition.
Set forth below is summary information concerning the charters as of the date of this Report.
|
|
|
|
|
|
|
|
|
|
|
Net Charter
|
|
|
|
|
|
|
Rate
|
|
Expiration
|
|
|
Vessel
|
|
($ per day)
|
|
Date
|
|
Profit Share
|
Shinyo Splendor
|
|
|
38,019
|
|
|
May 2014
|
|
None
|
Shinyo Navigator
|
|
|
42,705
|
|
|
December 2016
|
|
None
|
|
|
|
|
|
|
|
|
50% above $30,000
|
C. Dream
|
|
|
29,625
|
(1)
|
|
April 2019
|
|
40% above $40,000
|
Shinyo Ocean
|
|
|
38,400
|
|
|
January 2017
|
|
50% above $43,500
|
Shinyo Kannika
|
|
|
38,025
|
|
|
February 2017
|
|
50% above $44,000
|
|
|
|
|
|
|
|
|
35% above $54,388
|
|
|
|
|
|
|
|
|
40% above $59,388
|
Shinyo Saowalak
|
|
|
48,153
|
|
|
June 2025
(2)
|
|
50% above $69,388
|
|
|
|
|
|
|
|
|
35% above $54,388
|
|
|
|
|
|
|
|
|
40% above $59,388
|
Shinyo Kieran
|
|
|
48,153
|
|
|
June 2026
(2)
|
|
50% above $69,388
|
|
|
|
1.
|
|
Vessel subchartered at $34,843/day over the next two years.
|
|
2.
|
|
Expiration dates provided that charterers exercise one year extension option.
|
Shipbuilding Contract and Newbuilding Supervision Agreement Shinyo Kieran
The newbuild vessel, Shinyo Kieran, is being built by Dalian Shipbuilding Industry Co. and is
expected to be completed in June 2011. It will have a cargo-carrying capacity of 298,000 deadweight
tons upon completion. The shipbuilding contract includes customary terms and provisions for (a) the
description of the vessel, (b) the payment terms, (c) approval of plans and drawings, (d)
inspection during construction, (e) sea trials, (f) delivery condition, and (g) termination of the
contracts. The purchase price for the vessel is payable in installments that are connected with
certain shipbuilding milestones and upon delivery of the vessel. At
the closing, we will assume $53.7 million due to the shipyard for the
construction of Shinyo Kieran, of which $26.8 million is due in October
2010 and $26.9 million is due in June 2011.
Pursuant to a supervision agreement dated December 15, 2009, Shinyo Kieran Limited has engaged
DOSCO to supervise the construction of Shinyo Kieran at the shipyard of Dalian Shipbuilding
Industry Co., Ltd. in Dalian, China for a fixed fee of $280,000 in aggregate.
3
Technical Management of the Acquired Vessels
Upon closing of the acquisition, we will amend our Management Agreement with a subsidiary of
Navios Maritime Holdings Inc. (Navios Holdings) to include the management of VLCCs for a fixed
fee of $10,000 per day, expiring on May 30, 2012, the same date on which the fixed fee arrangements
for our other vessel types expires. The fixed daily fees will be adjusted for the remaining
three-year term of the Management Agreement based on then-current market fees. The fixed daily fee
will cover all of our vessel-operating expenses other than certain extraordinary fees and costs,
including drydocking, which will be reimbursed at cost. Management of the acquired vessels will
initially be subcontracted to an affiliate of the Seller that is currently
providing such management services.
Crew
The current technical manager, an affiliate of the Seller, employs approximately 160 crew on
the acquired vessels on a contract basis. The current technical manager has entered into collective
bargaining agreements with Merchant Navy Officers Guild, the Amalgamated Union of Seafarers and
the Hong Kong Seamens Union to cover all the crews serving on the six on-the-water acquired
vessels and provide for compensation, hours of work and other employment matters.
Routes
Under the terms of our time charter agreements, our charterers determine the routes to be
taken by the acquired vessels, but typically these VLCCs transport crude oil from the Arabian Gulf
to Asia, West Africa to Asia, Europe to Asia, the Arabian Gulf to the United States and West Africa
to the United States.
Customers
The charterers of the acquired vessels include some of the leading Asia-Pacific-based shipping
and petrochemical companies. The current charterers are DOSCO (a wholly owned subsidiary of COSCO),
a member of the Sinochem group, Formosa and SK Shipping.
|
|
|
DOSCO
.
DOSCO charters the Shinyo Kannika, the Shinyo Navigator, the Shinyo
Saowalak and the Shinyo Kieran. DOSCO was formed in 1978 and is one of the largest
Chinese state-owned shipping enterprises and is a wholly-owned subsidiary of COSCO.
DOSCO is the only company within the COSCO group specializing in liquid bulk
transportation. DOSCO owns and operates a total of 50 vessels, including tankers,
liquefied petroleum gas vessels and chemical ships with total deadweight tons of over
7 million. These 50 vessels include eight owned and four time-chartered and operated
VLCCs. DOSCO focuses on transporting liquid cargo such as oil.
|
|
|
|
|
Sinochem Group
.
A member of the Sinochem group charters the Shinyo Splendor.
Sinochem is state-owned and one of Chinas largest oil companies and a leading chemical
services provider in China. Sinochem is a member of the Fortune Global 500 and has
more than 200 branches and subsidiaries both in China and abroad with over 30,000
employees.
|
|
|
|
|
Formosa
.
Formosa charters the Shinyo Ocean. Formosa is a leading Taiwanese
energy company that engages in crude oil refining, selling refined petroleum products
and producing and selling olefins including ethylene and propylene.
|
|
|
|
|
SK Shipping
.
SK Shipping charters the C. Dream and sub-charters out C. Dream to
DOSCO. SK Shipping is a leading Korean shipowner and transportation company.
SK Shipping owns and charters over 50 vessels with a total capacity of about
7.6 million deadweight tons.
|
Competition
The market for international seaborne crude oil transportation services is fragmented and
highly competitive. Seaborne crude oil transportation services generally are provided by two main
types of operators: major oil company captive fleets (both private and state-owned) and independent
ship owner fleets. In addition, several owners and operators
pool their vessels together on an ongoing basis, and such pools are available to customers to the
same extent as independently owned and operated fleets. Many major oil companies and other oil
trading companies also operate their own vessels and use such vessels not only to transport their
own crude oil but also to transport crude oil for third party
4
charterers in direct competition with
independent owners and operators in the tanker charter market. Competition for charters is intense
and is based upon price, location, size, age, condition and acceptability of the vessel and its
manager. Due in part to the fragmented tanker market, competitors with greater resources could
enter the tanker market and operate larger fleets through acquisitions or consolidations and may be
willing or able to accept lower prices and fleets than us, which could result in our achieving
lower revenues from our vessels.
Oil Company Tanker Vetting Process
Traditionally there have been relatively few charterers in the oil transportation business
and that part of the industry has been undergoing consolidation. The so
called oil majors, such as Exxon Mobil, BP p.l.c., Royal Dutch Shell plc. Chevron, ConocoPhillips
and Total S.A., together with a few smaller companies, represent a significant percentage of the
production, trading and, especially, seaborne transportation of crude oil and refined petroleum
products worldwide.
Concerns about the environment have led oil majors to develop and implement a strict due
diligence process, known as vetting, when selecting vessels and considering their managers. Vetting
has evolved into a sophisticated and comprehensive assessment of both the vessel and the vessel
manager.
While numerous factors are considered and evaluated prior to a commercial decision, the oil
majors, through their association, Oil Companies International Marine Forum (OCIMF), have developed
two basic tools: the Ship Inspection Report program, which is known as SIRE and the Tanker
Management & Self Assessment program, which is known as TMSA.
Based upon commercial risk, there are three levels of assessment used by oil majors:
|
|
|
terminal use, which clears a vessel to call at one of the oil majors
terminals;
|
|
|
|
|
voyage charter, which clears the vessel for a single voyage; and
|
|
|
|
|
period charter, which clears the vessel for use for an extended period of time.
|
The depth and complexity of each of these levels of assessment varies. Each of charter
agreements for the acquired vessels requires that the applicable vessel have a valid SIRE report
(less than six months old) in the OCIMF website as recommended by OCIMF. In addition, under the
terms of the charter agreements, the charterers require that the acquired vessels and its technical
manager be vetted and approved to transport crude oil by multiple oil majors. The technical manager
is responsible for obtaining and maintaining the vetting approvals required to operate the acquired
vessels. The current technical manager has been vetted and approved. The subsidiary of Navios
Holdings that will become our technical manager after the acquisition will subcontract technical
management to our current technical manager for a period of
approximately six months subsequent to the closing of the
acquisition, after which, it is anticipated that the technical
management will be provided directly by a subsidiary of our
affiliate, Navios Holdings.
Loan Agreements
At the closing, we will become responsible for all the indebtedness under the loan agreements
described below, provided that such debt will be amended on terms satisfactory to us. We anticipate
the amendments will include harmonizing the negative and financial covenants with the negative and
financial covenants in our existing loan agreements. The amendments will also provide for interest
under all such indebtedness at LIBOR plus 2.75% per annum and a 1% restructuring fee it is
anticipated that the maturities and installments will remain substantially the same. There
can be no assurance that the lenders will agree to such amendments or give their consent to the
acquisition.
The assumed loan agreements are summarized below.
On December 13, 2006, a loan of $82,875,000 was obtained from HSH Nordbank AG. The loan is
secured by Shinyo Navigator and is repayable by 40 quarterly installments. Shinyo Navigator
Limited entered into an interest rate swap arrangement to mitigate the interest rate risk related
to this bank loan, which will be
5
terminated
on or prior to the consummation of the acquisition.
On September 7, 2007, a syndicated loan of $65,000,000 was obtained from DVB Group Merchant
Bank (Asia) Ltd, BNP Paribas, Credit Suisse and Deutsche Schiffsbank AG. The loan is secured by C.
Dream and is repayable by 40 installments (one
initial payment plus 39 quarterly installments) and a balloon payment to be paid together with
the fortieth installment.
On
January 4, 2007, a bank loan in the amount of $173,600,000 was obtained from DVB Group
Merchant Bank (Asia) Ltd, Credit Suisse and Deutsche Schiffsbank AG. The loan is secured by Shinyo
Kannika and Shinyo Ocean and is repayable by 40 quarterly installments and a balloon payment to be
paid together with the fortieth installment.
On May 21, 2007, a bank loan in the amount of $62,000,000 was obtained from DVB Group Merchant
Bank (Asia) Ltd, Credit Suisse and Deutsche Schiffsbank AG. The loan is secured by Shinyo Splendor
and is repayable by 28 quarterly installments.
On March 26, 2010, a bank loan in the amount of $90,000,000 was obtained from China Merchant
Bank Co. Ltd. The loan is secured by Shinyo Saowalak and is repayable by 40 quarterly installments
together with a balloon payment in the fortieth installment.
At the closing, we will not assume the indebtedness under the loan agreement dated August 20,
2008 in the amount of $107,400,000 which was obtained from BNP Paribas, The Bank of Nova Scotia
Asia Limited, Deutsche Schiffsbank AG, DVB Group Merchant Bank (Asia) Ltd and Scotiabank (Hong
Kong) Limited to finance the construction of Shinyo Kieran. The loan is secured by Shinyo Kieran
and is repayable by 40 quarterly installments together with a balloon payment in the fortieth
installment. At the closing, we will assume $53.7 million due to the shipyard for the construction
of Shinyo Kieran, of which $26.8 million is due in October 2010 and $26.9 million is due in June
2011. We also intend to borrow upon our available credit lines the amount of $36.3 million.
Risk Factors
In addition to the risk factors that generally affect the Company, as described in the
Companys Annual Report on Form 20-F and the Report on Form 6-K filed June 4, 2010, the following
risk factors are specific to the acquired vessels, the industry they operate in and the
transaction.
Risks Related to the Acquisition and the Vessels
The acquisition may not be consummated.
The acquisition is subject to a number of conditions, including conditions, such as
third-party consents from banks, charterers, shipbuilders and others, and loan agreement
amendments, that are outside of the control of the Seller or us. If the agreement is terminated,
neither party will have liability to the other, even if one of the parties was in breach.
Accordingly, there can be no assurance that the acquisition will be consummated on the terms
currently contemplated, or at all.
The indemnity may be inadequate to cover any damages.
The Securities Purchase Agreement has a cap on indemnity obligations, subject to certain
exceptions, of $58.7 million. Although we have done substantial due diligence with respect to the
acquisition, there can be no assurance that there will not be undisclosed liabilities or other
matters not discovered in the course of such due diligence and the $58.7 million indemnity may be
inadequate to cover these or other damages related to breaches of such agreement. In addition, as
there will only be $11 million in escrow, it may be difficult to enforce an arbitration award for
any damages in excess of such amount.
6
A large proportion of the revenue from the acquired vessels is derived from a Chinese state-owned
company, and changes in the economic and political environment in China or in Chinese relations
with other countries could adversely affect our ability to continue this customer relationship.
DOSCO, a wholly-owned subsidiary of the Chinese state-owned COSCO, charters four of the seven
acquired vessels (including the newbuilding). Changes in political, economic and social conditions
or other relevant policies of the Chinese government, such as changes in laws, regulations or
export and import restrictions, could restrict DOSCOs ability to continue its relationship with
us. If DOSCO becomes unable to perform under its charter agreements with us, we could suffer a loss
of revenue that could materially adversely
affect our business, financial condition, and results of operations. In addition, we may have
limited ability in Chinese courts to enforce any awards for damages that we may suffer if DOSCO
were to fail to perform its obligations under our charter agreements.
The loss of one or more of the customers of the acquired vessels or other failure to perform under
our charter agreements could adversely affect our financial performance and breaches of the
charters may be difficult to enforce.
The loss of any of the customers of the acquired vessels, a customers failure to perform
under any of the applicable charters, a customers termination of any of the applicable charters,
the loss of any of the acquired vessels or a decline in payments under the charters could have a
material adverse effect on our business, results of operations and financial condition and our
ability to pay dividends. In addition, the charterers of the acquired vessels are based in, and
have their primary assets and operations in, the Asia-Pacific region, including the Peoples
Republic of China. The charter agreements for the acquired vessels are governed by English law and
provide for dispute resolution in English courts or London-based arbitral proceedings. There can be
no assurance that we would be able to enforce any judgments against these charterers in
jurisdictions where they are based or have their primary assets and operations.
In the highly competitive VLCC shipping industry, we may not be able to compete for charters with
new entrants or established companies with greater resources, which may adversely affect our
results of operations.
We will employ the acquired vessels in a highly competitive market that is capital intensive
and fragmented. Competition arises primarily from other vessel owners, including major oil
companies as well as independent tanker companies, some of whom have substantially greater
resources and experience than us. Competition for the chartering of VLCCs can be intense and
depends on price, location, size, age, condition and the acceptability of the vessel and its
managers to the charterers. Such competition has been enhanced as a result of the downturn in the
shipping industry, which has resulted in an excess supply of vessels and reduced charter rates. Due
in part to the fragmented market, newly formed competitors and/or competitors with greater
resources could operate larger fleets through consolidations or acquisitions that may be able to
offer better prices and fleets, which could result in us not obtaining full-time charters for the
acquired vessels or obtaining lower rates under our charters, either of which could materially
adversely affect our business, financial condition and results of operations. See Competition.
The acquired vessels may be subject to unbudgeted periods of off-hire, which could materially
adversely affect our business, financial condition and results of operations.
Under the terms of the charter agreements under which the acquired vessels operate, or are
expected to operate in the case of the newbuilding, when a vessel is off-hire, or not available
for service or otherwise deficient in its condition or performance, the charterer generally is not
required to pay the hire rate, and we will be responsible for all costs (including the cost of
bunker fuel) unless the charterer is responsible for the circumstances giving rise to the lack of
availability. A vessel generally will be deemed to be off-hire if there is an occurrence preventing
the full working of the vessel due to, among other things:
|
|
|
operational deficiencies;
|
|
|
|
|
the removal of a vessel from the water for repairs, maintenance or inspection,
which is referred to as drydocking;
|
|
|
|
|
equipment breakdowns;
|
7
|
|
|
delays due to accidents or deviations from course;
|
|
|
|
|
occurrence of hostilities in the vessels flag state or in the event of piracy;
|
|
|
|
|
crewing strikes, labor boycotts, certain vessel detentions or similar problems;
or
|
|
|
|
|
our failure to maintain the vessel in compliance with its specifications,
contractual standards and applicable country of registry and international regulations
or to provide the required crew.
|
For example, in February 2009, the vessel Shinyo Kannika was involved in a collision with
another vessel off the coast of Singapore. Shinyo Kannika required extensive repairs for damage
sustained to its hull in the collision and its classification society required that it undergo an
unscheduled hull survey. The repairs and the survey resulted in the vessel being off-hire for
24.4 days during which the vessels owner did not receive payments under the vessels charter
agreement. Any future unbudgeted and sustained periods of off-hire could have a material adverse
effect on our business, financial condition and results of operations.
We may face unexpected maintenance costs, which could materially adversely affect our business,
financial condition and results of operations.
If the acquired vessels suffer damage or require upgrade work, they may need to be repaired at
a drydocking facility. The acquired vessels may occasionally require upgrade work in order to
maintain their classification society rating or as a result of changes in regulatory requirements.
In addition, the acquired vessels will be off-hire periodically for intermediate surveys and
special surveys in connection with each vessels certification by its classification society.
The costs of drydock repairs are unpredictable and can be substantial and the loss of earnings
while these vessels are being repaired and reconditioned, as well as the actual cost of these
repairs, would decrease our earnings. Our insurance generally only covers a portion of drydocking
expenses resulting from damage to a vessel and expenses related to maintenance of a vessel will not
be reimbursed. In addition, space at drydocking facilities is sometimes limited and not all
drydocking facilities are conveniently located. We may be unable to find space at a suitable
drydocking facility on a timely basis or may be forced to move a damaged vessel to a drydocking
facility that is not conveniently located to the vessels position. The loss of earnings while any
of our vessels are forced to wait for space or to relocate to drydocking facilities that are far
away from the routes on which our vessels trade would further decrease our earnings.
For example, in January 2009 the vessel Shinyo Splendor was scheduled for a special survey
during which steel renewal work was to be undertaken at a Chinese state-owned shipyard. Due to a
shortage of workers to service the vessel during the Chinese New Year period and inclement weather
during repairs, the steel renewal work took longer than expected and the Shinyo Splendor was
drydocked for 71 days, instead of the scheduled 30 days. Under the terms of the charter agreement
under which the Shinyo Splendor operates, the vessel owner did not receive any charter hire income
during the 71-day period of drydocking.
One of the vessels is subject to a mutual sale provision between the Vessel-Owning Subsidiary that
owns the vessel and the charterer of the vessel, which, if exercised, could reduce the size of our
fleet and reduce our future revenue.
Shinyo Ocean is subject to a mutual sale provision whereby we or the charterer can request the
sale of the vessel provided that a price can be obtained that is at least $3,000,000 greater than
the agreed depreciated value of the vessel as set forth in the charter agreement. If this provision
is exercised, we may not be able to obtain a replacement vessel for the price at which the vessel
is sold. In such a case, the size of our fleet would be reduced and we may experience a reduction
in our future revenue.
We rely on our technical managers to provide essential services to the acquired vessels and run the
day-to-day operations of the acquired vessels.
Pursuant to technical management agreements, the current technical managers provide services
essential to the business of our vessels, including vessel maintenance, crewing, purchasing,
shipyard supervision,
8
insurance and assistance with vessel regulatory compliance. The current
technical manager, an affiliate of the Seller, is a technical ship management company that has
provided technical management to the acquired vessels prior to the consummation of the acquisition,
and will continue to provide such services under a subcontract with a subsidiary of our affiliate,
Navios Holdings, for approximately six months subsequent to the closing of the acquisition, after
which, it is anticipated that the technical management will be provided directly by a subsidiary of
our affiliate, Navios Holdings.
In the event Navios Holdings does not obtain the required vetting
approvals, it will not be able to take over technical management.
Our operational success and ability to execute our strategy will
depend significantly upon the satisfactory performance of these services by the current technical
manager, and, subsequently, by the Navios Holdings subsidiary.
The failure of either of these technical managers to perform these services satisfactorily and/or the failure of the Navios Holdings subsidiary to garner the approval necessary to become our technical manager could have a material adverse effect on our business, financial condition and results of operations.
We will not be able to take advantage of favorable opportunities in the spot market or sales
opportunities with respect to the acquired vessels that are employed on long-term time charters.
The six on-the-water acquired vessels are contractually committed to time charters, with the
remaining terms of these charters expiring during the period from and including 2014 through 2025.
The acquired newbuilding is expected to operate on a charter that expires during 2026. Although
time charters generally provide reliable revenue, they will also limit the portion of our fleet
available for spot market voyages. We are
not permitted to unilaterally terminate the charter agreements of the acquired vessels due to
upswings in the tanker industry cycle, when spot market voyages might be more profitable. We may
also decide to sell a vessel in the future. In such a case, should we sell a vessel that is
committed to a long-term charter, we may not be able to realize the full charter free fair market
value of the vessel during a period when spot market charters are more profitable than the charter
agreement under which the vessel operates. We may re-charter the acquired vessels on long-term
charters or charter them in the spot market upon expiration or termination of the vessels current
charters. If we are not able to employ the acquired vessels profitably under time charters or in
the spot market, our results of operations and operating cash flow may suffer.
The profit sharing provisions in the acquired vessels charter agreements may have an adverse
impact on the stability of our cash flows and operating results.
The charter agreements under which four of the six on-the-water acquired vessels operate and
under which the acquired newbuilding that is scheduled for delivery in June 2011 will operate
provide us with the opportunity to earn additional revenue through profit share provisions when
spot rates are high relative to our base rates. These profit share provisions, in tandem with the
cyclical nature of the tanker industry, may result in periodically large fluctuations in our cash
flows and operating results. The profit share provisions in our charter agreements could increase
the volatility of our operating results and cash flows.
Future increases in vessel operating expenses could adversely affect our business, financial
condition and results of operation.
Under our time charter agreements, the charterer is responsible for substantially all of the
voyage expenses, including port and canal charges and fuel costs and we are generally responsible
for vessel operating expenses. Vessel operating expenses are the costs of operating a vessel,
primarily consisting of crew wages and associated costs, insurance premiums, management fees,
lubricants and spare parts and repair and maintenance costs. We receive a daily rate for the use of
our vessels, which is fixed through the term of the applicable charter agreement. Our charter
agreements do not provide for any increase in the daily hire rate in the event that vessel
operating expenses increase during the term of the charter agreement. The charter agreements for
the six on-the-water acquired vessels expire during the period from and including 2014 through 2025
and the acquired newbuilding is expected to operate under a charter agreement that expires in 2026.
Because of the long-term nature of these charter agreements, incremental increases in our vessel
operating expenses over the term of a charter agreement will effectively reduce our operating
income and, if such increases in operating expenses are significant, adversely effect our business,
financial condition and results of operations.
Most of the on-the-water acquired vessels are older than the average age of VLCCs in the world
tanker fleet, which may result in higher operating costs and increased vessel off-hire periods
relative to our competitors.
The average age of five of the on-the-water acquired vessels, not including the Shinyo
Saowalak, is 12.0 years as of July 16, 2010, as opposed to an average VLCC age of 8.4 years (as per
the Oil and Tanker Trades Outlook issued from Clarksons Research Services Ltd. for June 2010) in
the world tanker fleet. In general, the costs to maintain a vessel in good operating condition
increase with the age of the vessel. Due to
9
improvements in engine technology, older vessels are
typically less fuel efficient and more costly to maintain than more recently constructed vessels.
Cargo insurance rates increase with the age of a vessel, making older vessels less desirable to
charterers.
Governmental regulations from any country, safety, environmental or other equipment standards
related to the age of tankers and other types of vessels may require expenditures for alterations
or the addition of new equipment to our vessels to comply with safety or environmental laws or
regulations that may be enacted in the future. These laws or regulations may also restrict the type
of activities in which our vessels may engage or the geographic regions in which we may operate. We
cannot predict what alterations or modifications the acquired vessels may be required to undergo in
the future or whether as these vessels age, market conditions will justify any required
expenditures or enable us to operate the vessels profitably during their 25-year estimated useful
lives from the date of the vessels initial delivery from the shipyard. The age of some of the
acquired vessels may result in higher operating costs and increased vessel off-hire periods
relative to our competitors that operate newer fleets, which could have a material adverse effect
on our results of operations.
The market value of the vessels that we have acquired or will acquire in the future may fluctuate,
which could limit the amount of funds that we can borrow, cause us to fail to meet certain
financial covenants in our credit facilities and adversely affect our ability to purchase new
vessels and our operating results.
The market value of VLCCs has been volatile. Vessel values may fluctuate due to a number of
different factors, including: general economic and market conditions affecting the shipping
industry; competition from other shipping companies; the types and sizes of available vessels; the
availability of other modes of transportation; increases in the supply of vessel capacity; the cost
of newbuildings; governmental or other regulations; prevailing charter rates; the age of the
vessel; and the need to upgrade secondhand vessels as a result of charterer requirements,
technological advances in vessel design or equipment or otherwise. In addition, as vessels grow
older, they generally decline in value. To the extent that we incur debt that is secured by any of
our vessels, if the market value of such vessels declines, we may be required to prepay a portion
of these secured borrowings.
If the market value of our vessels decreases, we may breach some of the covenants contained in
the financing agreements relating to our indebtedness at the time. If we breach any such covenants
in the future and we are unable to remedy the relevant breach, our lenders could accelerate our
debt and foreclose on our vessels. In addition, if the book value of a vessel is impaired due to
unfavorable market conditions, we would incur a loss that could have a material adverse effect on
our business, financial condition and results of operations.
If for any reason we sell any of our vessels at a time when prices are depressed, we could
incur a loss and our business, financial condition and results of
operations could be
adversely affected. Conversely, if vessel values are elevated at a time when we wish to acquire
additional vessels, the cost of acquisition may increase and this could materially adversely affect
our business, financial condition and results of operations.
The financial statements of the acquired Vessel-Owning Subsidiaries contained herein may not be
indicative of the future operations or the post-closing financial
position of such companies.
This
Report on Form 6-K contains audited combined financial statements of the Vessel-Owning
Subsidiaries for the years ended December 31, 2007, 2008 and 2009. However, such financial statements may not be indicative of the future operations or
post-closing financial position of such companies. Over the past three fiscal years, such companies have
experienced substantial changes from year to year in revenue and operating income, having generated
$65.4 million, $90.4 million and $65.7 million of revenue in 2007, 2008 and 2009, respectively, and
operating income of $12.5 million, $51.2 million and $24.1 million, respectively, for the same
periods. We believe the principal reasons for the substantial year to year changes were a
reduction in the spot market rate for VLCC single voyage charters, which resulted in profit share
for two vessels decreasing from $16.1 million in 2008 to zero in 2009 and the longer than expected
drydocking of the Shinyo Splendor in 2009.
In addition, the Securities Purchase Agreement requires the Seller to take a number of actions
that will impact the post-closing financial statements. For example, based on preliminary
information, received by the Seller that the revenues and operating income of the Vessel-Owning Subsidiaries
for the first quarter of 2010 are both approximately $3 million higher than for the comparable 2009
period. However, on a preliminary basis, based on information
received by the Seller, net income
is slightly down from 2009 and
that the main reason for the decrease in such net income
10
is a substantial loss on the
mark-to-market value of certain interest rate swap agreements. Such interest rate swap agreements
are required to be extinguished on or prior to the closing of the acquisition. Accordingly, such
interest rate swap agreements and other items, such as administrative expenses, will have either no
impact or a different impact on operations for periods post-closing. In addition, two vessels are
currently in dry dock, which will adversely impact the interim results of operations. However, it
is a condition to closing that such vessels shall have completed their respective special survey drydocking
at the expense of the Seller.
The same is true of the post-closing balance sheet. The Securities Purchase Agreement, among
other things, (i) requires that certain obligations, including obligations to affiliates, be
extinguished at the expense of the Seller, (ii) requires that, as noted above, interest rate swap
instruments be terminated, and (iii) permits distributions of cash to the Seller. It is also
anticipated as described elsewhere herein that certain of the loan agreements will either be paid
off or somewhat restructured. Accordingly, the post-closing balance sheet of the acquired
Vessel-Owning Subsidiaries may differ significantly from the balance sheet included in the audited
financial statements.
This Report on Form 6-K does not include any interim financial statements for the
Vessel-Owning
Subsidiaries. We do plan to file a subsequent Report on Form 6-K shortly including unaudited
combined financial statements of the Vessel-Owning Subsidiaries as of December 31, 2009 and March 31, 2010 and for the three months ended
March 31, 2009 and 2010. However, there is currently a significant period as to which no financial
statement information is provided.
Given the marked fluctuations in results of operations from year to year, the operational and
balance sheet changes contemplated by the Securities Purchase Agreement and the absence of any
interim financial statements, there can be no assurance that the financial statements included in
this Report are indicative of the financial condition or operations of the Vessel-Owning
Subsidiaries subsequent to the date of such financial statements and, in particular, for periods
after the consummation of the contemplated acquisition.
Risks Relating to the Crude Oil Transportation Industry
Any decrease in shipments of crude oil from the Arabian Gulf or West Africa may adversely affect
our financial performance.
The demand for VLCC oil tankers derives primarily from demand for Arabian Gulf and West
African crude oil, which, in turn, primarily depends on the economies of the worlds industrial
countries and competition from alternative energy sources. A wide range of economic, social and
other factors can significantly affect the strength of the worlds industrial economies and their
demand for Arabian Gulf and West African crude oil.
Among the factors that could lead to a decrease in demand for exported Arabian Gulf and West
African crude oil are:
|
|
|
increased use of existing and future crude oil pipelines in the Arabian Gulf or
West African regions;
|
|
|
|
|
a decision by OPEC to increase its crude oil prices or to further decrease or
limit their crude oil production;
|
|
|
|
|
armed conflict or acts of piracy in the Arabian Gulf or West Africa and
political or other factors;
|
|
|
|
|
increased oil production in other regions, such as Russia and Latin America;
and
|
|
|
|
|
the development and the relative costs of nuclear power, natural gas, coal and
other alternative sources of energy.
|
Any significant decrease in shipments of crude oil from the Arabian Gulf or West Africa may
materially adversely affect our financial performance.
The continuation of recent economic conditions, including disruptions in the global credit markets
and reduced demand for oil, could adversely affect our ability to grow.
11
The recent economic downturn and financial crisis in the global markets have produced
illiquidity in the capital markets, market volatility, heightened exposure to interest rate and
credit risks and reduced access to capital markets. If this economic downturn continues, we may
face restricted access to the capital markets or bank lending, which may make it more difficult and
costly to fund future growth. The decreased access to such resources could have a material adverse
effect on our business, financial condition and results of operations.
The recent economic downturn may affect our charterers ability to charter our vessels and pay
for our services and may adversely affect our business and results of operations. Our charterers
inability to pay could also result in their default on our current charters. The default by our
charterers on our contracts with them could have a material adverse effect on our business,
financial condition and results of operations. We cannot determine whether the difficult conditions
in the global economy and the financial markets will improve or worsen in the near future.
The current economic worldwide situation could also lead to further reduced demand for oil,
which could have a material negative impact on our revenues, results of operations and financial
conditions. A significant number of the port calls made by the acquired vessels are expected to
involve the delivery of crude oil to ports in the Asia-Pacific region. As a result, a negative
change in economic conditions in any Asia-Pacific
country, but particularly in China or India, may have a material adverse effect on our future
business, financial position and results of operations, as well as our future prospects. Moreover,
any continued slowdown in the economies of the United States, the European Union or certain Asian
countries may materially adversely affect economic growth in China and elsewhere. Our business,
financial position and results of operations, as well as our future prospects, will likely be
materially and adversely affected by a prolonged economic downturn in any of these countries.
Operational risks inherent in the shipping industry could have a negative impact on our results of
operations.
The acquired vessels and their cargoes are at risk of being damaged or lost due to events such
as marine disasters, bad weather, human error, stowaways and other circumstances or events. In
addition, increased operational risks arise as a consequence of the complex nature of the crude oil
tanker industry, the nature of the services required to support the industry, including maintenance
and repair services and the mechanical complexity of the tankers themselves. Damage and loss could
arise as a consequence of a failure in the services required to support the industry, for example,
due to inadequate dredging. Inherent risks also arise due to the nature of the product transported
by our vessels. Any damage to, or accident involving, our vessels while carrying crude oil could
give rise to environmental damage or lead to other adverse consequences. Each of these inherent
risks may also result in death or injury to persons, loss of revenues or property, higher insurance
rates, damage to our customer relationships, delay or rerouting.
Some of these inherent risks could result in significant damage, such as marine disaster or
environmental incidents, and any resulting legal proceedings may be complex, lengthy, costly and,
if decided against us, any of these proceedings or other proceedings involving similar claims or
claims for substantial damages may harm our reputation and have a material adverse effect on our
business, results of operations, cash flow and financial position. In addition, we may be required
to devote substantial time and cost defending these proceedings, which could divert attention from
management of our business.
Our worldwide operations expose us to a variety of additional risks, including the risk of
business interruptions due to political and governmental circumstances, hostilities, labor strikes
and boycotts, potential changes in tax rates or policies and potential government expropriation of
our vessels, in particular in the Asia-Pacific region. In addition, inadequacies in the legal
systems and law enforcement mechanisms in certain countries in which we operate may expose us to
risk and uncertainty.
Any of these factors may have a material adverse effect on our business, financial conditions
and results of operations.
Labor interruptions and problems could disrupt our business.
The acquired vessels will be manned by masters, officers and crews that will be employed by
third parties. If not resolved in a timely and cost-effective manner, industrial action or other
labor unrest could prevent or hinder our operations from being carried out normally and could have
a material adverse effect on our business, results of operations, cash flow, financial condition
and ability to pay dividends.
12
The cyclical nature of the crude oil tanker industry may lead to volatile changes in charter
rates, which may adversely affect our earnings.
The six acquired vessels that are currently operating are operating on long-term charters,
which expire during the period from and including 2014 through 2025. The newbuilding is expected to
operate on a charter that expires during 2026. Historically, the tanker industry has been highly
cyclical, with volatility in profitability and asset values resulting from changes in the supply of
and demand for tanker capacity. Fluctuations in charter rates and vessel values result from these
changes in the supply and demand for tanker capacity. Timecharter rates for VLCCs are at near
10-year low levels with the estimated prevailing one-year timecharter rate as of the end of
December 2009 at $34,000 per day, compared to a 10-year inflation adjusted average of $48,235 per
day for the period from April 2000 to June 2010, ranging from a minimum of $20,000 per day to a
maximum of $90,000 per day. In addition, the prevailing market values of VLCCs are below historic
averages with five-year-old VLCC prices as of December 2009 estimated to be approximately
$79 million compared to a 10-year inflation adjusted average of $92 million for the period from
December 1999 to December 2009 and a 20-year inflation adjusted average of $75 million for the
period from December 1989 to December 2009. In addition, the global supply of tanker vessels above
10,000 deadweight tons is expected to increase significantly in the next several years, which could
further depress vessel values and charter rates. If prevailing charter rates and vessel values were
to remain depressed for an extended period, our earnings and available cash flow may decrease.
The factors affecting the supply and demand for tanker vessels are outside of our control, and
the nature, timing and degree of changes in industry conditions are unpredictable. The factors that
influence demand for tanker capacity include:
|
|
|
changes in global crude oil production;
|
|
|
|
|
demand for oil and production of crude oil and refined petroleum products;
|
|
|
|
|
changes in oil production and refining capacity;
|
|
|
|
|
the distance oil and oil products are to be moved by sea;
|
|
|
|
|
environmental and other regulatory developments; and
|
|
|
|
|
changes in seaborne and other transportation patterns, including changes in the
distances over which cargo is transported due to geographic changes in where oil is
produced, refined and used.
|
The factors that influence the supply of tanker capacity include:
|
|
|
the number of newbuilding deliveries;
|
|
|
|
|
the scrapping rate of older vessels;
|
|
|
|
|
port or canal congestion;
|
|
|
|
|
the number of vessels that are used for storage or as floating storage
offloading service vessels;
|
|
|
|
|
the conversion of vessels from transporting oil and oil products to carrying
dry bulk cargo and the reverse conversion;
|
|
|
|
|
availability of financing for new tankers;
|
|
|
|
|
the number of vessels that are out of service; and
|
|
|
|
|
national or international regulations that may effectively cause reductions in
the carrying capacity of vessels or early obsolescence of tonnage.
|
If the number of new ships delivered exceeds the number of tankers being scrapped, lost or
converted into other vessel types, tanker capacity will increase. If the supply of tanker capacity
increases and the demand for tanker capacity does not increase correspondingly, the charter rates
paid for our tankers and the value of our
13
tankers could materially decline. Any decline in charter
rates as a result of significant changes in the levels of the supply of or demand for tanker
vessels or otherwise could negatively impact our business, results of operations, and financial
condition.
If any of our vessels fails to be certified by the requisite number of oil majors, it could have a
material adverse impact on our business financial condition and results of operations.
Under the terms of the acquired vessels charter agreements, our charterers require that these
vessels and the technical manager are vetted and approved to transport crude oil by multiple oil
majors. Our failure to maintain any of the acquired vessels to the standards required by the oil
majors could put us in breach of the applicable charter agreement and lead to termination of such
agreement, and could give rise to impairment in the value of the acquired vessels.
Hong Kong Tax Considerations
The Vessel-Owning Subsidiaries that are incorporated in the Hong Kong Special Administrative
Region of the Peoples Republic of China are not subject to tax on income or capital gains, and no
Hong Kong withholding tax will be imposed upon payments of dividends, if any, by us to our
stockholders if the acquisition is consummated.
British Virgin Islands Tax Considerations
The Vessel-Owning Subsidiaries that are incorporated in the British Virgin Islands are not
subject to taxes on their profits or income. Under the present laws of British Virgin Islands,
there are no taxes on profits or income, capital gains tax, estate duty or inheritance tax
applicable to any shares held by non-residents of the British Virgin Islands. In addition, there is
no stamp duty or similar duty on the issuance, transfer or redemption of the shares. Dividends
remitted to the shareholders who reside outside the British Virgin Islands, if any, will not be
subject to withholding tax in the British Virgin Islands if the acquisition is consummated.
14
Combined Financial Statements of the Vessel-Owning Subsidiaries
Below are presented the combined financial statements of the Vessel Owning Subsidiaries as of
December 31, 2008 and 2009 and for each of the years in the
three-year period ended December 31, 2009.
15
Report of Independent Registered Public Accounting Firm
The Boards of Directors and Shareholder of
the Vessel-Owning Subsidiaries:
We have audited the accompanying combined balance sheets of Shinyo Loyalty Limited, Shinyo Kannika
Limited, Shinyo Navigator Limited, Shinyo Ocean Limited, Shinyo Dream Limited, Shinyo Kieran
Limited and Shinyo Saowalak Limited (collectively, the Vessel-Owning Subsidiaries or the
Company) as of December 31, 2008 and 2009, and the related combined statements of operations,
shareholders equity/deficit and cash flows for each of the years in the three-year period ended
December 31, 2009. These combined financial statements are the responsibility of the Companys
management. Our responsibility is to express an opinion on these combined financial statements
based on our audits.
We conducted our audits in accordance with standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the combined financial statements referred to above present fairly, in all material
respects, the financial position of the Company as of December 31, 2008 and 2009, and the results
of its operations and its cash flows for each of the years in the three-year period ended December
31, 2009, in conformity with U.S. generally accepted accounting principles.
/s/ KPMG
Hong Kong, China
July 26, 2010
F-1
Vessel-Owning Subsidiaries
Combined Balance Sheets
as of December 31, 2008 and 2009
(expressed in US$)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note
|
|
2008
|
|
2009
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
|
|
|
|
|
|
|
22,476,300
|
|
|
|
18,217,569
|
|
Restricted cash
|
|
|
|
|
|
|
2,958,480
|
|
|
|
2,639,807
|
|
Trade accounts receivable
|
|
|
|
|
|
|
869,424
|
|
|
|
|
|
Prepayments and other receivables
|
|
|
|
|
|
|
772,925
|
|
|
|
2,104,359
|
|
Amounts due from related parties
|
|
|
16
|
(b)
|
|
|
1,827,276
|
|
|
|
883,654
|
|
Supplies
|
|
|
|
|
|
|
494,355
|
|
|
|
416,205
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
|
|
|
|
29,398,760
|
|
|
|
24,261,594
|
|
Restricted cash
|
|
|
|
|
|
|
6,500,000
|
|
|
|
6,500,000
|
|
Loan to a related party
|
|
|
16
|
(b)
|
|
|
8,882,533
|
|
|
|
8,882,533
|
|
Deferred loan costs
|
|
|
|
|
|
|
3,134,072
|
|
|
|
3,200,992
|
|
Vessels, net
|
|
|
5
|
|
|
|
375,439,243
|
|
|
|
359,334,424
|
|
Vessels under construction
|
|
|
6
|
|
|
|
165,421,969
|
|
|
|
174,901,072
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
|
|
|
|
588,776,577
|
|
|
|
577,080,615
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
Current portion of long-term bank loans
|
|
|
7
|
|
|
|
30,982,988
|
|
|
|
51,979,567
|
|
Amounts due to related parties
|
|
|
16
|
(b)
|
|
|
5,324,724
|
|
|
|
13,788,975
|
|
Accrued liabilities and other payables
|
|
|
8
|
|
|
|
10,014,254
|
|
|
|
10,358,065
|
|
Deferred revenue
|
|
|
9
|
|
|
|
1,232,948
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
|
|
|
|
47,554,914
|
|
|
|
76,126,607
|
|
Long-term bank loans
|
|
|
7
|
|
|
|
405,699,248
|
|
|
|
344,910,681
|
|
Loans from a related party
|
|
|
16
|
(b)
|
|
|
117,855,682
|
|
|
|
131,459,170
|
|
Derivative financial instruments
|
|
|
10
|
|
|
|
21,487,357
|
|
|
|
9,729,403
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
|
|
|
|
592,597,201
|
|
|
|
562,225,861
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies
|
|
|
17
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders (deficit)/equity
|
|
|
11
|
|
|
|
|
|
|
|
|
|
Paid-in capital
|
|
|
|
|
|
|
15
|
|
|
|
15
|
|
(Accumulated losses)/retained earnings
|
|
|
|
|
|
|
(3,820,639
|
)
|
|
|
14,854,739
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total shareholders (deficit)/equity
|
|
|
|
|
|
|
(3,820,624
|
)
|
|
|
14,854,754
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and shareholders equity
|
|
|
|
|
|
|
588,776,577
|
|
|
|
577,080,615
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to the combined financial statements.
F-2
Vessel-Owning Subsidiaries
Combined Statements of Operations
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note
|
|
2007
|
|
2008
|
|
2009
|
Operating revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
|
12
|
|
|
|
65,408,119
|
|
|
|
90,403,416
|
|
|
|
65,650,404
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expense
(a)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vessel operating expenses
|
|
|
13
|
|
|
|
11,084,220
|
|
|
|
15,034,771
|
|
|
|
16,890,583
|
|
Depreciation expenses
|
|
|
|
|
|
|
19,007,818
|
|
|
|
21,467,435
|
|
|
|
22,281,318
|
|
Management fee
|
|
|
16
|
(a)
|
|
|
489,648
|
|
|
|
570,000
|
|
|
|
600,000
|
|
Commission
|
|
|
|
|
|
|
1,167,799
|
|
|
|
1,640,128
|
|
|
|
1,322,098
|
|
Administrative expense
|
|
|
|
|
|
|
362,451
|
|
|
|
446,524
|
|
|
|
453,235
|
|
Termination charge
|
|
|
14
|
|
|
|
20,783,562
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expense
|
|
|
|
|
|
|
52,895,498
|
|
|
|
39,158,858
|
|
|
|
41,547,234
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
|
|
|
|
12,512,621
|
|
|
|
51,244,558
|
|
|
|
24,103,170
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income/(expense)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
|
|
|
|
1,797,159
|
|
|
|
1,368,826
|
|
|
|
388,081
|
|
Interest expense
|
|
|
15
|
|
|
|
(22,637,771
|
)
|
|
|
(21,788,653
|
)
|
|
|
(13,548,236
|
)
|
Write-off of deferred loan costs
|
|
|
|
|
|
|
(673,112
|
)
|
|
|
|
|
|
|
|
|
Changes in fair value of derivative
financial instruments
|
|
|
10
|
|
|
|
(2,230,788
|
)
|
|
|
(19,256,569
|
)
|
|
|
11,757,954
|
|
Others, net
|
|
|
|
|
|
|
(20,968
|
)
|
|
|
(15,317
|
)
|
|
|
(25,591
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other expense
|
|
|
|
|
|
|
(23,765,480
|
)
|
|
|
(39,691,713
|
)
|
|
|
(1,427,792
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss)/income before income taxes
|
|
|
|
|
|
|
(11,252,859
|
)
|
|
|
11,552,845
|
|
|
|
22,675,378
|
|
Income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss)/income
|
|
|
|
|
|
|
(11,252,859
|
)
|
|
|
11,552,845
|
|
|
|
22,675,378
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a)
|
|
Includes the following income/expenses resulting from transactions with related parties (see note 16(a)):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
2008
|
|
2009
|
Vessel operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
Agency fee
|
|
|
520,000
|
|
|
|
800,000
|
|
|
|
1,200,000
|
|
Management fee
|
|
|
489,648
|
|
|
|
570,000
|
|
|
|
600,000
|
|
Interest income
|
|
|
717,530
|
|
|
|
566,192
|
|
|
|
343,209
|
|
Interest expense, net of amounts capitalized
|
|
|
3,088,080
|
|
|
|
3,826,461
|
|
|
|
3,094,667
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to the combined financial statements.
F-3
Vessel-Owning Subsidiaries
Combined Statements of Shareholders Equity/(Deficit)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Accumulated
|
|
|
|
|
|
|
|
|
|
|
|
|
losses)/
|
|
|
Total
|
|
|
|
|
|
Paid-in
|
|
|
retained
|
|
|
shareholders
|
|
|
|
Note
|
|
capital
|
|
|
earnings
|
|
|
equity/(deficit)
|
|
Balance as of January 1, 2007
|
|
|
|
|
13
|
|
|
|
39,678,136
|
|
|
|
39,678,149
|
|
Net loss
|
|
|
|
|
|
|
|
|
(11,252,859
|
)
|
|
|
(11,252,859
|
)
|
Dividends paid
|
|
11
|
|
|
|
|
|
|
(9,500,000
|
)
|
|
|
(9,500,000
|
)
|
Deemed distribution to Parent
|
|
4
|
|
|
|
|
|
|
(18,298,761
|
)
|
|
|
(18,298,761
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2007
|
|
|
|
|
13
|
|
|
|
626,516
|
|
|
|
626,529
|
|
Capital contribution from Parent
|
|
|
|
|
2
|
|
|
|
|
|
|
|
2
|
|
Net income
|
|
|
|
|
|
|
|
|
11,552,845
|
|
|
|
11,552,845
|
|
Dividends paid
|
|
11
|
|
|
|
|
|
|
(16,000,000
|
)
|
|
|
(16,000,000
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2008
|
|
|
|
|
15
|
|
|
|
(3,820,639
|
)
|
|
|
(3,820,624
|
)
|
Net income
|
|
|
|
|
|
|
|
|
22,675,378
|
|
|
|
22,675,378
|
|
Dividends paid
|
|
11
|
|
|
|
|
|
|
(4,000,000
|
)
|
|
|
(4,000,000
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2009
|
|
|
|
|
15
|
|
|
|
14,854,739
|
|
|
|
14,854,754
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to the combined financial statements.
F-4
Vessel-Owning Subsidiaries
Combined Statements of Cash Flows
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
2008
|
|
2009
|
Cash flows from operating activities
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss)/income
|
|
|
(11,252,859
|
)
|
|
|
11,552,845
|
|
|
|
22,675,378
|
|
Adjustments to reconcile net (loss)/income to net
cash provided by operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation expenses
|
|
|
19,007,818
|
|
|
|
21,467,435
|
|
|
|
22,281,318
|
|
Amortization of deferred loan costs
|
|
|
96,683
|
|
|
|
171,193
|
|
|
|
324,348
|
|
Amortization of loan premium
|
|
|
(28,037
|
)
|
|
|
(73,988
|
)
|
|
|
(73,988
|
)
|
Expenditure relating to drydocking
|
|
|
(148,962
|
)
|
|
|
|
|
|
|
(6,176,499
|
)
|
Amortization of deferred revenue
|
|
|
(1,571,670
|
)
|
|
|
(4,945,342
|
)
|
|
|
(1,232,948
|
)
|
Write off of deferred loan costs
|
|
|
673,112
|
|
|
|
|
|
|
|
|
|
Changes in fair value of derivative financial
instruments
|
|
|
2,230,788
|
|
|
|
19,256,569
|
|
|
|
(11,757,954
|
)
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Trade accounts receivable
|
|
|
2,401,063
|
|
|
|
2,185,122
|
|
|
|
869,424
|
|
Prepayments and other receivables
|
|
|
(76,517
|
)
|
|
|
(432,752
|
)
|
|
|
(1,331,434
|
)
|
Amounts due from related parties
|
|
|
(1,329,074
|
)
|
|
|
(54,340
|
)
|
|
|
943,622
|
|
Supplies
|
|
|
(43,643
|
)
|
|
|
(97,981
|
)
|
|
|
78,150
|
|
Accrued liabilities and other payables
|
|
|
5,581,243
|
|
|
|
959,037
|
|
|
|
343,811
|
|
Amounts due to related parties
|
|
|
1,503,129
|
|
|
|
2,791,753
|
|
|
|
8,464,251
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
17,043,074
|
|
|
|
52,779,551
|
|
|
|
35,407,479
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition of the C Dream Operation
|
|
|
(67,701,239
|
)
|
|
|
|
|
|
|
|
|
Purchase of a vessel
|
|
|
(99,900,000
|
)
|
|
|
|
|
|
|
|
|
Capital expenditure on vessels under construction
|
|
|
|
|
|
|
(165,421,969
|
)
|
|
|
(9,479,103
|
)
|
(Increase)/decrease in restricted cash
|
|
|
(7,721,259
|
)
|
|
|
1,637,351
|
|
|
|
318,673
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities
|
|
|
(175,322,498
|
)
|
|
|
(163,784,618
|
)
|
|
|
(9,160,430
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from long-term bank loans
|
|
|
300,983,833
|
|
|
|
107,358,400
|
|
|
|
|
|
Repayment of long-term bank loans
|
|
|
(120,475,000
|
)
|
|
|
(31,991,000
|
)
|
|
|
(39,718,000
|
)
|
Proceeds from loans from a related party
|
|
|
23,221,143
|
|
|
|
60,026,260
|
|
|
|
13,603,488
|
|
Repayment of loans from a related party
|
|
|
(11,100,000
|
)
|
|
|
|
|
|
|
|
|
Dividends paid
|
|
|
(9,500,000
|
)
|
|
|
(16,000,000
|
)
|
|
|
(4,000,000
|
)
|
Deemed distribution to Parent
|
|
|
(18,298,761
|
)
|
|
|
|
|
|
|
|
|
Payment of loan costs
|
|
|
(195,000
|
)
|
|
|
(2,313,192
|
)
|
|
|
(391,268
|
)
|
Contribution from Parent
|
|
|
|
|
|
|
2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by/(used in) financing activities
|
|
|
164,636,215
|
|
|
|
117,080,470
|
|
|
|
(30,505,780
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net increase/(decrease) in cash
|
|
|
6,356,791
|
|
|
|
6,075,403
|
|
|
|
(4,258,731
|
)
|
Cash:
|
|
|
|
|
|
|
|
|
|
|
|
|
At beginning of year
|
|
|
10,044,106
|
|
|
|
16,400,897
|
|
|
|
22,476,300
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At end of year
|
|
|
16,400,897
|
|
|
|
22,476,300
|
|
|
|
18,217,569
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-5
Vessel-Owning Subsidiaries
Combined Statements of Cash Flows (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
Supplemental Disclosure of Cash Flow Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
2008
|
|
2009
|
Cash paid during the year for:
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest, net of amounts capitalized
|
|
|
19,044,279
|
|
|
|
21,859,100
|
|
|
|
13,312,450
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to the combined financial statements.
F-6
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(1)
|
|
Description of Business
|
|
|
|
The combined Vessel-Owning Subsidiaries (the Company) are entities under common control
and include Shinyo Loyalty Limited, Shinyo Kannika Limited, Shinyo Navigator Limited,
Shinyo Ocean Limited, Shinyo Dream Limited, Shinyo Kieran Limited and Shinyo Saowalak
Limited, all of which are wholly-owned subsidiaries of Vanship Holdings Limited (the
Parent).
|
|
|
|
Details of the Vessel-Owning Subsidiaries are set out below:
|
|
|
|
|
|
|
|
|
|
|
|
Date of
|
|
|
Company
|
|
Country of incorporation
|
|
incorporation
|
|
Vessel name
|
Shinyo Loyalty Limited
|
|
Hong Kong
|
|
September 8, 2003
|
|
Shinyo Splendor
|
|
|
|
|
|
|
|
Shinyo Kannika Limited
|
|
Hong Kong
|
|
September 27, 2004
|
|
Shinyo Kannika
|
|
|
|
|
|
|
|
Shinyo Navigator Limited
|
|
Hong Kong
|
|
September 21, 2006
|
|
Shinyo Navigator
|
|
|
|
|
|
|
|
Shinyo Ocean Limited
|
|
Hong Kong
|
|
December 28, 2006
|
|
Shinyo Ocean
|
|
|
|
|
|
|
|
Shinyo Dream Limited
|
|
Hong Kong
|
|
July 20, 2007
|
|
C Dream
|
|
|
|
|
|
|
|
Shinyo Kieran Limited
|
|
British Virgin Islands
|
|
April 3, 2008
|
|
Shinyo Kieran#
|
|
|
|
|
|
|
|
Shinyo Saowalak Limited
|
|
British Virgin Islands
|
|
April 3, 2008
|
|
Shinyo Saowalak*
|
|
|
|
#
|
|
Shinyo Kieran is under construction and scheduled to be delivered in 2011.
|
|
*
|
|
Shinyo Saowalak was under construction during the year ended December 31, 2009 and was subsequently delivered in June 2010.
|
|
|
The Company engages in the business of ocean transportation of crude oil worldwide. The
principal activity of the Company is the ownership and chartering of double-hulled very
large crude oil carriers with capacity over 281,000 deadweight tonnage each.
|
|
|
|
The Company has outsourced substantially all its day-to-day operations to its related
party, Belindtha Marine Limited (Belindtha), a company controlled by a person related to
a director of the Vessel-Owning Subsidiaries. Belindtha then sub-contracted its
obligations under the outsourcing arrangement to Univan Ship Management Limited (Univan)
which assists in providing technical management services to the Company. Univan is
controlled by a director of the Vessel-Owning Subsidiaries. All expenses incurred by
Univan on behalf of the Company are charged to the Company based on the actual expenditures
incurred on its behalf.
|
|
|
|
The Company received time charter revenue pursuant to time charter agreements with
charterers and details are set out below:
|
|
|
|
|
|
|
|
|
|
Entity
|
|
Charterer
|
|
Daily charter rate
|
|
Period
|
Shinyo Loyalty Limited
|
|
Euronav Luxemborug S.A.
|
|
$
|
27,250
|
|
|
January 23, 2004 to May 18, 2007
|
|
|
|
|
|
|
|
|
|
|
|
Blue Light Chartering Inc.
|
|
$
|
39,500
|
|
|
May 18, 2007 to May 17, 2014
|
|
|
|
|
|
|
|
|
|
Shinyo Kannika Limited
|
|
Tankers International L.L.C.
|
|
Pool trade
|
|
|
December 27, 2004 to February 17, 2007
|
|
|
|
|
|
|
|
|
|
|
|
Dalian Ocean Shipping Company
|
|
$
|
39,000
|
|
|
February 17, 2007 to February 16, 2017
|
F-7
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(1)
|
|
Description of Business (continued)
|
|
|
|
|
|
|
|
|
|
Entity
|
|
Charterer
|
|
Daily charter rate
|
|
Period
|
Shinyo Navigator Limited
|
|
Dalian Ocean Shipping Company
|
|
$
|
43,800
|
|
|
December 18, 2006 to December 17, 2016
|
|
|
|
|
|
|
|
|
|
Shinyo Ocean Limited
|
|
Formosa Petrochemical Corporation
|
|
$
|
38,500
|
|
|
January 10, 2007 to January 9, 2017
|
|
|
|
|
|
|
|
|
|
Shinyo Dream Limited
|
|
Sanko Steamship Co., Ltd
|
|
$
|
28,900
|
|
|
September 7, 2007 to April 19, 2009
|
|
|
|
|
|
|
|
|
|
|
|
SK Shipping Company Limited
|
|
$
|
30,000
|
|
|
April 19, 2009 to April 18, 2019
|
|
Shinyo Kieran Limited
|
|
Dalian Ocean Shipping Company
|
|
$
|
49,388
|
|
|
15 years from date of delivery of the vessel
|
|
|
|
|
|
|
|
|
|
Shinyo Saowalak Limited
|
|
Dalian Ocean Shipping Company
|
|
$
|
49,388
|
|
|
15 years from June 17, 2010, being the date of delivery of the vessel
|
F-8
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(2)
|
|
Principles of Combination and Basis of Presentation
|
|
|
|
The accompanying combined financial statements include the assets, liabilities, revenues,
and expenses of the Vessel-Owning Subsidiaries for the periods presented. All intercompany
transactions and balances among the combined entities have been eliminated. The
Vessel-Owning Subsidiaries have been under the common control of the Parent since the
respective date of incorporation of these entities. These combined financial statements
include the accounts of the seven entities as set out in Note 1.
|
|
|
|
The Companys financial statements have been prepared in accordance with U.S. generally
accepted accounting principles (US GAAP).
|
|
|
|
The basis of accounting differs in certain material respects from that used in the
preparation of the statutory financial statements of each of the Vessel-Owning Subsidiaries
referred to above, which are prepared in accordance with the accounting principles of the
country of their domicile. The accompanying combined financial statements reflect necessary
adjustments to present them in conformity with US GAAP.
|
(3)
|
|
Summary of Significant Accounting Policies
|
|
(a)
|
|
Liquidity
|
|
|
|
|
As of December 31, 2009, the Company had a working capital deficit of $51,865,013.
These financial statements have been prepared assuming that each of the Vessel-Owning
Subsidiaries will continue as a going concern as the Parent has confirmed its intention
to provide continuing and unlimited financial support to the Company so as to enable
each of the Vessel-Owning Subsidiaries to meet its financial obligations as and when
they fall due.
|
|
|
(b)
|
|
Cash
|
|
|
|
|
Cash consists of interest-bearing deposits placed with banks. As of December 31, 2008
and 2009, there were no cash equivalents.
|
|
|
(c)
|
|
Restricted Cash
|
|
|
|
|
Restricted cash consists of retention and working capital accounts which must be
maintained in accordance with contractual bank loan arrangements. Cash deposited in
these accounts is restricted for investing as time deposits to earn interest income.
Cash deposited in the retention account is equal to the next quarterly loan repayment
amount while cash deposited in the working capital account represents minimum deposit
balance that must be maintained over the bank loan period. The Company classifies the
retention and working capital accounts as current assets and non-current assets,
respectively.
|
F-9
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(3)
|
|
Summary of Significant Accounting Policies (continued)
|
|
(d)
|
|
Trade Accounts Receivable
|
|
|
|
|
The Company generally requires customers to pay in advance for time charter hire. Such
advance payments are presented as accrued liabilities and other payables in the
accompanying combined balance sheet. Trade accounts receivable for revenues derived
from profit-sharing arrangement are recorded at the invoiced amount, do not bear
interest and reflect billings to charterers for hire, freight and demurrage. The
Company maintains an allowance for doubtful accounts for estimated losses inherent in
its trade accounts receivable portfolio. In establishing the required allowance,
management considers historical losses, current receivables aging, and existing
industry and national economic data. The Companys customers are in the crude oil
industry and are affected by demand and supply of crude oil worldwide. The Company has
been able to collect on all of its receivable balances, and accordingly, the Company
did not provide for any allowance for doubtful accounts at December 31, 2008 and 2009.
The Company does not have any off-balance sheet credit exposure related to its
customers.
|
|
|
(e)
|
|
Supplies
|
|
|
|
|
Supplies consisting of lubricating oil are stated at cost. Cost is determined on a
first-in, first-out method (FIFO).
|
|
|
(f)
|
|
Deferred Loan Costs
|
|
|
|
|
Fees incurred for obtaining new loans are deferred and amortized to interest expense
over the life of the related debt using the effective interest method. The Company
follows the guidance as prescribed by Financial Accounting Standards Board (FASB)
Accounting Standards Codification (ASC) 470-50,
Modifications and Extinguishments,
in
accounting for debt modification. A modification is considered substantial if the
present value of the cash flows under the terms of new debt is at least 10 percent
different from the present value of the remaining cash flows under the terms of the
original debt at the date of modification. When the loan is repaid or when the loan is
substantially modified, the existing unamortized fees are written-off in the period
debt repayment or substantial modification takes place. When the modification is not
considered substantial, the fees paid to creditors associated with the modification
and, the existing unamortized fees are amortized over the remaining term of the
modified loan using the effective interest method. The write-off of deferred loan
costs during the years ended December 31, 2007, 2008 and 2009 was $673,112, $Nil and
$Nil, respectively.
|
|
|
(g)
|
|
Vessels, net
|
|
|
|
|
A vessel is stated at cost, which consists of the contract price and delivery costs.
Subsequent expenditures for conversions and major overhauls (drydocking), which
consist of shipyard rental and electricity, direct labor costs, costs of spare parts
and lubricating oil, are also capitalized when they extend the life, increase the
earning capacity or improve the efficiency or safety of the vessel otherwise these
amounts are charged to expense as incurred.
|
F-10
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(3)
|
|
Summary of Significant Accounting Policies (continued)
|
|
(g)
|
|
Vessels, net (continued)
|
|
|
|
|
Depreciation on a vessel is calculated based on the straight-line method over the
estimated useful life of the vessel from date of acquisition, after taking into account
its estimated residual value. The vessels residual value is equal to the product of
its lightweight tonnage and estimated scrap rate. Management estimates the useful life
of the vessels from the respective date of acquisition and the estimated useful lives
of the vessels are set out below:
|
|
|
|
|
|
Vessel name
|
|
|
|
|
Shinyo Splendor
|
|
14 years
|
Shinyo Kannika
|
|
21 years
|
Shinyo Navigator
|
|
15 years
|
Shinyo Ocean
|
|
19 years
|
C Dream
|
|
17 years
|
|
|
|
The useful life of a vessel is evaluated on a regular basis to account for changes in
circumstances, including changes in regulatory restrictions. If restrictions place
limitations over the ability of a vessel to trade on a worldwide basis, its useful life
is adjusted to end at the date such regulations become effective.
|
|
|
|
|
The Company follows the deferral method of accounting for drydocking whereby actual
costs incurred are capitalized and are depreciated on a straight-line basis over the
period through the date the next drydocking becomes due. The vessels of the Company
are required by law to have an intermediate drydocking approximately every 30 months
and a special survey drydocking approximately every 60 months. Capitalized
intermediate drydocking costs and special survey drydocking costs are depreciated over
a period of 30 months and 60 months, respectively. If the anticipated date of
drydocking is changed from the scheduled date, the remaining undepreciated carrying
amount of the drydocking costs is adjusted to reflect the revised date.
|
|
|
|
|
Expenditure for routine repairs and maintenance of a vessel is expensed in the period
in which the expenditure is incurred.
|
|
|
(h)
|
|
Vessel under Construction
|
|
|
|
|
A vessel under construction is stated at cost. Interest expense incurred related to
the construction of a vessel is capitalized. The capitalization of interest expense as
part of the cost of a qualifying asset commences when expenditures for the asset have
been made, activities that are necessary to get the asset ready for its intended use
are in progress and interest cost is being incurred. The capitalization period ends
when the asset is substantially completed and ready for its intended use.
|
|
|
|
|
No depreciation is provided in respect of the vessel under construction.
|
F-11
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(3)
|
|
Summary of Significant Accounting Policies (continued)
|
|
(i)
|
|
Long-Lived Assets
|
|
|
|
|
Long-lived assets (including vessels or vessels under construction) are reviewed for
impairment whenever events or changes in circumstances indicate that the carrying
amount of an asset may not be recoverable. Recoverability of an asset is measured by a
comparison of the carrying amount of the asset, including capitalized drydocking costs
or interest expenses, to the estimated undiscounted cash flows, an impairment charge
will be recognized by the amount that the carrying amount of the asset exceeds its
estimated fair value.
|
|
|
(j)
|
|
Deferred Revenue
|
|
|
|
|
The Company recorded the liability arising from a below market value time charter
assumed upon acquisition of a business that included a vessel under an existing
charter. The transfer of the liability at the date of acquisition, being the
difference between the market charter rate and assumed charter rate is discounted using
the Companys weighted average cost of capital, was recorded as deferred revenue and
amortized over the remaining period of time charter, which ended on March 31, 2009.
|
|
|
(k)
|
|
Derivative Instruments
|
|
|
|
|
Derivative financial instruments are recognized on the balance sheets at their fair
values as either assets or liabilities. Changes in the fair value of derivatives that
are designated and qualify as cash flow hedges, and that are highly effective, are
recognized in other comprehensive income. If derivative transactions do not meet the
criteria to qualify for hedge accounting, any changes in fair value are recognized
immediately in the statements of operations.
|
|
|
|
|
During the years ended December 31, 2007 and 2008, the Company entered into
certain interest rate swap agreements that did not qualify as cash flow hedges. As
such, the fair value of such agreements and changes therein are recognized in the
balance sheets and statements of operations, respectively.
|
|
|
(l)
|
|
Contingencies
|
|
|
|
|
In the normal course of business, the Company is subject to loss contingencies, such as
legal proceedings and claims arising out of its business. An accrual for a loss
contingency is recognized when it is probable that a liability has been incurred and
the amount of the loss can be reasonably estimated.
|
F-12
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(3)
|
|
Summary of Significant Accounting Policies (continued)
|
|
(m)
|
|
Revenue Recognition and Related Expenses
|
|
|
|
|
The Company generates its revenues from time charter agreements pursuant to which
customers pay fixed amounts for the use of the vessel and its crew for a fixed term.
Revenues are recognized when the collectability has been reasonably assured. Time
charter revenues are recorded over the term of the charter (except for periods during
which the vessel is drydocked or otherwise off-hire) as the service is provided. In
addition, under certain time charter agreements the Company is entitled to share
profits generated by the charterers. Profit-sharing revenues are calculated at an
agreed percentage of the excess of the charterers average daily income (calculated on
a quarterly or half-yearly basis) over an agreed amount and accounted for on an
accruals basis based on actual amounts. The net income of a pool trade arrangement is
shared among all participants based on the points awarded to each participant which are
dependent on the age, design and other performance characteristics of the vessel of
each participant. Vessel operating costs are expensed as incurred.
|
|
|
|
|
Advances received for time charter revenue are recorded as receipts in advance under
accrued liabilities and other payables, and are recognized as revenue as services are
rendered.
|
|
|
(n)
|
|
Commissions
|
|
|
|
|
Brokerage and charter hire commissions paid to third parties are expensed in the same
period as revenues are recognized. Except for Shinyo Ocean Limited, commissions are
calculated at 1.00% to 3.75% on time charter revenue. Commission for Shinyo Ocean
Limited is calculated at a rate of $100 per hire day.
|
|
|
(o)
|
|
Income and Other Taxes
|
|
|
|
|
Under the laws of the countries of incorporation of the Vessel-Owning Subsidiaries
and/or the registration of their vessels, the Company is not subject to tax on
international shipping income. However, it is subject to registration and tonnage
taxes, which are charged by the country where the vessel is registered at a fixed rate
based on the tonnage of the vessel. Registration and tonnage taxes have been included
in vessel operating expenses in the accompanying statements of operations.
|
|
|
|
|
Effective from January 1, 2007, the Company adopted the provisions on accounting for
uncertainty in income taxes prescribed by ASC 740,
Income Taxes
. This standard
clarifies the accounting for uncertainty in income taxes recognized in an enterprises
financial statements and prescribes a threshold of more-likely-than-not for recognition
of tax benefits of uncertain tax positions taken or expected to be taken in a tax
return. ASC 740 also provides related guidance on measurement, derecognition,
classification, interest and penalties, and disclosure. As of January 1, 2007 and for
the years ended December 31, 2007, 2008 and 2009, the Company has no unrecognized tax
benefits which would favorably affect the effective income tax rate in future periods
and does not believe there will be any significant increases or decreases within the
next twelve months. The Company has elected to classify interest and penalties related
to unrecognized tax benefits, if and when required, as part of income tax expenses in
the statements of operations. No interest or penalties have been accrued at the date
of adoption.
|
F-13
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(3)
|
|
Summary of Significant Accounting Policies (continued)
|
|
(o)
|
|
Income and Other Taxes (continued)
|
|
|
|
|
According to the Inland Revenue Ordinance of Hong Kong, the statute of limitations is
seven years (i.e. calendar year 2003 or from respective date of incorporation of the
combined entities to calendar year 2009) if the underpayment of taxes is due to
omission or errors made by either the taxpayer or the withholding agent. The statute
of limitations will be extended to ten years in case of tax evasion (i.e. calendar year
2000 or from respective date of incorporation of the combined entities to calendar year
2009).
|
|
|
|
|
According to the Internal Revenue Code of the United States of America, the statute of
limitations is three years (i.e. calendar year 2007 or from respective date of
incorporation of the combined entities to calendar year 2009) if the underpayment of
taxes is due to omission or errors made by either the taxpayer or withholding agent.
There is no statute of limitations in the case of tax evasion.
|
|
|
(p)
|
|
Use of Estimates
|
|
|
|
|
The preparation of the financial statements requires management of the Company to make
a number of estimates and assumptions relating to the reported amounts of assets and
liabilities and the disclosure of contingent assets and liabilities at the date of
financial statements and the reported amounts of revenues and expenses during the
reporting period. Significant items subject to such estimates and assumptions include
the estimated useful lives of the vessels (including drydocking costs), residual values
and recovery of the carrying amounts of the vessels. Actual results could differ from
those estimates.
|
|
|
(q)
|
|
Foreign Currency Transactions
|
|
|
|
|
The Companys functional and reporting currency is United States (US) dollar because
the Companys vessels operate in international shipping markets, where most
transactions are denominated in US dollar. Furthermore, the Company incurs bank debts,
pays salaries and wages and certain other expenditures such as fuel costs, lubricants,
insurance costs, all in US dollars.
|
|
|
|
|
Transactions denominated in currencies other than US dollars are translated into US
dollars at the exchange rates prevailing at the dates of transactions. Monetary assets
and liabilities denominated in currencies other than US dollars are translated at
the exchange rates prevailing at the balance sheet dates. During the years ended
December 31, 2007, 2008 and 2009, substantially all of the Companys transactions were
denominated in US dollars and the Company did not have significant foreign currency
transaction gains or losses.
|
F-14
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(3)
|
|
Summary of Significant Accounting Policies (continued)
|
|
(r)
|
|
Fair Value Measurements
|
|
|
|
|
On January 1, 2008, the Company adopted ASC Topic 820 for fair value measurements of
financial assets and financial liabilities and for fair value measurements of
nonfinancial items that are recognized or disclosed at fair value in the financial
statements on a recurring basis. On January 1, 2009, the Company adopted the
provisions of ASC 820 for fair value measurements of nonfinancial assets and
nonfinancial liabilities that are recognized or disclosed at fair value in the
financial statements on a nonrecurring basis. ASC Topic 820 establishes a fair value
hierarchy that prioritizes the inputs to valuation techniques used to measure fair
value. The hierarchy gives the highest priority to unadjusted quoted prices in active
markets for identical assets or liabilities (Level 1 measurements) and the lowest
priority to measurements involving significant unobservable inputs (Level 3
measurements). The three levels of the fair value hierarchy are as follows:
|
|
|
|
Level 1 inputs are quoted prices (unadjusted) in active markets for
identical assets or liabilities that the Company has the ability to access at the
measurement date. The Company did not have any financial instruments under this
category as of and during the years ended December 31, 2008 or 2009.
|
|
|
|
|
Level 2 inputs are inputs other than quoted prices included within
Level 1 that are observable for the asset or liability, either directly or
indirectly. Financial instruments in this category include interest rate swaps.
|
|
|
|
|
Level 3 inputs are unobservable inputs for the asset or liability.
The Company did not have any financial instruments under this category as of and
during the years ended December 31, 2008 or 2009.
|
|
|
|
This hierarchy requires the Company to use observable market data, when available, and
to minimize the use of unobservable inputs when determining fair value. See additional
information in Note 18.
|
|
(s)
|
|
Recently Issued Accounting Standards
|
|
|
|
|
In June 2009, the FASB issued a new accounting standard named
The FASB Accounting
Standards Codification and the Hierarchy of Generally Accepted Accounting Principles.
This pronouncement, among other things, identified the previously issued accounting
standards that were considered authoritative generally accepted accounting principles
in the U.S. and replaced all previously issued accounting pronouncements of the FASB,
and its predecessor rule-making bodies, with the ASC. This standard was effective for
reporting periods ended after September 15, 2009. The adoption of this standard did
not have an effect on the Companys results of operations and financial position. As a
result of adopting this standard, the Companys references to GAAP standards have been
changed to refer to topics, subtopics, sections or subsections of the ASC, as
appropriate.
|
F-15
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(3)
|
|
Summary of Significant Accounting Policies (continued)
|
|
(s)
|
|
Recently Issued Accounting Standards (continued)
|
|
|
|
|
In December 2007, the FASB revised the accounting standard for consolidation. The new
standard establishes accounting and reporting standards for the noncontrolling interest
in a subsidiary and for the deconsolidation of a subsidiary. This standard was
effective for fiscal years beginning after December 15, 2008. The adoption of this
standard has no material impact on the combined financial statements.
|
|
|
|
|
In December 2007, the FASB revised the accounting standard for business combinations.
The revised standard establishes principles and requirements for how the acquirer of a
business recognizes and measures in its financial statements the identifiable assets
acquired, the liabilities assumed, and any noncontrolling interest in the acquiree.
This standard also provides guidance for recognizing and measuring the goodwill
acquired in the business combination and determines what information to disclose to
enable users of the financial statements to evaluate the nature and financial effects
of the business combination. This standard was effective for fiscal years beginning
after December 15, 2008. The adoption of this standard has no material impact on the
combined financial statements.
|
|
|
|
|
In October 2009, the FASB issued ASU 2009-13, Revenue Recognition (Topic 605):
Multiple-Deliverable Revenue Arrangements. ASU 2009-13 amends ASC 650-25 to eliminate
the requirement that all undelivered elements have vendor specific objective evidence
of selling price (VSOE) or third party evidence of selling price (TPE) before an entity
can recognize the portion of an overall arrangement fee that is attributable to items
that already have been delivered. In the absence of VSOE and TPE for one or more
delivered or undelivered elements in a multiple-element arrangement, entities will be
required to estimate the selling prices of those elements. The overall arrangement fee
will be allocated to each element (both delivered and undelivered items) based on their
relative selling prices, regardless of whether those selling prices are evidenced by
VSOE or TPE or are based on the entitys estimated selling price. Application of the
residual method of allocating an overall arrangement fee between delivered and
undelivered elements will no longer be permitted upon adoption of ASU 2009-13.
Additionally, the new guidance will require entities to disclose more information about
their multiple-element revenue arrangements. ASU 2009-13 is effective prospectively
for revenue arrangements entered into or materially modified in fiscal years beginning
on or after June 15, 2010. Early adoption is permitted. The Company expects that the
adoption of ASU 2009-13 will not have a material impact on its combined financial
statements.
|
F-16
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(4)
|
|
Acquisition
|
|
|
|
On September 7, 2007, Shinyo Dream Limited acquired the vessel and vessel related business
(the C Dream Operation) from Elite Strategic Limited, a 50% jointly-controlled entity of
the Parent, at a cash consideration of $86,000,000. This purchase transaction was financed
entirely by loans from bank and related party.
|
|
|
|
The excess of the acquisition cost over the carrying amount of the net assets of the C Dream
Operation was $36,597,521. As Shinyo Dream Limited is controlled by the Parent, 50% of the
excess, representing the portion previously controlled by the Parent, amounting to
$18,298,761 was accounted for as deemed distribution to the Parent. The remaining
$67,701,239 represented purchase consideration for the acquisition of the C Dream Operation.
|
|
|
|
The following table summarizes the estimated fair values of the assets acquired and
liabilities assumed at the date of acquisition of the C Dream Operation:
|
|
|
|
|
|
Vessel
|
|
|
86,201,240
|
|
Deferred revenue (Note 9)
|
|
|
(7,749,960
|
)
|
Fair value of net assets acquired
|
|
|
78,451,280
|
|
Satisfied by cash consideration
|
|
|
(67,701,239
|
)
|
|
|
|
|
|
Negative goodwill
|
|
|
10,750,041
|
|
Amount applied to reduce value allocated to the vessel
|
|
|
(10,750,041
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
2009
|
Vessels
|
|
|
|
|
|
|
|
|
Cost
|
|
|
433,587,897
|
|
|
|
439,426,618
|
|
Accumulated depreciation
|
|
|
(58,148,654
|
)
|
|
|
(80,092,194
|
)
|
|
|
|
|
|
|
|
|
|
Vessels, net
|
|
|
375,439,243
|
|
|
|
359,334,424
|
|
|
|
|
|
|
|
|
|
|
|
|
The vessels are mortgaged as described in Note 7.
|
|
|
|
As of December 31, 2008 and 2009, undepreciated carrying amount of the drydocking costs was
$550,838 and $5,523,401, respectively.
|
|
|
|
For the years ended December 31, 2007, 2008 and 2009, $325,588, $390,055 and $1,203,936 of
drydocking costs were expensed as depreciation, respectively.
|
|
|
|
For the year ended December 31, 2007, the Company purchased two vessels, namely Shinyo Ocean
and C Dream (see Note 4), at considerations of $99,000,000 and $67,701,239 respectively.
|
|
|
|
The Company has agreed to a mutual sale provision with the charterer of Shinyo Ocean whereby
either party can request the sale of the vessel provided that a price can be obtained that is
at least $3,000,000 greater than the agreed depreciated value of the vessel as set forth in
the charter agreement.
|
F-17
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(6)
|
|
Vessels Under Construction
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2009
|
|
At beginning of the year
|
|
|
|
|
|
|
165,421,969
|
|
Additions for the year
|
|
|
161,037,600
|
|
|
|
|
|
Capitalization of interest and financing costs
|
|
|
4,384,369
|
|
|
|
9,479,103
|
|
|
|
|
|
|
|
|
At end of the year
|
|
|
165,421,969
|
|
|
|
174,901,072
|
|
|
|
|
|
|
|
|
|
|
On April 7, 2008, the Company entered into two shipbuilding contracts with a constructor to
build Shinyo Kieran and Shinyo Saowalak at a contract price of $134,198,000 and $134,198,000
respectively. Progress payments are scheduled based on the estimated stage of completion of
the construction. Shinyo Saowalak has been subsequently delivered on June 17, 2010 and
Shinyo Kieran is under construction and scheduled to be delivered on June 30, 2011.
|
|
|
|
The scheduled progress payments for the vessels are as follows:
|
|
|
|
|
|
|
|
|
|
Year ended/ending December 31,
|
|
|
|
|
|
|
|
|
2008
|
|
|
107,358,400
|
|
|
|
|
|
2009
|
|
|
53,679,200
|
|
|
|
|
|
2010
|
|
|
53,679,200
|
|
|
|
|
|
2011
|
|
|
53,679,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
268,396,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
During the year ended December 31, 2008, the Company prepaid the 2009 scheduled progress
payments of $53,679,200.
|
F-18
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
|
|
|
|
|
|
|
|
|
|
|
|
|
Lender/period
|
|
Note
|
|
2008
|
|
2009
|
HSH Nordbank AG
|
|
|
|
|
|
|
|
|
|
|
|
|
- December 13, 2006 to December 12, 2016 #
|
|
|
a
|
|
|
|
68,375,000
|
|
|
|
60,375,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DVB Group Merchant Bank (Asia) Ltd, BNP Paribas,
Credit Suisse and Deutsche Schiffsbank AG
|
|
|
|
|
|
|
|
|
|
|
|
|
- September 7, 2007 to September 6, 2017
|
|
|
b
|
|
|
|
60,700,000
|
|
|
|
57,400,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DVB Group Merchant Bank (Asia) Ltd, Credit Suisse
and Deutsche Schiffsbank AG
|
|
|
|
|
|
|
|
|
|
|
|
|
- January 8, 2007 to January 7, 2017
|
|
|
c
|
|
|
|
75,550,000
|
|
|
|
63,782,000
|
|
- January 8, 2007 to November 15, 2016
|
|
|
d
|
|
|
|
72,934,000
|
|
|
|
63,434,000
|
|
- May 21, 2007 to May 20, 2014
|
|
|
e
|
|
|
|
51,764,836
|
|
|
|
44,540,848
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas, The Bank of Nova Scotia Asia Limited,
|
|
|
|
|
|
|
|
|
|
|
|
|
Deutsche Schiffsbank AG,
|
|
|
|
|
|
|
|
|
|
|
|
|
DVB Group Merchant Bank (Asia) Ltd and
Scotiabank (Hong Kong) Limited
|
|
|
|
|
|
|
|
|
|
|
|
|
- August 20, 2008 to September 30, 2020 #
|
|
|
f
|
|
|
|
53,679,200
|
|
|
|
53,679,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas, The Bank of Nova Scotia Asia Limited,
|
|
|
|
|
|
|
|
|
|
|
|
|
Deutsche Schiffsbank AG,
|
|
|
|
|
|
|
|
|
|
|
|
|
DVB Group Merchant Bank (Asia) Ltd and
Scotiabank (Hong Kong) Limited
|
|
|
|
|
|
|
|
|
|
|
|
|
- August 20, 2008 to September 30, 2021 #
|
|
|
g
|
|
|
|
53,679,200
|
|
|
|
53,679,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
436,682,236
|
|
|
|
396,890,248
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Representing:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current portion
|
|
|
|
|
|
|
30,982,988
|
|
|
|
51,979,567
|
|
Non-current portion
|
|
|
|
|
|
|
405,699,248
|
|
|
|
344,910,681
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
436,682,236
|
|
|
|
396,890,248
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
#
|
|
The Company entered into interest rate swap arrangements to mitigate the interest
rate risk related to these bank loans (see Note 10).
|
|
(a)
|
|
On December 13, 2006, a loan of $82,875,000 was obtained from HSH Nordbank AG.
The loan is secured by Shinyo Navigator and is repayable by forty quarterly
installments. Interest is charged at LIBOR plus 1.00% per annum (4.2% and 1.5% as of
December 31, 2008 and 2009, respectively). The Company entered into an interest rate
swap arrangement to mitigate the interest rate risk related to this bank loan (see Note
10). The annual interest rate, after taking into account for the interest rate swap, as
of December 31, 2008 and 2009 was 5.95% and 5.95%, respectively.
|
F-19
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(7)
|
|
Long-term Bank Loans (continued)
|
|
(b)
|
|
On September 7, 2007, a syndicated loan of $65,000,000 was obtained from DVB
Group Merchant Bank (Asia) Ltd, BNP Paribas, Credit Suisse and Deutsche Schiffsbank AG.
The loan is secured by C Dream and is repayable by thirty-nine quarterly installments
and a balloon payment to be paid together with the thirty-ninth installment. Interest
is charged at LIBOR plus 0.95% per annum (4.16% and 1.35% as of December 31, 2008 and
2009, respectively).
|
|
|
(c)
|
|
On January 8, 2007, a syndicated loan of $86,800,000 was obtained from DVB Group
Merchant Bank (Asia) Ltd, Credit Suisse and Deutsche Schiffsbank AG. The loan is
secured by Shinyo Ocean and is repayable by forty quarterly installments and a balloon
payment to be paid together with the fortieth installment. Interest is charged at LIBOR
plus 0.98% per annum (4.18% and 1.48% as of December 31, 2008 and 2009, respectively).
|
|
|
(d)
|
|
On January 8, 2007, a bank loan obtained in previous years was repaid with a
portion of the proceeds of a new bank loan in the amount of $86,800,000 obtained from
DVB Group Merchant Bank (Asia) Ltd, Credit Suisse and Deutsche Schiffsbank AG. The loan
is secured by Shinyo Kannika and is repayable by forty quarterly installments and
a balloon payment to be paid together with the fortieth installment. The loan
carries interest at LIBOR plus 0.98% per annum (2.91% and 1.43% as of December 31, 2008
and 2009, respectively).
|
|
|
(e)
|
|
On May 21, 2007, a bank loan obtained in previous years was repaid with a portion
of the proceeds of a new bank loan in the amount of $62,000,000 obtained from DVB Group
Merchant Bank (Asia) Ltd, Credit Suisse and Deutsche Schiffsbank AG. In connection with
the refinancing of the bank loan, a cash rebate of $383,333 was received by the Company.
The cash rebate is accounted for as a loan premium and is amortized to interest
expenses over the period of the bank loan using the effective interest method. As of
December 31, 2008 and 2009, unamortized loan premium was $264,836 and $190,848,
respectively.
|
|
|
|
|
The loan is secured by Shinyo Splendor and is repayable by twenty-eight quarterly
installments. Of the total bank loan amount of $62,000,000, $50,000,000 and
$12,000,000 carries interest at LIBOR plus 0.8% per annum and LIBOR plus 1.62% per
annum, respectively (weighted average interest rate as of December 31, 2008 and 2009
was 1.82% and 1.37%, respectively).
|
|
|
(f)
|
|
On August 20, 2008, a loan facility of $107,400,000 was obtained from BNP
Paribas, The Bank of Nova Scotia Asia Limited, Deutsche Schiffsbank AG, DVB Group
Merchant Bank (Asia) Ltd and Scotiabank (Hong Kong) Limited to finance the construction
of Shinyo Saowalak. The balance of the loan facility as of December 31, 2008 and 2009
was $53,679,200 and $53,679,200, respectively.
|
|
|
|
|
The loan is secured by Shinyo Saowalak, a vessel under construction and is repayable by
forty quarterly installments together with a balloon payment in the fortieth
installment and the first repayment installment shall be made on the date falling 3
months after the actual delivery date of the vessel under construction. Interest is
charged at LIBOR plus 1.80% per annum (4.63% and 3.91% as of December 31, 2008 and
2009, respectively).
|
F-20
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(7)
|
|
Long-term Bank Loans (continued)
|
|
|
|
The Company entered into interest rate swap arrangements to mitigate the interest rate
risk related to this bank loan (see Note 10). The annual interest rate, after taking
into account for the interest rate swaps, as of December 31, 2008 and 2009 was 5.96%
and 5.96%, respectively.
|
|
|
(g)
|
|
On August 20, 2008, a loan facility of $107,400,000 was obtained from BNP
Paribas, The Bank of Nova Scotia Asia Limited, Deutsche Schiffsbank AG, DVB Group
Merchant Bank (Asia) Ltd and Scotiabank (Hong Kong) Limited to finance the construction
of Shinyo Kieran. The balance of the loan facility as of December 31, 2008 and 2009 was
$53,679,200 and $53,679,200, respectively.
|
|
|
|
|
The loan is secured by Shinyo Kieran, a vessel under construction and is repayable by
forty quarterly installments together with a balloon payment in the fortieth
installment and the first repayment installment shall be made on the date falling 3
months after the actual delivery date of the vessel under construction. Interest is
charged at LIBOR plus 1.80% per annum (4.63% and 3.94% as of December 31, 2008 and
2009, respectively).
|
|
|
|
|
The Company entered into interest rate swap arrangements to mitigate the interest rate
risk related to this bank loan (see Note 10). The annual interest rate, after taking
into account for the interest rate swaps, as of December 31, 2008 and 2009 was 5.99%
and 5.99%, respectively.
|
|
|
The principal repayments for each of the years subsequent to December 31, 2009 are as follows
assuming that payments for the loans secured by Shinyo Saowalak and Shinyo Kieran begin in
the third quarter of 2010 and 2011 respectively:
|
|
|
|
|
|
Year ending December 31
|
|
|
|
|
2010
|
|
|
51,905,579
|
|
2011
|
|
|
37,379,088
|
|
2012
|
|
|
39,772,118
|
|
2013
|
|
|
41,547,118
|
|
2014
|
|
|
39,984,568
|
|
2015
|
|
|
25,563,979
|
|
2016
|
|
|
38,331,701
|
|
2017
|
|
|
43,796,562
|
|
2018
|
|
|
4,539,562
|
|
2019
|
|
|
4,539,562
|
|
2020
|
|
|
35,804,672
|
|
2021
|
|
|
33,534,891
|
|
|
|
|
|
|
|
|
|
396,699,400
|
|
|
|
|
|
|
F-21
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(7)
|
|
Long-term Bank Loans (continued)
|
|
|
As of December 31, 2008 and 2009, bank loans are secured as follows:
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
2009
|
Secured by:
|
|
|
|
|
|
|
|
|
Restricted cash
|
|
|
9,458,480
|
|
|
|
9,139,807
|
|
Vessels
|
|
|
375,439,243
|
|
|
|
359,334,424
|
|
Vessel under construction
|
|
|
165,421,969
|
|
|
|
174,901,072
|
|
|
|
|
|
|
|
|
|
|
|
|
|
550,319,692
|
|
|
|
543,375,303
|
|
|
|
|
|
|
|
|
|
|
|
|
All of the bank loans are also guaranteed by the Parent as of December 31, 2008 and 2009.
|
|
|
The Companys bank facilities are subject to the fulfilment of covenants which require the
fair value of the Companys vessels to exceed a certain percentage of the outstanding loan
balance. Should there be any shortfall, the banks have the right to require the Company to
either prepay to the banks a portion of the outstanding loan balance which amounts to such
shortfall or to provide additional security in the form of restricted cash deposits which
amount to the shortfall. As of December 31, 2009, the Company had breached the covenant of a
bank loan amounting to $60,375,000, which required the fair value of Shinyo Navigator to be
higher than 110% of the outstanding loan balance. The shortfall of $18,662,550 as of
December 31, 2009 which, upon the request from the bank, has to be prepaid by the Company or
secured by additional restricted cash, was classified as a current
liability in the combined balance sheet as of December 31, 2009 as the Company did not have an
unconditional right at the balance sheet date to defer settlement for at least the next
twelve months as a result of the breach of that covenant. Subsequent to December 31, 2009,
the Company has deposited $8,000,000 with the bank as additional security for the loan and
the Company has obtained a waiver from strict compliance with the covenant up to December 31,
2010. The Parent has confirmed its intention to
provide continuing and unlimited financial support to the Company so as to enable each of the
Vessel-Owning Subsidiaries to meet its financial obligations as and when they fall due,
including any prepayment or additional security demanded by the bank.
|
F-22
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(8)
|
|
Accrued Liabilities and Other Payables
|
|
|
Accrued liabilities and other payables as of December 31, 2008 and 2009 consist of the
following:
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
2009
|
Accrued vessel operating expenses
|
|
|
2,552,729
|
|
|
|
3,682,801
|
|
Bank loan interest payable
|
|
|
2,199,770
|
|
|
|
835,298
|
|
Commission payable
|
|
|
31,331
|
|
|
|
35,480
|
|
Other taxes payable
|
|
|
617,550
|
|
|
|
1,004,407
|
|
Receipts in advance
|
|
|
3,228,995
|
|
|
|
3,453,326
|
|
Wages payable
|
|
|
453,628
|
|
|
|
435,430
|
|
Other payables
|
|
|
930,251
|
|
|
|
911,323
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,014,254
|
|
|
|
10,358,065
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
2009
|
At January 1
|
|
|
6,178,290
|
|
|
|
1,232,948
|
|
Amortization
|
|
|
(4,945,342
|
)
|
|
|
(1,232,948
|
)
|
|
|
|
|
|
|
|
|
|
At December 31
|
|
|
1,232,948
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(10)
|
|
Interest Rate Swap Arrangements
|
|
|
Outstanding swap agreements involve both the risk of a counterparty not performing under the
terms of the contract and the risk associated with changes in market value. The Company
monitors its positions, the credit ratings of counterparties and the level of contracts it
enters into with any one party. The Company has a policy of entering into contracts with
counterparties that meet stringent qualifications, and given the high level of credit quality
of the counterparties, the Company does not believe it is necessary to obtain collateral
arrangements.
|
F-23
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(10)
|
|
Interest Rate Swap Arrangements (continued)
|
|
|
During the years ended December 31, 2007 and 2008, the Company entered into certain interest
rate swap arrangements with financial institutions, with details as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value of swap at
|
|
|
|
|
|
|
|
|
|
|
Pay fixed
|
|
Receive
|
|
(Assets/(liabilities))
|
|
|
|
|
|
|
Notional
|
|
rate per
|
|
floating rate
|
|
December
|
|
December
|
Counterparty
|
|
Start date
|
|
Maturity date
|
|
Amount
|
|
annum
|
|
per annum
|
|
31, 2008
|
|
31, 2009
|
|
HSH Nordbank AG
|
|
January 10, 2007
|
|
December 13, 2016
|
|
|
82,875,000
|
|
|
|
4.95
|
%
|
|
3-month LIBOR
|
|
|
(7,714,719
|
)
|
|
|
(4,952,189
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas
|
|
September 18, 2008
|
|
December 30, 2018
|
|
|
20,129,700
|
|
|
|
4.16
|
%
|
|
3-month LIBOR
|
|
|
(2,449,770
|
)
|
|
|
(872,367
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Bank of Nova Scotia
|
|
September 18, 2008
|
|
September 28, 2018
|
|
|
20,129,700
|
|
|
|
4.16
|
%
|
|
3-month LIBOR
|
|
|
(2,540,038
|
)
|
|
|
(876,254
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DVB Bank S.E.
|
|
September 22, 2008
|
|
September 28, 2018
|
|
|
13,419,800
|
|
|
|
4.16
|
%
|
|
3-month LIBOR
|
|
|
(1,749,459
|
)
|
|
|
(599,909
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas
|
|
September 18, 2008
|
|
December 30, 2018
|
|
|
20,129,700
|
|
|
|
4.19
|
%
|
|
3-month LIBOR
|
|
|
(2,614,461
|
)
|
|
|
(900,670
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Bank of Nova Scotia
|
|
September 18, 2008
|
|
September 28, 2018
|
|
|
20,129,700
|
|
|
|
4.19
|
%
|
|
3-month LIBOR
|
|
|
(2,547,316
|
)
|
|
|
(905,109
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DVB Bank S.E.
|
|
September 18, 2008
|
|
September 28, 2018
|
|
|
13,419,800
|
|
|
|
4.19
|
%
|
|
3-month LIBOR
|
|
|
(1,871,594
|
)
|
|
|
(622,905
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
(21,487,357
|
)
|
|
|
(9,729,403
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-24
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(10)
|
|
Interest Rate Swap Arrangements (continued)
|
|
|
The interest rate swaps are used to manage the interest rate risks arising from the
Companys long-term bank loans detailed in Note 7. The fair value changes of $19,256,569
(loss) and $11,757,954 (gain) from the interest rate swap arrangements as of December 31,
2008 and 2009, respectively, are recognized in the statements of operations and the related
liabilities are shown under derivative financial instruments in the balance sheets. The
fair values of the interest rate swaps are determined using pricing models developed based
on the LIBOR swap rate and other observable market data.
|
(11)
|
|
Shareholders Equity
|
|
|
Paid-in capital represents the combined share capital of the Vessel-Owning Subsidiaries.
|
|
|
The total amount of dividends paid to the Parent was $9,500,000, $16,000,000 and $4,000,000
for the years ended December 31, 2007, 2008 and 2009, respectively. In addition, as a
result of the acquisition of the C Dream Operation in 2007, $18,298,761 was accounted for as
deemed distribution to the Parent (see Note 4).
|
|
|
The Company generates its revenue from time charter agreements. The Companys revenue can
be analyzed as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
2008
|
|
2009
|
Time charter
|
|
|
56,556,874
|
|
|
|
74,350,029
|
|
|
|
65,650,404
|
|
Profit-sharing arising from
time charter
|
|
|
3,219,207
|
|
|
|
16,053,387
|
|
|
|
|
|
Pool trade
|
|
|
5,632,038
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
65,408,119
|
|
|
|
90,403,416
|
|
|
|
65,650,404
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(13)
|
|
Vessel Operating Expenses
|
|
|
Vessel operating expenses for the years ended December 31, 2007, 2008 and 2009 consist of
the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
2008
|
|
2009
|
Bunker expenses
|
|
|
220,743
|
|
|
|
4,937
|
|
|
|
901,985
|
|
Crew wages and allowances
|
|
|
3,004,227
|
|
|
|
4,708,084
|
|
|
|
5,093,533
|
|
Crew expenses
|
|
|
679,939
|
|
|
|
769,165
|
|
|
|
741,701
|
|
Insurance expenses
|
|
|
2,034,851
|
|
|
|
2,472,941
|
|
|
|
3,089,055
|
|
Lubricating oil expenses
|
|
|
1,876,839
|
|
|
|
2,430,820
|
|
|
|
2,241,020
|
|
Repair and maintenance
|
|
|
1,226,086
|
|
|
|
1,548,667
|
|
|
|
1,148,291
|
|
Spare parts expenses
|
|
|
609,992
|
|
|
|
1,020,756
|
|
|
|
1,079,461
|
|
Stores expenses
|
|
|
603,392
|
|
|
|
675,704
|
|
|
|
727,338
|
|
Other taxes
|
|
|
104,623
|
|
|
|
349,658
|
|
|
|
386,857
|
|
Other operating expenses
|
|
|
723,528
|
|
|
|
1,054,039
|
|
|
|
1,481,342
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,084,220
|
|
|
|
15,034,771
|
|
|
|
16,890,583
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-25
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
|
|
In March 2007, Shinyo Loyalty Limited terminated the existing time charter agreement prior to
its term and entered into a new time charter agreement with another charterer in order to
benefit from a higher fixed daily charter rate. As a result of the early termination, an
early termination charge of $20,783,562 as agreed between the former charterer and Shinyo
Loyalty Limited, was paid by Shinyo Loyalty Limited to the former charterer during the year
ended December 31, 2007. Upon the settlement of the early termination charge, there was no
contingent obligation to Shinyo Loyalty Limited associated with the termination.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
2008
|
|
2009
|
Bank loan interest
|
|
|
19,259,688
|
|
|
|
19,980,293
|
|
|
|
17,120,229
|
|
Interest on loans from a related party
|
|
|
3,088,080
|
|
|
|
5,922,293
|
|
|
|
5,559,764
|
|
Amortization of deferred loan costs
|
|
|
96,683
|
|
|
|
171,193
|
|
|
|
324,348
|
|
Amortization of loan premium
|
|
|
(28,037
|
)
|
|
|
(73,988
|
)
|
|
|
(73,988
|
)
|
Others
|
|
|
221,357
|
|
|
|
173,231
|
|
|
|
96,986
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22,637,771
|
|
|
|
26,173,022
|
|
|
|
23,027,339
|
|
Less: Interests and financing costs
capitalized as vessels
under construction
|
|
|
|
|
|
|
(4,384,369
|
)
|
|
|
(9,479,103
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22,637,771
|
|
|
|
21,788,653
|
|
|
|
13,548,236
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(16)
|
|
Related Party Transactions
|
|
|
|
Name of party
|
|
Relationship
|
Vanship Holdings Limited (Vanship)
|
|
The Parent of the Vessel-Owning Subsidiaries
|
|
|
|
Belindtha Marine Limited (Belindtha)
|
|
A company controlled by a shareholder of
Vanship
|
|
|
|
China Sea Maritime Ltd. (China Sea)
|
|
A company controlled by a director of the
Vessel-Owning
Subsidiaries
|
|
|
|
Shinyo Maritime Corporation (Shinyo
Maritime)
|
|
A company controlled by a director of the
Vessel-Owning
Subsidiaries
|
|
|
|
Univan Ship Management Limited (Univan)
|
|
A company controlled by a director of the
Vessel-Owning
Subsidiaries
|
F-26
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(16)
|
|
Related Party Transactions (continued)
|
(a)
|
|
The principal related party transactions during the years ended December 31, 2007, 2008 and
2009 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note
|
|
2007
|
|
2008
|
|
2009
|
Management fee to Belindtha
|
|
(i)
|
|
|
489,648
|
|
|
|
570,000
|
|
|
|
600,000
|
|
Agency fee to China Sea
|
|
(ii)
|
|
|
260,000
|
|
|
|
400,000
|
|
|
|
600,000
|
|
Agency fee to Shinyo Maritime
|
|
(ii)
|
|
|
260,000
|
|
|
|
400,000
|
|
|
|
600,000
|
|
Loan interest income from Parent
|
|
(iii)
|
|
|
717,530
|
|
|
|
566,192
|
|
|
|
343,209
|
|
Loan interest expense to Parent
|
|
(iv)
|
|
|
3,088,080
|
|
|
|
5,922,293
|
|
|
|
5,559,764
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes:
|
|
(i)
|
|
The Company has outsourced substantially all its day-to-day operations to
Belindtha. The management fee is payable to Belindtha at a pre-determined amount in
accordance with the terms mutually agreed by Belindtha and the Company.
|
|
(ii)
|
|
China Sea and Shinyo Maritime have provided agency services to the Company.
The agency fee is payable to China Sea and Shinyo Maritime based on contractual
agreements with the Company.
|
|
(iii)
|
|
The balance represents interest income on a loan to the Parent by the Company.
Terms of the loan are set out in Note 16(b)(v) below.
|
|
(iv)
|
|
The balance represents interest expense on loans from the Parent. Terms of the
loans are set out in Note 16(b)(vi) below.
|
F-27
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(16)
|
|
Related Party Transactions (continued)
|
(b)
|
|
Amounts due from and due to related parties as of December 31, 2008 and 2009 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note
|
|
2008
|
|
2009
|
Amounts due from related parties:
|
|
|
|
|
|
|
|
|
|
|
Amount due from Univan
|
|
(i)
|
|
|
778,718
|
|
|
|
248,049
|
|
Amount due from Parent
|
|
(ii)
|
|
|
1,048,558
|
|
|
|
635,605
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,827,276
|
|
|
|
883,654
|
|
|
|
|
|
|
|
|
|
|
|
|
Amounts due to related parties:
|
|
|
|
|
|
|
|
|
|
|
Amount due to Univan
|
|
(iii)
|
|
|
3,836
|
|
|
|
4,997,850
|
|
Amount due to Parent
|
|
(iv)
|
|
|
5,320,888
|
|
|
|
8,791,125
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,324,724
|
|
|
|
13,788,975
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan to a related party:
|
|
|
|
|
|
|
|
|
|
|
The Parent
|
|
(v)
|
|
|
8,882,533
|
|
|
|
8,882,533
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans from a related party:
|
|
|
|
|
|
|
|
|
|
|
The Parent
|
|
(vi)
|
|
|
117,855,682
|
|
|
|
131,459,170
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes:
|
|
(i)
|
|
The balance represents advance payments for expenses to be paid by Univan on
behalf of the Company. The balance is unsecured, non-interest bearing and with no
fixed terms of repayment.
|
|
(ii)
|
|
The balance represents interest receivable from the Parent on a loan set out in
(v) below.
|
|
(iii)
|
|
The balance represents payable to Univan for expenses paid on behalf of the
Company. The balance is unsecured, non-interest bearing and with no fixed terms of
repayment.
|
|
(iv)
|
|
The balance represents interest payable on loans from the Parent. Terms of the
loans are set out in (vi) below.
|
|
(v)
|
|
The balance represents a loan to the Parent, which carries interest at LIBOR
plus 1.35% per annum with final maturity on October 1, 2019.
|
|
(vi)
|
|
The balance represents various loans from the Parent. The loans carry interest
at rates ranging from six-month LIBOR plus 2.39% to 3.98% per annum (weighted average
effective interest rate of 5.64% and 4.14% as of December 31, 2008 and 2009,
respectively) or at fixed rates ranging from 5% to 6.5% per annum with maturities
between January 13, 2012 and June 30, 2022.
|
|
|
|
The interest expense for the years ended December 31, 2007, 2008 and 2009 was
$3,088,080, $5,922,293 and $5,559,764, respectively. During the years ended December
31, 2007, 2008 and 2009, interest expenses of $Nil, $2,095,832 and $2,465,097,
respectively, were capitalized as part of the costs of vessel under construction.
|
|
|
|
Interests of $Nil, $Nil and $2,089,527 were paid during the years ended December 31,
2007, 2008 and 2009, respectively.
|
(17)
|
|
Commitments and Contingencies
|
|
|
Capital commitments for the vessel under construction as of December 31, 2008 and 2009 were
$107,358,400 and $107,358,400, respectively.
|
F-28
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
|
|
Various claims, suits, and complaints, including those involving government regulations and
product
liability, arise in the ordinary course of the shipping business. In addition, losses may
arise from disputes with charterers, agents, insurance and other claims with suppliers
relating to the operations of the Companys vessels. Currently, management is not aware of
any significant claims or contingent liabilities, which should be disclosed, or for which a
provision should be established in the accompanying financial statements.
|
(18)
|
|
Fair Value Measurement
|
(a)
|
|
Fair value of financial instruments
|
|
|
The carrying amount of cash and amounts due from/to related parties approximates their fair
values because of the short maturity of these instruments.
|
|
|
The carrying value of long-term bank loans and loans from a related party approximates their
fair values based on the borrowing rates currently available to the Company for bank loans
with similar terms and average maturities.
|
|
|
The following table presents assets and liabilities that are measured at fair value on a
recurring basis (including items that are required to be measured at fair value) as of
December 31, 2008 and 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value measurements at
|
|
|
|
|
|
|
|
reporting date using
|
|
|
|
|
|
|
|
Quoted price
|
|
|
|
|
|
|
|
|
|
|
|
|
|
in active
|
|
|
Significant
|
|
|
|
|
|
|
|
|
|
|
market for
|
|
|
other
|
|
|
Significant
|
|
|
|
|
|
|
|
identical
|
|
|
observable
|
|
|
unobservable
|
|
|
|
Carrying
|
|
|
assets
|
|
|
inputs
|
|
|
inputs
|
|
|
|
amount
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
At December 31, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate swaps
|
|
|
9,729,403
|
|
|
|
|
|
|
|
9,729,403
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate swaps
|
|
|
21,487,357
|
|
|
|
|
|
|
|
21,487,357
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-29
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(19)
|
|
Business and Credit Concentrations
|
|
|
The Company operates in the shipping industry which historically has been cyclical with
corresponding volatility in profitability. The Company seeks to mitigate volatilities in
its business by obtaining long-term charter contracts. The Company has obtained long-term
time charter contracts which will expire in 4 to 16 years from December 31, 2009.
|
|
|
The Company outsourced the technical management services to Belindtha which is controlled by
a person related to a director of the Vessel-Owning Subsidiaries. Belindtha then
sub-contracted its obligations under the outsourcing arrangement to Univan which assists
Belindtha in providing technical management services to the Company. Univan is controlled
by a director of the Vessel-Owning Subsidiaries. All expenses incurred by Univan on behalf
of the Company are charged to the Company based on the actual expenditures incurred on its
behalf. During the years ended December 31, 2007, 2008 and 2009, the Company paid service
fee of $489,648, $570,000 and $600,000, respectively, to Belindtha. Any failure of
providing the services by Univan to the Company may adversely affect the Companys results
and operations.
|
|
|
The Company engages in the business of ocean transportation of crude oil industry which is
extremely competitive and dependent on the worlds demand for crude oil. Competition
depends on price, location, size, age, condition and the acceptability of the vessels to the
charterers. The increase in competition and the changes in demand for crude oil could
result in lower revenue achieved for the vessels.
|
|
|
The following set out revenues from each individual customer that comprises 10% or more of
gross combined revenue (before deferred revenue adjustment):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
2008
|
|
2009
|
|
|
|
|
|
|
%
|
|
|
|
|
|
%
|
|
|
|
|
|
%
|
Formosa Petrochemical
Corporation
|
|
|
15,104,744
|
|
|
|
24
|
|
|
|
22,717,178
|
|
|
|
27
|
|
|
|
14,028,247
|
|
|
|
22
|
|
Dalian Ocean Shipping
Company
|
|
|
26,580,548
|
|
|
|
42
|
|
|
|
37,719,984
|
|
|
|
44
|
|
|
|
28,873,606
|
|
|
|
45
|
|
SK Shipping Company
Limited
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,687,250
|
|
|
|
12
|
|
Blue Light Chartering
Inc.
|
|
|
8,952,266
|
|
|
|
14
|
|
|
|
14,457,000
|
|
|
|
17
|
|
|
|
10,722,547
|
|
|
|
17
|
|
Sanko Steamship Co., Ltd
|
|
|
|
|
|
|
|
|
|
|
10,563,912
|
|
|
|
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The gross accounts receivable due from each individual customer that represent more than 10%
of the outstanding combined accounts receivable is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
2009
|
|
|
|
|
|
|
%
|
|
|
|
|
|
%
|
Formosa Petrochemical
Corporation
|
|
|
167,838
|
|
|
|
19
|
|
|
|
|
|
|
|
|
|
Dalian Ocean Shipping
Company
|
|
|
463,171
|
|
|
|
53
|
|
|
|
|
|
|
|
|
|
Tankers International
L.L.C.
|
|
|
238,415
|
|
|
|
28
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-30
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
|
|
As of December 31, 2009, the Company had five vessels with substantive operating activities
which represented each of the seven Vessel-Owning Subsidiaries except for two entities each
with a vessel that was under construction. The operating vessels are chartered to different
charterers and are managed separately. The Companys senior management reviews internal
management reports for each of the Vessel-Owning Subsidiaries on a monthly basis.
|
|
(a)
|
|
Results and assets of operating vessels
|
|
|
The Companys senior management monitors the results and assets attributable to each
operating vessel on the following bases:
|
|
-
|
|
Vessel assets include all assets of the entity including tangible assets and
current assets.
|
|
-
|
|
Vessel revenues represent revenue generated from time charter agreements by
each operating vessel.
|
|
-
|
|
Vessel results represent income or loss before income taxes.
|
F-31
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(20)
|
|
Combining Entities (continued)
|
|
(a)
|
|
Results and assets of operating vessels (continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shinyo
|
|
Shinyo
|
|
Shinyo
|
|
Shinyo
|
|
Shinyo
|
|
|
|
|
Loyalty
|
|
Kannika
|
|
Navigator
|
|
Ocean
|
|
Dream
|
|
|
|
|
Limited
|
|
Limited
|
|
Limited
|
|
Limited
|
|
Limited
|
|
Total
|
Year ended December 31, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue from external customers
|
|
|
13,177,425
|
|
|
|
16,699,170
|
|
|
|
15,513,146
|
|
|
|
15,104,744
|
|
|
|
4,913,634
|
|
|
|
65,408,119
|
|
Vessel income/(loss)
|
|
|
(17,581,720
|
)
|
|
|
5,854,105
|
|
|
|
(1,562,377
|
)
|
|
|
862,812
|
|
|
|
1,174,321
|
|
|
|
(11,252,859
|
)
|
Interest income
|
|
|
224,955
|
|
|
|
2,806,742
|
|
|
|
120,917
|
|
|
|
145,334
|
|
|
|
65,744
|
|
|
|
3,363,692
|
|
Interest expense
|
|
|
3,182,118
|
|
|
|
6,437,532
|
|
|
|
5,878,201
|
|
|
|
6,855,123
|
|
|
|
1,851,330
|
|
|
|
24,204,304
|
|
Depreciation
|
|
|
3,269,668
|
|
|
|
3,949,238
|
|
|
|
5,751,486
|
|
|
|
4,907,388
|
|
|
|
1,130,038
|
|
|
|
19,007,818
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue from external customers
|
|
|
14,457,000
|
|
|
|
21,689,184
|
|
|
|
16,030,800
|
|
|
|
22,717,178
|
|
|
|
15,509,254
|
|
|
|
90,403,416
|
|
Vessel income/(loss)
|
|
|
4,444,557
|
|
|
|
11,236,036
|
|
|
|
(4,665,477
|
)
|
|
|
9,930,953
|
|
|
|
4,381,246
|
|
|
|
25,327,315
|
|
Interest income
|
|
|
165,612
|
|
|
|
2,284,811
|
|
|
|
63,817
|
|
|
|
135,287
|
|
|
|
72,483
|
|
|
|
2,722,010
|
|
Interest expense
|
|
|
3,098,575
|
|
|
|
5,200,096
|
|
|
|
5,597,310
|
|
|
|
5,006,777
|
|
|
|
4,240,345
|
|
|
|
23,143,103
|
|
Depreciation
|
|
|
3,269,668
|
|
|
|
3,949,238
|
|
|
|
5,751,486
|
|
|
|
5,017,358
|
|
|
|
3,479,685
|
|
|
|
21,467,435
|
|
Vessel assets
|
|
|
46,301,434
|
|
|
|
124,392,587
|
|
|
|
91,039,320
|
|
|
|
110,035,194
|
|
|
|
74,114,129
|
|
|
|
445,882,664
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-32
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(20)
|
|
Combining Entities (continued)
|
|
(a)
|
|
Results and assets of operating vessels (continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shinyo
|
|
Shinyo
|
|
Shinyo
|
|
Shinyo
|
|
Shinyo
|
|
|
|
|
Loyalty
|
|
Kannika
|
|
Navigator
|
|
Ocean
|
|
Dream
|
|
|
|
|
Limited
|
|
Limited
|
|
Limited
|
|
Limited
|
|
Limited
|
|
Total
|
Year ended December 31, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue from external customers
|
|
|
10,722,547
|
|
|
|
12,957,629
|
|
|
|
15,983,168
|
|
|
|
14,028,247
|
|
|
|
11,958,813
|
|
|
|
65,650,404
|
|
Vessel income
|
|
|
1,152,751
|
|
|
|
3,724,896
|
|
|
|
3,562,123
|
|
|
|
3,098,279
|
|
|
|
2,146,822
|
|
|
|
13,684,871
|
|
Interest income
|
|
|
17,254
|
|
|
|
857,414
|
|
|
|
10,939
|
|
|
|
2,629
|
|
|
|
|
|
|
|
888,236
|
|
Interest expense
|
|
|
1,050,507
|
|
|
|
2,184,781
|
|
|
|
5,385,468
|
|
|
|
2,732,450
|
|
|
|
2,695,236
|
|
|
|
14,048,442
|
|
Depreciation
|
|
|
4,083,551
|
|
|
|
3,949,238
|
|
|
|
5,751,486
|
|
|
|
5,017,358
|
|
|
|
3,479,685
|
|
|
|
22,281,318
|
|
Vessel assets
|
|
|
45,899,901
|
|
|
|
114,103,641
|
|
|
|
92,530,058
|
|
|
|
100,886,424
|
|
|
|
71,169,927
|
|
|
|
424,589,951
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(b)
|
|
Reconciliation of total (loss)/income attributable to operating vessels to combined
(loss)/income before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
2008
|
|
2009
|
Total (loss)/income attributable to operating vessels
|
|
|
(11,252,859
|
)
|
|
|
25,327,315
|
|
|
|
13,684,871
|
|
Expenses for entities which have not yet
commenced operations
|
|
|
|
|
|
|
|
|
|
|
|
|
- changes in fair value of derivative
financial instruments
|
|
|
|
|
|
|
(13,772,638
|
)
|
|
|
8,995,424
|
|
- other expenses
|
|
|
|
|
|
|
(1,832
|
)
|
|
|
(4,917
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Combined (loss)/income before income taxes
|
|
|
(11,252,859
|
)
|
|
|
11,552,845
|
|
|
|
22,675,378
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-33
Vessel-Owning Subsidiaries
Notes to Combined Financial Statements (continued)
for the years ended December 31, 2007, 2008 and 2009
(expressed in US$)
(20)
|
|
Combining Entities (continued)
|
|
(c)
|
|
Reconciliation of total assets attributable to operating vessels to combined total assets
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
2009
|
Total assets attributable to operating vessels
|
|
|
445,882,664
|
|
|
|
424,589,951
|
|
Elimination of inter-company loans
and other receivables
|
|
|
(25,200,000
|
)
|
|
|
(25,200,000
|
)
|
Assets of entities which have not yet
commenced operations
|
|
|
|
|
|
|
|
|
- vessels under construction
|
|
|
165,421,969
|
|
|
|
174,901,072
|
|
- other assets
|
|
|
2,671,944
|
|
|
|
2,789,592
|
|
|
|
|
|
|
|
|
|
|
Combined total assets
|
|
|
588,776,577
|
|
|
|
577,080,615
|
|
|
|
|
|
|
|
|
|
|
(d)
|
|
Reconciliation of total interest income to combined total interest income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
2008
|
|
2009
|
Total interest income
|
|
|
3,363,692
|
|
|
|
2,722,010
|
|
|
|
888,236
|
|
Interest income for entities which have
not yet commenced operations
|
|
|
|
|
|
|
1,266
|
|
|
|
51
|
|
Elimination of inter-company interest
income
|
|
|
(1,566,533
|
)
|
|
|
(1,354,450
|
)
|
|
|
(500,206
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Combined total interest income
|
|
|
1,797,159
|
|
|
|
1,368,826
|
|
|
|
388,081
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(e)
|
|
Reconciliation of total interest expense to combined total interest expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
2008
|
|
2009
|
Total interest expense
|
|
|
24,204,304
|
|
|
|
23,143,103
|
|
|
|
14,048,442
|
|
Elimination of inter-company interest
expense
|
|
|
(1,566,533
|
)
|
|
|
(1,354,450
|
)
|
|
|
(500,206
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Combined total interest expense
|
|
|
22,637,771
|
|
|
|
21,788,653
|
|
|
|
13,548,236
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a)
|
|
On March 26, 2010 and June 17, 2010, the Company drew
down a new bank loan of $90,000,000 from China Merchant
Bank. The new bank loan carries interest at LIBOR plus 2.00% per annum. The loan is
secured by Shinyo Saowalak, the vessel under construction and is repayable by forty
quarterly installments, with the first installment payable on September 21, 2010. Part of
the proceeds from this new bank loan was used for the repayment of the loan from BNP
Paribas, The Bank of Nova Scotia Asia Limited, Deutsche Schiffsbank AG, DVB Group Merchant
Bank (Asia) Ltd and Scotiabank (Hong Kong) Limited of $53,679,200.
|
|
|
|
In connection with the repayment of the loan, the Company has also terminated the related
interest rate swap arrangements with BNP Paribas, The Bank of Nova Scotia Asia Limited and
DVB Group Merchant Bank (Asia) Ltd and Scotiabank (Hong Kong) Limited.
|
|
(b)
|
|
Pursuant to a definitive agreement dated July 18, 2010 entered into between Vanship and Navios Maritime Acquisition
Corporation (NMAC), a company listed on the New York
Stock Exchange, Vanship agreed to sell
its entire equity interests in the Vessel-Owning Subsidiaries to NMAC for an aggregate consideration of $587,000,000,
consisting of $576,000,000 in cash (subject to closing
adjustments) and $11,000,000 in shares of common
stock of NMAC (based on the closing trading price averaged over the
15 trading days immediately prior to closing).
|
F-34
Unaudited Pro Forma Financial Statements of Navios Acquisition
The following unaudited pro forma financial information of Navios Acquisition has been
prepared to show the impact of the proposed acquisition of the Vessel-Owning Subsidiaries from the
Seller. The unaudited pro forma condensed balance sheet as of December 31, 2009 gives effect to the
acquisition as though the acquisition was consummated on December 31, 2009. The unaudited pro forma
condensed statement of operations for the year ended December 31, 2009 include pro forma
adjustments that are directly attributable to the acquisition and expected to have a continuing
impact on our results of operations, assuming the acquisition was consummated on January 1, 2009.
The historical balance sheet as of December 31, 2009 and the historical statements of
operations for the year ended December 31, 2009 presented are based on the audited combined
financial statements of the Vessel-Owning Subsidiaries as of December 31, 2009 and for the year
then-ended.
The unaudited pro forma financial information is presented for illustrative and informational
purposes only, and is not necessarily indicative of the Companys financial position and results of
operations had the acquisition been consummated during the period presented, nor does it purport to
represent the results of the Company for any future periods.
P-1
Navios Maritime Acquisition Corporation
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
AS OF DECEMBER 31, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vessel-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owning
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
Subsidiaries
|
|
|
|
|
|
Pro Forma
|
|
|
As at
|
|
Adjustments With
|
|
Combined with
|
|
at
|
|
|
|
|
|
Balance Sheet
|
|
|
December 31,
|
|
Actual Conversion
|
|
Actual
|
|
December
|
|
Pro Forma
|
|
December 31,
|
|
|
2009
|
|
of 10,021,399
(a)
|
|
Conversion
(a)
|
|
31, 2009
|
|
Adjustments
|
|
2009
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
|
|
|
87,099
|
|
|
|
|
|
|
|
87,099
|
|
|
|
18,217,569
|
|
|
|
|
|
|
|
18,304,668
|
|
Restricted cash
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,639,807
|
|
|
|
|
|
|
|
2,639,807
|
|
Cash receipt of funds from loan
|
|
|
|
|
|
|
129,659,376
|
(b)
|
|
|
129,659,376
|
|
|
|
|
|
|
|
|
|
|
|
129,659,376
|
|
Cash payment of deferred
underwriters fees
|
|
|
|
|
|
|
(8,855,000
|
)(c)
|
|
|
(8,855,000
|
)
|
|
|
|
|
|
|
|
|
|
|
(8,855,000
|
)
|
Cash payment for the vessel
acquisition
|
|
|
|
|
|
|
(171,748,944
|
)(d)
|
|
|
(171,748,944
|
)
|
|
|
|
|
|
|
|
|
|
|
(171,748,944
|
)
|
Cash payment of transaction costs
|
|
|
|
|
|
|
(1,613,000
|
)(e)
|
|
|
(1,613,000
|
)
|
|
|
|
|
|
|
|
|
|
|
(1,613,000
|
)
|
Cash release of the trust account
|
|
|
|
|
|
|
251,493,295
|
(f)
|
|
|
251,493,295
|
|
|
|
|
|
|
|
|
|
|
|
251,493,295
|
|
Cash payment to convert stock
into cash
|
|
|
|
|
|
|
(99,312,064
|
)(g)
|
|
|
(99,312,064
|
)
|
|
|
|
|
|
|
|
|
|
|
(99,312,064
|
)
|
Cash from loan proceeds VLCC fleet
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred financing cost
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4,332,110)
|
(8)
|
|
|
(4,332,110
|
)
|
Cash for acquisition
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(108,629,627)
|
(1)
|
|
|
(108,629,627
|
)
|
Cash
|
|
|
87,099
|
|
|
|
99,623,663
|
|
|
|
99,710,762
|
|
|
|
|
|
|
|
|
|
|
|
7,606,400
|
|
P-2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vessel-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owning
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
Subsidiaries
|
|
|
|
|
|
Pro Forma
|
|
|
As at
|
|
Adjustments With
|
|
Combined with
|
|
at
|
|
|
|
|
|
Balance Sheet
|
|
|
December 31,
|
|
Actual Conversion
|
|
Actual
|
|
December
|
|
Pro Forma
|
|
December 31,
|
|
|
2009
|
|
of 10,021,399
(a)
|
|
Conversion
(a)
|
|
31, 2009
|
|
Adjustments
|
|
2009
|
Prepayments and other receivables
|
|
|
55,295
|
|
|
|
|
|
|
|
55,295
|
|
|
|
2,104,359
|
|
|
|
|
|
|
|
2,159,654
|
|
Amounts due from related parties
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
883,654
|
|
|
|
(883,654)
|
(1)
|
|
|
0
|
|
Supplies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
416,205
|
|
|
|
|
|
|
|
416,205
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
142,394
|
|
|
|
99,623,663
|
|
|
|
99,766,057
|
|
|
|
24,261,594
|
|
|
|
|
|
|
|
10,182,259
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vessels
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
359,334,424
|
|
|
|
60,165,576
|
(1)
|
|
|
419,500,000
|
|
Deposits for vessel acquisitions
|
|
|
|
|
|
|
171,748,944
|
(d)
|
|
|
171,748,944
|
|
|
|
174,901,072
|
|
|
|
(94,580,272)
|
(1)
|
|
|
252,069,744
|
|
Deferred transaction costs
|
|
|
|
|
|
|
1,613,000
|
(e)
|
|
|
1,613,000
|
|
|
|
|
|
|
|
|
|
|
|
1,613,000
|
|
Favorable lease terms
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
61,627,817
|
(1)
|
|
|
61,627,817
|
|
Loan to a related party
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,882,533
|
|
|
|
(8,882,533)
|
(1)
|
|
|
|
|
Restricted cash
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,500,000
|
|
|
|
|
|
|
|
6,500,000
|
|
Investment in trust account,
including restricted cash
|
|
|
251,493,295
|
|
|
|
(251,493,295
|
)(f)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred finance costs
|
|
|
|
|
|
|
3,327,000
|
(d)
|
|
|
3,327,000
|
|
|
|
3,200,992
|
|
|
|
(3,200,992)
|
(1)
|
|
|
3,327,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,332,110
|
(8)
|
|
|
4,332,110
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other assets
|
|
|
251,493,295
|
|
|
|
(74,804,351
|
)
|
|
|
176,688,944
|
|
|
|
552,819,021
|
|
|
|
|
|
|
|
748,969,671
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
Total assets
|
|
|
251,635,689
|
|
|
|
24,819,312
|
|
|
|
276,455,001
|
|
|
|
577,080,615
|
|
|
|
|
|
|
|
759,151,931
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS
EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
Accounts payable
|
|
|
56,479
|
|
|
|
|
|
|
|
56,479
|
|
|
|
|
|
|
|
|
|
|
|
56,479
|
|
Accrued expenses and other payables
|
|
|
414,215
|
|
|
|
|
|
|
|
414,215
|
|
|
|
10,358,065
|
|
|
|
6,000,000
|
(7)
|
|
|
16,772,280
|
|
Amount due to related parties
|
|
|
30,119
|
|
|
|
|
|
|
|
30,119
|
|
|
|
13,788,975
|
|
|
|
(13,788,975)
|
(1)
|
|
|
30,119
|
|
Long-term debt, current portion
|
|
|
|
|
|
|
3,000,000
|
(b)
|
|
|
3,000,000
|
|
|
|
51,979,567
|
|
|
|
|
|
|
|
54,979,567
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
500,813
|
|
|
|
3,000,000
|
|
|
|
3,500,813
|
|
|
|
76,126,607
|
|
|
|
|
|
|
|
71,838,445
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
P-3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vessel-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owning
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
Subsidiaries
|
|
|
|
|
|
Pro Forma
|
|
|
As at
|
|
Adjustments With
|
|
Combined with
|
|
at
|
|
|
|
|
|
Balance Sheet
|
|
|
December 31,
|
|
Actual Conversion
|
|
Actual
|
|
December
|
|
Pro Forma
|
|
December 31,
|
|
|
2009
|
|
of 10,021,399
(a)
|
|
Conversion
(a)
|
|
31, 2009
|
|
Adjustments
|
|
2009
|
Long-term liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
Long-term debt, net of current
portion
|
|
|
|
|
|
|
129,986,376
|
(b)
|
|
|
129,986,376
|
|
|
|
344,910,681
|
|
|
|
36,320,800
|
(1)
|
|
|
511,217,857
|
|
Loans from a related party
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
131,459,170
|
|
|
|
(131,459,170)
|
(1)
|
|
|
0
|
|
Unfavorable lease terms
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28,127,817
|
(1)
|
|
|
28,127,817
|
|
Derivative financial instruments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,729,403
|
|
|
|
(9,729,403)
|
(1)
|
|
|
0
|
|
Deferred underwriters fees
|
|
|
8,855,000
|
|
|
|
(8,855,000
|
)(c)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
Common stock subject to
redemption,
10,119,999 shares at
redemption value, $9.91 per share
|
|
|
100,289,190
|
|
|
|
(100,289,190
|
)(g)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
109,645,003
|
|
|
|
23,842,186
|
|
|
|
133,487,189
|
|
|
|
562,225,861
|
|
|
|
|
|
|
|
611,184,119
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Stock, $.0001 par value;
1,000,000 shares authorized; none
issued
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
Common stock, $.0001 par value,
authorized 100,000,000 shares;
31,625,000 shares issued and
outstanding (includes the
10,119,999 shares subject to
redemption)
|
|
|
3,163
|
|
|
|
(1,002
|
)(g)
|
|
|
2,161
|
|
|
|
|
|
|
|
|
|
|
|
2,161
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paid-in capital
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15
|
|
|
|
(15)
|
(1)
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Retained Earnings
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14,854,739
|
|
|
|
(14,854,739
|
)(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,000,000
|
(7)
|
|
|
6,000,000
|
|
Additional paid-in capital
|
|
|
141,588,151
|
|
|
|
978,128
|
(f)
|
|
|
142,566,279
|
|
|
|
|
|
|
|
11,000,000.00
|
(1)
|
|
|
153,566,279
|
|
Earnings accumulated during the
development stage
|
|
|
399,372
|
|
|
|
|
|
|
|
399,372
|
|
|
|
|
|
|
|
|
|
|
|
399,372
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
141,990,686
|
|
|
|
977,126
|
|
|
|
142,967,812
|
|
|
|
14,854,754
|
|
|
|
|
|
|
|
147,967,812
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and
stockholders equity
|
|
|
251,635,689
|
|
|
|
24,819,312
|
|
|
|
276,455,001
|
|
|
|
577,080,615
|
|
|
|
|
|
|
|
759,151,931
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
P-4
Navios Maritime Acquisition Corporation
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
AS OF DECEMBER 31, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2009
|
|
|
Navios
|
|
Vessel-Owning
|
|
|
|
|
|
Navios
|
|
|
Acquisition
|
|
Subsidiaries
|
|
Pro Forma
|
|
Acquisition
|
|
|
Historical
|
|
Historical
|
|
Adjustments
|
|
Pro forma
|
Operating revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
|
|
|
|
|
65,650,404
|
|
|
|
17,094,315
|
(6)
|
|
|
82,744,719
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expense
(a)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vessel operating expenses
|
|
|
|
|
|
|
16,890,583
|
|
|
|
5,009,417
|
(4a)
|
|
|
21,900,000
|
|
Depreciation and amortization expenses
|
|
|
|
|
|
|
22,281,318
|
|
|
|
4,344,586
|
(5)
|
|
|
26,625,904
|
|
Management fee
|
|
|
|
|
|
|
600,000
|
|
|
|
(600,000
|
)(4b)
|
|
|
|
|
Commission
|
|
|
|
|
|
|
1,322,098
|
|
|
|
(1,322,098
|
)(4b)
|
|
|
|
|
Formation and operation costs
|
|
|
874,377
|
|
|
|
|
|
|
|
|
|
|
|
874,377
|
|
Administrative expense
|
|
|
120,000
|
|
|
|
453,235
|
|
|
|
149,015
|
(4c)
|
|
|
722,250
|
|
Termination charge
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expense
|
|
|
994,377
|
|
|
|
41,547,234
|
|
|
|
|
|
|
|
50,122,531
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
Operating income
|
|
|
(994,377
|
)
|
|
|
24,103,170
|
|
|
|
|
|
|
|
32,622,188
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
Other income/(expense)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
Interest income from trust account
|
|
|
331,656
|
|
|
|
|
|
|
|
|
|
|
|
331,656
|
|
Interest income
|
|
|
14,909
|
|
|
|
388,081
|
|
|
|
|
|
|
|
402,990
|
|
Interest expense
|
|
|
|
|
|
|
(13,548,236
|
)
|
|
|
(112,275
|
)(2)
|
|
|
(13,660,511
|
)
|
P-5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2009
|
|
|
Navios
|
|
Vessel-Owning
|
|
|
|
|
|
Navios
|
|
|
Acquisition
|
|
Subsidiaries
|
|
Pro Forma
|
|
Acquisition
|
|
|
Historical
|
|
Historical
|
|
Adjustments
|
|
Pro forma
|
Write-off of deferred loan costs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Changes in fair value of derivative
financial instruments
|
|
|
|
|
|
|
11,757,954
|
|
|
|
(11,757,954.00
|
)(3)
|
|
|
|
|
Transaction costs
|
|
|
|
|
|
|
|
|
|
|
(6,000,000
|
)(7)
|
|
|
(6,000,000
|
)
|
Others, net
|
|
|
|
|
|
|
(25,591
|
)
|
|
|
|
|
|
|
(25,591
|
)
|
Total other expense
|
|
|
346,565
|
|
|
|
(1,427,792
|
)
|
|
|
|
|
|
|
(14,464,913
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss)/income before income taxes
|
|
|
(647,812
|
)
|
|
|
22,675,378
|
|
|
|
|
|
|
|
13,660,511
|
|
Income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
Net (loss)/income
|
|
|
(647,812
|
)
|
|
|
22,675,378
|
|
|
|
|
|
|
|
13,660,511
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro forma Earnings per share
(unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings per share basic
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.63
|
|
Earnings per share diluted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.22
|
|
Weighted average number of
shares outstanding basic (*)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21,603,601
|
|
Weighted average number of
shares outstanding diluted (*)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60,828,601
|
|
|
|
|
(*)
|
|
Assuming conversion of 10,021,399 took place on January 1, 2009
|
|
Pro forma adjustments with actual conversion of 10,021,399 shares are based
on the following assumptions:
|
|
(a)
|
|
Assumes no forward contracts.
|
|
(b)
|
|
To record the receipt of proceeds from debt financing in order to finance the initial business
combination vessel acquisition. Navios Acquisition will
pay the lenders of such debt financing upfront fees
depending on the available loan amount under each facility. If the interest rate increased by 1%, the Companys
interest expense would increase by approximately $3.8 million to $17.5
million.
|
|
(c)
|
|
To record the payment of the deferred underwriters fees, payable upon consummation of Navios
Acquisitions initial business combination.
|
|
(d)
|
|
To record the payment to the shipbuilders and the sellers of the vessels in the initial
business combination vessel acquisition of the initial payment installment or the deposit of the
vessel acquisition, as applicable.
|
|
(e)
|
|
To record the transaction expenses incurred in connection with the May 2010 acquisition, which consisted of approximately (a)
$490,000 for travelling and roadshow expenses, annual meeting
|
P-6
|
|
|
|
|
and other expenses, (b) $245,000 for consulting expenses, (c) $763,000 for legal expenses, (d)
$10,000 for audit fees, and (e) $105,000 for printing expenses. These fees will be capitalized on
the balance sheet and amortized over future periods.
|
|
(f)
|
|
To record the release of the cash held in the trust account.
|
|
(g)
|
|
To record the conversion of the 10,021,399 shares of common stock of the public holders of
Navios Acquisitions common stock who voted against the initial business combination transaction
and properly exercised their conversion rights.
|
P-7
|
|
Pro Forma Adjustments
|
|
|
|
The unaudited pro forma combined financial statements give pro forma effect to the following:
|
|
(1)
|
|
To record the payment of the $587.0 million purchase price for the purchase of seven
Vessel-Owning Subsidiaries, less the remaining installments for Shinyo Kieran amounting to
$53.7 million. Pro forma financial statements are based on the assumption that $11.0 million
is paid with shares from our common stock.
|
Calculation Purchase Price Allocation
|
|
|
|
|
Cash
|
|
|
522,320,800
|
|
Common stock
|
|
|
11,000,000
|
|
|
|
|
|
|
Total allocable purchase price
|
|
|
533,320,800
|
|
|
|
|
|
|
Working capital assets
|
|
|
|
|
Cash
|
|
|
18,217,569
|
|
Prepayments and other receivables
|
|
|
2,104,359
|
|
Supplies
|
|
|
416,205
|
|
Restricted cash
|
|
|
9,139,807
|
|
|
|
|
|
|
Working capital liabilities:
|
|
|
|
|
Accrued expenses and other payables excluding accrued interest
|
|
|
(9,522,767
|
)
|
|
|
|
|
|
Total purchase price
|
|
|
553,675,973
|
|
|
|
|
|
|
|
|
|
|
|
Estimated allocation of purchase price:
|
|
|
|
|
Net assets acquired from Vanship (at book value)
|
|
|
14,854,754
|
|
|
|
|
|
|
Fair value
adjustments to assets acquired and adjustments to reflect items not
being acquired pursuant to the Securities Purchase Agreement:
|
|
|
|
|
Reverse loans due/from related parties
|
|
|
135,481,958
|
|
Reverse deferred financing costs
|
|
|
(3,200,992
|
)
|
Reverse derivative financial instruments
|
|
|
9,729,403
|
|
Vessels
|
|
|
60,165,576
|
|
Vessels under construction
|
|
|
(94,580,272
|
)
|
Allocation to favorable leases
|
|
|
61,627,817
|
|
Allocation to unfavorable leases
|
|
|
(28,127,817
|
)
|
|
|
|
|
|
Bank loan assumed:
|
|
|
|
|
Bank loans outstanding book value
|
|
|
396,890,248
|
|
|
|
|
|
|
Accrued bank loan interest book value
|
|
|
835,298
|
|
|
|
|
|
|
|
|
|
553,675,973
|
|
|
|
|
|
|
Pro forma financial statements of Navios Acquisition as of December 31, 2009, are based on the
assumption that loans due/ from related parties, deferred financing costs and derivative financial
instruments are not assumed.
P-8
For the purpose of the pro forma financial statements, we assumed that as of December 31, 2009
the vessel Shinyo Saowalak was delivered. Vessels and favorable/ unfavorable leases on charter out
contracts of the vessels acquired are recorded at fair value, which was determined based on
valuations received from an independent broker. Total price allocated to vessels is $419.5 million,
whereas deposits of $80.3 million are related to Shinyo Kieran.
Outstanding loan balance as of December 31, 2009 is assumed to be $433.2 million, which
includes $36.3 million assumed drawdown for the acquisition of Shinyo Saowalak.
|
|
|
|
|
Adjustments to record acquired net assets at fair value:
|
|
|
|
|
Vessels acquired from Vanship at book value
|
|
|
359,334,424
|
|
Fair value
|
|
|
60,165,576
|
|
Vessels under construction acquired from Vanship at book value
|
|
|
174,901,072
|
|
Fair value
|
|
|
(94,580,272
|
)
|
Identifiable contracts
|
|
|
33,500,000
|
|
|
|
|
|
|
Bank loans outstanding book value
|
|
|
(396,890,248
|
)
|
Additional amount assumed until closing
|
|
|
(36,320,800
|
)
|
Accrued bank loan interest book value
|
|
|
(835,298
|
)
|
|
|
|
|
|
Working capital assets:
|
|
|
|
|
Cash
|
|
|
18,217,569
|
|
Prepayments and other receivables
|
|
|
2,104,359
|
|
Supplies
|
|
|
416,205
|
|
|
Restricted cash
|
|
|
9,139,807
|
|
Working capital liabilities:
|
|
|
|
|
Accrued expenses and other payables excluding accrued interest
|
|
|
(9,522,767
|
)
|
|
|
|
|
|
Net equity assumed
|
|
|
119,629,627
|
|
Net equity assumed comprises of the actual cash consideration of $108,629,627 and the payment
$11,000,000 in shares of our common stock.
(2) To record additional interest expense assuming average rate on the assumed bank loans of
3.55% per annum. If the interest rate increased by 1%, the
Companys interest expense would increase by approximately
$1.3 million. For
the pro forma financial statements as of December 31, 2009, the interest expense on the outstanding
debt of Shinyo Kieran is not included in the statement of operations.
(3) To eliminate changes in the fair value of derivative financial instruments because such
contracts will not be assumed.
(4) (a)To adjust vessel operating expenses assuming a daily fixed fee of $10,000 per vessel
pursuant to the new management agreement; (b) to eliminate existing management fee and commission
because the existing agreements will be terminated; and (c) to increase general and
administrative expenses assuming a daily fee of $275 per vessel.
(5) To record additional depreciation and amortization expense of fixed assets and intangibles
based on the increase in market value. Vessels are amortized over 25 years from their original
construction. Favorable/
P-9
unfavorable leases on charter-out contracts are amortized over the remaining life of the
related contract, which is 4.3-15 years.
(6) To record additional revenue, net of commissions for Shinyo Saowalak, which is calculated
at the existing rate of $48,153 per day for 355 days.
(7) Transaction costs are assumed to be $6.0 million and are mainly related to legal and other
professional fees and expenses incurred until the closing of the transaction.
(8) Assumed deferred financing fees were calculated at 1% of the loan assumed.
P-10
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This Report contains forward-looking statements relating to our business and the industry in
which we operate, which include all statements other than statements of historical facts,
including, without limitation, any statements preceded by, followed by or that include the words
projects, predicts, should, forecasts, expects, intends, plans, believes,
anticipates, estimates, or variations of these words and similar expressions intended to
identify the forward-looking statements. Although we believe the expectations reflected in these
forward-looking statements are reasonable, no assurance can be given that such expectations will
prove to have been correct. These statements involve known and unknown risks and are based upon a
number of assumptions and estimates that are inherently subject to significant uncertainties and
contingencies, many of which are beyond our control. Actual results may differ materially from
those expressed or implied by these forward-looking statements. Forward-looking statements include
statements regarding:
|
|
|
the delivery and operation of the assets of the Vessel-Owning Subsidiaries to
be acquired by us pursuant to the Securities Purchase Agreement;
|
|
|
|
|
maintaining or developing new and existing customer relationships;
|
|
|
|
|
successfully growing our business;
|
|
|
|
|
our future operating and financial results, including the amount of fixed hire
and profit share that we may receive;
|
|
|
|
|
identifying and consummating desirable acquisitions, joint ventures or
strategic alliances, business strategy, areas of possible expansion, and expected
capital spending or operating expenses;
|
|
|
|
|
statements about tanker industry trends, including charter rates and vessel
values and factors affecting vessel supply and demand;
|
|
|
|
|
taking delivery of, integrating into our fleet, and employing, the newbuilding
we have on firm order or any newbuildings we may order in the future;
|
|
|
|
|
successfully managing our liquidity and obtaining the necessary financing to
fund our growth;
|
|
|
|
|
attracting, hiring, training and retaining qualified personnel;
|
|
|
|
|
expectations about the availability of vessels to purchase, the time that it
may take to construct new vessels or vessels useful lives;
|
|
|
|
|
the creditworthiness of our charterers;
|
|
|
|
|
expectations about the availability of insurance on commercially reasonable
terms; and
|
|
|
|
|
our ability to repay outstanding indebtedness, to obtain additional financing
and to obtain replacement charters for our vessels, in each case, at commercially
acceptable rates or at all.
|
We have based these forward-looking statements on our current expectations and assumptions
about future events. While our management considers these expectations and assumptions to be
reasonable, they are inherently subject to significant business, economic, competitive, regulatory
and other risks, contingencies and uncertainties, most of which are difficult to predict and many
of which are beyond our control. These and other important factors, including those discussed under
Risk Factors, may cause our actual results, performance or achievements to differ materially from
any future results, performance or achievements expressed or implied by these forward-looking
statements. These risks, contingencies and uncertainties include, but are not limited to, the
following:
|
|
|
changes in general economic and business conditions;
|
14
|
|
|
change in the rate of growth of the world and various regional economies;
|
|
|
|
|
changes in production of or demand for oil and petroleum products, either
globally or in particular regions;
|
|
|
|
|
changes in laws and regulations;
|
|
|
|
|
changes in our management;
|
|
|
|
|
changes in the standard of service or availability of our technical manager;
|
|
|
|
|
ability of our technical manager to be approved as required;
|
|
|
|
|
changes in currency exchange rates and interest rates;
|
|
|
|
|
risks incident to vessel operations, including discharge of pollutants;
|
|
|
|
|
introduction of competing services or products by other companies;
|
|
|
|
|
changes in trading or travel patterns;
|
|
|
|
|
increases of costs of operations or the inability to meet efficiency or cost
reduction objectives; and
|
|
|
|
|
greater than anticipated levels of newbuilding orders or less than anticipated
rates of scrapping of older vessels.
|
Given these uncertainties, you should not place undue reliance on these forward-looking statements.
Also, forward-looking statements represent our estimates and assumptions only as of the date of
this Report. Except as required by law, we do not undertake any obligation to update or revise any
forward-looking statements contained in this Report, whether as a result of new information, future
events or otherwise.
15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this Report to be signed on its behalf by the undersigned, thereunto duly authorized.
|
|
|
|
|
NAVIOS MARITIME ACQUISITION CORPORATION
|
|
|
|
|
|
|
|
By:
|
|
/s/ Angeliki Frangou
|
|
|
Angeliki Frangou
|
|
|
Chief Executive Officer
|
|
|
Date: July 26, 2010
|
|
|
Exhibits
|
|
|
Exhibit No.
|
|
Exhibit
|
10.1
|
|
Securities Purchase Agreement dated July 18, 2010 by and between Navios Maritime Acquisition Corporation and Vanship Holdings Limited.
|
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT
(the
Agreement
), dated as of July 18, 2010, by and between
Navios Maritime Acquisition Corporation, a Marshall Islands corporation (the
Purchaser
), and
Vanship Holdings Limited, a Liberian corporation (the
Seller
).
WITNESSETH:
WHEREAS, Seller directly owns all of the issued and outstanding shares of capital stock of the
seven special purpose vehicle companies listed in
Schedule 3.2(f)
(the
Vessel Owning
Subsidiaries
) (collectively, the capital stock of such Vessel Owning Subsidiaries referred to as
the
Seller Subsidiary Shares
);
WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, Seller
desires to sell to Purchaser and Purchaser desires to purchase the Vessel Owning Subsidiaries from
Seller; and
WHEREAS, the Parties desire to make certain representations, warranties, covenants and
agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties,
covenants and undertakings contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties to this
Agreement, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
1.1
|
|
Definitions
. All defined terms not otherwise defined herein shall have the
meanings ascribed to them in Article XI.
|
ARTICLE II
PURCHASE AND SALE
2.1
Purchase and Sale of the Seller Subsidiary Shares
. Subject to the terms and
conditions set forth in this Agreement, Seller shall sell and transfer, or cause the transfer of,
the Seller Subsidiary Shares to the Purchaser and the Purchaser shall purchase and accept the
transfer of and pay for the Seller Subsidiary Shares at the Closing. Such Seller Subsidiary Shares
shall be free of all Encumbrances (other than Permitted Encumbrances), but as of the Closing,
Seller will transfer such Seller Subsidiary Shares free and clear of any Encumbrances, other than
restrictions on transfer under applicable securities Laws and Encumbrances placed thereon by
Purchaser) and with all rights that attach (or may in the future attach) to such Seller Subsidiary
Shares including, the right to receive all dividends, distributions and revenues declared or
received in respect of any period commencing after the Closing Date. For the avoidance of doubt,
subject to compliance with the Existing Loan Documents, the Seller shall retain and be entitled to
receive and retain for its own
benefit all dividends and distributions declared and paid prior to the Closing Date in respect
of revenues received on or prior to the Closing Date for services rendered by the applicable Vessel
Owning Subsidiary for any period up to and including the Closing Date. Under no circumstance
however shall the Seller be entitled to receive any dividend, distribution or revenue with respect
to any amounts received by any Vessel Owning Subsidiary for services to be provided by any Vessel
Owning Subsidiary after the Closing Date. The aggregate purchase price for the Seller Subsidiary
Shares, to be paid as provided in Sections 2.2 and 2.3, is (i) $576,000,000 in cash, subject to
adjustment as set forth herein (the
Cash Portion
), plus (ii) $11,000,000 of shares of the common
stock, par value $0.0001 per share, of the Purchaser (the
Common Stock
) (the shares of Common
Stock to be issued pursuant to this Agreement are referred to herein as the
Securities
),
calculated based on the closing trading price of the Common Stock on the principal securities
exchange on which such Common Stock may at the time be listed, averaged over the period of the 15
immediately prior consecutive trading days prior to the Closing Date (as adjusted in accordance
with Section 10.14, if applicable), or in lieu of the Securities, $11,000,000 in cash at the option
of the Purchaser, subject to the provisions of the last paragraph of Section 6.1. The Closing
shall take place at the offices of the Purchaser in Piraeus, Greece.
2.2
Transactions to be Effected at the Closing
.
(a)
Closing Purchaser Deliverables
. At the Closing, the Purchaser shall deliver or
cause to be delivered to Seller the following:
(i) an amount equal to $576,000,000 in cash, minus the sum of (A) Estimated Assumed Debt (as
defined below) and (B) Estimated Remaining Installments (as defined below), and further adjusted
upwards or downwards by the Estimated Working Capital (as defined below) depending on whether such
Estimated Working Capital is a positive or negative number (the
Cash Closing Payment
). The Cash
Closing Payment shall be made by the Purchaser in immediately available funds by wire transfer to
an account of Seller designated in writing by Seller to the Purchaser no later than three Business
Days prior to the Closing Date;
(ii) one or more stock certificates duly registered in the name of Seller, evidencing the
Securities; provided that, to provide for the potential adjustment as set forth in Section 2.3
below, to provide the Purchaser with recourse in connection with any potential claims against the
Seller under Article VIII hereof, and to provide security for Charter Extensions as set forth
below, at the Closing, all of the Securities (or $11,000,000 cash if the Purchaser exercises its
option to pay in cash in lieu of the Securities in accordance with Section 2.1 above) (the
Escrow
Fund
) shall be delivered by the Purchaser to the Escrow Agent to be held by the Escrow Agent in
accordance with the terms and conditions of the escrow agreement, in substantially the form
attached hereto as
Exhibit A-1
, and for a one year period after Closing, subject to
extension as provided therein (the
Post-Closing Escrow Agreement
); provided, that, $3,000,000 of
such Escrow Fund (the
Charter Escrow
) shall be allocated and held by the Escrow Agent in the
Escrow Fund, in accordance with the terms and conditions of the escrow agreement, in substantially
the form attached hereto as
Exhibit A-2
(the
Charter Escrow Agreement
) solely as
security for Sellers obligation to obtain extensions of the Time Charters on the Newbuild Vessel
and the Shinyo Saowalak to their original 15-year terms (the
Charter Extensions
), such Charter
Extensions to be on the terms (including daily hire rate) of the existing Time Charters with
2
respect to such Vessels (respectively). If Seller is able to obtain a Charter Extension
within 14 years from Closing, then 50% of the Charter Escrow shall, within five days thereof, be
released to Seller. If Seller is able to obtain the other Charter Extension within 14 years from
Closing, then the balance of the Charter Escrow shall be released to Seller within five days
thereof. After 14 years from Closing, the balance, if any, of the Charter Escrow shall be
released to Purchaser;
(iii) copies of resolutions of the board of directors of the Purchaser authorizing the
execution and delivery of this Agreement and the other Transaction Documents and performance of
the Purchasers obligations hereby and thereby, certified by the secretary of the Purchaser as
being in effect as of the Closing;
(iv) the New Performance Guarantee, duly executed by the Purchaser in favor of the Builder;
and
(v) those agreements, certificates, authentications and other documents required to be
delivered by the Purchaser as set forth in Section 6.1 below.
(b)
Closing Seller Deliverables
. At the Closing, Seller shall deliver or cause to be
delivered to the Purchaser the following:
(i) appropriate stock transfer documents in respect of all of the capital stock of each
Vessel Owning Subsidiary duly executed by the registered owner thereof together with share
certificates representing such shares of capital stock as required in order to fully effect the
transfer thereof to the Purchaser (or its designees), including, as applicable an instrument of
transfer signed by the Seller, subject only to execution of appropriate stock transfer documents
by the Purchaser or its designees and payment of applicable stamp duty;
(ii) copies of (A) resolutions of the board of directors of the Seller and, if applicable,
the stockholders of Seller, authorizing the execution and delivery of this Agreement and the other
Transaction Documents and performance of the Sellers obligations hereby and thereby, certified by
the secretary or a director of the Seller as being in effect as of the Closing and (B) resolutions
of the directors of each of the Vessel Owning Subsidiaries approving the transfer of the
applicable Seller Subsidiary Shares to the Purchaser, subject only to execution of appropriate
stock transfer documents by the Purchaser or its designees and payment of applicable stamp duty;
(iii) a confirmation by Newbuild Owner that there is no change to the Updated List of
Credit/Debt Items delivered to the Purchaser, other than any such changes made in compliance with
Section 4.1 hereof;
(iv) provided that Purchasers New Performance Guarantee is delivered under Section
2.2(a)(iv), an agreement, duly executed by the Builder and Seller, terminating the Existing
Performance Guarantee with an acknowledgement that all obligations of the Seller thereunder have
been satisfied and no obligations remain outstanding; and
(v) those agreements, certificates, authentications and other documents required to be
delivered by Seller as set forth in Section 6.2 below.
3
2.3
Adjustments
.
(a)
Sellers Estimated Closing Statement
. Two days prior to Closing, Seller will
deliver to the Purchaser a statement (the
Sellers Estimated Closing Statement
) setting forth
the Sellers good faith estimated calculations of (i) Assumed Debt (the
Estimated Assumed Debt
),
(ii) Working Capital (the
Estimated Working Capital
), and (iii) Remaining Installments (the
Estimated Remaining Installments
), as of Closing. The Sellers calculation of Estimated Working
Capital shall be prepared in accordance with GAAP, with such revisions as are necessary (whether
or not required by GAAP) to conform to the definition of Working Capital set forth in this
Agreement.
(b)
Review of Sellers Estimated Closing Statement
. After the Closing Date,
Purchaser and its independent accountant may review the Sellers Estimated Closing Statement and
may make inquiry of Seller and its representatives, and Seller will make available to Purchaser
and its representatives, as reasonably requested, all books and records relating to such Sellers
Estimated Closing Statement within their possession. The Sellers Estimated Closing Statement
shall be binding and conclusive upon, and deemed accepted by, Purchaser unless Purchaser shall
have notified Seller in writing of any objections thereto consistent with the provisions of this
Section 2.3 within 90 days after the Closing Date (such notice,
Purchasers Section 2.3(b)
Notice
). Purchasers Section 2.3(b) Notice shall specify in reasonable detail each item on the
Sellers Estimated Closing Statement that Purchaser disputes, a summary of the reasons for such
dispute and any other portion of the Sellers Estimated Closing Statement shall be deemed not to
be disputed by the Purchaser.
(c)
Disputes
. Purchaser shall make available to Seller and its representatives, as
reasonably requested, all books and records relating to Purchasers Section 2.3(b) Notice within
its possession. In the event that Seller disputes any amounts reflected on Purchasers Section
2.3(b) Notice, Seller shall notify Purchaser in writing (such notice, a
Section 2.3(c) Notice
),
within 30 days after the delivery of Purchasers Section 2.3(b) Notice (the
Adjustment Dispute
Deadline
), setting forth the amount, nature and basis of the dispute (
Adjustment Dispute
).
Within the following 10 days, the parties shall use their reasonable best efforts to resolve in
good faith such Adjustment Dispute. Upon their failure to do so, Seller or Purchaser, may within
10 days from the end of such 10 day period so appoint Ernst & Young on their joint behalf to
resolve such Adjustment Dispute (the
Section 2.3(c) Accountant
). The Section 2.3(c) Accountant
shall resolve the dispute based solely on presentations by Seller and Purchaser and shall render
its decision (together with a brief explanation of the basis therefor) as soon as reasonably
practicable but in any event no later than 45 days following submission of the dispute to it. The
fees and expenses of the Section 2.3(c) Accountant shall be borne equally by Seller and Purchaser
unless the Section 2.3(c) Accountant decides, based on its determination with respect to the
reasonableness of the respective positions of Purchaser and Seller that the allocation of fees and
expenses between the parties should be made and should be borne in unequal proportions. The
Adjustment Dispute Award shall be the sole recourse and remedy of the parties regarding any
Adjustment Dispute. The Adjustment Dispute Award shall constitute a final and binding arbitration
award and may be entered as a judgment by any court of competent jurisdiction.
4
(d)
Final Closing Statement
. The Assumed Debt, the Working Capital and the Remaining
Installments, as finally determined pursuant to the foregoing provisions of this Section 2.3,
shall be referred to herein as the
Final Closing Statement
.
(e)
Post-Closing Adjustments
.
(i) Following Closing, as soon as practicable (but not more than five Business Days after the
determination of the amount of Assumed Debt in accordance with this Section 2.3), the amount, if
any, by which the Assumed Debt at Closing is (i) greater than the Estimated Assumed Debt at
Closing, shall be paid by the Seller to the Purchaser, first by means of a reduction of the
Securities (or cash if Securities have been converted thereto) held under the Post-Closing Escrow
Agreement, if any are so held, and then, if such amount in the Post-Closing Escrow Agreement is
insufficient to satisfy such adjustment, with respect to the balance thereof in immediately
available funds by wire transfer to an account of Purchaser designated in writing by Purchaser to
Seller, no later than three Business Days prior to the date that such payment is due, or (ii) less
than the Estimated Assumed Debt at Closing, shall be paid by the Purchaser to the Seller in
immediately available funds by wire transfer to an account of Seller designated in writing by
Seller to Purchaser, no later than three Business Days prior to the date that such payment is due.
(ii) Following Closing, as soon as practicable (but not more than five Business Days after
the determination of the amount of Working Capital in accordance with this Section 2.3), the
amount, if any, by which Working Capital at Closing is (i) less than Estimated Worked Capital at
Closing, shall be paid by the Seller to the Purchaser, first by means of a reduction of the
Securities (or cash if the Securities have been converted thereto) held under the Post-Closing
Escrow Agreement, if any are so held, and then, if such amount in the Post-Closing Escrow
Agreement is insufficient to satisfy such adjustment, with respect to the balance thereof in
immediately available funds by wire transfer to an account of Purchaser designated in writing by
Purchaser to Seller, no later than three Business Days prior to the date that such payment is due,
or (ii) greater than the Estimated Working Capital at Closing, shall be paid by the Purchaser to
the Seller in immediately available funds by wire transfer to an account of Seller designated in
writing by Seller to Purchaser, no later than three Business Days prior to the date that such
payment is due.
(iii) Following the Closing, as soon as practicable (but not more than five Business Days
after the determination of the amount of Remaining Installments in accordance with this Section
2.3, the amount, if any, by which the Remaining Installments is (i) greater than the Estimated
Remaining Installments, shall be paid by the Seller to the Purchaser, first by means of a
reduction of the Securities (or cash if the Securities have been converted thereto) held under the
Post-Closing Escrow Agreement, and then, if such amount in the Post-Closing Escrow Agreement is
insufficient to satisfy such adjustment, with respect to the balance thereof in immediately
available funds by wire transfer to an account of Purchaser designated in writing by Purchaser to
Seller, no later than three Business Days prior to the date that such payment is due, or (ii) less
than the Estimated Remaining Installments, shall be paid by the Purchaser to the Seller in
immediately available funds by wire transfer to an account of Seller designated in writing by
Seller to Purchaser, no later than three Business Days prior to the date that such payment is due.
5
(iv) For the purposes of this Agreement, any and all Securities shall be deemed to be valued
at the same amount per Security as set forth in Section 2.1(a)(ii), subject only to equitable
adjustments in accordance with Section 10.14 for events the record date of which occur after the
Closing.
(v) The limitations set forth in Section 8.5 shall not apply to any adjustments required
under this Section 2.3.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Purchaser
. The Purchaser hereby represents
and warrants to Seller as follows:
(a)
Organization and Qualification of Purchaser
. The Purchaser is an entity duly
organized, validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite legal authority to own and use
its properties and assets and to carry on its business as currently conducted. The Purchaser is
not in violation of any of the provisions of its memorandum, certificate or articles of
incorporation, bye-laws or other organizational or charter documents. The Purchaser is duly
qualified to do business and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where such failure to qualify would not and would not reasonably be
expected to cause, individually or in the aggregate, a Purchaser Material Adverse Effect.
(b)
Organization and Qualification of Purchaser Subsidiaries
. Each Subsidiary of the
Purchaser (each, a
Purchaser Subsidiary
) is an entity duly organized, validly existing and in
good standing under the Laws of the jurisdiction of its incorporation or organization (as
applicable), with the requisite legal authority to own and use its properties and assets and to
carry on its business as currently conducted. No Purchaser Subsidiary is in violation of any of
the provisions of its memorandum, certificate or articles of incorporation, bye-laws or other
organizational or charter documents. Each Purchaser Subsidiary is duly qualified to do business
and is in good standing as a foreign corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such qualification necessary, except
where such failure to qualify would not and would not reasonably be expected to cause, individually
or in the aggregate, a Purchaser Material Adverse Effect.
(c)
Authorization; Enforcement
. The Purchaser has the requisite corporate authority
to enter into and to consummate the transactions contemplated by each of the Transaction Documents
to which it is a party and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of each of the Transaction Documents to which it is a party by the Purchaser
and the consummation by it of the transactions contemplated hereby and thereby have been duly
authorized by all necessary action on the part of the Purchaser and no further consent or action is
required by the Purchaser, its board of directors or its shareholders. Each of the Transaction
Documents to which it is a party has been (or upon delivery will be) duly executed by
6
the Purchaser and is, or when delivered in accordance with the terms hereof, will constitute,
the valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance
with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization
or other Laws of general application relating to or affecting the enforcement of creditors rights
generally, and (ii) the effect of rules of law governing the availability of specific performance
and other equitable remedies.
(d)
No Conflicts
. The execution, delivery and performance of the Transaction
Documents to which it is a party by the Purchaser and the consummation by the Purchaser of the
transactions contemplated hereby and thereby do not, and will not (i) conflict with or violate any
provision of the Purchasers memorandum, certificate or articles of incorporation, bye-laws or
other organizational or charter documents, (ii) conflict with, or constitute a default (or an event
that with notice, lapse of time, or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of
time or both) of, any Contract to which the Purchaser is a party or by which any property or asset
of the Purchaser is bound, or affected, or (iii) result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of any court or Governmental
Entity to which the Purchaser is subject (including, assuming the accuracy of the representations
and warranties of Seller set forth in Section 3.2(z) hereof, foreign, federal and state securities
laws and regulations and the rules and regulations of any self-regulatory organization to which the
Purchaser or its securities are subject, including all applicable Trading Markets), or by which any
property or asset of the Purchaser is bound or affected.
(e)
Government Consents and Approvals
. The execution, delivery and performance of
this Agreement by the Purchaser does not and will not require any consent, approval, Authorization
or other order of, action by, filing with or notification to any Governmental Entity.
(f)
SEC Reports
. The Purchaser has filed all reports required to be filed by it under
the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the three years
preceding the date hereof on a timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration of any such extension. Such
reports required to be filed by the Purchaser under the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof, together with any materials filed by the Purchaser under the Exchange Act,
whether or not any such reports were required being collectively referred to herein as the
SEC
Reports
. As of their respective dates, the SEC Reports filed by the Purchaser complied in all
material respects with the requirements of the Securities Act of 1933, as amended (the
Securities
Act
) and the Exchange Act and the rules and regulations of the SEC promulgated thereunder, and
none of the SEC Reports, when filed by the Purchaser, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading. Each of the Purchasers Form 6-Ks available on the SECs EDGAR system has been filed
and not furnished to the SEC.
(g)
Purchasers Vessels
. The SEC Reports sets forth an accurate and complete list of
each vessel owning Subsidiary of the Purchaser, describing the respective companys name, type of
entity, the jurisdiction and date of its incorporation or organization and the vessel(s) owned
7
by such Subsidiary. Except as disclosed in the SEC Reports, (i) Purchaser owns, directly or
indirectly, all of the capital stock or comparable equity interests of each such Subsidiary, and
(ii) each such Subsidiary has good and valid title to the vessel(s) so described subject to (A) the
loan agreements as described in the SEC Reports and (B) Encumbrances similar to the Permitted
Encumbrances.
(h)
The Securities
. The Securities are duly authorized and, when issued and paid for
in accordance with the Transaction Documents, will be duly and validly issued, fully paid and
non-assessable, free and clear of all Encumbrances and will not be subject to preemptive or similar
rights.
(i)
Brokers or Finders
. There is no investment banker, broker, finder or other
intermediary that has been retained by, or is authorized to act on behalf of the Purchaser, who
would be entitled to any fee or commission from the Seller in connection with this Agreement or the
transactions contemplated hereunder.
(j)
Financing
. At Closing, Purchaser will have sufficient funds available in cash to
pay the Cash Closing Payment and all other amounts payable by Purchaser under this Agreement.
(k)
Litigation
.
(i) There is no Action (A) pending or, to Purchasers Knowledge, threatened against or
affecting it or any of its Subsidiaries or any or any of their respective properties or assets, or
(B) that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated
by this Agreement. To Purchasers Knowledge, no event has occurred or circumstances exist that
may give rise or serve as a basis for any such Action.
(ii) There is no unsatisfied judgment, penalty or award entered, issued or rendered by any
Governmental Entity against or affecting the Purchaser or any of its Subsidiaries or any of their
respective properties or assets. There is no unsatisfied order (other than general orders applying
to classes of vessels or their owners and not specifically to the Purchaser or its Subsidiaries)
entered, issued or rendered by any Governmental Entity to which any of its Subsidiaries or any of
their respective properties or assets are subject.
(l)
Compliance
. Neither the Purchaser nor any of its Subsidiaries is in violation of
any statute, rule or regulation of any Governmental Entity, except where such violation would not
and would not reasonably be expected to have a Purchaser Material Adverse Effect.
(m)
Absence of Certain Changes and Events
. Since the date of the acquisition
reflected in Purchasers Form 6-K, filed on June 4, 2010 (which is reflected in Purchasers
unaudited pro-forma balance sheet, dated as of December 31, 2009, included in such Form 6-K), the
business of the Purchaser and each of its Subsidiaries has been conducted in the ordinary course
and consistent with past practice and neither the Purchaser nor any of its Subsidiaries has
experienced any Purchaser Material Adverse Effect.
8
(n)
Compliance with Anti-Corruption Laws
. The Purchaser and each of its Subsidiaries
conduct their respective businesses in compliance with all applicable anti-corruption
laws and have instituted and maintain and will continue to maintain policies and procedures
designed to promote and achieve compliance with such laws.
(o)
Exclusion
. Purchaser acknowledges and agrees that the Seller makes no and has not
made any representations or warranties with respect to the transactions contemplated hereby other
than those set forth in the Transaction Documents and in any certificate furnished by or on behalf
of the Seller pursuant to the provisions of this Agreement.
(p)
Regulation S
. The Purchaser:
(i) is offering and selling the Securities in an offshore transaction within the meaning, and
meeting the requirements of, Rule 903 under the Securities Act;
(ii) and its Affiliates and each Person acting on its or their behalf has not engaged, nor
will any of them engage, in any directed selling efforts with respect to the Securities (within
the meaning of Rule 903 under the Securities Act).
3.2
Representations and Warranties of Seller
. Seller hereby represents and warrants
to the Purchaser as follows, except as set forth in the disclosure schedule dated and delivered as
of the date hereof by Seller to Purchaser (the
Seller Disclosure Schedule
), which is attached to
this Agreement and is designated therein as being the Seller Disclosure Schedule:
(a)
Organization and Qualification
. The Seller and each of the Vessel Owning
Subsidiaries is an entity duly organized, validly existing and in good standing under the Laws of
the jurisdiction of its incorporation or organization (as applicable), with the requisite legal
authority to own and use its properties and assets and to carry on its business as currently
conducted. Neither Seller nor any Vessel Owning Subsidiary is in violation of any of the
provisions of its respective certificate or articles of incorporation, by-laws or other
organizational or charter documents. The Seller and each of the Vessel Owning Subsidiaries is duly
qualified to do business and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where such failure to qualify would not and would not reasonably be
expected to cause, individually or in the aggregate, a Seller Material Adverse Effect.
(b)
Authorization; Enforcement
. Seller has the requisite corporate authority to enter
into and to consummate the transactions contemplated by each of the Transaction Documents to which
it is a party and otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of each of the Transaction Documents to which it is a party by Seller and the
consummation by it of the transactions contemplated hereby and thereby have been duly authorized by
all necessary action on the part of Seller and no further consent or action is required by Seller,
its Board of Directors or its shareholders. Each of the Transaction Documents to which it is a
party has been (or upon delivery will be) duly executed by Seller and is, or when delivered in
accordance with the terms hereof, will constitute, the valid and binding obligation of Seller
enforceable against Seller in accordance with its terms, except as may be limited by (i) applicable
bankruptcy, insolvency,
9
reorganization or other Laws of general application relating to or affecting the enforcement of
creditors rights generally, and (ii) the effect of rules of law governing the availability of
specific performance and other equitable remedies.
(c)
Corporate Books and Records
. The minute books of each of the Vessel Owning
Subsidiaries contain accurate records of all meetings and accurately reflect all other actions
taken by the shareholders, boards of directors and all committees of the boards of directors of
each of the Vessel Owning Subsidiaries, respectively. Complete copies of all such minute books and
of the shareholder lists of each of the Vessel Owning Subsidiaries have been made available to the
Purchaser. At the Closing, Seller will deliver, or cause to be delivered, to Purchaser or its
designee all of the books and records of each of the Vessel Owning Subsidiaries.
(d)
No Conflicts
. Except as set forth on
Schedule 3.2(d)
, the execution,
delivery and performance of the Transaction Documents to which it is a party by Seller and the
consummation by Seller of the transactions contemplated hereby and thereby do not, and will not,
(i) conflict with or violate any provision of Sellers or any Vessel Owning Subsidiarys
certificate or articles of incorporation, bye-laws or other organizational or charter documents,
(ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration
or cancellation (with or without notice, lapse of time or both) of, any Contract to which Seller or
any Vessel Owning Subsidiary is a party or by which any property or asset of Seller or any Vessel
Owning Subsidiary is bound, or affected, or (iii) result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of any court or Governmental
Entity to which Seller or a Vessel Owning Subsidiary is subject (including, assuming the accuracy
of the representations and warranties of the Purchaser, foreign, U.S. federal and state securities
laws), or by which any property or asset of Seller or a Vessel Owning Subsidiary is bound or
affected.
(e)
Government Consents and Approvals
. The execution, delivery and performance of
this Agreement by Seller does not and will not require any Authorization or other order of, action
by, filing with or notification to any Governmental Entity, except as described in
Schedule
3.2(e)
.
(f)
Vessel Owning Subsidiaries; Seller Subsidiary Shares
.
Schedule 3.2(f)
sets
forth a list for each Vessel Owning Subsidiary describing the respective companys name, type of
entity, the jurisdiction and date of its incorporation or organization, its authorized capital
stock or comparable equity interests, the number and type of its issued and outstanding shares of
capital stock or comparable equity interests and the current ownership of such shares or comparable
equity interests. Except as disclosed in
Schedule 3.2(f)
hereto, (i) Seller owns, directly
or indirectly, all of the capital stock or comparable equity interests of each Vessel Owning
Subsidiary free and clear of any Encumbrance (other than Permitted Encumbrances, but as of the
Closing will transfer to Purchaser such capital stock or comparable equity interests free and clear
of any Encumbrances other than restrictions on transfer under applicable securities Laws and
Encumbrances placed on such capital stock or comparable equity interests by Purchaser) and all the
issued and outstanding shares of capital stock or comparable equity interests of each Vessel Owning
Subsidiary are validly issued and are fully paid, and are not subject to any preemptive and similar
rights; (ii) there are no options, warrants, convertible securities, or other rights, agreements or
commitments of such
10
character relating to the capital stock of any Vessel Owning Subsidiary or
obligating Seller or any Vessel Owning Subsidiary to issue or sell any shares of capital stock
of, or any other equity interest in, any Vessel Owning Subsidiary; and (iii) other than in respect
of the financing arrangements under the Existing Loan Documents, there are no voting trusts,
shareholders agreements, proxies or other agreements in effect with respect to the voting or
transfer of any shares of capital stock or any other equity interests in any Vessel Owning
Subsidiary.
(g)
Financial Statements
. (i) True and complete copies of (A) the combined financial
statements of each of Shinyo Loyalty Limited, Shinyo Kannika Limited, Shinyo Navigator Limited,
Shinyo Ocean Limited, Shinyo Dream Limited and Shinyo Saowalak Limited (collectively, the
Combined
Entities
), and (B) individual financial statements of Newbuild Owner, respectively, consisting of
the combined balance sheet of the Combined Entities and the balance sheet of Newbuild Owner as at
December 31, 2008 and 2009 and the related statements of income and retained earnings,
stockholders equity and cash flow, for the years ended December 31, 2007, 2008 and 2009 (or since
inception in the case of the Newbuild Owner) (the
Audited Financial Statements
; notwithstanding
anything to the contrary set forth in this Section 3.2(g)(i), subsequent to the receipt of the
financial statements contemplated by Section 5.6, the terms Interim Financial Statements,
Financial Statements and Audited Financial Statements shall have the respective meanings as set
forth in Section 3.1(g)(ii) below and the term Combined Entities shall refer to all of the Vessel
Owning Subsidiaries), and unaudited financial statements, respectively, consisting of the combined
balance sheet of the Combined Entities and the balance sheet of Newbuild Owner as at March 31, 2009
and 2010 and the related statements of income and retained earnings, stockholders equity and cash
flow for the three-month periods ended March 31, 2009 and 2010 (the
Interim Financial Statements
and together with the Audited Financial Statements, the
Financial Statements
), are attached
hereto as
Schedule 3.2(g)
. The Financial Statements (1) of the Combined Entities have been
prepared in accordance with GAAP and (2) of Newbuild Owner have been prepared in accordance with
Hong Kong generally accepted accounting principles, in each case applied on a consistent basis
throughout the periods involved, subject, in the case of the Interim Financial Statements, to
normal and recurring year end adjustments (the effect of which, to the Knowledge of the Seller,
will not be materially adverse) and the absence of certain note disclosures. The Financial
Statements are based on the books and records of the Combined Entities or Newbuild Owner (as
applicable), and the Audited Financial Statements fairly present the financial condition of the
Combined Entities or Newbuild Owner (as applicable) as of their respective dates and the results of
the operations of the Combined Entities or Newbuild Owner (as applicable) for the periods
indicated.
(ii) The financial statements to be delivered to Purchaser pursuant to Sections 5.4 and 5.6
will be true and complete copies of the combined financial statements of all of the Vessel Owning
Subsidiaries, consisting of the combined balance sheet of all of the Vessel Owning Subsidiaries as
at December 31, 2008 and 2009 and the related statements of income and retained earnings,
stockholders equity and cash flow, for the years ended December 31, 2007, 2008 and 2009 (the
Audited Financial Statements
), and unaudited financial statements, consisting of the combined
balance sheet of all of the Vessel Owning Subsidiaries as at June 30, 2009 and 2010 and the related
statements of income and retained earnings, stockholders equity and cash flow for the six-month
periods ended June 30, 2009 and 2010 (the
Interim Financial Statements
and together with the
Audited Financial Statements, the
Financial Statements
). The Financial
11
Statements of the Combined Entities will be prepared in accordance with GAAP, in each case
applied on a consistent basis throughout the periods involved, subject, in the case of the
Interim Financial Statements, to normal and recurring year end adjustments (the effect of which, to
the Knowledge of the Seller, will not be materially adverse) and the absence of certain note
disclosures. The Financial Statements will be based on the books and records of the Combined
Entities, and the Audited Financial Statements will fairly present the financial condition of the
Combined Entities as of their respective dates and the results of the operations of the Combined
Entities for the periods indicated.
(h)
Absence of Undisclosed Liabilities
. Other than with respect to Taxes (which are
covered by Section 3.2(w) of this Agreement) and except as set forth in
Schedule 3.2(h)
,
none of the Vessel Owning Subsidiaries is subject to any liabilities except for (i) liabilities to
the extent disclosed or reserved against in the Interim Financial Statements, (ii) liabilities
which are incurred by any of the Vessel Owning Subsidiaries as a result of this Agreement or any
other Transaction Document or incurred at the written request or direction, or with the written
consent, of the Purchaser, and (iii) liabilities that have been incurred since the date of the
latest balance sheet included in the Interim Financial Statements in the ordinary course of
business of the Vessel Owning Subsidiaries.
(i)
Litigation
.
(i) Except as set forth in
Schedule 3.2(i)
, there is no Action (A) pending or to
Sellers Knowledge, threatened against or affecting any of the Vessel Owning Subsidiaries or any
Vessel, or (B) that challenges or seeks to prevent, enjoin or otherwise delay the transactions
contemplated by this Agreement. To Sellers Knowledge, no event has occurred or circumstances
exist that may give rise or serve as a basis for any such Action.
(ii) Except as set forth in
Schedule 3.2(i)
, there is no unsatisfied judgment, penalty
or award entered, issued or rendered by any Governmental Entity against or affecting any of the
Vessel Owning Subsidiaries or any of their respective properties or assets. There is no unsatisfied
order (other than general orders applying to classes of vessels or their owners and not
specifically to the Vessel Owning Subsidiaries) entered, issued or rendered by any Governmental
Entity to which any Vessel Owning Subsidiary or any of their respective properties or assets are
subject.
(j)
Compliance
. Except as described in
Schedule 3.2(j
) and other than with
respect to Taxes (which are covered by Section 3.2(w) of this Agreement), no Vessel Owning
Subsidiary is in violation of any statute, rule or regulation of any Governmental Entity, except
where such violation would not and would not reasonably be expected to have a Seller Material
Adverse Effect.
(k)
Title to Assets; Condition of Assets
. Except for Vessels (which are covered by
Section 3.2(x)),
Schedule 3.2(k)
sets forth a complete and accurate list of all the
personal properties and assets, in each case which the Seller reasonably believes has a value of
not less than $500,000, owned or leased by each of the Vessel Owning Subsidiaries, specifying
whether each such asset is owned or leased and, in the case of leased assets, indicating the
parties to and execution dates
12
of the lease. Other than as set forth on
Schedule 3.2(k)
, with respect to such personal properties and
assets that are owned, each Vessel Owning Subsidiary has good and valid title to all of such
properties and assets, including, without limitation, all properties and assets reflected as owned
in the books and records of each Vessel Owning Subsidiary, free and clear of all Encumbrances
(other than Permitted Encumbrances). With respect to such personal properties and assets that are
leased, all such leases are in full force and effect, except as would not have a Seller Material
Adverse Effect. None of the Vessel Owning Subsidiaries or, to Sellers Knowledge, any other party
thereto is in breach of any of the terms of any such lease. None of the Vessel Owning Subsidiaries
owns any real property or holds any real property under lease.
(l)
Exclusion
. Seller acknowledges and agrees that the Purchaser makes no, and has
not made any, representations or warranties with respect to the transactions contemplated hereby
other than those set forth in the Transaction Documents and in any certificate furnished by or on
behalf of the Purchaser pursuant to the provisions of this Agreement.
(m)
Intellectual Property
. Each of the Vessel Owning Subsidiaries owns, or possesses
adequate rights or licenses to use, all Intellectual Property Rights necessary to conduct their
respective businesses now conducted. Except as set forth in
Schedule 3.2(m)
, the
Intellectual Property Rights owned by the Vessel Owning Subsidiaries are valid and subsisting. To
Sellers Knowledge, none of the Vessel Owning Subsidiaries are infringing the Intellectual Property
Rights of others. Except as set forth in
Schedule 3.2(m)
, there is no claim, action or
proceeding being made or brought, or to the Knowledge of Seller, being threatened, against any of
the Vessel Owning Subsidiaries regarding the Intellectual Property Rights.
(n)
Insurance
.
(i)
Schedule 3.2(n)(i)
sets forth the following information with respect to each
insurance policy (including policies providing property, casualty, liability, workers
compensation, bond surety arrangements and Hull and Machinery) under which any Vessel Owning
Subsidiary or Vessel is an insured, a named insured or otherwise the principal beneficiary of
coverage: (A) the name, address and telephone number of the agent or broker, (B) the name of the
insurer and the names of the principal insured and each named insured and (C) the policy number and
the period of coverage. A copy of each such insurance policy has been made available to the
Purchaser.
(ii) With respect to each insurance policy set forth on
Schedule 3.2(n)(i)
: (A) the
policy is in full force and effect; (B) no Vessel Owning Subsidiary is in breach or default
(including any breach or default with respect to the payment of premiums or the giving of notice)
except where such breach or default would not have a Seller Material Adverse Effect, and to
Sellers Knowledge no event has occurred which, with notice or the lapse of time, would constitute
such a breach or default or permit termination or modification, under the policy; and (C) no party
to the policy has given Seller or any Vessel Owning Subsidiary (or the Manager on behalf of any
Vessel Owning Subsidiary) written notice of repudiation, or given Seller or any Vessel Owning
Subsidiary (or the Manager on behalf of any Vessel Owning Subsidiary) written notice of an intent
to repudiate, any provision thereof.
13
(iii) Except as set forth on
Schedule 3.2(n)(iii)
, each Built Vessel is insured in
accordance with the provisions of the Time Charter and ship mortgages thereon and the requirements
thereof.
(iv)
Schedule 3.2(n)(iv)
sets forth a list of claims and the insurers reserve with
respect to such claims pending, by any Vessel Owning Subsidiary under any insurance policy
described in clause (i) of this Section 3.2(n).
(o)
Regulatory Permits
. Each of the Vessel Owning Subsidiaries possesses all
Authorizations issued by the appropriate federal, state, local or foreign regulatory authorities
necessary to conduct their respective businesses except where the failure to possess any such
Authorization would not cause a Seller Material Adverse Effect (
Seller Permits
), and no Vessel
Owning Subsidiary has received any written notice of proceedings relating to the revocation or
modification of any such Seller Permit.
(p)
Certain Interests
. Except as disclosed in
Schedule 3.2(p)
, no officer,
director or shareholder of Seller or of any Vessel Owning Subsidiary and no relative or spouse (or
relative of such spouse) who resides with, or is a dependent of, any such officer, director,
shareholder:
(i) has any direct or indirect financial interest in any supplier or customer of the Seller,
provided
,
however
, that the ownership of securities representing no more than five
percent of the outstanding voting power of any such supplier or customer, and which are listed on
any securities exchange or traded actively in the national over the counter market, shall not be
deemed to be a financial interest so long as the Person owning such securities has no other
connection or relationship with such supplier or customer;
(ii) is a party to any Contract with any Vessel Owning Subsidiary;
(iii) has outstanding Indebtedness to any Vessel Owning Subsidiary; or
(iv) owns, directly or indirectly, in whole or in part, any property that any Vessel Owning
Subsidiary uses in the conduct of its business, other than with respect to any shareholder of
Seller or of any Vessel Owning Subsidiary, in its capacity as a shareholder.
Except as disclosed in
Schedule 3.2(p),
no Vessel Owning Subsidiary has any liability or
any other obligation of any nature whatsoever to any officer, director or shareholder of any Vessel
Owning Subsidiary or to any relative or spouse (or relative of such spouse) who resides with, or is
a dependent of, any such officer, director or shareholder. As of the Closing, all such liabilities
or obligations set forth on
Schedule 3.2(p)
shall be satisfied or discharged.
(q)
Contracts
.
(i)
Schedule 3.2(q)
sets forth the following Contracts of each Vessel Owning
Subsidiary currently in effect and which will not, in accordance with their respective terms,
terminate, without any further obligation on the part of any Vessel Owning Subsidiary, on or prior
to the Closing (such contracts and agreements being
Seller Material Contracts
): (A) each
Contract to which a Vessel Owning Subsidiary is a party or is subject, which, for the
14
avoidance of doubt, shall not include any Contract entered into by the Manager on behalf of,
or as agent for, any Vessel Owning Subsidiary and (B) each Contract entered into by the Manager on
behalf of, or as agent for, a Vessel Owning Subsidiary under the terms of which such Vessel Owning
Subsidiary is required to pay, or entitled to recover, consideration of more than $50,000 in the
aggregate over the remaining term of such Contract and which are not terminable within 12 months
without penalty. The aggregate consideration that all Vessel Owning Subsidiaries are required to
pay, or entitled to recover under all Contracts to which they are subject (other than those
Contracts set forth on
Schedule 3.2(q)
, is not more than $500,000 over the remaining terms
of such Contracts. Notwithstanding the foregoing, Seller Material Contracts shall not include
Contracts entered into by the Manager in connection with the dry-dockings referred to in Section
4.1(d) as to which Seller has agreed to bear all costs.
(ii) Each Vessel Owning Subsidiary, as applicable, is in compliance with, and to Sellers
Knowledge, all other parties thereto are in compliance with, the provisions of each Seller
Material Contract, except, in each case, where the failure to be in compliance with any such
provision would not have a Seller Material Adverse Effect.
(iii) To Sellers Knowledge, no event has occurred which with or without the giving of notice
or lapse of time, would give any Person the right to accelerate the maturity or performance of, or
cancel, terminate or modify, any Seller Material Contract.
(iv) Seller has made available accurate and complete copies of each Seller Material Contract
to the Purchaser, except the Contracts identified in Section 3.2(q)(i)(B).
(r)
Compliance with Money Laundering Laws
. The operations of each Vessel Owning
Subsidiary have been conducted at all times in compliance with all applicable money laundering
legal requirements (
Money Laundering Laws
) and no action, suit or proceeding by or before any
Governmental Entity involving any Vessel Owning Subsidiary with respect to the Money Laundering
Laws is pending or, to the Knowledge of the Seller, is threatened.
(s)
Compliance with Anti-Corruption Laws
. The Vessel Owning Subsidiaries conduct
their businesses in compliance with all applicable anti-corruption laws.
(t)
Employees.
None of the Vessel Owning Subsidiaries have any employees nor have
ever had any employees.
(u)
Labor Matters
. The crew of each Vessel is engaged pursuant to a collective
bargaining agreement or other labor union contract. There are no strikes, slowdowns, work stoppages
or material controversies pending or, to the Knowledge of Seller or any Vessel Owning Subsidiaries,
threatened by the crew of any Vessel, and no Vessel of a Vessel Owning Subsidiary has experienced
any strike, slowdown, work stoppage or material controversy within the past 12 months. There are
no unfair labor practice complaints (excluding immaterial grievances) pending against any Vessel
Owning Subsidiary before any Governmental Entity or, to the Knowledge of Seller, any current union
representation questions involving any Vessel Owning Subsidiary or crew of any Vessel. Each Vessel
Owning Subsidiary is currently in compliance with all applicable employment and labor Laws,
including those related to wages, hours and collective bargaining as
15
required by the appropriate Governmental Entity and is not liable for any arrears of wages,
penalties or other sums for failure to comply with any of the foregoing, except in each case where
any failures to comply would not and would not reasonably be expected to cause, individually or in
the aggregate, a Seller Material Adverse Effect. Each Vessel Owning Subsidiary has paid in full to
all crew members of its Vessel or adequately accrued to the extent required by GAAP all wages,
salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such crew
members. To the Knowledge of Seller, there is no claim with respect to payment of wages, salary or
overtime pay that has been asserted or is now pending or threatened before any Governmental Entity
with respect to crew member of any Vessel. To the Knowledge of Seller, no Vessel Owning Subsidiary
is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental
Entity relating to any crew member of any Vessel. To the Knowledge of Seller, there is no charge
or proceeding with respect to a violation of any occupational safety or health standards that has
been asserted or is now pending or threatened with respect to any Vessel Owning Subsidiary or
Vessel. To the Knowledge of Seller, there is no charge of discrimination in employment or
employment practices, for any reason, including, without limitation, age, gender, race, religion or
other legally protected category, which has been asserted or is now pending or threatened against
any Vessel Owning Subsidiary before any Governmental Entity in any jurisdiction in which any Vessel
has employed or currently employs any Person.
(v)
Environmental Laws
. Except as would not have a Seller Material Adverse Effect,
(i) each Vessel Owning Subsidiary and each Vessel is in compliance with all applicable
Environmental Laws and has obtained and is in compliance with all Environmental Approvals required
under Environmental Laws, (ii) there are no written or formal Environmental Claims pending or, to
Sellers Knowledge, threatened against any Vessel Owning Subsidiary or any Vessel pursuant to
Environmental Laws and (A) pertaining to the management, handling or disposal of Hazardous
Materials, (B) alleging violation by any Vessel Owning Subsidiary of, or liability under, any
Environmental Law or Environmental Approval, or (C) alleging liability for Environmental Incidents
and (iii) Hazardous Materials that have been used and/or disposed of on a Vessel during the period
of their ownership by the relevant Vessel Owning Subsidiary have been used and disposed of in
compliance with all Environmental Laws. The representations in this Section 3.2(v) constitute the
sole and exclusive representations of the Seller regarding or relating in any way to environmental
matters.
(w)
Tax Status
. Each Vessel Owning Subsidiary (i) has made or filed all income and
all other Tax Returns required by any jurisdiction to which it is subject, (ii) has paid all Taxes,
shown or determined to be due on such Tax Returns, except those being contested in good faith, and
(iii) has set aside on its books provision reasonably adequate for the payment of all Taxes for
taxable periods subsequent to the periods to which such Tax Returns apply. The Seller has made
available to the Purchaser correct and complete copies of all Tax Returns filed with respect to
each Vessel Owning Subsidiary for any taxable period ending after December 31, 2006, and copies of
all correspondence to or from any Taxing Authority with respect thereto or any Tax Matter relating
thereto, including any examination reports and statements of deficiencies assessed against or
agreed to by any Vessel Owning Subsidiary. Other than as set forth in any Time Charter, any Tax
sharing or allocation agreement to which any Vessel Owning Subsidiary is a party shall be
terminated as of the Closing on terms that require no further payments by any party. Seller has
made available to the Purchaser a true and complete copy of each such agreement as listed on
Schedule 3.2(w)
.
There are
16
no unpaid Taxes claimed to be due by any Taxing Authority, and to the Knowledge of the Seller,
there is no basis for any such claim. Notwithstanding anything to the contrary set forth herein,
nothing herein shall be or be deemed to be a representation or warranty with respect to Taxes that
may be required to be paid pursuant to Section 887 of the Code or Tax Returns that may have been
required to be filed with respect thereto.
(x)
Vessels; Maritime Matters
.
(i) Each existing vessel owned by a Vessel Owning Subsidiary (such vessels, the
Built
Vessels
) and the vessel currently being built for Shinyo Kieran Limited (a Vessel Owning
Subsidiary) (such vessel, the
NewBuild Vessel
, and together with the Built Vessels are
collectively referred to herein as the
Vessels
) are listed on
Schedule 3.2(x)
. The use
of the Built Vessels in the trades in which they are engaged is not in contravention of any
applicable Laws and Maritime Guidelines where failure to comply with such Laws and Maritime
Guidelines would reasonably be expected to have, individually or in the aggregate, a Seller
Material Adverse Effect. Each relevant Vessel Owning Subsidiary is qualified under all applicable
Laws to own its respective Built Vessel as they are now being owned, including the Laws of each
Built Vessels flag state. Each relevant Vessel Owning Subsidiary is qualified under all
applicable Laws to operate its respective Built Vessel as they are now being operated, including
the Laws of each Built Vessels flag state, except where any failure to be so qualified would not
and would not reasonably be expected to cause, individually or in the aggregate, a Seller Material
Adverse Effect.
(ii) Except as set forth in
Schedule 3.2(x)
, (A) each Built Vessel is classed by any
of Lloyds Register of Shipping, American Bureau of Shipping, Det Norske Veritas or another
classification society which is a member of the International Association of Classification
Societies and is in class with all class and trading certificates for vessels of the same age and
type valid through the date of this Agreement and (B) to Sellers Knowledge no event has occurred
and no condition exists that would cause such Built Vessels class to be suspended or withdrawn,
and (C) each Built Vessel is free of any outstanding recommendations affecting its class.
(iii) Except as set forth in
Schedule 3.2(x)
, each applicable Vessel Owning Subsidiary
is the sole owner of each such Built Vessel as applicable and has good title to such Built Vessel,
free and clear of all Encumbrances other than Permitted Encumbrances.
(iv) Newbuild Owner has all rights, title and interest as purchaser under the Shipbuilding
Contract and the Refund Guarantee free of Encumbrances, except for Permitted Encumbrances, all
Installments which were due to be paid thereunder up to and including the date hereof have been
duly paid to the Builder and there are no defaults or breaches by Newbuild Owner or, to the
Sellers Knowledge, by the Builder, under the Shipbuilding Contract in any such case which would
permit the Builder to terminate the Shipbuilding Contract, or entitle the Builder to delay delivery
of the Vessel for more than ten days.
(v) The Refund Guarantee is in full force and effect.
(y)
Bank Accounts and Account Activity; Powers of Attorney
. All of the bank accounts,
safe deposit boxes and lock boxes used by each Vessel Owning Subsidiary (designating
17
each authorized signatory) are listed in
Schedule 3.2(y)
. Excepting the authorized
signatories and any power of attorney granted under the Existing Loan Documents, no Vessel Owning
Subsidiary has granted a power of attorney to any Person that will not have been terminated as of
the Closing.
(z)
Seller Status
. The Seller is outside the United States and not a U.S. person,
as such terms are defined in Regulation S under the Securities Act, and is not acquiring the
Securities for the account or benefit of any U.S. person, as that term is defined in Regulation S
under the Securities Act.
(aa)
Brokers or Finders
. There is no investment banker, broker, finder or other
intermediary that has been retained by, or is authorized to act on behalf of the Seller or any
Vessel Owning Subsidiary, who would be entitled to any fee or commission from the Purchaser or any
Vessel Owning Subsidiary in connection with this Agreement or the transactions contemplated
hereunder.
(bb)
Absence of Certain Changes and Events
.
(i) Since the date of the most recent balance sheet included in the Interim Financial
Statements, except as disclosed in
Schedule 3.2(bb)
, the business of each Vessel Owning
Subsidiary has been conducted in the ordinary course and consistent with past practice. As
amplification and not limitation of the foregoing, except as so disclosed in
Schedule
3.2(bb)
or in the Interim Financial Statements, since such date, no Vessel Owning Subsidiary
has:
(A) permitted or allowed any of the assets or properties having a value in excess of $50,000
(whether tangible or intangible) of such Vessel Owning Subsidiary to be subjected to any
Encumbrance (other than Permitted Encumbrances);
(B) except (1) in the ordinary course of business consistent with past practice or (2) as
required or contemplated by this Agreement, or (3) liabilities reflected in the accounts of the
relevant Vessel Owning Subsidiary, discharged or otherwise obtained the release of any Encumbrance
or paid or otherwise discharged any liability;
(C) except as required or contemplated by this Agreement, made any loan to, guaranteed any
Indebtedness of or otherwise incurred any other Indebtedness on behalf of any Person;
(D) experienced any Seller Material Adverse Effect;
(E) except as required or contemplated by this Agreement, amended or changed its charter
documents or any one or more of the Time Charter, Shipbuilding Contract, Refund Guarantee or
Management Agreement to which it is a party;
(F) split, combined or reclassified any Equity Security, or authorized for issuance, any
Equity Security;
18
(G) except as required or contemplated by this Agreement, and to Sellers Knowledge, no other
party has, accelerated, terminated, modified or cancelled any Seller Material Contract;
(H) experienced any material damage, destruction or loss with respect to any Vessel, whether
or not covered by insurance;
(I) made any change in accounting practices;
(J) made any Tax election, changed its method of Tax accounting or settled any claim for Taxes
other than payments of Taxes in the ordinary course or as required by Law; and
(K) agreed, whether in writing or otherwise, to do any of the foregoing.
(cc)
Swap Contracts
.
Schedule 3.2(cc)
sets forth a list of all swap or
derivative Contracts to which any Vessel Owning Subsidiary may be a party (collectively, the
Swap
Contracts
), all of which shall be terminated and any liabilities thereunder shall be satisfied on
or prior to Closing.
ARTICLE IV
COVENANTS OF PURCHASER AND SELLER
4.1
Covenants
.
(a)
Conduct of Business Prior to Closing
. Seller covenants and agrees that between
the date hereof and the time of the Closing, (1) except with the prior written consent of Purchaser
(which shall not be unreasonably withheld, delayed or conditioned) or (2) as required, contemplated
or permitted by any Transaction Document: (A) Seller shall cause each Vessel Owning Subsidiary to:
(i) perform in all material respects and in a timely manner all of their respective
obligations and comply in all material respects with all covenants under each Seller Material
Contract to which it is a party, including without limitation, its obligations for payment of any
Installment which may become due prior to Closing under the Shipbuilding Contract (assuming the
performance in all material respects and in a timely manner and compliance in all material respects
with all covenants by the counterparties thereto);
(ii) use its commercially reasonable efforts to preserve intact its present business
organization and preserve its relationship with customers, suppliers, distributors, licensors,
licensees, and others having business dealings with it, as commercially appropriate in the good
faith judgment of the Vessel Owning Subsidiaries;
19
(iii) use commercially reasonable efforts to maintain its material facilities and material
assets in the same state of repair as they are on the date hereof, reasonable wear and tear
excepted;
(iv) promptly notify Purchaser of any event or occurrence not in the ordinary course of
business;
(v) maintain its books and records in accordance with past practice, and use commercially
reasonable efforts to maintain in full force and effect all material Seller Permits and material
insurances; and
(B) Seller shall additionally cause Newbuild Owner:
(vi) make available to Purchaser copies of all material correspondence exchanged with the
Builder in connection with the Shipbuilding Contract;
(vii) not agree to any material change of plans and drawings provided by the Builder or
approve any further material plans and/or material drawings to be provided by the Builder pursuant
to the Shipbuilding Contract and/or agree upon any material change of the Updated List of
Credit/Debit Items, without prior consultation with the Purchaser to the extent that the Purchaser
is timely available for such consultation and it is not impracticable to do so;
(viii) make the Updated List of Credit/Debit Items available to the Purchaser at least five
days prior to the Closing Date;
(ix) use commercially reasonable efforts to (x) maintain its material rights under the
Shipbuilding Contract and Refund Guarantee and (y) maintain its business relations with the
Builder; and
(x) provide amended communication details to the Builder as instructed by the Purchaser in
accordance with the requirements of the respective Shipbuilding Contract at the Closing.
(b)
Covenants with Respect to Existing Lenders
. Each Party covenants and agrees that
between the date hereof and the Closing (i) each Party shall provide the Existing Lenders to each
Vessel Owning Subsidiary all such information as shall be reasonably requested by such Existing
Lenders in connection with the substitution of the Purchaser for the Seller with respect to the
applicable Existing Loan Guarantees upon the Closing, and (ii) each Party shall provide the Builder
all such information as shall be reasonably requested by the Builder in connection with the
issuance by the Purchaser of a replacement guarantee in substitution for, and release of, the
Existing Performance Guarantee and in connection with obtaining the Builders consent under the
Shipbuilding Contract to the sale of the Newbuild Owner to the Purchaser. In addition, Purchaser,
if required by an Existing Lender, agrees to guarantee the performance of each Vessel Owning
Subsidiary (other than the Newbuild Owner) under the applicable Existing Loan Documents as of the
Closing and to guarantee the performance of Newbuild Owner under the Shipbuilding Contract as of
the Closing and (whether or not so required) to procure the termination of the Existing Loan
20
Guarantees and the Existing Performance Guarantee at the Closing, as applicable, such
that Seller will have no remaining obligations under such guarantees as of the Closing.
(c)
Negative Covenants
. Seller covenants and agrees that between the date hereof and
the time of the Closing, except (1) with the prior written consent of Purchaser (which shall not be
unreasonably withheld, delayed or conditioned), or (2) as required, contemplated or permitted by
any Transaction Document, Seller shall not permit a Vessel Owning Subsidiary to:
(i) (A) other than (x) Contracts (including orders thereunder) for lube oil in the ordinary
course of business consistent with past practice; and (y) in the case of emergencies or accidents
where it is impractical to obtain Purchasers consent (to the extent so impractical) (collectively,
the
Exclusions
), enter into any Contract that would cause the aggregate consideration that all
Vessel Owning Subsidiaries are required to pay, or entitled to recover under all Contracts to which
they are subject (other than the Contracts set forth on
Schedule 3.2(q)
), to be more than
an aggregate of $500,000 over the remaining terms of such Contracts, or (B) become subject to any
Contract entered into by the Manager on behalf of, or as agent for, a Vessel Owning Subsidiary,
under the terms of which such Vessel Owning Subsidiary is required to pay, or entitled to recover,
consideration of more than $50,000 in the aggregate over the term of such Contract and which is not
terminable within 12 months without penalty;
(ii) declare or pay any dividend, distribution or revenue with respect to any amounts received
by any Vessel Owning Subsidiary for services to be provided by any Vessel Owning Subsidiary after
the Closing Date;
(iii) amend, modify, cancel or waive any rights under any Seller Material Contract or any
insurance policy set forth on
Schedule 3.2(n)(i)
except as contemplated by this Agreement
or as permitted by the Exclusions;
(iv) hire any employees or, except in the ordinary course of business, engage any consultants
or independent contractors, in each case other than in the ordinary course of business;
(v) delay or postpone the payment of its accounts payable and other liabilities outside of the
ordinary course of business consistent with past practice;
(vi) (A) change in any material respect the accounting methods or practices followed, or (B)
make any Tax election, change its method of Tax accounting or settle any claim relating to Taxes
except payments of Taxes in the ordinary course or as required by Law;
(vii) amend or modify its organizational documents;
(viii) issue or authorize for issuance any Equity Security or redeem, purchase or otherwise
acquire any Equity Security;
(ix) cancel or amend any orders placed in respect of any materials or equipment having a value
of not less than $50,000 in respect of each Vessel or any agreements made
21
with the makers selected from the makers list (as referred to in the Shipbuilding Contract),
except as permitted by the Exclusions;
(x) enter into any employment agreement;
(xi) establish, adopt or enter into, any employee benefit plan or any collective bargaining,
thrift, compensation or other plan, agreement, trust, fund, policy or arrangement for the benefit
of any current or former officers, directors or consultants;
(xii) assume, incur or guarantee any Indebtedness;
(xiii) mortgage, pledge or subject to Encumbrances any material properties or material assets
other than Permitted Encumbrances;
(xiv) make any loans, advances or capital contributions to, or investments in, any other
Person, other than in the ordinary course of business consistent with past practice;
(xv) make any capital expenditures, or commit to make any capital expenditure which in the
aggregate exceed $500,000, except as permitted by the Exclusions;
(xvi) make any filings or registrations, with any Governmental Entity, except filings and
registrations made in the ordinary course of business or as required by Law;
(xvii) other than pursuant to or in connection with any Transaction Document, be party to any
merger, acquisition, consolidation, recapitalization, liquidation, dissolution or similar
transaction involving, or any purchase of all or any substantial portion of, its assets or Equity
Securities or other securities;
(xviii) make any changes in its accounting methods, principles or practices; or
(xix) agree, whether in writing or otherwise, to do any of the foregoing.
Seller shall give written notice to Purchaser promptly after an event that constitutes an
Exclusion, such written notice to describe the event constituting the Exclusion.
(d) Notwithstanding any other provision of this Section 4.1, the Purchaser agrees that (x)
between the date hereof and the Closing Date, the Seller may assume any amounts payable by a
Vessel Owning Subsidiary to the Manager, provided that any resulting liabilities of any Vessel
Owning Subsidiary to the Seller shall have been paid in full or extinguished as of the Closing
Date (which extinguishment may be made by the Seller waiving or otherwise forgiving such
liability) and (y) the Seller shall cause each of Shinyo Navigator Limited and Shinyo Dream
Limited to have a special survey undertaken in respect of each of the Shinyo Navigator and C-Dream
to the satisfaction of the Classification Society of each such Vessel, as applicable; and none of
(x) or (y), or actions taken in connection therewith, shall require the consent of the Purchaser
or be, or be deemed to be, in contravention of the covenants made in this Section 4.1. The fees,
costs
22
and expenses incurred in connection with each such special survey, including the costs of
supplies and spare parts in respect thereof (
Survey Costs
) shall be paid as follows:
(i) As soon as reasonably practicable following the date hereof, Seller will procure that
Manager provides to Purchaser an estimate of Survey Costs, including itemized quotations from
suppliers, purchase orders, a timetable for completion of any such survey not yet completed and
amounts paid through the date hereof. Upon reasonable request of Purchaser from time to time
thereafter upon not less than seven Business Days notice, and in any event as of a date not more
than two Business Days prior to Closing, Seller will procure Manager to update such information,
and provide a good faith estimate of all Survey Costs which will remain unpaid as of the Closing
(
Unpaid Survey Costs
);
(ii) Prior to Closing, Seller shall procure Manager to pay (and shall provide Manager with
funds to pay) the Survey Costs for which invoices have been received at least seven Business Days
before Closing and for which Manager has verified that the amount is undisputed and is owing and
due (
Pre-Closing Survey Costs
);
(iii) At Closing the Working Capital Liabilities included in the Estimated Working Capital
shall include a current liability equal to the Unpaid Survey Costs. Following Closing Purchaser
and Seller shall procure Manager applies such amounts received from Purchaser to the discharge of
the Unpaid Survey Costs following Closing, at the time and in the manner hereinafter set forth.
(iv) As and when invoices have been received by the Manager and forwarded to the Purchaser
for Survey Costs and for which Manager has verified that the amount is undisputed and is owing
and due the Purchaser shall pay an amount equal to the amount of such invoices to the Manager up
to the amount of the Unpaid Survey Costs.
(v) Purchaser shall keep Seller and shall procure that Manager, keeps, Seller, regularly
informed of the progress of payment of the Survey Costs following Closing.
(vi) As part of the preparation of the Final Closing Statement under Section 2.3, adjustments
may be made to the amount of the Unpaid Survey Costs included in the Working Capital as finally
determined under such provision. Following the settlement of amounts under Section 2.3(e)(ii), and
following payment of all Survey Costs, Purchaser shall procure Manager to prepare an accounting of
all Survey Costs paid, the amounts of Unpaid Survey Costs included in the Estimated Working
Capital at Closing, the amounts paid by Seller to Purchaser pursuant to the Working Capital
adjustment under Section 2.3, by Purchaser to Manager in accordance with this Section 4.1(d) and
the amounts paid by Seller to Manager as Pre-Closing Survey Costs in respect thereof. To the
extent Purchaser has received a greater amount with respect to Survey Costs (whether through the
inclusion thereof in the definition of Estimated Working Capital or Working Capital or otherwise)
than the Survey Costs that Purchaser has paid (either directly or through payments to the
Manager), it shall repay the excess to Seller within five days of final determination thereof. To
the extent Purchaser has received a lower amount with respect to Survey Costs (whether through the
inclusion thereof in the definition of Estimated Working Capital or Working Capital or otherwise)
than the Survey Costs that Purchaser has paid
23
(either directly or through payments to the Manager), Seller shall pay to Purchaser the
difference within five days of final determination thereof. In the event of any dispute regarding
the payments for Survey Costs and the accounting therefore, either Party shall be entitled to
appoint the Section 2.3(c) Accountant to resolve such dispute and the provisions of Section 2.3(c)
shall apply to resolution of such dispute as if such dispute were an Adjustment Dispute under such
provision. The Seller and Purchaser shall, and shall procure that the Manager provides each of
the others of them and the Section 2.3(c) Accountant (as necessary), with all information
reasonably necessary for the verification of the amounts set forth in this Section 4.1(d) and for
resolution of any such dispute.
(e)
Insurances
. Within 14 days after execution of this Agreement, Purchaser shall
advise Seller which of the insurance policies listed in Schedule 3.2(n)(i) it wishes to be
maintained after Closing. If any of the insurers or any P&I Club declines to maintain any of the
insurances after Closing, Seller shall advise Purchaser promptly upon becoming aware thereof and
Purchaser shall have sole responsibility for arranging replacement insurances from the time of
Closing. Other than any payment required for release from membership with the Swedish P&I Club,
for which Seller shall be solely responsible, Seller shall have no liability for any insurance
premia, calls or other payments in respect of any additional or alternative insurances arranged
from Closing or arising out of the termination of any existing insurance or withdrawal of any
Vessel from its existing P&I Club at or following Closing.
4.2
Access to Information
. From the date hereof until the Closing, upon reasonable
notice, Seller shall cause, and shall cause each Vessel Owning Subsidiary to: (a) afford the
officers, employees and authorized agents, accountants, counsel, financing sources and
representatives of the Purchaser, reasonable access, during normal business hours, to the offices,
properties, Vessels, plants, other facilities, books and records of any Vessel Owning Subsidiary,
as applicable, and (b) furnish to the officers, employees and authorized agents, accountants,
counsel, financing sources and representatives of the Purchaser, such additional financial and
operating data and other information regarding the assets, properties and goodwill of each Vessel
Owning Subsidiary and the Vessels, as applicable, (or legible copies thereof) as the Purchaser, may
from time to time reasonably request, in each case for the purpose of assessing the truth and
accuracy of the representation and warranties of the Seller made in Section 3.2 hereof, preparing
Purchasers public filings and compliance by the Seller with the covenants and agreements
hereunder, provided further, however, that any such access shall be conducted with reasonable
notice and at reasonable times and in such a manner as not to interfere with the operation of the
Seller, the Vessel Owning Subsidiaries or the Vessels. If Purchaser requests from Seller any
information which may violate applicable Law or result in a breach of attorney-client privilege or
similar privilege, the Seller shall promptly indicate to Purchaser that there is such an issue and
Parties will work together to attempt to promptly accommodate such request in a manner that will
not violate Law and will preserve any such privilege.
4.3
Confidentiality
. Each of Seller and the Purchaser agree to, and shall cause each
of their respective agents, representatives, Affiliates, employees, officers and directors to: (a)
treat and hold as confidential (and not disclose or provide access to any Person to) all
information relating to trade secrets, processes, price, customer and supplier lists, pricing and
marketing plans, policies and strategies, details of clients, operations methods, business
acquisition plans and all other confidential
24
information with respect to Seller, the Vessel Owning Subsidiaries or the Purchaser, as
applicable, and with respect to Purchaser prior to Closing use such information solely for the
purposes of assessing the truth and accuracy of the representation and warranties of the Parties
made in Article III hereof, preparation of Purchasers public filings and compliance by the Parties
with the covenants and agreements hereunder; (b) in the event that Seller or the Purchaser or any
of their respective agents, representatives, Affiliates, employees, officers or directors, becomes
legally compelled to disclose any such information, provide Seller or the Purchaser, as applicable,
with prompt written notice of such requirement so that Seller or the Purchaser, as applicable, may
seek a protective order or other remedy or waive compliance with this Section 4.3; (c) in the event
that such protective order or other remedy is not obtained, or Seller or the Purchaser, as
applicable, waives compliance with this Section 4.3, furnish only that portion of such confidential
information which is legally required to be provided and exercise its best efforts to obtain
assurances that confidential treatment will be accorded such information; and (d) promptly furnish
(prior to, at, or as soon as practicable following, the Closing) to the Purchaser or Seller, as
applicable, any and all copies (in whatever form or medium) of all such confidential information
then in the possession of either Seller or the Purchaser, as applicable, or any of their respective
agents, representatives, Affiliates, employees, officers and directors, and destroy any and all
additional copies then in the possession of either Seller or the Purchaser, as applicable, or any
of their respective agents, representatives, Affiliates, employees, officers and directors, of such
information and of any analyses, compilations, studies or other documents prepared, in whole or in
part, on the basis thereof;
provided
,
however
, that this sentence shall not apply
to any information that, at the time of disclosure, is available publicly and was not disclosed in
breach of this Agreement by either Seller, the Purchaser, as applicable, or any of their respective
agents, representatives, Affiliates, employees, officers or directors, or of another obligation of
confidence known to such Person at the time of such disclosure. Notwithstanding anything to the
contrary set forth in this Section 4.3, subsequent to the execution of this Agreement, Purchaser
may publicly disclose information relating to the Sellers identity, the transactions contemplated
by this Agreement or the Vessel Owning Subsidiaries, in each case, as required by law or
regulation, including, but not limited to, in connection with maintaining Purchasers Prospectus,
dated May 27, 2010, included in the Registration Statement on Form F-3 (Registration Number
333-151707). Each of Seller and the Purchaser agree and acknowledge that remedies at law for any
breach of its obligations under this Section 4.3 are inadequate and that in addition thereto Seller
and the Purchaser, as applicable, shall be entitled to seek equitable relief, including injunction
and specific performance, in the event of any such breach.
4.4
Regulatory and Other Authorizations; Notices and Consents
.
(a) The Purchaser shall use its best efforts to obtain all Authorizations, consents, orders
and approvals of all Governmental Entities and officials and third parties that may be or become
necessary for its execution and delivery of, and the performance of its obligations pursuant to,
this Agreement and will cooperate fully with Seller in promptly seeking to obtain all such
Authorizations, consents, orders and approvals.
(b) The Purchaser shall use its best efforts to obtain consents to Sellers sale of the
capital stock of the Vessel Owning Subsidiaries from each of the Existing Lenders, other than the
consent of China Merchants Bank with respect to the Purchasers acquisition of the capital stock of
Shinyo Saowalak Limited, which Seller shall use its best efforts to obtain.
25
(c) The Purchaser shall give promptly such notices to third parties and use its best efforts
to obtain such third party consents as Seller may in its reasonable discretion deem necessary or
desirable in connection with the transactions contemplated by this Agreement.
(d) Seller shall cooperate and use all reasonable efforts to assist the Purchaser in giving
such notices and obtaining such consents;
provided
,
however
, that Seller shall have
no obligation to give any guarantee or other consideration of any nature in connection with any
such notice, consent or estoppel certificate or to consent to any change in the term of any
agreement or arrangement which Seller in its reasonable discretion may deem adverse to the interest
of Seller, the Purchaser or the Vessel Owning Subsidiaries.
(e) The Purchaser knows of no reason why all the consents, approvals and Authorizations
necessary for the consummation of the transactions contemplated hereby will not be received.
(f) Except for those Existing Lender consents which shall be Purchasers responsibility as set
forth in Section 4.4(b) above, Seller shall use its best efforts to obtain all Authorizations,
consents, orders and approvals of all Governmental Entities and officials and third parties that
may be or become necessary for its execution and delivery of, and the performance of its
obligations pursuant to, this Agreement and will cooperate fully with the Purchaser in promptly
seeking to obtain all such Authorizations, consents, orders, and approvals.
4.5
Notice of Developments
. Each of the parties hereto shall promptly notify the
other party in writing of all events, circumstances, facts and occurrences arising subsequent to
the date of this Agreement which results in any breach of a representation or warranty or covenant
of such party in this Agreement or which has the effect of making any representation or warranty or
covenant of such party in this Agreement untrue or incorrect in any respect.
4.6
Good Faith Undertaking; Further Action
. All transactions contemplated by this
Agreement shall be conducted in good faith and on the basis set out or referenced in this Agreement
and each party shall at all times act in good faith towards the other and shall use all reasonable
efforts to ensure that this Agreement is observed. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done
all things necessary, proper or advisable under applicable Laws, and execute and deliver such
documents and other papers, as may be required to carry out the provisions of this Agreement and
consummate and make effective the transactions contemplated by this Agreement.
4.7
Termination of Swap Contracts
. Seller shall take all actions necessary, and shall
cause each Vessel Owning Subsidiary to take all actions necessary to terminate all Swap Contracts
to which it is a party prior to or at the Closing.
4.8
Publicity
. Seller shall not engage in, encourage or support any publicity or
disclosure of any kind or form in connection with this Agreement or the transactions contemplated
hereby, unless the Purchaser shall agree in advance in writing on the form, timing and contents of
any such publicity, announcement or disclosure. Notwithstanding anything to the contrary set forth
herein, Purchaser may solely issue press releases regarding this Agreement and the transactions
26
contemplated hereby, which shall not be subject to the prior consent of Seller, provided that,
notwithstanding the foregoing, the Seller may make corrective publicity, announcements or
disclosure or issue press releases if it reasonably believes that disclosure made by the Purchaser
is materially inaccurate or disparaging as to Seller or the Vessel Owning Subsidiaries or any of
their respective Affiliates, officers, directors or shareholders. In addition, Purchaser may
solely publicly disclose information relating to the Sellers identity, the transactions
contemplated by this Agreement or the Vessel Owning Subsidiaries, in each case, as required by law
or regulation, including, but not limited to, in connection with the Resale Registration Statement
and maintaining Purchasers Prospectus, dated May 27, 2010, included in the Registration Statement
on Form F-3 (Registration Number 333-151707).
ARTICLE V
OTHER AGREEMENTS OF THE PARTIES
5.1
Resignations and Bank Accounts
. On the Closing Date, Seller shall cause to be
delivered to Purchaser duly signed resignations, effective immediately after the Closing, of all
directors or members of other similar governing body of their position as a director and of all
officers of their position as an officer of the Vessel Owning Subsidiaries being purchased and sold
at such Closing and the signatories to the bank accounts of the Vessel Owning Subsidiaries being
purchased and sold at such Closing shall be changed to Persons nominated by the Purchaser by
written notice to the Seller at least seven days prior to the Closing.
5.2
Intercompany Liabilities, Indebtedness
. Prior to or at Closing, Seller shall, and
shall cause each of the Vessel Owning Subsidiaries being purchased and sold at Closing to, settle,
forgive or otherwise extinguish all Indebtedness or other liabilities owed to or from the Seller
and its Affiliates (other than Indebtedness or liabilities to or from a Vessel Owning Subsidiary to
another Vessel Owning Subsidiary being so purchased and sold at Closing).
5.3
Tax Matters
.
(a) Notwithstanding any provision of this Agreement to the contrary, including Article VIII,
all rights and remedies of the parties relating to Pre-Closing Taxes and Straddle Period Taxes,
Losses arising from such Taxes and any other matter relating to such Taxes are set forth
exclusively in this Section 5.3. The sole remedies, rights of payments and damages available with
respect to such Taxes, Losses arising from such Taxes and any other matter relating to such Taxes
are those set forth in this Section 5.3.
(b) The Seller shall be liable for, and, subject to the provisions of this Section 5.3, shall
pay, indemnify and hold harmless the Purchaser Indemnified Persons, on an after-Tax basis, against
any and all Pre-Closing Taxes and any Losses arising from Pre-Closing Taxes. Seller shall be
liable for, and subject to the provisions of this Section 5.3, shall pay, indemnify and hold
harmless the Purchaser Indemnified Persons, on an after-Tax basis, against Sellers Portion of any
Straddle Period Taxes (including any amounts paid to Seller under Section 5.3 (j)) in excess of the
Reserved Tax Liability and any Losses arising therefrom.
27
(c) The Seller shall have exclusive authority subject to the provisions of this Section 5.3 to
prepare and file or cause to be prepared and filed all Pre-Closing Tax Returns for each Vessel
Owning Subsidiary, including any Estimated Tax Returns due on or prior to the Closing Date.
(d) The Seller shall prepare and file or cause to be prepared and filed all Pre-Closing Tax
Returns for all Vessel Owning Subsidiaries, including in respect of Section 887 Taxes. Each such
Tax Return shall be true, correct and complete, shall be prepared in the same manner as the Tax
Returns of the Vessel Owning Subsidiaries for the immediately preceding taxable year or period,
except for the Section 887 Tax Returns described in Section 5.3(w), and shall not make, amend or
terminate any election without the prior written consent of the Purchaser (which consent shall not
be unreasonably withheld or delayed). The Seller shall pay the Tax shown to be due on each such Tax
Return. Promptly after the filing of each such Tax Return, Seller shall provide Purchaser with a
copy of the Tax Return, together with proof of the payment of the Tax shown thereon to be due.
(e) The Purchaser shall prepare (in accordance with the past practices of the relevant Vessel
Owning Subsidiaries, except to the extent required by Law or as set forth in Section 5.3(w) below)
the initial draft of all Straddle Period Tax Returns (other than Estimated Tax Returns due on or
prior to the Closing Date) of each of the Vessel Owning Subsidiaries and shall submit such Tax
Returns, along with a calculation of the Sellers Portion of any Straddle Period Taxes relating to
such Tax Returns (net of the Reserved Tax Liability for the relevant Vessel Owning Subsidiaries and
net of any Prepaid Taxes related to such Straddle Period Taxes), to the Seller for its approval no
later than 45 days prior to the due date thereof. No later than 15 days after the receipt of such
Tax Return from the Purchaser, the Seller shall notify the Purchaser of any reasonable objections
the Seller may have to items set forth in such draft Tax Returns and/or the calculation of the
Sellers Portion of Straddle Period Taxes for which the Seller is responsible. The Purchaser and
Seller agree to consult and resolve in good faith any such objections, it being understood and
agreed that in the absence of any such resolution, any and all such objections shall be resolved in
a manner consistent with the past practices with respect to such items unless otherwise required by
Law.
If the Seller and the Purchaser cannot resolve any and all objections by the 20
th
day prior to the due date of the Straddle Period Tax Returns that are the subject of the dispute,
the issue involved shall be promptly submitted to an independent public accounting firm acceptable
to both the Seller and the Purchaser; provided, however, that if the dispute or disagreement
involves a matter of legal interpretation, then unless both parties consent in writing to the
resolution of such dispute by such independent public accounting firm (which shall not be
unreasonably withheld or delayed by either of them), such independent accounting firm shall select
an outside attorney (1) experienced in the relevant Tax Law, and (2) mutually acceptable to the
Seller and the Purchaser (which acceptance shall not be unreasonably withheld or delayed by either
of them) to resolve such dispute or disagreement. If the Seller and the Purchaser cannot agree on
an independent public accounting firm, the Section 2.3(c) Accountant shall be selected to resolve
the dispute, subject to the proviso in the proceeding sentence with regard to matters of legal
interpretation. The Seller and the Purchaser shall provide all necessary information to the
independent accounting firm (or any outside attorney selected by such accounting firm), and shall
instruct the independent accounting firm (or outside
28
attorney selected by such accounting firm) to resolve the dispute, to the extent reasonably
possible, no later than five days prior to the due date of such Tax Returns. The decision of the
independent public accounting firm (and any outside attorney selected by such accounting firm) in
resolving the dispute shall be final and binding. The fees and expenses incurred with respect to
the independent public accounting firm and such attorney resolving the dispute shall be allocated
fifty percent (50%) to the Seller and fifty percent (50%) to the Purchaser. All other fees and
expenses incurred in resolving the dispute shall be borne by the party hereto that incurs such fees
and expenses.
Not later than three days prior to the due date of the Straddle Period Tax Returns, the Seller
shall pay to the Purchaser the Sellers Portion of Straddle Period Taxes in respect to such Tax
Returns if such calculation shall not then be in dispute, provided that if any amount involved in
such calculation shall then be in dispute under the provisions of the preceding paragraph, Seller
shall pay to Purchaser the amount in dispute, upon receipt of a written acknowledgement by the
Purchaser that it will repay to Seller any such amount, together with interest thereon, promptly
after a determination pursuant to the provisions of the preceding paragraph that Seller does not
owe such amount.
(f) For purposes of this Agreement, Taxes related to a Straddle Period shall be apportioned to
the Seller (
Sellers Portion
) for the period up to and including the close of the Closing Date
and to the Purchaser (
Purchasers Portion
) for the period subsequent to the Closing Date,
determined as follows:
(i) in the case of real property and personal property Taxes on a per-diem basis; and
(ii) otherwise, as determined from the books and records of the relevant Vessel Owning
Subsidiaries as though the taxable year of the Vessel Owning Subsidiary had terminated as of the
close on the Closing Date, but excluding any Taxes attributable to a Section 338 Election or any
other election made by or transaction undertaken by the Purchaser and excluding Section 887 Taxes
and apportioning any annual exemption amount based on the relative number of days in the portion of
the Straddle Period through and including the Closing Date and in the balance of the Straddle
Period.
For avoidance of doubt, Sellers Portion of any Straddle Period Taxes shall be determined
without regard to any Prepaid Taxes or Reserved Tax Liability.
(g) The Purchaser shall have exclusive authority to prepare and file or cause to be prepared
and filed all Tax Returns for all Vessel Owning Subsidiaries for all tax reporting periods that
begin on or after the Closing Date. Notwithstanding any provision of this Agreement to the
contrary, Purchaser or any of its nominated subsidiaries also shall have exclusive authority to
make a Section 338 Election in respect to the acquisition of the Seller Subsidiary Shares hereunder
and to prepare and file or cause to be prepared and filed all Tax Returns in connection therewith.
(h) The Seller and the Purchaser agree that Tax Returns that would otherwise be filed for Tax
periods that begin on or prior to the Closing Date and which would otherwise end after the Closing
Date will reflect a short taxable year for any Vessel Owning Subsidiary ending on the
29
Closing Date in any federal, state, local or foreign taxing jurisdiction in which such short
taxable year is allowed by administrative practice, whether or not required by law.
(i) Each of the Purchaser and Seller shall bear all costs incurred in preparing and filing the
Tax Returns that such party is responsible to prepare and file under this Agreement.
(j) To the extent that the Reserved Tax Liability shall exceed the Sellers Portion of the
Straddle Period Taxes (as determined under this Section 5.3), the Purchaser shall pay the Seller
such excess no later than three days prior to the due date of the related Straddle Period Tax
Return.
(k) If, after the Closing Date, the Purchaser or any of its Subsidiaries receives any refund
or utilizes the benefit of any overpayment or prepayment of Taxes which, in each case, relate to a
Tax paid by Seller or any of its Subsidiaries, the Purchaser shall promptly transfer, or cause to
be transferred, to Seller the entire amount of such refund or benefit net of any Tax cost or
detriment suffered by the Purchaser or any of its Subsidiaries (by way of increased Taxes,
decreased deductions, or otherwise) in respect of such receipt; provided, however, that the
Purchasers obligation under this Section 5.3(k) shall be limited to the amount of the Tax paid by
Seller or any of its Subsidiaries net of any such Tax cost or detriment.
(l) The Purchaser shall promptly notify the Seller in writing upon receipt by the Purchaser or
any Affiliate of the Purchaser (including any Vessel Owning Subsidiary) of any communication with
respect to any Tax Matter (or pending or threatened Tax Matter) relating to any Tax period
beginning before the Closing Date. The Purchaser shall include with such notification a complete
copy of any written communication received by the Purchaser or any affiliate of the Purchaser in
respect of such Tax Matter.
(m) The Seller shall have the sole right to represent the interests of any Vessel Owning
Subsidiary, and the right to employ counsel of its choice at its expense and to make decisions with
respect to negotiation, contest or settlements in any Tax Matter relating to any Pre-Closing Tax
Returns for any Vessel Owning Subsidiary, provided that (i) the Seller acknowledges and agrees in
writing that the indemnification provisions of this Section 5.3 apply to the Pre-Closing Taxes in
dispute, (ii) the Seller shall permit the Purchaser to participate in such settlement or defense
through counsel chosen by the Purchaser and at the Purchasers expense, (iii) Seller shall keep the
Purchaser advised as to the current status and progress of such settlement or defense, and (iv) the
Seller shall not, without the prior written consent of the Purchaser (which shall not be
unreasonably withheld or delayed), settle or compromise any such Tax Matter if any such settlement
or compromise could affect any tax period other than a Pre-Closing Tax Period.
(n) The Purchaser and Seller shall jointly represent the interests of any Vessel Owning
Subsidiary, and shall jointly employ mutually agreed counsel (with expenses divided in the
proportions that the Sellers Portion and the Purchasers Portion are of the relevant Straddle
Period Tax) and shall jointly make decisions with respect to negotiation, contest or settlements in
any Tax Matter related to any Straddle Period Tax Return.
30
(o) Beginning on the Closing Date, each of the Seller and the Purchaser, on behalf of itself
and each Affiliate, respectively, agrees to use good faith efforts to provide the other party
hereto with such cooperation or information as such other party hereto reasonably shall request in
connection with the determination of any payment or any calculations in respect of Taxes described
in this Agreement and the preparation or filing of any Pre-Closing Tax Return or Straddle Period
Tax Return. Such cooperation and information shall include preparing and submitting to the Seller
(in a time frame consistent with past practice), at Purchasers expense (other than Out-of-Pocket
Expenses, which shall be paid by the Seller) all information within the control or possession of
Purchaser, any Vessel Owning Subsidiary or any Affiliate of any of them that the Seller shall
reasonably request, in such form as the Seller shall reasonably request, to enable the Seller to
prepare any Tax Returns required to be filed by the Seller pursuant to this Section 5.3 or to
respond to any communication with respect to any Tax Matter (or pending or threatened Tax Matter)
relating to any Tax period beginning before the Closing Date.
(p) Any request for information or documents pursuant to this Section 5.3 shall be made by the
requesting party in writing. The other party hereto shall use good faith efforts to promptly
provide the requested information. Except as otherwise provided in this Agreement, the requesting
party shall reimburse the other party for any Out-of-Pocket Expenses incurred by such party in
connection with providing any information or documentation pursuant to this clause (p). Upon
reasonable notice, each of the Seller and the Purchaser (at its own expense other than
Out-of-Pocket Expenses, which will be paid by the party making the request) shall make its, or
shall cause its Affiliates, as applicable, to make their employees and facilities available on a
mutually convenient basis to provide explanation of any documents or information provided
hereunder. Any information obtained under this provision shall be kept confidential, except as
otherwise reasonably may be necessary in connection with the filing of Tax Returns or in conducting
any Tax Matter.
(q) For at least three years following the Closing Date, each party hereto will retain such
records, documents, accounting data and other information (including computer data) in its
possession in the ordinary course of business reasonably necessary for (i) the preparation and
filing of all Pre-Closing Tax Returns and Straddle Period Tax Returns required to be filed by, on
behalf of, or with respect to another party hereto, and (ii) any Tax Matters relating to such
Pre-Closing Tax Returns, Straddle Period Tax Returns, or to any Pre-Closing Taxes payable by, on
behalf of, or with respect to, another party hereto.
(r) The Seller will not be liable in respect of any Loss with respect to Taxes for any
indirect or consequential losses, any loss of profit, loss of turnover, loss of contract or any
loss of goodwill. The amount of any Losses with respect to Taxes incurred by the Purchaser shall
be reduced by the amount of any Tax benefit or refund to the Purchaser arising from the recognition
of Losses.
(s) In the event that the Seller pays in full an amount payable to the Purchaser in respect of
any Losses with respect to Taxes and any of the Purchaser or a Vessel Owning Subsidiary
subsequently recovers from a third party (including an insurer) an amount relating to the matter
which gave rise to such Losses, the Purchaser must notify the Seller and (i) if the amount paid by
the Seller to the Purchaser is less than the amount recovered from such third party (after
deduction of costs and expenses incurred in obtaining that recovery and less any Tax related to
that recovery), the
31
Purchaser must pay to the Seller an amount equal to the amount that the Seller
paid to the Purchaser or (ii) if the amount paid by the Seller to the Purchaser is more than the
amount recovered from such third party (after deduction of costs and expenses incurred in obtaining
that recovery and less any Tax related to that recovery), the Purchaser must pay to the Seller an
amount equal to the amount recovered from the third party (after deduction of costs and expenses
incurred in obtaining that recovery and less any Tax related to that recovery).
The Seller will not be liable in respect of any Losses with respect to Taxes to the extent
that any of the Purchaser or a Vessel Owning Subsidiary has recovered by way of unconditional and
final payment from another third party an amount relating to the matter which gave rise to such
Losses (but only to the extent of the amount recovered). The Purchaser shall use reasonable
efforts to obtain any such recovery.
(t) Nothing in this Section 5.3 shall affect any legal duty of the Purchaser and the Vessel
Owning Subsidiaries to mitigate any Losses. The Seller shall not be liable under this Section 5.3
in respect of any Losses to the extent that the Purchaser or any Vessel Owning Subsidiary is able
to reduce the amount of such Losses through the utilization of any Tax relief, credit or allowance.
(u) To the extent that the Seller is required to indemnify the Purchaser for any Losses
pursuant to Section 5.3, the Seller shall have the right to enforce the indemnification obligations
of, or claim contractual damages against, any third party to the extent that an indemnity or
contractual claim for damages may be available to a Vessel Owning Subsidiary with respect to such
Tax Matter and the Seller shall be entitled to the benefit of any award or judgment in respect of
any such indemnity or damages claim up to the amount that it has indemnified the Purchaser in
respect of the Tax Matter under which such indemnity was sought. The Purchaser shall procure that
the relevant Vessel Owning Subsidiary shall comply with and hold itself bound by this Section 5.3
in all respects as if it were a party to this Agreement and notwithstanding that the Vessel Owning
Subsidiary may not itself have received any consideration from the Seller.
(v) All Hong Kong or foreign or other stamp duties that may be imposed or assessed as a result
of the transactions contemplated by this Agreement, together with any interest, additions or
penalties with respect thereto and any interest in respect of such additions or penalties
(
Transfer Taxes
), shall be borne by Purchaser, to the extent they relate to the Vessel Owning
Subsidiaries, and by the Seller, to the extent they relate to the issuance of the Securities. Any
Tax Returns that must be filed in connection with Transfer Taxes shall be prepared by the party
primarily or customarily responsible under applicable Law for filing such Tax Returns, and such
Party shall use its reasonable best efforts to provide such Tax Returns to the other Party at least
10 Business Days prior to the date such Tax Returns are due to be filed. The Parties shall
cooperate in the timely completion and filing of all such Tax Returns.
(w)
Section 887 Taxes
. Seller shall provide to Purchaser supporting documentation
relating to the preparation of the Tax Returns with respect to Section 887 Taxes contemplated by
Section 6.2(u) and Seller shall consult with Purchaser as to the amount of Section 887 Taxes to be
paid in connection with the filing of such Tax Returns (which shall be at least
$2,000,000 for the period ended March 31, 2010 and reasonably increased for the period from
32
March 31, 2010 through the Closing Date). From and after the Closing, Seller shall indemnify,
defend and hold harmless the Purchaser and its Affiliates, their respective successors and
assigns, and the respective officers, directors, employees and agents of each of the foregoing
from and against any and all Section 887 Taxes and all Losses arising from Section 887 Taxes owed,
in each case, with respect to periods prior to Closing.
5.4
Six Month Interim Financial Statements
. By August 30, 2010, Seller shall deliver
to Purchaser the Interim Financial Statements contemplated by Section 3.2(g)(ii).
5.5
Hull and Machinery Insurance Claims
. Purchaser unconditionally and irrevocably
undertakes and agrees that Univan Ship Management Limited shall continue to be appointed by the
relevant Vessel Owning Subsidiaries and have full discretion to manage, pursue, settle or otherwise
deal with the insurance claims in respect of engine bedplate replacements for the vessels Shinyo
Kannika and Shinyo Ocean, and to receive and pay over to the Seller all insurance proceeds
received in respect of such claims. At the sole cost and expense of Seller, Purchaser shall
co-operate and assist, and shall procure that the relevant Vessel Owning Subsidiaries co-operate
and assist, Univan Ship Management Limited in pursuing such claims and will not, and will not
permit the relevant Vessel Owning Subsidiaries, to settle or agree any matter in relation to such
insurance claims likely to affect the amount thereof, the recovery thereunder or the timing of
receipt thereof.
5.6
Financial Statements
. By July 30, 2010, Seller shall deliver to Purchaser the
Audited Financial Statements contemplated by Section 3.2(g)(ii).
ARTICLE VI
CONDITIONS
6.1
Conditions Precedent to the Obligations of Seller
. The obligation of Seller to
transfer at Closing the Seller Subsidiary Shares to be transferred at Closing is subject to the
satisfaction or waiver by Seller, at or before Closing, of each of the following conditions:
(a)
Representations and Warranties
. The representations and warranties of the
Purchaser contained herein shall be true and correct in all material respects as of the date when
made and as of the Closing as though made on and as of such date (except for such representations
and warranties that are made as of a specific date, which shall be true and correct in all material
respects only as of such date), and Seller shall have received a certificate from the Purchaser to
such effect signed by a duly authorized officer thereof; provided however, that for purposes of
determining satisfaction with this condition, such representations and warranties shall be deemed
to be true and correct in all material respects unless the failure or failures of such
representations and warranties to be so true and correct, individually or in the aggregate, would
have a Purchaser Material Adverse Effect and, provided, further, that a breach of the
representations or a failure of a condition set forth in Sections 3.1(f), 3.1(g), 3.1(k) (other
than with respect to Section 3.1(k)(i)(B), the last sentence of Section 3.1(k)(i) with respect to
Actions that may challenge or seek to prevent, enjoin or otherwise delay the transactions
contemplated by this Agreement and, to the extent that it relates to such matters, Section
3.1(k)(ii)), 3.1(l), 3.1(m), 3.1(n), 6.1(j), and 6.1(m) shall not entitle Seller to
terminate this Agreement if Purchaser exercises its option to pay cash in lieu of Securities
in accordance with Section 2.1 and the last paragraph of this Section 6.1;
33
(b)
Performance
. The Purchaser shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by it at or prior to the Closing, and Seller
shall have received a certificate from the Purchaser to such effect signed by a duly authorized
officer thereof;
(c)
Consents
. The consents (or in lieu thereof waivers) listed in
Schedule
6.1(c)
and all other consents (or in lieu thereof waivers) to the performance by Purchaser and
Seller of their obligations under this Agreement and to the consummation of the transactions
contemplated hereby as are required under any Contract to which Purchaser or Seller or any Vessel
Owning Subsidiary is or are a party or by which any of their respective assets and properties are
bound (including the Existing Loan Agreements and the Shipbuilding Contract) and the discharges and
releases required to transfer capital stock in the Vessel Owning Subsidiaries free and clear of
Encumbrances and those referred to in Section 6.2(g) (i) shall have been obtained, (ii) shall be in
form and substance reasonably satisfactory to the Seller, (iii) shall not be subject to the
satisfaction of any condition that has not been satisfied or waived, and (iv) shall be in full
force and effect;
(d)
Existing Loan Documents
. The Existing Lenders, the Vessel Owning Subsidiaries
being transferred at such Closing and, where appropriate, the Purchaser shall have executed
documentation amending the applicable Existing Loan Documents to which such Vessel Owning
Subsidiaries are a party, approving this Agreement (the forms of which will be acceptable to
Purchaser in its sole discretion);
(e)
Guarantees
. The Purchaser shall have executed and delivered agreements and other
instruments such that the Purchaser shall have guaranteed the performance of the obligations of
each Vessel Owning Subsidiary (other than the Newbuild Owner) under its respective Existing Loan
Document and the Shipbuilding Contract satisfactory to the other parties thereunder;
(f)
Release of Guarantees
. Sellers guarantees under the Existing Loan Documents
shall have been unconditionally released with no further liability thereunder as of the Closing and
Seller shall have been fully released from all obligations under the Existing Performance
Guarantee;
(g)
Government Approvals
. All Authorizations, consents, orders and approvals of all
Governmental Entities and officials listed on
Schedule 6.1(g)
shall have been received or
deemed received and made and shall be in full force and effect;
(h)
Escrow Agreements
. The Purchaser shall have executed and delivered the
Post-Closing Escrow Agreement and the Charter Escrow Agreement;
(i)
No Proceeding or Litigation
. No Action shall have been commenced by or before
any Governmental Entity against either the Purchaser or Seller, seeking to restrain or materially
and adversely alter the transactions contemplated by this Agreement which, in the
reasonable, good faith determination of Seller, is likely to render it impossible or unlawful
to consummate the transactions to be consummated on Closing;
provided
,
however
,
that the provisions
34
of this Section 6.1(i) shall not apply if Seller has directly or indirectly
solicited or encouraged such Action;
(j)
Lockup Agreements
. The Seller shall have received lockup letters from the record
owners of all shares of Purchaser beneficially owned by Navios Maritime Holdings, Inc. and Angeliki
Frangou, in each case, substantially in the form attached hereto as
Exhibit B
, provided,
that a failure to satisfy the condition set forth in this Section 6.1(j) shall not entitle Seller
to terminate this Agreement if Purchaser exercises its option to pay cash in lieu of Securities in
accordance with Section 2.1 and the last paragraph of this Section 6.1 and, provided, further, that
the purchase of the Seller Subsidiary Shares at Closing would not violate applicable Laws
(including Laws relating to insolvency);
(k)
Releases
. Each of the Vessel Owning Subsidiaries shall have delivered releases to
the Seller and its Affiliates in the form attached hereto as
Exhibit C
;
(l)
Opinion of Counsel
. Seller shall have received a written opinion from counsel to
the Purchaser, addressed to Seller, dated as of the Closing Date, in the form attached hereto as
Exhibit D
.
(m)
No Material Adverse Effect
. Since the date hereof, no event or events shall have
occurred with respect to the Purchaser, which, individually or in the aggregate, has had or could
reasonably be expected to have a Purchaser Material Adverse Effect, provided, that a failure to
satisfy the condition set forth in this Section 6.1(m) shall not entitle Seller to terminate this
Agreement if Purchaser exercises its option to pay cash in lieu of Securities in accordance with
Section 2.1 and the last paragraph of this Section 6.1 and, provided, further, that the purchase of
the Seller Subsidiary Shares at Closing would not violate applicable Laws (including Laws relating
to insolvency); and
(n)
Deliverables
. The Seller shall have received the deliverables contemplated by
Section 2.2(a) hereof.
If prior to Closing, Purchaser is in breach of a representation or a failure of a condition set
forth in Sections 3.1(f), 3.1(g), 3.1(k) (other than with respect to Section 3.1(k)(i)(B), the last
sentence of Section 3.1(k)(i) with respect to Actions that may challenge or seek to prevent, enjoin
or otherwise delay the transactions contemplated by this Agreement and, to the extent that it
relates to such matters, Section 3.1(k)(ii)), 3.1(l), 3.1(m), 3.1(n), 6.1(j), and 6.1(m), Purchaser
shall promptly (and in any event within two Business Days thereof) give written notice to Seller
thereof in accordance with Section 4.5, such notice to also include a statement as to whether or
not Purchaser is exercising its option set forth in Section 2.1 to pay an amount equal to the value
of the Securities in cash in lieu of delivering the Securities at the Closing. Such notice shall
constitute irrevocable and final notice to Seller as to the election or decision not to elect such
option, and Purchaser shall thereafter have no right to change or amend any such election.
6.2
Conditions Precedent to the Obligations of the Purchaser
. The obligation of the
Purchaser to acquire at Closing the Seller Subsidiary Shares is subject to the satisfaction or
waiver by the Purchaser, at or before Closing, of each of the following conditions:
35
(a)
Representations and Warranties
. The representations and warranties of the
Seller contained herein shall be true and correct in all material respects as of the date when made
and as of the Closing as though made on and as of such date (except for such representations and
warranties that are made as of a specific date, which shall be true and correct in all material
respects only as of such date), and the Purchaser shall have received a certificate from Seller to
such effect signed by a duly authorized officer thereof;
provided
,
however
, that
for purposes of determining satisfaction with this condition, such representations and warranties
shall be deemed to be true and correct in all material respects unless the failure or failures of
such representations and warranties to be so true and correct, individually or in the aggregate,
would have a Seller Material Adverse Effect and
provided further
that any applicable
representation or warranty set forth in Section 3.2(bb) that is not true and accurate in any
material respect as of the Closing solely as a result of actions taken by the Seller or any Vessel
Owning Subsidiary that were permitted or not prohibited by Section 4.1 hereof shall be deemed to be
true and accurate in all material respects;
(b)
Performance
. Seller shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by Seller at or prior to Closing, and the Purchaser shall
have received a certificate from Seller to such effect signed by a duly authorized officer thereof;
(c)
Consents
. The consents (or in lieu thereof waivers) listed in
Schedule
6.2(c)
and all other consents (or in lieu thereof waivers) to the performance by Purchaser and
Seller of their obligations under this Agreement and to the consummation of the transactions
contemplated hereby as are required under any Contract to which Purchaser, Seller, or any
applicable Vessel Owning Subsidiary is or are a party or by which any of their respective assets
and properties are bound (i) shall have been obtained, (ii) shall be in form and substance
reasonably satisfactory to the Purchaser, (iii) shall not be subject to the satisfaction of any
condition that has not been satisfied or waived, and (iv) shall be in full force and effect;
(d)
Insurance Documentation
. Seller shall have delivered documentation to the
Purchaser dated within two Business Days of the Closing evidencing that all insurance policies of
the Vessel Owning Subsidiaries being transferred at Closing are in full force and effect and Seller
shall have obtained additional coverage and shall have provided Purchaser with reasonable evidence
that such additional insurance has been obtained and in full force and effect to cover the
insurance shortfall identified on
Schedule 3.2(n)(iii)
hereto;
(e)
Classification Documentation
. Seller shall have delivered confirmations issued by
the Classification Society of each Built Vessel dated not earlier than three Business Days before
the Closing evidencing that such Vessel is materially in class with such Classification Society
free of recommendations affecting class;
(f)
Transcript of Registry
. Seller shall have delivered Transcripts of Registry for
each Built Vessel dated within two Business Days of the Closing evidencing such Built Vessel
registered in the ownership of the relevant Vessel Owning Subsidiary free from Encumbrances save
for registered Encumbrances;
36
(g)
Existing Loan Documents
. The applicable Existing Lenders, the Vessel Owning
Subsidiaries (other than the Newbuild Owner) and, where appropriate, the Purchaser shall have
executed documentation amending the applicable Existing Loan Documents to which such Vessel Owning
Subsidiaries are a party, approving this Agreement (the forms of which will be acceptable to
Purchaser in its sole discretion). The Seller shall deliver to the Purchaser such discharges and
releases, acceptable to Purchaser in its sole discretion, of the Newbuild Owner from any and all
obligations of the Newbuild Owner under the applicable Existing Loan Documents;
(h)
No Proceeding or Litigation
. No Action shall have been commenced or threatened by
or before any Governmental Entity against either the Purchaser or Seller, seeking to restrain or
materially and adversely alter the transactions contemplated hereby which, in the reasonable, good
faith determination of the Purchaser, is likely to render it impossible or unlawful to consummate
the transactions contemplated by this Agreement;
provided
,
however
, that the
provisions of this Section 6.2(h) shall not apply if the Purchaser has directly or indirectly
solicited or encouraged such Action;
(i)
No Material Adverse Effect
. Since the date hereof, no event or events shall have
occurred with respect to any of Vessel Owning Subsidiaries, which, individually or in the
aggregate, has had or could reasonably be expected to have a Seller Material Adverse Effect;
(j)
Escrow Agreements
. Seller shall have executed and delivered the Post-Closing
Escrow Agreement and the Charter Escrow Agreement;
(k)
Resignations and Bank Accounts
. Seller shall have delivered the resignations of
the directors and officers of the Vessel Owning Subsidiaries as set forth in Section 5.1 hereof or
identified to Seller seven days prior to the Closing and the signatories to the bank accounts of
such Vessel Owning Subsidiaries shall have been changed to Persons nominated by the Purchaser by
written notice to Seller at least seven days prior to Closing);
(l)
Releases
. Seller, the Manager, Fred Cheng, Kannika Thasak and Richard Hext, and
each of the directors and officers of the Vessel Owning Subsidiaries being transferred at Closing
shall have delivered releases, in the form attached hereto as
Exhibit E;
(m)
Opinion of Counsel
. Purchaser shall have received a written opinions from,
counsel to the Seller, addressed to Purchaser, dated as of the Closing Date, in the forms attached
hereto as
Exhibits F-1, F-2 and F-3;
(n)
Deliverables
. The Purchaser shall have received the deliverables contemplated by
Section 2.2(b) hereof;
(o)
Release of Guarantee
. Sellers guaranty under the Existing Loan Documents
relating to Shinyo Saowalak Limited shall have been unconditionally released;
(p)
Swap Contracts
. All Swap Contracts to which any Vessel Owning Subsidiaries are a
party shall have been terminated at or prior to Closing and Seller shall provide Purchaser with
evidence of such termination as reasonably requested by Purchaser;
37
(q)
Shareholder Loans
. All Indebtedness and liabilities owed to or from the Seller
and its Affiliates (other than the Indebtedness and liabilities owed by one or more of the Vessel
Owning Subsidiaries being transferred at Closing to other Vessel Owning Subsidiaries being
transferred at Closing) to or from any Vessel Owning Subsidiary being transferred at Closing shall
have been satisfied, discharged or extinguished;
(r)
Consent of Builder
. Seller shall have obtained the consent of the Builder for the
transfer of the Shares of Newbuild Owner from the Seller to the Purchaser and to the replacement of
the Existing Performance Guarantee by the New Performance Guarantee;
(s)
Special Surveys
. A special survey shall have been completed to the satisfaction
of the Classification Society of each of the Shinyo Navigator and C-Dream, and Seller shall have
complied with its obligations, to be satisfied prior to Closing, under Section 4.1(d)(ii),
including Seller having procured Manager to pay the Pre-Closing Survey Costs;
(t)
Financial Statements
. Seller shall have delivered to Purchaser the financial
statements identified in Section 5.6; and
(u)
Section 887 Tax Returns
. Seller shall have filed with the U.S. Internal Revenue
Service the Tax Returns with respect to Section 887 Taxes and shall have paid the amount shown as
due on said Tax Returns.
ARTICLE VII
TERMINATION
7.1
Termination
. This Agreement may be terminated and the transactions contemplated
hereby abandoned at any time prior to the Closing as set forth in clauses (a) to (d) below:
(a) by mutual written consent of Seller and Purchaser;
(b) by Seller or the Purchaser if:
(i) the Closing does not occur on or before September 15, 2010;
provided
,
however
, that the right to terminate this Agreement under this Section 7.1(b)(i) shall not
be available to any party whose failure to fulfill any obligation under this Agreement shall have
materially contributed to the failure of such Closing to occur on or before such date and, provided
further, that if the Closing, has not occurred as of September 15, 2010, either Party, by written
notice to the other, shall be entitled to extend the Closing Date to September 22, 2010; or
(ii) any Governmental Entity shall have issued an order, decree or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the transactions contemplated by this
Agreement, and such order, decree, ruling or other action is final and non-appealable.
(c) by Seller if Seller is not in material breach of its obligations under this Agreement, and
if:
38
(i) any condition to the obligations of Seller hereunder becomes incapable of fulfillment
(including the occurrence of an event or condition that has resulted in or that may reasonably be
expected to result in a Purchaser Material Adverse Effect) other than as a result of a breach by
Seller of any covenant or agreement contained in this Agreement, and such condition is not waived
by Seller; or
(ii) there has been a material breach by the Purchaser of any representation, warranty,
covenant or agreement contained in this Agreement or the schedules, or if any representation or
warranty of Purchaser shall have become untrue, in either case such that the conditions set forth
in Section 6.1 would not be satisfied.
(d) by the Purchaser if Purchaser is not in material breach of its obligations under this
Agreement, and if:
(i) any condition to the obligations of the Purchaser hereunder becomes incapable of
fulfillment (including the occurrence of an event or condition that has resulted in or that may
reasonably be expected to result in a Seller Material Adverse Effect) other than as a result of a
breach by the Purchaser of any covenant or agreement contained in this Agreement, and such
condition is not waived by the Purchaser; or
(ii) there has been a material breach by Seller of any representation, warranty, covenant or
agreement contained in this Agreement or the schedules, or if any representation or warranty of
Seller shall have become untrue, in either case such that the conditions set forth in Section 6.2
would not be satisfied.
The party desiring to terminate this Agreement pursuant to clause (b), (c) or (d) shall give
written notice of such termination to the other party hereto. If this Agreement terminates, it
shall become null and void and have no further force or effect, except as provided in Section 7.2.
7.2
Effect of Termination
. In the event of termination of this Agreement as provided
in Section 7.1, this Agreement shall immediately terminate and be of no further force or effect,
and there shall be no liability or obligation on the part of Seller or the Purchaser, except as set
forth in this Section 7.2 or Section 7.3;
provided
, that the provisions of Section 4.3
(Confidential Information), Section 7.3 (Remedies), Article X (Miscellaneous) and Article XI
(Definitions) of this Agreement, as applicable, shall remain in full force and effect and survive
any termination of this Agreement.
7.3
Remedies
. Following termination of this Agreement, no Party shall have the right
to recover damages or other Losses sustained by such Party as a result of any breach by the other
Party of this Agreement (other than under Section 4.3).
ARTICLE VIII
INDEMNIFICATION
8.1
Survival of Representations, Warranties and Covenants
. Subject to the provisions
of this Article VIII, each of the representations and warranties contained in this Agreement or in
any
39
other agreement, exhibit, schedule, certificate, instrument or other writing delivered by or
on behalf Seller and Purchaser pursuant to this Agreement shall survive until the first anniversary
of the Closing Date;
provided
,
however
, that (a) the representations contained in
Sections 3.1(a), 3.1(c), 3.1(h), 3.1(i), 3.2(a), 3.2(b), 3.2(f), 3.2(x)(iii) and 3.2(aa) shall
survive indefinitely, (b) the representations contained in Sections 3.2(v) shall terminate on the
Closing Date, and (c) the representation in Section 3.2(w) shall survive until the third
anniversary of the Closing Date. The covenants and agreements set forth in this Agreement shall
survive until the first anniversary of the Closing, provided that (i) the covenants and agreements
set forth in Section 2.3 and Sections 4.3, 4.6 and 4.8 shall survive until the second anniversary
of the Closing, (ii) the covenants and agreements set forth in Section 5.3 shall survive until the
third anniversary of the Closing, (iii) the covenants and agreements set forth in Sections 2.2
(with respect to payment of the purchase price), 4.1(d), 4.1(e), 5.2 and 5.3(w) shall survive
indefinitely and (iv) the covenants and agreements set forth in Article IX shall survive until such
time as there are no Registrable Securities. For convenience of reference, the date upon which any
representation or warranty or covenant or agreement shall terminate is referred to herein as the
Survival Date
. Other than any claim or Action made pursuant to Article IX, which shall be
governed solely by the provisions of Article IX, no claim or Action arising out of the breach or
failure to perform any representation or warranty or any covenant or agreement may be made
following the Survival Date with respect thereto except as and to the extent set forth in Section
8.3(b) with respect to a valid Notice of Claim.
8.2
Indemnification
.
(a) From and after the Closing, Seller shall indemnify, defend and hold harmless the Purchaser
and its Affiliates, their respective successors and assigns, and the respective officers,
directors, employees and agents of each of the foregoing from and against any and all Losses
incurred or accrued by any such Person which arise out of or result from or as a consequence of any
of the following:
(i) the breach of any representation or warranty of Seller as of the Closing Date contained in
this Agreement or any schedule or certificate delivered by Seller pursuant to this Agreement; and
(ii) the breach of or non-compliance with any agreement or covenant of Seller contained in
this Agreement.
(b) From and after the Closing, Purchaser shall indemnify, defend and hold harmless the Seller
and its Affiliates, their respective successors and assigns, and the respective officers,
directors, employees and agents of each of the foregoing from and against any and all Losses
incurred or accrued by any such Person which arise out of or result from or as a consequence of any
of the following:
(i) the breach of any representation or warranty of Purchaser as of the Closing Date contained
in this Agreement or any schedule or certificate delivered by Purchaser pursuant to this Agreement;
and
40
(ii) the breach of or non-compliance with any agreement or covenant of Purchaser contained in
this Agreement.
8.3
Indemnification Process
.
(a) The Party making a claim or Action for indemnification under this Agreement shall be, for
the purposes of this Agreement, referred to as the
Indemnified Party
and the Party against whom
such claim or Action is asserted under this Agreement shall be, for the purposes of this Agreement,
referred to as the
Indemnifying Party
.
(b) Any Indemnified Party seeking indemnification under this Article VIII shall give the
Indemnifying Party notice of any matter which such Indemnified Person has determined has given rise
to or would reasonably be expected to give rise to a right of indemnification under this Agreement,
stating the amount of the Loss, if known and containing a reference to the provisions of this
Agreement in respect of which such right of indemnification is claimed or arises and setting forth
in reasonable detail the factual basis of such claim or Action (a notice complying with all of the
foregoing requirements, a
Notice of Claim
) as promptly as practicable after becoming aware of
such matter;
provided
,
however
, that the failure so to provide such Notice of Claim
will not affect the rights of Indemnified Party to obtain indemnification hereunder except (i) to
the extent the Indemnifying Party is materially prejudiced thereby; or (ii) such Notice of Claim is
not given prior to the applicable Survival Date. Notwithstanding the foregoing or any other
provision of this Agreement, no claim or Action shall be brought under this Agreement (other than
under Article IX), unless the Indemnified Party has, prior to the applicable Survival Date, given
the Indemnifying Party a Notice of Claim with respect to such claim or Action, in which case such
claim or Action (to the extent so disclosed in such Notice of Claim) shall survive until such claim
or Action has been finally resolved.
(c) Claims or Actions for indemnification hereunder resulting from the assertion of liability
by third parties (each, a
Third Party Claim
) shall be subject to the following terms and
conditions:
(i) The Indemnifying Party shall have the right to assume control of and defend the
Indemnified Party against such Third Party Claim and be entitled to appoint counsel of the
Indemnifying Partys choice at the expense of the Indemnifying Party to represent the Indemnified
Party in connection with any such Third Party Claim (in which case the Indemnifying Party shall not
be responsible for the fees and expenses of any separate counsel retained by any Indemnified Party
or any other costs or expenses with respect to the defense of a Third Party Claim except as set
forth below); provided that such counsel is reasonably acceptable to the Indemnified Party.
Notwithstanding an Indemnifying Partys election to assume control of and elect to defend such
Third Party Claim and appoint counsel to represent the Indemnified Parties in connection with a
Third Party Claim, an Indemnified Party shall have the right to employ separate counsel, but the
Indemnified Party shall bear the fees, costs and expenses of such separate counsel. In the event
that the Indemnifying Party does not elect to assume the control of and defend such Third Party
Claim within 45 days of the date of receipt by the Indemnifying Party of the Notice of Claim, the
Indemnified Parties together shall have the right to employ their own counsel to have control of
and defend such Third Party Claim and the Indemnifying Party shall pay the reasonable fees and
41
expenses of such counsel provided however that nothing in this Section 8.3(c)(i) shall require
the Indemnifying Party to be responsible for the fees and expenses of more than one counsel for the
Indemnified Parties at any time in connection with the defense against a Third Party Claim for all
Indemnified Parties. The Indemnified Party agrees to cooperate with the Indemnifying Party and its
counsel in defending and contesting any Third Party Claim which the Indemnifying Party defends, or,
if appropriate and related to the Third Party Claim in question, in making any counterclaim against
the person asserting the Third Party Claim, or any cross-complaint against any person.
(ii) No Third Party Claim may be settled or compromised (1) by the Indemnified Party without
the prior written consent of the Indemnifying Party, or (2) by the Indemnifying Party without the
prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or
delayed), unless, in the case of this clause (ii), the sole relief provided is monetary damages
that are paid in full by the Indemnifying Party (if such claim or Action by the Indemnified Party
for indemnification is successful), and includes no admission of fault on the part of any
Indemnified Party. In the event any Indemnified Party settles or compromises or consents to the
entry of any judgment with respect to any Third Party Claim without the prior written consent of
the Indemnifying, each Indemnified Party shall be deemed to have waived all rights against the
Indemnifying Party for indemnification under this Article VIII with respect to such Third Party
Claim.
8.4
Bedplates
. The Parties acknowledge and agree that the cracks in the bedplates
of the Vessels Shinyo Kannika and Shinyo Ocean as disclosed on
Schedule 3.2(x)
of the
Sellers Disclosure Schedule have been considered and taken into account in the determination of
the aggregate purchase price for the Seller Subsidiary Shares and that the Purchaser has conducted
its own investigation of the condition of the Shinyo Kannika and Shinyo Ocean. Seller shall have
no liability for any Losses arising subsequent to the Closing resulting from the cracks to the
respective Vessels bedplate, regardless of whether such Losses are due to the direct costs of
replacing or repairing the respective Vessels bedplates, due to the loss of charter hire during
such period or as a result of any extended off-hire or otherwise.
8.5
Limitations on Losses.
(a) Notwithstanding anything to the contrary contained herein, except as provided in the
provisions of Sections 2.2 (with respect to payment of the purchase price), 2.3, 5.3(w) and 8.5(b)
and in the proviso at the end of this Section 8.5(a), the aggregate amount of the Sellers
liability or the Purchasers liability, as the case may be, pursuant to this Agreement shall not
exceed an amount equal to $58,700,000; provided, however, that adjustments made pursuant to Section
2.3, Sellers responsibility to pay the costs referred to in Sections 4.1(d) and 4.1(e), and a
breach of the covenants set forth in Sections 4.7, 5.2 and 5.3(w) will not be deducted for purposes
of computing whether the $58,700,000 limitation on liability has been reached.
(b) Other than the obligations of the Parties contained in Section 2.2 (with respect to
payment of the purchase price) Section 2.3 (Adjustments), under Article VII (Termination) following
termination of this Agreement and Article IX (Registration of Securities), in respect of which the
limitations in this Section 8.5 shall not apply, no party shall be liable under this Agreement to
any other party for Losses in respect of any claim or Action unless the aggregate
42
amount of such Losses, together with the aggregate amount of Losses with respect to all other
claims and Actions under this Agreement, shall exceed $250,000 (the
Minimum Sum
), and in that
event, the Party against whom such claim or Action is made shall be liable only for such Losses in
excess of the Minimum Sum;
provided
that
(i) the limitations set forth in this
Section 8.5 shall not apply to any Loss based on (A) any breach of the representations and
warranties set forth in Sections 3.1(a), 3.1(c), 3.1(h) and 3.1(i) and Sections 3.2(a), 3.2(b),
3.2(f), 3.2(x)(iii), 3.2(aa) or 3.2(cc), or (B) any breach of (1) Sections 4.7 and 5.2, (2) the
covenant set forth in 5.3(w), (3) the covenant with respect to the payment of the costs of the
special surveys as set forth in Section 4.1(d), or (4) the covenant to make the payment so required
for release of the Swedish P&I Club insurance contemplated by the last sentence of Section 4.1(e),
and (ii) notwithstanding any provision of this Agreement to the contrary, nothing contained in this
Agreement shall in any way limit, impair, modify or otherwise affect the rights of an Indemnified
Party, at law, in equity or otherwise, to bring any claim, or Action otherwise available to such
Indemnified Party based upon, or to seek or recover any Losses arising from or related to, fraud or
bad faith.
(c) No party shall be liable hereunder in respect of any claim or Action for any indirect or
consequential losses, any loss of profit, loss of turnover, loss of contract or any loss of
goodwill.
8.6
Mitigation.
In connection with any Losses which an Indemnified Party may suffer
or incur for which a claim or Action may be made hereunder, the Seller or Purchaser as applicable
shall, and shall cause each such Indemnified Party related to it, to act and refrain from acting,
as commercially reasonably necessary to mitigate such Losses.
8.7
Disclosed Matters
. The Seller will not be liable in respect of any claim or
Action under this Agreement or any Transaction Document (i) with respect to any amount which is
included as a liability in, or is otherwise reflected, allowed, provided for or disclosed in the
Financial Statements; (ii) with respect to any amount (up to such amount) for the claims set forth
on
Schedule 3.2(n)(iv)
; (iii) for any liability or obligation of a type taken into account
by the parties in the calculation of the Assumed Debt, Working Capital or Remaining Installments,
or expressly excluded from such calculation or the definitions thereof in this Agreement; or (iv)
with respect to any claim, liability or matter identified as a claim or liability or matter that
might give rise to a claim or liability, included as part of a closing certificate given pursuant
to Section 6.1(a) or 6.2(a).
8.8
No Duplication
. Any liability under this Agreement shall be determined without
duplication of recovery, and no Party nor any Indemnified Party shall be entitled to recover
damages or obtain payment, reimbursement or restitution more than once in respect of any inaccuracy
or breach of or non-compliance with any provision of this Agreement or any other Transaction
Document. No liability shall attach to any Party under this Agreement to the extent the subject
thereof has otherwise been made good or is compensated for.
8.9
Exclusive Remedy
. Other than under Section 2.3, which shall be the sole provision
with respect to final determination of Assumed Debt, Working Capital and Remaining Installments,
and Article IX, which shall be the sole provisions with respect to any liability for matters
covered by Article IX, from and after the Closing, the rights and remedies of the parties expressly
provided for in this Article VIII shall be the exclusive remedies of the Parties and their
43
respective officers, directors, employees, Affiliates, agents, representatives, successors and
assigns for any breach or inaccuracy of any representation, warranty or breach of or noncompliance
with any covenant or agreement contained in this Agreement, and the Parties shall not be entitled
to rescission of this Agreement or to any further indemnification or other rights or claims of any
nature whatsoever (including under statute, regulation, common law, in equity or for negligence) in
respect thereof, all of which the Parties hereby waive to the fullest extent permitted by law.
8.10
Recovery and Assignment.
(a) If an Indemnifying Party at any time pays to the Indemnified Party an amount in respect of
any claim or Action and the Indemnified Party or one of its Affiliates has recovered, or
subsequently becomes entitled to recover, from some other Person (including any insurer) any sum
(whether by payment, discount, credit, relief or otherwise) in respect of the subject matter of the
claim or Action, the Indemnified Party shall promptly give written notice thereof to the
Indemnifying Party and take all reasonable steps to enforce such right of recovery and following
any such recovery shall forthwith repay to the Indemnifying Party so much of the amount paid by
them to the Indemnified Party as does not exceed the sum recovered from such other person less all
reasonable costs, charges and expenses incurred by the Indemnified Party or any of its Affiliates
in recovering that sum from such other person. The Indemnified Party shall provide the Indemnifying
Party with an accounting of such costs, charges and expenses incurred by the Indemnified Party or
any of its Affiliates in recovering that sum from such other person, and keep the Indemnified Party
regularly informed of the progress of such recovery.
(b) Where having discharged a Third Party Claim an Indemnifying Party requests the assignment
to it of any right of the Indemnified Party or any of its Affiliates to make recovery in whole or
in part from any third party, the Indemnified Party will assign or procure the assignment to the
Indemnifying Party of such right, and, if that right is not legally capable of effective
assignment, subject to being indemnified to the reasonable satisfaction of the Indemnified Party or
any of its Affiliates against any associated costs and expenses, pursue such Third Party Claim on
behalf of the Indemnifying Party and pay over to the Indemnifying Party all amounts recovered up to
the amount of the relevant claim or Action previously discharged by it.
8.11
Taxes
. In calculating the amount of Losses for which an Indemnified Party is
entitled to indemnification hereunder, the amount of Losses shall (subject to Section 8.8 above so
as not to permit duplication of recovery) be (i) increased to the extent an Indemnified Party will
be liable for taxes on such indemnification payment which it would not have otherwise been required
to pay (or pay an equivalent amount) if such Losses for which the indemnification payment is being
made had not occurred; or (ii) reduced by the amount of any Tax benefit, credit, allowance or
relief which the Indemnified Party will receive as a result of such indemnification payment which
it would not have otherwise received (or received an equivalent benefit, credit, allowance or
relief) if such Losses for which the indemnification payment is being made had not occurred.
8.12
Escrow Fund
. At the Closing, the Escrow Fund shall be delivered to the Escrow
Agent to be held and administered by the Escrow Agent in accordance with the terms of the
Post-Closing Escrow Agreement and the Charter Escrow Agreement. Purchasers remedies for Losses
44
shall first arise from the Escrow Fund, but shall not be limited to the assets comprising the
Escrow Fund.
8.13
Indemnification Under Article IX
. Notwithstanding the other provisions of this
Article VIII, the provisions of this Article VIII shall not apply to claims and Actions related to
any breach, non-compliance or indemnification under Article IX.
ARTICLE IX
REGISTRATION OF SECURITIES
9.1
Resale Registration Statement
.
(a) The Purchaser shall prepare and file with the SEC promptly after Closing and use
reasonable efforts to cause to be declared effective within 90 days after the Closing Date, a
registration statement (the
Resale Registration Statement
) on an appropriate form relating to the
Registrable Securities, to the extent required to permit the disposition by a Holder of the
Registrable Securities.
(b) The Purchaser shall cause the Resale Registration Statement to remain effective until no
Registrable Securities remain outstanding; provided, however, that before filing such Registration
Statement or any amendments or supplements thereto, the Purchaser shall furnish to counsel selected
by the Holders copies of all documents proposed to be filed, which documents shall be subject to
the review of such counsel, and shall in good faith consider incorporating in each such document
such changes as such counsel to the Holders reasonably and in a timely manner may suggest.
(c) On and from the filing date of the Resale Registration Statement and while any Registrable
Securities remain outstanding, the Purchaser shall:
(i) notify the Holders of the happening of any event that requires the Purchaser to make
changes in the Resale Registration Statement or any prospectus contained therein in order to
ensure that the Resale Registration Statement (and each prospectus contained therein) contains no
untrue statement of material fact and does not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading (which notice shall be accompanied by an
instruction to suspend the use of such prospectus until the requisite changes have been made);
(d) promptly prepare and file with the SEC such amendments and supplements to such
Registration Statement (including post-effective amendments) and each prospectus used in connection
therewith, such annual or periodic reports under the Exchange Act and all other documents, as may
be necessary to keep such Registration Statement effective, to ensure such Registration Statement
(and each prospectus contained therein) contains no untrue statement of material fact and does not
omit to state a material fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under which
45
they were made) not misleading, and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all securities covered by such Registration
Statement until such time as there shall be no Registrable Securities;
(e) register or qualify the Registrable Securities under such other securities or blue sky
laws of such jurisdictions within the United States and its territories and possessions as each
Holder of such Registrable Securities shall reasonably request, to keep such registration or
qualification in effect for so long as the Resale Registration Statement remains in effect or until
all of the Registrable Securities are sold, whichever is shorter, and to take any other action
which may be reasonably necessary or advisable to enable each Holder to consummate the disposition
in such jurisdictions of the securities owned by such Holder (provided, however, that the Seller
shall not be required in connection therewith or as a condition thereto to qualify to do business
as a foreign corporation, subject itself to taxation in or to file a general consent to service of
process in any jurisdiction where it would not, but for the requirements of this Section 9.1(e), be
obligated to do so) and do such other reasonable acts and things as may be required of it to enable
such Holder to consummate the disposition in such jurisdiction of the securities covered by such
Resale Registration Statement;
(i) otherwise comply with all applicable laws, rules and regulations promulgated by the SEC;
and
(ii) cause all such Registrable Securities to be listed and remain quoted on each securities
exchange or quotation system on which the Purchasers common stock is listed or traded.
(f) The Purchaser shall promptly give written notice to the Holders:
(i) when such Resale Registration Statement, the prospectus or any amendment or supplement
thereto has been filed with the SEC and when such Resale Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the SEC for amendments or supplements to such Resale Registration
Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of such
Resale Registration Statement or the initiation of any proceedings for that purpose; and
(iv) of the receipt by the Purchaser or its legal counsel of any notification with respect to
the suspension of the qualification of its common stock for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(g) The Purchaser shall use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of such Resale Registration Statement at the earliest possible time;
(h) The Purchaser shall furnish to each Holder, without charge, at least one copy of such
Resale Registration Statement and any post-effective amendment thereto, including financial
46
statements and schedules, and, if the Holder so requests in writing, all exhibits (including
those, if any, incorporated by reference); and
(i) The Purchaser shall use its best efforts to procure the cooperation of the Purchasers
transfer agent in settling any offering or sale of Registrable Securities, including with respect
to the transfer of physical stock certificates into book-entry form in accordance with any
procedures reasonably requested by the Holders.
9.2
Blackout Periods
. The Purchaser shall have the right to suspend the use of the
prospectus included in any Resale Registration Statement during no more than two periods
aggregating to not more than 120 days in any twelve-month period (each, a
Blackout Period
), in
the event that in the good faith judgment of the Purchasers board of directors, there is a
reasonable likelihood that such disclosure, or any other action to be taken in connection with the
prospectus, would materially and adversely affect or interfere with any significant financing,
acquisition, merger, disposition of assets, corporate reorganization or other material transaction
or negotiations involving the Purchaser;
provided
,
however
, that the Purchaser
delays or suspends during such Blackout Period the filing or effectiveness of any registration
statement required pursuant to the registration rights of other holders of any securities of the
Purchaser, or any other shareholder of the Purchaser. The Purchaser shall promptly give the
Holders written notice of such determination containing, to the extent permitted by law, a general
statement of the reasons for such postponement and an approximation of the anticipated delay.
After the expiration of any Blackout Period (including upon public disclosure of the information
that was the reason for such Blackout Period) and without any further request from any Holder, the
Purchaser shall promptly notify the Holders and shall prepare and file with the SEC such amendments
or supplements to the Resale Registration Statement or prospectus used in connection therewith as
may be necessary to cause such Resale Registration Statement (and each prospectus contained
therein) to become effective and useable as promptly as practicable thereafter and to contain no
untrue statement of material fact and not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading, and shall immediately notify the Holders
in writing once the Resale Registration Statement (and each prospectus contained therein) has again
become effective and useable.
9.3
Expenses
. Except as otherwise agreed or set forth herein, all Registration
Expenses shall be paid by the Purchaser.
9.4
Indemnification by the Purchaser
. The Purchaser shall, and it hereby does,
indemnify and hold harmless, to the extent permitted by law, each Holder, each affiliate of such
Holder and their respective trustees, directors, and officers or general and limited partners
(including any director, officer, affiliate, employee, representative, agent, and controlling
Person of any of the foregoing, in each case within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), (each, an
Article IX Indemnified Party
, and collectively,
the
Article IX Indemnified Parties
), against any and all Actions (whether or not an Article IX
Indemnified Party is a party thereto), losses, claims, damages, or liabilities, joint or several,
and expenses (including, without limitation, reasonable attorneys fees and reasonable expenses of
investigation) to which such Article IX Indemnified Party becomes subject under the Securities Act,
the Exchange Act, common law, or otherwise, insofar as such Actions, losses, claims, damages,
liabilities, or expenses
47
(or actions or proceedings in respect thereof, whether or not such Article IX Indemnified
Party is a party thereto) arise out of, relate to, or are based upon (a) any untrue statement or
alleged untrue statement of any material fact contained in any registration statement relating to
Registrable Securities, any preliminary, final, or supplemental prospectus contained therein, or
any amendment or supplement thereto or any issuer free-writing prospectus relating to any sale or
distribution pursuant thereto, or (b) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not misleading, and the
Purchaser will reimburse such Article IX Indemnified Party for any legal or any other expenses
reasonably incurred by such Article IX Indemnified Party in connection with investigating or
defending against any such loss, claim, liability, action, or proceeding; provided, that the
Purchaser shall not be liable to any Article IX Indemnified Party in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect thereof), or
expense arises out of or is based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in such Resale Registration Statement or amendment or supplement thereto
or in any such preliminary, final, or supplemental prospectus or issuer free-writing prospectus in
reliance upon and in conformity with written information furnished to the Purchaser through an
instrument duly executed by such Holder specifically stating that it is for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless of any investigation made
by or on behalf of the Seller or any of the Holders, or any of their respective affiliates,
directors, officers, or controlling Persons (as so defined) and shall survive the transfer of such
securities by such Holder.
9.5
Notices of Claims, Etc
. Promptly after receipt by an Article IX Indemnified Party
hereunder of written notice of the commencement of any Action with respect to which a claim for
indemnification may be sought pursuant to this Article IX, such Article IX Indemnified Party will,
if a claim in respect thereof is to be made against an indemnifying party, give prompt written
notice to the latter of the commencement of such Action; provided that the failure of the Article
IX Indemnified Party to give prompt notice as provided herein shall not relieve the indemnifying
party of its obligations under this Article IX, or otherwise. In case any such Action is brought
against an Article IX Indemnified Party, unless in such Article IX Indemnified Partys reasonable
judgment a conflict of interest between such Article IX Indemnified Party and indemnifying parties
may exist in respect of such Action, the indemnifying party will be entitled to participate in and
to assume the defense thereof (at its expense), jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to such Article IX
Indemnified Party. In connection with any such Action the defense of which the indemnifying party
chooses to participate in and assume, the Article IX Indemnified Parties shall be entitled to
appoint their own counsel and the indemnifying party shall pay the fees and expenses of such
counsel, provided that the indemnifying party shall not be required to pay the fees and expenses of
more than one such counsel (together with local counsel) for all Article IX Indemnified Parties. If
the indemnifying party fails to assume the defense of such Action within 30 days of notice thereof
by an Article IX Indemnified Party to the Article IX Indemnifying Party, the Article IX Indemnified
Parties shall be entitled to defend and shall control the defense of such Action, and all costs and
expenses of doing so shall be subject to indemnification by the indemnifying party under Section
9.4. No indemnifying party will consent to entry of any judgment or settle any Action which does
not include, as an unconditional term thereof, the giving by the claimant or plaintiff to such
Article IX Indemnified Party of a release
48
from all liability in respect of such Action. No indemnifying party will consent to entry of any
judgment or settle any Action which involves the imposition of equitable remedies or of any
other obligations on an Article IX Indemnified Party or otherwise adversely affects an Article IX
Indemnified Party, other than as a result of the imposition of financial obligations for such
Article IX Indemnified Party which will be indemnified hereunder.
9.6
Contribution
.
(a) If the indemnification provided for in this Article IX from the indemnifying party is
unavailable to or insufficient to fully hold harmless an Article IX Indemnified Party hereunder in
respect of any Action, losses, damages, liabilities, or expenses referred to herein, then the
indemnifying party, in lieu of indemnifying such Article IX Indemnified Party, shall contribute to
the amount paid or payable by such Article IX Indemnified Party as a result of such Action, losses,
damages, liabilities, or expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and such Article IX Indemnified Party in connection with the
actions which resulted in such Action, losses, damages, liabilities, or expenses, as well as any
other relevant equitable considerations. The relative fault of such indemnifying party and such
Article IX Indemnified Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to information supplied
by, such indemnifying party or Article IX Indemnified Parties, and the parties relative intent,
knowledge, access to information, and opportunity to correct or prevent such action. The amount
paid or payable by a party under this Section 9.6 as a result of the Action, losses, damages,
liabilities, and expenses referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation or proceeding.
(b) The parties hereto agree that it would not be just and equitable if contribution pursuant
to this Section 9.6 were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in Section 9.6(a) hereof.
No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
9.7
Limitation of Holder Liability
. Notwithstanding any other provisions of this
Agreement, the Parties agree that it would not be just and equitable if a Holder is required to
contribute any amount under this Article IX which exceeds the aggregate net proceeds received by
such Holder in connection with any offering to which such registration under the Securities Act
relates.
9.8
Non-Exclusivity
. The obligations of the Parties under this Article IX shall be in
addition to any liability which any Party may otherwise have to any other Party.
9.9
Rule 144
. The Purchaser covenants that it will (a) file the reports required to be
filed by it under the Securities Act and the Exchange Act (or, if the Purchaser is not required to
file such reports, it will, upon the request of any Holder, make publicly available such
information), and it will take such further action as any Holder may reasonably request, all to the
extent required from
49
time to time to enable such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC; and (b) file with or furnish to the SEC in a timely manner
all reports and other documents required of the Purchaser under the Securities Act and the Exchange
Act. Upon the request of any Holder of Registrable Securities, the Purchaser will deliver to such
Holder a written statement as to whether it has complied with such requirements.
9.10
Specific Performance
. The parties hereby acknowledge and agree that the failure
of any Party to perform its agreements and covenants hereunder, including its failure to take all
actions as are necessary on its part to the consummation of the transactions contemplated hereby,
will cause irreparable injury to the other Parties, for which damages, even if available, will not
be an adequate remedy. Accordingly, each Party hereby consents to the issuance of injunctive relief
by any court of competent jurisdiction to compel performance of such Partys obligations, to
prevent breaches of this Agreement by such Party and to the granting by any court of the remedy of
specific performance of such Partys obligations hereunder, without bond or other security being
required, in addition to any other remedy to which any Party is entitled at law or in equity. Each
Party irrevocably waives any defenses based on adequacy of any other remedy, whether at law or in
equity, that might be asserted as a bar to the remedy of specific performance of any of the terms
or provisions hereof or injunctive relief in any action brought therefor by any Party.
ARTICLE X
MISCELLANEOUS
10.1
Fees and Expenses
. Each Party shall bear its own costs and expenses in
connection with this Agreement and the transactions contemplated hereby, including, without
limitation, all fees of its advisors, counsel, accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement, whether or not the transactions contemplated hereby are consummated.
10.2
Entire Agreement
. The Transaction Documents, together with the exhibits and
schedules hereto and thereto, contain the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings, oral or written, with
respect to such matters, which the parties acknowledge have been merged into such documents,
exhibits and schedules.
10.3
Disclosure Schedules
. In the disclosure schedules, (a) all capitalized terms
used but not defined therein shall have the meanings assigned to them in this Agreement; and (b)
for convenience only the section numbers correspond to the section numbers of this Agreement. The
disclosure schedules shall be deemed to be a part of this Agreement and included in any reference
to this Agreement.
10.4
Notices
. All notices or other communications that are required or permitted
hereunder shall be in writing and sufficient if delivered personally or sent overnight mail by an
50
internationally-recognized overnight courier or by electronic mail with return receipt requested by
the sending party and returned by the intended recipient, with a copy thereof to be delivered
by internationally-recognized overnight courier (as aforesaid) within 24 hours of such electronic
mail, or by facsimile, with confirmation of receipt by the intended party as provided above to the
address set forth below the partys name to whom notice is to be given on the signature pages
hereof, or to such other address as the party to whom notice is to be given may have furnished to
the other party in writing in accordance herewith. All such notices or communications shall be
deemed to be received (a) in the case of personal delivery, on the date of such delivery, (b) in
the case of internationally-recognized overnight courier, on the next business day after the date
when sent, and (c) in the case of facsimile transmission or electronic mail, upon confirmed receipt
by the intended party.
10.5
Amendments; Waivers
. No provision of this Agreement may be waived or amended
except in a written instrument signed, in the case of an amendment, by the Purchaser and Seller or,
in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No
waiver of any default with respect to any provision, condition or requirement of this Agreement
shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise of any such right.
10.6
Construction
. The headings herein are for convenience only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
The language used in this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rules of strict construction will be applied against any party.
10.7
Successors and Assigns
. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. Neither party may assign this
Agreement or any rights or obligations hereunder without the prior written consent of the other
party.
10.8
No Third-Party Beneficiaries
. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other Person, except that in the Purchaser or the
Seller, as applicable, may enforce the provisions of Article VIII hereof on behalf of any of its
Affiliates, officers, directors, employees and agents and Holders and any Article IX Indemnified
Party may enforce the provisions of Article IX. To the extent that this Agreement is filed with
the SEC or any other regulatory authority, it is expressly agreed that the representations and
warranties contained in this Agreement are solely for the benefit of the parties hereto and not for
the benefit of any other Person.
10.9
Governing Law.
This Agreement shall be governed by and construed in accordance
with the Laws of the State of New York applicable to agreements made and to be performed entirely
within such State, without regard to the conflict of laws principles of such State that would
mandate the application of the laws of another jurisdiction.
51
10.10
Arbitration.
Any dispute, controversy or claim arising out of or in
connection with this Agreement or the breach, termination or validity thereof, except those
disputes, controversies or claims that are subject to Section 2.3(c), (
Dispute
) shall, upon the
written request (
Request
) of any Party to this Agreement, be finally settled by arbitration in
accordance with the Rules of Arbitration of the International Chamber of Commerce (
ICC
) then in
effect (the
Rules
), except as modified by the following paragraphs 10.10(a) through 10.10(d):
(a) The arbitration shall be held, and the award shall be rendered, in New York, New York, in
the English language. There shall be three arbitrators, one of whom shall be nominated by the
Seller and a second who shall be nominated by the Purchaser, in accordance with the Rules. The two
Party appointed arbitrators shall have 30 days from the confirmation of the nomination of the
second arbitrator to agree on the nomination of a third arbitrator who shall serve as chair of the
arbitral tribunal. On the request of any Party, any arbitrator not timely appointed in accordance
with this Agreement or the Rules, shall be appointed by the International Court of Arbitration of
the ICC.
(b) No Party to the arbitration nor any of their agents shall disclose or permit the
disclosure of any information about the evidence adduced or the documents produced by the other
Party in the arbitration proceedings or about the existence, contents or results of the proceeding
except as may be required by law, by a governmental or regulatory authority or as required in an
action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure
permitted by the preceding sentence, except disclosure about the existence, contents or results of
the proceeding in aid of arbitration or for enforcement of an arbitral award, the Party intending
to make such disclosure shall give the other Party reasonable written notice of the intended
disclosure and afford the other Party a reasonable opportunity to protect its interests.
(c) The arbitral tribunal is not empowered to award damages in excess of compensatory damages,
and each Party hereby irrevocably waives any right to recover punitive, exemplary or similar
damages with respect to any Dispute. The arbitral tribunal shall be authorized in its discretion
to award interest at a reasonable commercial rate.
(d) The award shall be final and binding upon the Parties and shall be the sole and exclusive
remedy between the Parties regarding any claims, counterclaims, or issues presented to the arbitral
tribunal. Judgment upon any award may be entered and enforced in any court having jurisdiction
over a Party or any of its assets. For the purpose of the enforcement of an award, the parties
irrevocably and unconditionally submit to the jurisdiction of a competent court in any jurisdiction
in which a Party may have assets and waive any defenses to such enforcement based on lack of
personal jurisdiction or inconvenient forum.
10.11
Execution
. This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other party, it being
understood that both parties need not sign the same counterpart. In the event that any signature
is delivered by facsimile transmission or email attachment, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is executed) with the
same force and effect as if such facsimile or email-attached signature page were an original
thereof.
52
10.12
Severability
. If any provision of this Agreement is held to be invalid or
unenforceable in any respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt
to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon
so agreeing, shall incorporate such substitute provision in this Agreement.
10.13
Remedies
. In addition to being entitled to exercise all rights provided herein
or granted by law, including recovery of damages, each of Seller and the Purchaser will be entitled
to seek specific performance under the Transaction Documents. The parties agree that monetary
damages may not be adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in any action for
specific performance of any such obligation (other than in connection with any action for temporary
restraining order) the defense that a remedy at law would be adequate.
10.14
Adjustments in Share Numbers and Prices
. In the event of any stock split,
subdivision, dividend or distribution payable in shares of Common Stock (or other securities or
rights convertible into, or entitling the holder thereof to receive directly or indirectly shares
of Common Stock), combination or other similar recapitalization or event occurring after the date
hereof, each reference in any Transaction Document to a number of shares or a price per share shall
be amended to equitably and appropriately account for such event.
ARTICLE XI
DEFINITIONS
Action
means any action, suit or proceeding, claim, arbitration, litigation or
investigation.
Affiliate
means any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person, as such terms are used in
and construed under Rule 144 under the Securities Act.
Assumed Debt
means the aggregate outstanding principal amount and accrued interest,
penalties, commitment or other fees and any other amounts owing under the Loan Agreements and any
other long-term Indebtedness or long-term liabilities of the Vessel Owning Subsidiaries as of the
Closing Date that have not been paid in full or extinguished as of the Closing. As of the date
hereof, it is anticipated that the Assumed Debt will be approximately $410.5 million.
Authorization
means any franchise, license, approval, consent, permit or registration of any
Governmental Entity or pursuant to any Law.
Builder
means Dalian Shipbuilding Industry Co. Ltd., the builder of the NewBuild Vessel.
|
|
Builders Bank
means Industrial and Commercial Bank of China (Dalian Branch).
|
53
Business Day
means any day other than Saturday, Sunday or other day on which commercial
banks in the Cities of Athens, New York and Hong Kong are authorized or required by law to remain
closed.
Charter Escrow Agreement
means that certain Charter Escrow Agreement, by and among the
Purchaser, Seller and the Escrow Agent in the form attached hereto as
Exhibit A-2
.
Closing
means the closing of the purchase and sale of the Seller Subsidiary Shares pursuant
to the terms and conditions of this Agreement.
Closing Date
means the date and time of the Closing and shall, subject to the satisfaction
to the conditions to Closing set forth herein, be 9:00 a.m., Piraeus time, on September 15, 2010,
(or such other date and time as mutually agreed to by the Purchaser and Seller).
Code
means, except as the context may otherwise state expressly, the U.S. Internal Revenue
Code of 1986, as amended.
Contract
means any agreement, contract, or legally binding commitment, written or oral.
Dollar
or
$
means U.S. currency.
Encumbrance
means any security interest, pledge, mortgage, lien (including, without
limitation, environmental and tax liens), charge, encumbrance, adverse claim, preferential
arrangement or restriction of any kind, including without limitation, any restriction on the
use, voting, transfer, receipt of income or other exercise of any attributes of ownership.
Environmental Approvals
means collectively in relation to each Vessel any permit,
license, approval, certification, registration, exemption or other authorization required for
such Vessel under applicable Environmental Laws and, in the singular, means any of them.
Environmental Claim
means:
(a)
any written claim by, or directive from, any applicable Governmental Entity alleging
breach of, or non-compliance with, or liability under, any Environmental Laws or Environmental
Approvals alleging violation of applicable Environmental Law arising out of an Environmental
Incident; or
(b)
any written claim by any other person alleging violation of applicable Environmental Law
arising out of an Environmental Incident
and, in each such case, claim shall include without limitation a claim for damages, clean-up
costs, compliance, remedial action or otherwise.
Environmental Incident
means:
54
(a)
any release, discharge, disposal or emission of Hazardous Material by or from a Vessel in
violation of applicable Environmental Law;
(b)
any incident in which Hazardous Material is released, discharged, disposed of, or emitted
by or from a ship (other than a Vessel) resulting from a collision between a Vessel and such other
ship or some other incident of navigation or operation involving such other ship and a Vessel, in
either case, where that Vessel, the owner of that Vessel and/or any operator or manager of it is or
are actually or alleged through formal proceedings to be at fault or otherwise liable (in whole or
in part); or
(c)
any incident in which Hazardous Material is released, discharged, disposed of, or emitted
by or from a Vessel and where that Vessel is actually or potentially liable to be arrested or
attached as a result and/or where the owner of that Vessel and/or any operator or a manager of that
Vessel is actually or alleged to be at fault or otherwise liable (in whole or in part).
Environmental Laws
means any federal, state, regional, foreign or binding international law,
statute, and any final and enforceable treaty, regulation, policy, guidance, order, injunction,
judgment or directive of any Governmental Entity governing the protection of natural resources, the
environment and public and employee health and shall include, without limitation, the International
Convention for the Prevention of Pollution from Ships, the United States Oil Pollution Act of 1990
and any comparable laws of the individual States of the United States of America and, in each case,
the regulations promulgated pursuant thereto, and any applicable analogous state statutes, and the
regulations promulgated pursuant thereto, as such laws have been amended or supplemented, in each
case, as in effect on the date hereof.
Equity Securities
means (a) shares of capital stock, and (b) options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights or other contracts that, directly
or indirectly, could require the issuer thereof to issue, sell or otherwise cause to become
outstanding shares of capital stock.
Escrow Agent
means a third party reasonably acceptable to the Parties.
Estimated Tax Returns
means any Tax Returns filed or to be filed in connection with
estimated Tax payments which estimated Tax payments are to be made on or before the Closing Date.
Exchange Act
means the Securities Exchange Act of 1934, as amended.
Existing Lenders
means, together, the banks and financial institutions listed as lenders in
the Existing Loan Documents.
Existing Loan Documents
means the Loan Agreements and the security documents executed
thereunder.
Existing Loan Guarantees
means the guarantees by the Seller of the performance of the
obligations of the Vessel Owning Subsidiaries under the Existing Loans Documents.
55
Existing Performance Guarantee
means the performance guarantee in respect of the
Shipbuilding Contract, pursuant to which, the Seller guaranteed the payment by the relevant Vessel
Owning Subsidiary of the contract price of the NewBuild Vessel under the Shipbuilding Contract.
FINRA
means the Financial Industry Regulatory Authority or any successor entity thereof.
GAAP
means United States generally accepted accounting principles.
Governmental Entity
means any entity or body exercising executive, legislative, judicial,
regulatory or administrative functions of federal, state, local, or municipal government or
foreign, international, multinational or other government, including any department, commission,
board, agency, bureau, official or other regulatory, administrative or judicial authority thereof.
Hazardous Materials
means emissions, discharges, or releases of hazardous or toxic
chemicals, pollutants, contaminants, substances or wastes, petroleum, petroleum-based or
petroleum-derived products; polychlorinated biphenyls or radioactive material.
Holder
means the Seller and any Affiliate of the Seller who acquires Registrable Securities
from time to time.
Indebtedness
means any of the following: (a) any indebtedness for borrowed money, (b) any
obligations evidenced by bonds, debentures, notes or other similar instruments, (c) any obligations
as lessee under capitalized leases, (d) any indebtedness created or arising under any conditional
sale or other title retention agreement with respect to acquired property, (e) any borrowing under
drawn and outstanding bankers acceptance, letters of credit or similar facilities, and (f) any
guaranty of any of the foregoing of another Person.
Installment
means any installment of the contract price payable by Newbuild Owner to the
Builder under the Shipbuilding Contract and, in the plural, means all of such installments.
Intellectual Property
means: (i) inventions (whether or not patentable), trade secrets,
technical data, databases, customer lists, designs, tools, methods, processes, technology, ideas,
know how and other proprietary information; (ii) trade marks and service marks (whether or not
registered), applications for trade marks and service marks, trade names, logos, trade dress and
other proprietary indicia and all goodwill associated therewith; (iii) advertising copy, marketing
materials, specifications, mask works, drawings, graphics, databases, recordings and other works of
authorship; (iv) source code, object code, data and operating files, user manuals, flow charts,
algorithms, compilers, development tools, maintenance records and other documentation related to
computer programs; (v) internet web-sites and domain names; and (vi) all forms of legal rights and
protections that may be obtained for, or may pertain to, the Intellectual Property set forth in
clauses (i) through (v) in any country of the world (
Intellectual Property Rights
), including,
without limitation, all letters patent, patent applications, provisional patents, design patents,
PCT filings and other rights to inventions or designs, all registered and unregistered copyrights
in both published and unpublished works, trade secret rights, mask works, moral rights or other
literary property or authors rights, rights regarding trademarks and other proprietary indicia, and
all applications, registrations, issuances, divisions, continuations, renewals, reissuances and
extensions of the foregoing.
56
Knowledge
of the Purchaser, or Seller, as applicable, or any similar phrase means, with
respect to any fact or matter, the actual knowledge of the directors and executive officers of the
Purchaser, or Seller, as applicable. For purposes of the foregoing, the following Persons are
directors and executive officers of:
|
(a)
|
|
the Purchaser: Angeliki Frangou; and
|
|
|
(b)
|
|
the Seller: Fred Cheng, Richard Hext and Raja Ram Kogta.
|
Laws
in respect of any Person means any applicable national, international, federal, state,
local or foreign statute, law, ordinance, regulation, rule, treaty, convention, executive order,
injunction, decree or other order of any Governmental Entity to which that Person is subject.
Loan Agreements
means the loan agreements listed in Schedule 3.2(q).
Losses
means losses, damages, liabilities, demands, taxes, sanctions, deficiencies,
assessments, judgments, costs, interest, penalties and expenses (including reasonable attorneys
fees) and costs and expenses reasonably incurred in attempting to mitigate such loss in accordance
with Section 8.6.
Management Agreement
means in respect of each Built Vessel a management agreement made
between the relevant Vessel Owning Subsidiary and the Manager.
Manager
means collectively, Belindtha Marine Limited and Univan Ship Management Limited.
Maritime Guidelines
means any United States, international or non-United States (including
Hong Kong, the Marshall Islands, the British Virgin Islands and Greece) rule, code of practice,
convention, protocol, guideline or similar requirement or restriction concerning or relating to a
Vessel, and to which a Vessel is subject and required to comply with, imposed, published or
promulgated by any Governmental Entity, the International Maritime Organization, such Vessels
classification society or the insurer(s) of such Vessel.
New Performance Guarantee
means the performance guarantee in respect of the Shipbuilding
Contract to be executed by the Purchaser in favor of the Builder on the Closing Date in replacement
of the Existing Performance Guarantee, pursuant to which the Purchaser shall guarantee the payment
by the Newbuild Owner of the Installments of the contract price of the NewBuild Vessel under the
Shipbuilding Contract.
Newbuild Owner
means Shinyo Kieran Limited.
Newbuild Vessel
has the meaning as set forth in Section 3.2(x)(i).
Order
means any award, injunction, judgment, decree, order, ruling, subpoena or verdict or
other decision.
57
Out-of-Pocket Expenses
shall include, but not be limited to, reasonable attorneys fees,
accountant fees and other related professional fees and disbursements.
Party
means a party to this Agreement and
Parties
means all the parties to this Agreement.
Permitted Encumbrances
means any:
|
(a)
|
|
Encumbrance created by the Existing Loan Documents;
|
|
|
(b)
|
|
liens for unpaid crews wages which are not overdue;
|
|
|
(c)
|
|
liens for salvage;
|
|
|
(d)
|
|
liens arising by operation of law for not more than one months
prepaid hire under any charterparty in relation to a Vessel;
|
|
|
(e)
|
|
liens for masters disbursements incurred in the ordinary course
of business;
|
|
|
(f)
|
|
other liens arising by operation of law or otherwise in the
ordinary course of the operation, repair or maintenance of a Vessel where the
Vessel Owning Subsidiary is contesting the claim giving rise to such lien in
good faith by appropriate steps and for the payment of which adequate reserves
have been made in the financial records of the Vessel Owning Subsidiary;
|
|
|
(g)
|
|
an Encumbrance (other than an Encumbrance created under the
Existing Loan Documents) created in favor of a plaintiff or defendant in any
Action as security for costs and expenses where the Vessel Owning Subsidiary is
prosecuting or defending such action in good faith by appropriate steps or which
are subject to a pending appeal and for which there shall have been granted a
stay of execution pending such appeal and for the payment of which adequate
reserves have been made in the financial records of the Vessel Owning
Subsidiary;
|
|
|
(h)
|
|
an Encumbrance arising by operation of law in respect of Taxes
which are not overdue for payment or Taxes which are overdue for payment but
which are being contested in good faith by appropriate steps and in respect of
which appropriate reserves have been made in the financial records of the Vessel
Owning Subsidiary; and
|
|
|
(i)
|
|
restrictions on transfer under applicable securities Laws.
|
Person
means any individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, or joint stock company.
Post-Closing Escrow Agreement
means that certain Post-Closing Escrow Agreement, by and among
the Purchaser, Seller and the Escrow Agent in the form attached hereto as
Exhibit A-1
.
58
Pre-Closing Taxes
means all Taxes (other than those arising as a result of a Section 338
Election or as a result of a transaction undertaken by the Purchaser) incurred by, imposed on or
asserted against any Vessel Owning Subsidiary for a Pre-Closing Tax Period.
Pre-Closing Tax Period
means any tax period of a Vessel Owning Subsidiary ended or ending on
or before the Closing Date.
Pre-Closing Tax Returns
means any and all Tax Returns of a Vessel Owning Subsidiary for each
Pre-Closing Tax Period
.
Prepaid Taxes
means all payments of Taxes made in respect of the Tax liability of any Vessel
Owning Subsidiary (whether by reason of an estimated Tax payment or otherwise) on or prior to the
Closing Date, including any refunds or credits attributable to a Pre-Closing Tax Period, applied to
a Straddle Period.
Purchaser Material Adverse Effect
means any circumstance, change in, or effect on the
Purchaser or its Subsidiaries that, individually or in the aggregate with any other circumstances,
changes in, or effects on the Purchaser or its Subsidiaries: (a) is, or could be, materially
adverse to the business, operations, assets or liabilities, employee relationships, customer or
supplier relationships, results of operations or the condition (financial or otherwise) of the
Purchaser or its Subsidiaries, taken as a whole, or (b) could materially adversely affect the
ability of the Purchaser to operate or conduct its business or the business of its Subsidiaries in
the manner in which they are currently operated or conducted provided that none of the following
shall be considered in determining whether a Purchaser Material Adverse Effect has occurred or
would be reasonably likely to occur: (i) after the date of this Agreement, any change in Law or
accounting standards applicable the Purchaser or its Subsidiaries; (ii) any change in domestic or
global or regional economic conditions generally, including any change in interest rates charges by
international money center commercial banks in respect of funds borrowed by creditworthy
corporate entities and businesses (which credit worthy corporate entities and businesses are not
the subject, beneficiary or recipient of any government bailout program or other similar
government investment or capital support or other subsidy arrangement, agreement, plan or
understanding) or any change in currency exchange rates; (iii) any change in business or financial
conditions in the shipping industry generally; (iv) any change resulting from or arising out of
hurricanes, earthquakes, floods, wildfires, tsunamis or other natural disasters; (v) the effects of
actions that are expressly required by (but not to be inferred from or implied under) this
Agreement; and (vi) an act of terrorism, civil insurrection or other similar domestic or
international calamity, or the commencement of or escalation of any armed conflict involving
military forces.
Refund Guarantee
means the refund guarantee issued by the Builders Bank pursuant to the
Shipbuilding Contract, a copy of which has been made available to the Purchaser.
Registrable Securities
means all and any Securities held from time to time by a Holder,
(including any securities issuable or issued or distributed in respect of any such Securities by
way of a stock dividend or stock split or in connection with a combination of shares,
recapitalization, reorganization, merger, amalgamation, consolidation or otherwise). For purposes
of this Agreement, Registrable Securities shall cease to be Registrable Securities when (i) a
Resale Registration
59
Statement covering such Registrable Securities has been declared effective under the
Securities Act by the SEC and such Registrable Securities have been disposed of pursuant to such
effective Resale Registration Statement, (ii) the entire amount of the Registrable Securities
proposed to be sold by a Holder in a single sale, in the opinion of counsel satisfactory to the
Seller and such Holder, each in their reasonable judgment, may be distributed to the public in the
United States pursuant to Rule 144 (or any successor provision then in effect) under the Securities
Act in any three-month period, (iii) any such Registrable Securities have been sold in a sale made
pursuant to Rule 144 (or any successor provision then in effect) under the Securities Act, or (iv)
such Registrable Securities cease to be outstanding.
Registration Expenses
means all expenses in connection with or incident to the registration
of Registrable Securities hereunder, including (a) all SEC and any FINRA registration and filing
fees and expenses, (b) all fees and expenses in connection with the registration or qualification
of Registrable Securities for offering and sale under the securities or blue sky laws of any
state or other jurisdiction of the United States of America, (c) all expenses relating to the
preparation, printing, distribution and reproduction of any Resale Registration Statement required
to be filed hereunder, each prospectus included therein or prepared for distribution pursuant
hereto, each amendment or supplement to the foregoing, the expenses of preparing Registrable
Securities in a form for delivery for purchase pursuant to such registration or qualification in
connection with the offering, sale or delivery of Registrable Securities, (d) fees and expenses of
any transfer agent and registrar with respect to the delivery of any Registrable Securities, (e)
fees, disbursements and expenses of counsel of the Purchaser and independent certified public
accountants of the Purchaser incurred in connection with the registration, qualification and
offering of the Registrable Securities, (f) fees, expenses and disbursements of counsel and any
other persons retained by the Purchaser, including special experts retained by the Purchaser in
connection with such registration, (g) Securities Act liability insurance, if the Purchaser desires
such insurance, (h) transfer agents and registrars fees and expenses, (i) the fees and expenses
incurred by the Purchaser and its advisers in connection with the quotation or listing of
Registrable Securities on any securities exchange or automated securities quotation system,
provided however that Registration Expenses shall not include brokerage commissions attributable
to the sale of any of the Registrable Securities for a Holders account, and transfer taxes or
stamp duties attributable to the transfer of Registrable Securities offered for a Holders account.
Remaining Installments
means any Installments that have not been paid as of the Closing
Date, minus any and all credits and other amounts owed by the Builder to Newbuild Owner as of the
Closing Date under or in connection with the Shipbuilding Contract, net of any debits and other
amounts owed by the Newbuild Owner to the Builder as of the Closing Date.
Reserved Tax Liability
means that part of Sellers Portion of any Straddle Period Taxes of a
Vessel Owning Subsidiary which is taken into account as a liability in the Final Closing Statement.
Rule 144
, means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC
having substantially the same effect as such Rule.
60
SEC
means the U.S. Securities and Exchange Commission.
Section 887 Tax
means a Tax imposed on or payable by a Vessel Owning Subsidiary pursuant to
Section 887 of the Code.
Section 338 Election
means an election pursuant to Section 338(g) of the Code.
Seller Material Adverse Effect
means any circumstance, change in, or effect on the Vessels
or Vessel Owning Subsidiaries that, individually or in the aggregate with any other circumstances,
changes in, or effects on the Vessels or Vessel Owning Subsidiaries: (a) is materially adverse to
the business, operations, assets or liabilities, customer or supplier relationships, results of
operations or the condition (financial or otherwise) of the Vessel Owning Subsidiaries, taken as a
whole, or (b) could materially adversely affect the ability of Vessel Owning Subsidiaries to
operate or conduct their respective business or the Vessels in the manner in which they are
currently operated or conducted provided that none of the following shall be considered in
determining whether a Seller Material Adverse Effect has occurred or would be reasonably likely
to occur: (i) after the date of this Agreement, any change in Law or accounting standards
applicable the Vessel Owning Subsidiaries; (ii) any change in domestic or global or regional
economic conditions generally, including any change in interest rates charges by international
money center commercial banks in respect of funds borrowed by creditworthy corporate entities and
businesses (which credit worthy corporate entities and businesses are not the subject, beneficiary
or recipient of any government bailout program or other similar government investment or capital
support or other subsidy arrangement, agreement, plan or understanding) or any change in currency
exchange rates; (iii) any change in business or financial conditions in the tanker industry
generally; (iv) any change resulting from or arising out of hurricanes, earthquakes, floods,
wildfires, tsunamis or other natural disasters; (v) the effects of actions that are (A) expressly
required by (but not to be inferred from or implied under) this Agreement, (B) taken by the Seller
or any of the Vessel Owning Subsidiaries with the prior written consent of the Purchaser or (C)
from which the Seller or any of the Vessel Owning Subsidiaries refrain at the written request of
the Purchaser; and (vi) an act of terrorism, civil insurrection or other similar domestic or
international calamity, or the commencement of or escalation of any armed conflict involving
military forces not affecting any Vessel. For the avoidance of doubt, notwithstanding the
foregoing, cancellation of a Time Charter, the Shipbuilding Contract, the Refund Guarantee, any
uninsured event of piracy or any actual or constructive total loss of a Vessel shall be considered
a Seller Material Adverse Effect.
Sellers Portion
has the meaning specified in Section 5.3(f).
Shipbuilding Contract
means the Contract for the building of the NewBuild Vessel, as
described on Schedule 3.2(q).
Straddle Period
means any tax period of a Vessel Owning Subsidiary that begins on or before
the Closing Date and ends after the Closing Date.
Straddle Period Tax Return
means any Tax Return of a Vessel Owning Subsidiary that relates
to a Straddle Period.
61
Straddle Period Taxes
means all Taxes (other than those arising as a result of a Section 338
Election or as a result of a transaction undertaken by the Purchaser)) incurred by, imposed on, or
asserted against any Vessel Owning Subsidiary for a Straddle Period.
Subsidiary
means, with respect to any Person (for the purposes of this definition, the
parent), any other Person (other than a natural person), whether incorporated or unincorporated,
of which at least a majority of the securities or ownership interests having by their terms
ordinary voting power to elect a majority of the board of directors or other persons performing
similar functions is directly or indirectly owned or controlled by the parent or by one or more of
its respective Subsidiaries or by the parent and any one or more of its respective Subsidiaries.
Tax
or
Taxes
means any and all net or gross income, gross receipts, net proceeds, sales,
use, ad valorem, value added, franchise, bank shares, withholding, payroll, employment, excise,
property, deed, stamp, alternative or add-on minimum, environmental, profits, windfall profits,
transaction, license, lease, service, service use, occupation, severance, energy, unemployment,
social security, workers compensation, capital, premium, and other taxes, assessments, customs,
duties, fees, levies, or other similar charges imposed by any Governmental Authority, whether
disputed or not, together with any interest, penalties, additions to tax, or additional amounts
with respect thereto.
Taxing Authority
means any Governmental Entity having jurisdiction with respect to any Tax.
Tax Matter
means any inquiry, claim, assessment, audit, proceeding or similar event with
respect to Taxes.
Tax Returns
means any return, declaration, report, claim for refund or credit, or
information return or statement relating to Taxes, including any schedule or attachment thereto,
and including any amendment thereof.
Time Charters
means the time charter for each Vessel set forth in
Schedule 3.2(y)
.
Trading Market
means any of the New York Stock Exchange, the NYSE Alternext US, The Nasdaq
Global Select Market, The Nasdaq Global Market, The Nasdaq Capital Market or any national
securities exchange, market or trading or quotation facility on which the Common Stock is then
listed or quoted.
Transaction Documents
means this Agreement, the Post-Closing Escrow Agreement, the Charter
Escrow Agreement and the schedules and exhibits attached hereto.
Updated List of Credit/Debit Items
means together the updated list of extra cost items
and/or credit items and/or alterations to the specifications having no cost effect to be prepared
in respect of the NewBuild Vessel and confirmed by the Builder as correct.
Vessels
means collectively the Built Vessels and the NewBuild Vessel and, in the singular,
means any of them.
62
Working Capital
means all Working Capital Assets of the Vessel Owning Subsidiaries as of the
Closing Date minus all Working Capital Liabilities of the Vessel Owning Subsidiaries as of the
Closing Date.
Working Capital Assets
means the (i) aggregate current assets of the combined Vessel Owning
Subsidiaries, determined under GAAP, excluding any receivables and other amounts due from
Affiliates (including Vessel Owning Subsidiaries) plus (ii) all restricted cash of the combined
Vessel Owning Subsidiaries, that is not classified as a current asset under GAAP as of the Closing
Date, provided however, that Working Capital Assets shall exclude all amounts included in the
definition of Remaining Installments or Assumed Debt. For the avoidance of doubt the Parties agree
that an amount equal to the profit share under any Time Charters to be received by any Vessel
Owning Subsidiary after the Closing Date that relates to the period on or prior to the Closing Date
should be classified as a current asset under GAAP as of the Closing Date.
Working Capital Liabilities
means the aggregate current liabilities of the combined Vessel
Owning Subsidiaries, determined under GAAP (which, for the avoidance of doubt, shall include,
whether accrued or not, the Unpaid Survey Costs and provided however, that Working Capital
Liabilities shall exclude all amounts included in the definition of Remaining Installments or
Assumed Debt).
[
Remainder of page intentionally left blank; signature page to follow
]
63
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be
duly executed by their respective authorized signatories as of the date first indicated above.
|
|
|
|
|
|
NAVIOS MARITIME ACQUISITION CORPORATION
|
|
|
By:
|
/s/ Angeliki Frangou
|
|
|
|
Name:
|
Angeliki Frangou
|
|
|
|
Title:
|
Chairman and Chief Executive Officer
|
|
|
Address for Notice:
85 Akti Miaouli Street
Piraeus 185 38, Greece
Facsimile No.: 30 (210) 453-1984
Telephone No.: 30 (210) 459-5000
Attn: Villy Papaefthymiou
|
With a copy to:
|
|
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
666 Third Avenue, New York, NY 10017
Facsimile: (212) 983-3115
Telephone: (212) 692-6768
Attn: Kenneth R. Koch, Esq.
|
|
|
|
|
|
|
VANSHIP HOLDINGS LIMITED
|
|
|
By:
|
/s/ Fred Cheng
|
|
|
|
Name:
|
Fred Cheng
|
|
|
|
Title:
|
President & Director
|
|
|
Address for Notice:
Vanship Holdings Limited
Suite 801, 8th Floor, Asian House
1 Hennessy Road, Wanchai, Hong Kong
Facsimile: 852.2861.0742
Telephone: 852.2527.0058
Attn: Mr. Richard Hext
|
With a copy to:
|
|
Skadden, Arps, Slate, Meagher & Flom
42/F, Edinburgh Tower, The Landmark
15 Queens Road Central, Hong Kong
Facsimile: 852.3740.4727
Telephone: 852.3740.4700
Attn: Jonathan B. Stone
|
64