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Exhibit 2.1
EXECUTION
VERSION
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF
MERGER
dated as of
January 29, 2008
among
EXCEL MARITIME CARRIERS
LTD.,
BIRD ACQUISITION
CORP.
and
QUINTANA MARITIME
LIMITED
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER (this “ Amendment
”) is dated as of February 7, 2008, among Excel Maritime
Carriers Ltd., a corporation organized under the laws of the
Republic of Liberia (the “ Buyer ”), Bird
Acquisition Corp., a non-resident domestic corporation organized
under the laws of the Republic of the Marshall Islands and a direct
wholly-owned subsidiary of the Buyer (“ Merger Sub
”), and Quintana Maritime Limited, a non-resident domestic
corporation organized under the laws of the Republic of the
Marshall Islands (the “ Company ”).
W I T
N E S S E T H
:
WHEREAS, the Buyer, Merger
Sub and the Company are parties to that certain Agreement and Plan
of Merger, dated as of January 29, 2008 (as amended hereby,
the “ Merger Agreement ”). Capitalized terms
used and not defined herein shall have such meanings as assigned to
such terms in the Merger Agreement; and
WHEREAS, pursuant to
Section 9.4 of the Merger Agreement, the parties hereto desire
to amend certain provisions of the Merger Agreement.
NOW, THEREFORE, in
consideration of the foregoing premises and the respective
representations and warranties, covenants and agreements contained
in the Merger Agreement, the parties hereto agree as
follows:
Section 1.
Amendment . Section 7.18 of the Merger Agreement is
hereby amended by replacing all references to “$108
million” therein with “$93 million” and to
thereafter read in its entirety:
“SECTION 7.18 Letter
of Credit .
(a) Within seven Business
Days after the date of this Agreement, the Buyer will provide the
Company with a letter of credit, in substantially the form of
Exhibit D , in the amount of $93 million as security for its
obligation, if any, to pay the Buyer Breach Fee and/or the
Financing Termination Fee, in each case in accordance with Article
IX. The Company will return such letter of credit to the Buyer at
the earlier of (i) the Effective Time and (ii) upon a
termination of this Agreement in accordance with Article IX in a
situation where none of the Buyer Breach Fee and/or the Financing
Termination Fee are payable by the Buyer, in each case in
accordance with Article IX.
(b) Within seven Business
Days after the date of this Agreement, the Company will provide the
Buyer with a letter of credit, in substantially the form of
Exhibit E , in the amount of $93 million as security for its
obligation, if any, to pay the amounts owing pursuant to
Section 9.2. The Buyer will return such letter of credit to
the Company at the earlier of (i) the Effective Time and
(ii) upon a termination of this Agreement in accordance with
Article IX in a situation where no amounts are payable by the
Company in accordance with Article IX.”
Section 2. Governing
Law . This Amendment will be deemed to be mad
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