Exhibit 4.81
MEMORANDUM OF AGREEMENT
Norwegian Shipbrokers' Association's | |
Memorandum of Agreement for sale and | |
purchase of ships. Adopted by BIMCO in 1956. | |
Code-name | |
SALEFORM 2012 | |
Revised 1966, 1983 and 1986/87, 1993 and 2012 |
Dated: 2 April March2018
ORION OWNERS INC., a corporation incorporated and existing under the laws of the Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (Name of sellers), hereinafter called the "Sellers", have agreed to sell, and
SEA 46 LEASING CO. LIMITED, a company incorporated and existing under the laws of Hong Kong having its registered office at Room 1803-1804, 18F Bank of America Tower, 12 Harcourt Road, Central, Hong Kong (Name of buyers), hereinafter called the "Buyers", have agreed to buy:
Name of vessel: KELLY
IMO Number: 9768227
Classification Society: American Bureau of Shipping
Class Notation: Al,Bulk Carrier, BC-A,ESP,AMS,ACCU,CSR,CPS UWILD, CRC(I), GRAB 20, TCM, BWT Unrestricted Service
Year of Build: 2017 | Builder/Yard: Hudong Zhonghua Shipbuilding & Shanghai Shipyard Co. |
Flag: Marshall Islands | Place of Registration: Majuro | GT/NT: 43,301 / 27,348 |
hereinafter called the "Vessel", on the following terms and conditions:
Definitions – see also Clause 29
"Agreement'' means this memorandum of agreement which shall for the avoidance of doubt, include the rider provisions from Clauses 19 to 29.
"Buyers' Nominated Flag State" means Marshall Islands (state flag state).
"Cancelling Date" has the meaning given to that term in Clause 5.
"Conditions Precedent" has the meaning given to that term in Clause 8(a).
"Class" means the class notation referred to above.
"Classification Society" means the Society referred to above.
"Dollars" or "$" mean United States dollars, being the lawful currency of the United States of America.
"In writing" or "written" means a letter handed over from the Sellers to the Buyers or vice versa, a registered letter, e-mail or telefax.
"Parties" means the Sellers and the Buyers.
"PDA" has the meaning given to that term in Clause 8(g).
"Scheduled Delivery Date" has the meaning given to that term in Clause 8(d).
1. | Purchase Price |
See Clause 29 | |
2. | Deposit – intentionally omitted |
3. | Payment | |
See Clause 19 | ||
4. | Inspection – intentionally omitted | |
5. | Time and place of delivery and notices | |
(a) The Vessel shall be delivered and taken over safely afloat at sea or at a safe and accessible berth or in drydock or anchorage | ||
Cancelling Date (see Clauses 5(c), 6 (a)(i), 6 (a)(iii) and 14): 30 April 2018 (or such later date as may be agreed by the Sellers and the Buyers in writing (the "Cancelling Date") |
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(b) The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall provide the Buyers with | ||
When the Vessel is, on a day being a Business Day, at the place of delivery and physically ready for delivery in accordance with this Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery. | ||
(c) If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the Vessel will not be ready for delivery by the Cancelling Date they may notify the Buyers in writing stating the date when they anticipate that the Vessel will be ready for delivery and proposing a new Cancelling Date. Upon receipt of such notification the Buyers shall have the option of either cancelling this Agreement in accordance with Clause 14 (Sellers' Default) within three (3) If the Buyers have not declared their option within three (3) | ||
If this Agreement is maintained with | ||
(d) Cancellation, failure to cancel or acceptance of | ||
(e) Should the Vessel become | ||
6. | Divers Inspection / Drydocking – intentionally omitted | |
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7. | Spares, bunkers and other items | |
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board and on shore. All spare parts and spare equipment including spare tail-end shaft(s) and/or spare propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of | ||
The Buyers shall take over remaining bunkers and unused lubricating and hydraulic oils and greases in storage tanks and unopened drums at no extra cost. | ||
8. | Documentation | |
The place of closing: The Athens Licensed Shipmanagement Office of TMS Bulkers Ltd. being 109 Kifisias Avenue amd Sina Street, GR 151 24 Marousi, Greece | ||
(a) | ||
(i) | Legal Bill(s) of Sale in a form recordable in the Buyers' Nominated Flag State, transferring title of the Vessel and stating that the Vessel is free from all mortgages, encumbrances and | |
(ii) | Evidence that all necessary corporate, shareholder and other action has been taken by the Sellers to authorise the execution, delivery and performance of this Agreement; | |
(iii) | Power of Attorney of the Sellers appointing one or more representatives to act on behalf of the Sellers in the performance of this Agreement, duly notarially attested and legalised or apostilled (as appropriate); | |
(iv) | Certificate or Transcript of Registry issued by the competent authorities of the flag state on the date of delivery evidencing the Sellers' ownership of the Vessel and that the Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by such authority to the closing meeting with the original to be sent to the Buyers as soon as possible after delivery of the Vessel; | |
(v) | Declaration of Class or (depending on the Classification Society) a Class Maintenance Certificate issued within three (3) Banking Days prior to delivery confirming that the |
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Vessel is in Class free of condition/recommendation; | ||
( | Commercial Invoice for the Vessel; | |
( | -(if requested by the Buyers) Commercial Invoice(s) for bunkers, lubricating and hydraulic oils and greases (which will be taken over by the Buyers at no extra cost in accordance with Clause 7); | |
( | intentionally omitted | |
( | The Sellers' letter of confirmation that to the best of their knowledge, the Vessel is not black listed by any nation or international organisation. | |
(x) | The terms set out in Clause 20. | |
The items set out in this Clause 8(a) (together the "Conditions Precedent") are inserted for the sole benefit of the Buyers and may be waived in whole or in part with or without conditions by the Buyers. | ||
(b) At the time of delivery the Buyers shall provide the Sellers with: | ||
(i) | Evidence that all necessary corporate, shareholder and other action has been taken by the Buyers to authorise the execution, delivery and performance of this Agreement and the Bareboat Charter; | |
(ii) | Power of Attorney of the Buyers appointing one or more representatives to act on behalf of the Buyers in the performance of this Agreement and the Bareboat Charter, duly notarially attested and legalised or apostilled (as appropriate); and | |
(iii) | Certificate of Continuing Registration issued by the Hong Kong Companies Registry, Certificate of Goodstanding issued by the Marshall Islands Registry and a certificate of an authorized signatory of the Buyers: (i) certifying that each copy document relating provided by Buyers to Sellers pursuant to this Agreement is correct, complete and in full force and effect as at a date no earlier than the Delivery Date; and (ii) listing their directors and officers. | |
(c) If any of the documents listed in Sub-clauses (a), | ||
(d) The Parties shall to the extent possible exchange copies, drafts or samples of the documents listed in Sub-clause (a) and Sub-clause (b) above for review and comment by the other party not later than five (5) Business Days (or such later date as the Buyers may agree) prior to the Vessel's intended date of readiness for delivery as notified by the Sellers pursuant to the notice to be sent to the Buyers from the Sellers ten (10) days before delivery in accordance with Clause 5(b) (the "Scheduled Delivery Date") |
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(e) On delivery, | |
(f) Other technical documentation which may be in the Sellers' possession shall promptly after delivery be forwarded to the Buyers at | |
(g) The Parties shall sign and deliver to each other a Protocol of Delivery and Acceptance confirming the date and time of delivery of the Vessel from the Sellers to the Buyers (the "PDA"). | |
9. | Encumbrances |
The Sellers warrant that the Vessel, at the time of delivery, is free from all charters (other than the Bareboat Charter and any time charter permitted by the terms of the Leasing Documents), encumbrances, mortgages and | |
10. | Taxes, fees and expenses |
Any taxes, fees and expenses in connection with the purchase of the Vessel and registration in the Buyers' Nominated Flag State | |
11. | Condition on delivery |
The Vessel with everything belonging to her shall be at the Sellers' risk and expense until she is delivered to the Buyers, but subject to the terms and conditions of this Agreement she shall be delivered and taken over as she was at the time of | |
However, the Vessel shall be delivered | |
12. | Name/markings – intentionally omitted |
13. | Buyers' default |
Should the Purchase Price not be paid in accordance with |
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14. | Sellers' default |
Should the Sellers fail to give Notice of Readiness in accordance with Clause 5(b) or fail to be ready to validly complete a legal transfer by the Cancelling Date the Buyers shall have the option of cancelling this Agreement. If after Notice of Readiness has been given but before the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and is not made physically ready again by the Cancelling Date and new Notice of Readiness given, the Buyers shall retain their option to cancel. | |
Without prejudice to any of the rights the Buyers may have under the Leasing Documents, at law or otherwise, | |
15. | Buyers' representatives – intentionally omitted |
16. | Law and Arbitration See Clause 25 |
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17. | Notices See Clause 27 |
18. | Entire Agreement |
The written terms of this Agreement (together with the other Leasing Documents) comprise the entire agreement between the Buyers and the Sellers in relation to the sale and purchase of the Vessel and supersede all previous agreements whether oral or written between the Parties in relation thereto. | |
Each of the Parties acknowledges that in entering into this Agreement it has not relied on and shall have no right or remedy in respect of any statement, representation, assurance or warranty (whether or not made negligently) other than as is expressly set out in this Agreement. | |
Any terms implied into this Agreement by any applicable statute or law are hereby excluded to the extent that such exclusion can legally be made. Nothing in this Clause shall limit or exclude any liability for fraud. |
/s/ Savvas Tournis | /s/ Wang Wei | |
For and on behalf of the Sellers | For and on behalf of the Buyers | |
Name: Savvas Tournis | Name: Wang Wei | |
Title: Attorney-in-fact | Title: Attorney-in-fact |
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Execution Version
RIDER CLAUSES TO
MEMORANDUM OF AGREEMENT
DATED 2 April 2018
Clause 19 - Payment of Purchase Price
(a) | Subject always to Clause 21 and the Conditions Precedent having been satisfied, the Purchase Price of the Vessel shall be paid by the Buyers to the Sellers on the Delivery Date in the following manner: |
(A) | an amount of the Purchase Price corresponding to the amount of the Advance Charterhire payable by the Sellers as bareboat charterers of the Vessel to the Buyers as owners under the Bareboat Charter on the Delivery Date shall be set off against payment of such Advance Charterhire; and |
(B) | the balance of the Purchase Price (the "Balance") shall be paid free of bank charges into the Sellers' Account. |
(b) | The Buyers shall, one (1) Business Day prior to the Vessel's Scheduled Delivery Date (the "Preposition Date") and provided that all amounts due to the Buyers as owners under Clause 41.1 of the Bareboat Charter have been received in full in available funds by the Buyers as owners under the Bareboat Charter, deposit with the Sellers' Bank the Balance on an unallocated basis in an interest-bearing suspense account with a SWIFT MT103 and a SWIFT MT199 irrevocable conditional release instruction in a form to be agreed (the "SWIFT Payment Instructions"). The amount so deposited shall be transferable and payable to the Sellers or their designated nominee at the Sellers' Account upon the fulfilment of the conditions set out in the SWIFT Payment Instructions, which shall include the presentation by the Sellers to the Sellers' Bank of a copy of the duly executed, timed and dated PDA. |
(c) | interest at the rate of the Overnight USD LIBOR plus 300 basis points (the "Remittance Interest") shall: |
(i) | in the event that the Vessel is delivered to the Buyers on the Delivery Date, accrue as of the Preposition Date until the Delivery Date (both dates inclusive); and |
(ii) | in the event that the Vessel is not delivered to the Buyers on the Delivery Date, accrue as of the Preposition Date until the Balance is returned by the Sellers' Bank to the Buyers in accordance with the SWIFT Payment Instructions (both dates inclusive). |
The Sellers shall pay to the Buyers the applicable amount of Remittance Interest as notified by the Buyers to the Sellers within three (3) Business Days of the Buyers' demand.
Clause 20 - Further conditions precedent
(a) | The items referred to in Clause 8(a)(x) are: |
(A) | the certificate of incorporation, articles of association and (if any) by-laws or other constitutional documents of the Sellers along with an up-to-date certificate of goodstanding; |
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(B) | a certificate of an authorized signatory of the Sellers certifying that each copy document provided by Sellers to Buyers pursuant to this Agreement is correct, complete and in full force and effect as at a date no earlier than the Delivery Date; and |
(C) | the Buyers being satisfied that the conditions precedent set out in the Bareboat Charter, have been, or will be capable of being, satisfied on the Delivery Date. |
Clause 21 - Obligation to sell / purchase the Vessel
The Parties' obligation to sell / purchase the Vessel under this Agreement is conditional upon the simultaneous delivery to and acceptance by the Sellers as bareboat charterers of the Vessel under the Bareboat Charter and that no Potential Termination Event or Termination Event (each as defined in the Bareboat Charter) has occurred or will occur as a result of the performance by the Parties of their obligations under this Agreement.
Clause 22 - Physical Presence
If the Buyers' Nominated Flag State requires the Buyers to have a physical presence or office in the Buyers' Nominated Flag State, all fees, costs and expenses arising out of or in connection with the establishment and maintenance of such physical presence or office by the Buyers shall be borne by the Sellers.
Clause 23 - Costs and Expense
(a) | The Sellers shall pay such amounts to the Buyers in respect of all properly documented costs, claims, expenses, liabilities, losses and fees (including but not limited to any legal fees, vessel registration and tonnage fees) suffered or incurred by or imposed on the Buyers arising from this Agreement or in connection with the delivery, registration and purchase of the Vessel by the Buyers whether prior to, during or after termination of this Agreement and whether or not the Vessel is in the possession of or the control of the Sellers or otherwise. |
(b) | Notwithstanding anything to the contrary under the Leasing Documents and without prejudice to any right to damages or other claim which the Buyers may have at any time against the Sellers under this Agreement, the indemnities provided by the Sellers in favour of the Buyers shall continue in full force and effect notwithstanding any breach of the terms of this Agreement or such Leasing Document or termination or cancellation of this Agreement or such Leasing Document pursuant to the terms hereof or thereof or termination of this Agreement or such Leasing Document by the Buyers. |
Clause 24 - Sanctions
The Sellers represent and warrant to the Buyers as of the date hereof and at the Delivery Date that:
(a) | they: |
(i) | are not a Restricted Person; |
(ii) | are not owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Restricted Person; |
(iii) | do not own or control a Restricted Person; or |
(iv) | do not have a Restricted Person serving as a director, officer or employee; and |
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(b) | no proceeds of the Purchase Price shall be made available, directly or indirectly, to or for the benefit of a Restricted Person nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions. |
Clause 25 - Governing Law and Jurisdiction
This Agreement and any non-contractual obligations arising under or in connection with it, shall be governed by and construed in accordance with English law.
Any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute")) shall be referred to and finally resolved by arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause 25. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association ("LMAA") Terms current at the time when the arbitration proceedings are commenced.
The reference shall be to three arbitrators. A party wishing to refer a Dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within 14 calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified, the party referring a Dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both parties as if he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
Where the reference is to three arbitrators the procedure for making appointments shall be in accordance with the procedure for full arbitration stated above.
The language of the arbitration shall be English.
Clause 26 - Counterparts
This Agreement may be executed in any number of counterparts, and this has the same effect as if. the signatures on the counterparts were on a single copy of this Agreement.
Clause 27 - Notices
All notices to be provided under this Agreement shall be in writing.
Contact details for recipients of notices are as follows:
For the Sellers:
ORION OWNERS INC.
c/o TMS BULKERS LTD.
Attention: Mr. Dimitris Glynos
Email: finance@tms-management.org
Tel: +30 216 2006213
Fax: +30 210 8090205
and/or
ORION OWNERS INC.
c/o SHIPINVEST BROKERS LTD
Attention: Mr. George Kaklamanos
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Email: SnP@shipinvest.gr
Tel: +30 210 8023341
Fax: +30 210 8023371
For the Buyers:
SEA 46 LEASING CO. LIMITED
c/o CMB FINANCIAL LEASING CO., LTD.
Attention: Wang Wei
Email: wangwei17@cmbchina.com
Tel: +8621 61061735
Fax: +8621 61059911*1735
Clause 28 - intentionally omitted
Clause 29 - Definitions
Unless otherwise specified herein, capitalised terms in this Agreement shall have the same meaning as in the Bareboat Charter. Furthermore, in this Agreement:
"Balance" has the meaning given to that term in Clause 19(a).
"Bareboat Charter" means the bareboat charter in respect of the Vessel dated on or about the date hereof and made between the Buyers as owners and the Sellers as bareboat charterers.
"Book Value" means, in relation to the Vessel, its value as written up:
(a) | as at the Delivery Date, in the Original Financial Statements (the "Initial Book Value"); and |
(b) | as at any other relevant time, the then-latest documents delivered or to have been delivered to the Buyers as owners pursuant to Clause 46.1(a) of the Bareboat Charter. |
"Delivery Date" means the date (being a Business Day) on which the Vessel is delivered to the Buyers pursuant to the terms of this Agreement and thereafter immediately delivered to the Sellers as bareboat charterers pursuant to the terms of the Bareboat Charter.
"Preposition Date" has the meaning given to that term in Clause 19(b).
"Purchase Price" means an amount equal to the lower of: (i) the Initial Market Value; and (ii) the Initial Book Value.
"Remittance Interest" has the meaning given to that term in Clause 19(c).
"Sellers' Account" means the account as notified to the Buyers in writing no later than ten (10) Business Days prior to the Delivery Date (or such later date as the Buyers may agree).
"Sellers' Bank" means the regulated financial institution acceptable to the Buyers with which the Sellers' Account is maintained.
"SWIFT Payment Instructions" has the meaning given to that term in Clause 19(b).
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EXECUTION PAGE
SELLERS
/s/ Savvas Tournis
ORION OWNERS INC.
Name: Savvas Tournis
Title: Attorney-in-fact
BUYERS
/s/ Wang Wei
SEA 46 LEASING CO. LIMITED
Name: Wang Wei
Title: Attorney-in-fact
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