Exhibit 4.19
Certain identified information has been excluded from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential. [*****] indicates that information has been redacted.
| | | | 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 |
MEMORANDUM OF AGREEMENT
| 2. | Atrotos Container Carrier S.A. of Trust Company Complex, Ajeltake Road, Ajeltake Islands, Majuro, Marshall Islands(Name of sellers), hereinafter called the “Sellers”, have agreed to sell and |
| 3. | [*****] whose performance hereunder is hereby irrecoverably and unconditionally guaranteed, as primary obligor and note merely as surety, by [*****](Name of buyers), hereinafter called the “Buyers”, have agreed to buy: |
| 4. | Name of vessel: m/v CMA CGM Magdalena – (ex Anaxagoras) |
| 6. | Classification Society: Lloyd’s Register |
| 7. | Class Notation: +100A1 CONTAINER SHIP, SHIPRIGHT (SDA, FDA PLUS(25, WW), CM, ACS(B)), *IWS, LI, ECO(BWT, EEDI, IHM), BOXMAX(V,W). +LMC, UMS, NAVI Descriptive Notes SHIPRIGHT SERS, SHIPRIGHT BWMP(T), SHIPRIGHT SCM |
| 8. | Year of Build: 2016 ___ Builder/Yard: Daewoo-Mangalia, Romania |
| 9. | Flag: Malta Place of Registration: La Valetta GT/NT: 96424/59714 |
| 10. | hereinafter called the “Vessel”, on the following terms and conditions: |
| 12. | “Banking Days” are days on which banks are open both in the country of the current stipulated for |
| 13. | the Purchase Price in Clause 1 (Purchase Price) and in the place of closing stipulated in Clause 8 |
| 14. | (Documentation), London, Hamburg, Liberia, Malta, Portugal and Geneva.(add additional jurisdictions as appropriate). |
| 15. | “Buyers’ Nominated Flag State” means Madeira(state flag state). |
| 16. | “Class” means the class notation referred to above. |
| 17. | “Classification Society” means the Society referred to above. |
| 18. | “Deposit” shall have the meaning given in Clause 2 (Deposit) |
| 19. | “Escrow Agent” means a UK law firm with its London or any Far East office nominated by Sellers, who shall hold the Deposit (and if requested by the Sellers the Balance Funds) in the names of the Parties, and |
who shall release same in accordance with and pursuant to the terms of an escrow agreement to be entered into between themselves (acting as escrow agent), the Sellers and the Buyers (the “Escrow Agreement”). The Parties agree that HFW, WFW, Hill Dickinson and Ince & Co are deemed acceptable.
“Deposit Holder” means(state name and location of Deposit Holder) or, if left blank, the
| 20. | Sellers’ Bank, which shall hold and release the Deposit in accordance with this Agreement. |
“First MOA” means the memorandum of agreement to be entered between Sellers as buyer and HAI KUO SHIPPING 1988C LIMITED, of Level 54, Hopewell Centre, 183 Queen’s Road East, Hong Kong (registered owner) being the current registered owner of the Vessel (the “First Sellers”) as seller.
“First PoDA” means the protocol of delivery and acceptance for the Vessel under the First MOA.
| 21. | “In writing” or “written” means a letter handed over from the Sellers to the Buyers or vice versa, a |
| 22. | registered letter, e-mail or telefax. |
“MOA PoDA” means the protocol of delivery and acceptance for the Vessel between the Sellers and the Buyers as per Clause 8.
| 23. | “Parties” means the Sellers and the Buyers |
| 24. | “Purchase Price” means the price for the Vessel as stated in Clause 1 (Purchase Price). |
| 25. | “Sellers’ Account” means the account or accounts to be notified by the Sellers to the Buyers for receipt of the Purchase Price.(state details of bank account) at the Sellers’ Bank. |
| 26. | “Sellers’ Bank” means the bank or banks to be(state name of bank, branch and details) or, if left blank, the bank |
| 27. | notified by the Sellers to the Buyers for receipt of thebalance of the Purchase Price. |
| 29. | The Purchase Price is US$ 99,000,000.- (United States Dollars ninety nine million)(state currency and amount both in words and figures). |
| 31. | As security for the correct fulfilment of this Agreement the Buyers shall lodge a deposit of |
| 32. | % (per cent) or, if left blank, 10% (ten per cent), of the Purchase Price (the |
| 33. | “Deposit”) in an interest bearing account for the parties with the Escrow AgentDeposit Holder within three (3) |
| 34. | Banking Days after that date: |
| 35. | (i) this Agreement has been signed by the Parties and exchanged in original or by e-mail or |
(ii) the Escrow Agreement has been signed by the Parties and the Escrow Agent and exchanged by e-mail or telefax; and
| 37. | (iii) the Escrow AgentDeposit Holder has confirmed in writing to the Parties that the account |
has been
| 39. | The Deposit shall be released in accordance with joint written instructions of the Parties. |
| 40. | Interest, if any, shall be credited to the Buyers. Any fee charged for holding and releasing the |
| 41. | Deposit shall be borne equally by the Parties. The Parties shall provide to the Escrow Agent |
Deposit Holder
| 42. | all necessary documentation to open and maintain the account without delay. |
(A) At the time of delivery of the Vessel to the Buyers under this Agreement (which shall occur immediately after the delivery of the Vessel by the First Sellers to the Sellers as buyers under the First MOA) but not later than three (3) Banking Days after the date that Notice of Readiness has been given in accordance with Clause 5 (time and Place of delivery and notes):
(i) the Deposit shall be released to the Sellers; and
(ii) the balance of the Purchase Price and all other sums payable on delivery by the Buyers to the Sellers under this Agreement (the “Balance Funds”) shall be paid or released (as the case may be) in accordance with the provisions of Clause 3.
(B) All amounts due and payable by the Buyers under this Agreement shall be paid free of bank charges,
(C) Two (2) Banking Days prior to the anticipated delivery date of the Vessel (as notified in writing by Sellers to the Buyers in accordance with Clause 5 (Notices, time and place of delivery), the Buyers shall lodge an amount equivalent to the Balance Funds (which shall remain at the orders of the Buyers or its financiers until delivery) at Sellers’ option as per below alternatives not later than 5 (5) Banking Days prior to delivery:
(i) Option A: by way of one conditional payment order MT199 bank transfer (“MT199”) to be held to the Buyers’ (or their financiers) order:
(a) to the bank or an escrow agent related to the First Sellers any part of the Balance Funds due to the First Sellers under the First MOA (the “First MOA Payment”), with an instruction that the amount so remitted shall be payable and released to the First Sellers only against presentation by the First Sellers to their bank or escrow agent of (i) a pdf/copy of the timed and dated First PoDA and (ii) a pdf/copy of the timed and dated MOA PoDA duly executed by the authorized signatories of the Sellers and the Buyers, as identified in the MT199 and any release instructions as may be required to an escrow agent; and
(b) any part of the Balance Funds not remitted as (a) above to the bank or an escrow agent of the First Sellers and to be paid to the Sellers under this Agreement as may be adjusted in accordance with this Agreement (the “Sellers’ Portion”) in an escrow account held with the Escrow Agent in accordance with and pursuant to the Escrow Agreement to be held in the sole name of the Buyers and to be released in favour of the Sellers to Sellers’ Account and remitted by the Escrow Agent on closing to the Sellers to Sellers’ Account (together with the Deposit) ,
The MT1199 shall provide that if the pre-positioned funds are not released within the period of five (5) Banking Days from the date of receipt by the First Sellers bank the funds shall immediately be returned to the Buyers. Interest (if any) accrued shall be for the Buyers’ account.
(ii) Option B: in an escrow account held with an Escrow Agent in accordance with and pursuant to the Escrow Agreement to be held in the sole name and order of the Buyers and to be released in favour of the Sellers to Sellers’ Account as regards to the Sellers’ Portion (together with the Deposit) and to Sellers’ order in favour of the First Sellers and remitted by the Escrow Agent upon delivery of the Vessel.
(D) Any cost related to the payment under this Clause 3 (irrespective of whether Option 1 or 2 is selected) shall be shared equally between the Buyers and Sellers.
| 44. | On delivery of the Vessel, but not later than three (3) Banking Days after the date that Notice of |
| 45. | Readiness has been given in accordance with Clause 5 (Time and place of delivery and |
| 47. | (i) the Deposit shall be released to the Sellers; and |
| 48. | (ii) the balance of the Purchase Price and all other sums payable on delivery by the Buyers |
| 49. | to the Sellers under this Agreement shall be paid in full free of bank charges to the |
| 52. | (a)*The Buyers have inspected and accepted the Vessel’s classification records. The Buyers have waived their right to inspect the Vessel and have |
| 53. | Have also inspected the Vessel at/in(state place) on(state date) and have |
| 54. | accepted the Vessel following this inspection and therefore the sale is outright and definite subject only |
| 55. | to the terms and conditions of this Agreement. |
| 56. | (b) *The Buyers shall have the right to inspect the Vessel’s classification records and decloare |
| 57. | Whether same are accepted or not within(state date/period) |
| 58. | The Sellers shall make the Vessel available for inspection at/in(state place/range) within |
| 60. | The Buyers shall undertake the inspection without undue delay to the Vessel. Should the |
| 61. | Buyers cause undue delay they shall compensate the Sellers for the losses thereby incurred. |
| 62. | The Buyers shall inspect the Vessel without opening up and without cost to the Sellers. |
| 63. | During the inspection, the Vessel's deck and engine log books shall be made available for |
| 64. | examination by the Buyers. |
| 65. | The sale shall become 01:Jtright and definite, Subject only to the terms and conditions of this |
| 66. | Agreement, provided that the Sellers receive written notice of acceptance of the Vessel from |
| 67. | the Buyers within seventy two (72) hours after completion of such inspection or after the |
| 68. | Date/last day of the period stated in Line 59, whichever is earlier. |
| 69. | Should the Buyers fail to undertake the inspection as scheduled and/or notice of acceptance of the |
| 70. | Vessel's classification records and/or of the Vessel not be received by the Sellers as |
| 71. | aforesaid, the Deposit together with interest earned, if any, shall be released immediately, to the |
| 72. | Buyers, whereafter this Agreement shall be null and void. |
| 73. | *4(a) and 4(b) are alternatives; delete whichever is not applicable. In the absence of deletions, |
| 74. | alternative 4(a) shall apply. |
| 75. | 5. Time and place of delivery and notices |
| 76. | (a) The Vessel shall be delivered and taken over safely afloat t)i safe·and accessible berth or |
| 77. | anchorageat/inwithin the trading area under the existing ch9rter back to back I upon expiry |
of the charter(state place/range) in the Sellers' option.
| 78. | Notice of Readiness shall not be tendered before: 1st May 2021(date). |
| 79. | Cancelling Date (see Clauses 5(c), 6(a)(i), 6(a)(iii) and 14): 15 June 2021 |
(i) Subject always to subparagraph (ii), if at any time prior to tendering Notice of Readiness for delivery the position at the intended place '6f deli-very has changed such that the Sellers would not be able to comply with their obligations , under this Agreement were the Vessel to be delivered at such place due to Covid 19 local restrictions, the Sellers shall be entitled to nominate another place of delivery within the range specified in Clause 5 of this Agreement [where the Buyers are able to embark their crew] acceptable to Buyers whose acceptance shall be given within one (1) Banking Day and shall not be unreasonably withheld or conditioned and which shall have due regard to mitigating additional costs for the Sellers and minimising disruption to the Charterer's service and use of the Vessel ("Alternative Place of Delivery”). In such event, the Cancelling Date shall be extended by the time taken to agree on Alternative Place of Delivery and for the Vessel to move from her location at the time of the new nomination until she arrives at the Alternative Place of Delivery.
(ii) Notwithstanding anything to the contrary in sub-paragraph (i) above, in the event that either the Sellers or the Vessel at the place of delivery (whether it be the original intended place of delivery or the Alternative Place of Delivery) are subject to a quarantine (but thereafter can perform / comply with their obligations under this Agreement) then the Sellers shall have the option -of delivering the Vessel at such place after the expiry of the relevant quarantine period and the, Cancelling Date shall be extended by such period.
Any additional expenses, including but not limited to additional bunkers consumed, harbour dues, screening, cleaning, fumigating and/or quarantining the Vessel and its crew (together the "'Relocation Expenses') arising directly or indirectly from a delay in the performance of the obligations of either party under this Agreement as a result of delays/restrictions/measures arising due to Covid-19 or proceeding to an Alternative Place of Delivery instead of the place of delivery originally nominated in accordance with Clause 5 shall be shared on a 50/50 basis, against presentation of reasonable supporting documentation Payment under this Clause shall be made at the same time and place and in the same currency as the Purchase Price.
In the event that it is not possible to deliver the Vessel within the range of delivery places set out in Clause 5( a) of this Agreement, the Sellers and the Buyers shall use their best endeavours, acting in good faith, to find another place at which delivery can be given and the Buyers shall not be entitled to exercise any right of cancellation under this Agreement until such time as it is clear that no agreement can be reached.
| 80. | (b) The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall |
| 81. | provide the Buyers with thirty (30), twenty (20), ten (10), five (5) and three (3) days' approximate |
notice and one (1) day definite notice of the date the
| 82. | Sellers intend to tender Notice of Readiness and of the intended place of delivery. |
| 83. | When the Vessel is at the place of delivery and physically ready for delivery in accordance with this |
| 84. | Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery. |
| 85. | (c) If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the |
| 86. | Vessel will not be ready for delivery by the Cancelling Date they may notify the Buyers in writing |
| 87. | stating the date when they anticipate that the Vessel will be ready for delivery and proposing a |
| 88. | new Cancelling Date. Upon receipt of such notification the Buyers shall have the option of |
| 89. | either cancelling this Agreement in accordance with Clause 14 (Sellers' Default) within one (1) |
three (3).
| 90. | Banking Days of receipt of the notice or of accepting the new date as the new Cancelling Date. |
| 91. | If the Buyers have not declared their option within one (1)three (3) Banking Days of receipt of the |
| 92. | Sellers' notification or if the Buyers accept the new date, the date proposed in the Sellers' |
| 93. | notification shall be deemed to be the new Cancelling Date and shall be substituted for the |
| 94. | Cancelling Date stipulated in line 79. |
| 95. | If this Agreement is maintained with the new Cancelling Date' all other terms and conditions |
| 96. | hereof including those contained in Clauses 5(b) and 5(d) shall remain unaltered and in full |
| 98. | (d) Cancellation, failure to cancel or acceptance of, the new Cancelling Date shall be entirely |
| 99. | without prejudice to any claim for damages the. Buyers may have under Clause 14 (Sellers' Default) |
| 100. | for the Vessel not being ready by the original Cancelling Date. |
| 101. | (e) Should the Vessel become an actual, constructive or compromised total loss before delivery |
| 102. | the Deposit together with interest earned, if'--any, shall be released immediately to the Buyers |
| 103. | whereafter this Agreement shall be null and void. |
| 104. | 6. Divers Inspection / Drydocking |
| 106. | (i) The Buyers herewith declareshall have the option at their cost and expense to arrange for an |
underwater
| 107. | inspection by a diver approved by the Classification Society prior to the delivery of the |
| 108. | Vessel. The_ underwater inspection may take place at a port/place prior to arrival at the |
place of delivery and shall be organised and arranged by the Sellers and paid for by the
Buyers (in such event, the Sellers shall provide the Buyers on delivery with a letter of
undertaking that to the best of Sellers knowledge and belief the Vessel has not touched
bottom or grounded from the time of said inspection until delivery).Such option shall be
declared latest nine (9) days prior to the Vessel’s intended
| 109. | date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) of this |
| 110. | Agreement. The Sellers shall at their cost and expense make the Vessel available for |
| 111. | such inspection. This inspection shall be carried out without undue delay and in the |
| 112. | presence of a Classification Society surveyor arranged for by the Sellers and paid for by |
| 113. | the Buyers at the time of closing. The Buyers' representative) shall have the right to be |
present at the diver's
| 114. | inspection as observer(s) only without interfering with the work or decisions of the |
| 115. | Classification Society surveyor. The extent of the inspection and the conditions under |
| 116. | which it is performed shall be to the satisfaction of the Classification Society. If the |
| 117. | underwater inspection is scheduled for the place of delivery but the conditions at the |
place of delivery are unsuitable for such inspection (other than for any reason set out in
Clause 5(b), in which case the provisons of Clause 5 (b) will apply), the Sellers shall at
| 118. | their cost and expense make the Vessel available at a suitable alternative place near to |
| 119. | the delivery port, in which event the Cancelling Date shall be extended by the additional |
| 120. | time required for such positioning and the subsequent re-positioning unless otherwise |
mutually agreed. The Sellers may
| 121. | not tender Notice of Readiness prior to completion of the underwater inspection. |
| 122. | (ii) If the rudder, propeller, bottom or other underwater parts below the deepest load line are |
| 123. | found broken, damaged or defective so as to affect the Vessel's class, then (1) unless |
| 124. | repairs can be carried out afloat to the satisfaction of the Classification, Society, |
| 125. | the Sellers shall arrange for the Vessel to be drydocked at their expense for inspection |
| 126. | by the Classification Society of the Vessel's underwater parts below the deepest load line, |
| 127. | the extent of the inspection being in accordance with the Classification Society's rules (2) |
| 128. | such defects shall be made good by the Sellers at their cost and expense to the |
| 129. | satisfaction of the Classification Society without condition/recommendation** and (3) the |
| 130. | Sellers shall pay for the underwater inspection and the Classification Society's |
| 132. | Notwithstanding anything to the contrary in this Agreement, if the Classification Society |
| 133. | do not require the aforementioned defects to be rectified before the next class |
| 134. | drydocking survey, the Sellers shall be entitled to deliver the Vessel with these defects |
| 135. | against a deduction from the Purchase Price of the estimated direct cost (of labour and |
| 136. | materials) of carrying out the repairs to the satisfaction of the Classification Society, |
| 137. | whereafter the Buyers shall have no further rights whatsoever in respect of the defects |
| 138. | and/or repairs. The estimated direct cost of the repairs shall be the average of quotes for |
| 139. | the repair work obtained from two reputable independent shipyards in the People's at or in |
the vicinity of
| 140. | the port of delivery Republic of China, one to be obtained by each of the·Parties withintwo |
(2) three (3) Banking
| 141. | Days from the date of the imposition of the condition/recommendation, unless the Parties |
| 142. | agree otherwise. Should either of the Parties fail to obtain ':such a quote within the |
| 143. | stipulated time then the quote duly obtained by the other Party shall be the sole basis for |
| 144. | the estimate of the direct repair costs. The Sellers shallmay not re-tender Notice of |
Readiness upon
| 145. | such estimate having been established. |
Notwithstanding anything to the contrary in this Agreement, the Cancelling Date shall be automatically extended for the time required to either i) agree the deduction from the Purchase Price as set out above, Qr ii) for the repairs to be carried out afloat pursuant to 6 (a) (ii), if such delay(s) in reaching an agreement on the deduction of the Purchase Price or performing repairs to the Vessel afloat would lead to the Vessel. missing its Cancelling Date.
| 146. | (iii) If the Vessel is to be drydocked pursuant to Clause 6(a) (ii) and no suitable dry-docking |
| 147. | facilities are available at the port of delivery, the Sellers shall take the Vessel to a port |
| 148. | where suitable drydocking facilities are available, whether within or outside the delivery |
| 149. | range as per Clause 5(a).Once drydocking has taken place the Sellers shall deliver the |
| 150. | Vessel at a port within the delivery range as per Clause 5(a) which shall, for the purpose |
| 151. | of this Clause, become the new port of delivery. In such event the Cancelling Date shall |
| 152. | be extended by the additional time required for the drydocking and extra steaming, but |
| 153. | Limited to a maximum of forty-five (45)fourteen (14) days. |
| 154. | (b) *The Sellers shall place the Vessel in drydock at the port of delivery for inspection by the |
| 155. | Classification Society of the Vessel's underwater parts below the deepest load line, the extent |
| 156. | of. the inspection being in accordance with the Classification Society's rules. If the rudder, |
| 157. | propeller, bottom or other underwater parts below the deepest load line are found broken, |
| 158. | damaged or defective so as to affect the Vessel's class, such defects shall be made good at the |
| 159. | Sellers' cost and expense to the satisfaction of the Classification Society without |
| 160. | Condition/recommendation**. In such event the Sellers are also to pay for the costs and |
| 161. | expenses in connection with putting the Vessel in and taking her out of drydock, including the |
| 162. | drydock dues and the Classification Society's fees. The Sellers shall also pay for these costs |
| 163. | and expenses if parts of the tailshaft system are condemned or found defective or broken so as |
| 164. | to affect the Vessel's class. In all other cases, the Buyers shall pay the aforesaid costs and |
| 165. | expenses, dues and fees. |
| 166. | (c) If the vessel is drydocked pursuant to Clause 6(a)(ii)or 6(b) above: |
| 167. | (i) The Classification Society may require survey of the tailshaft system, the extent of the |
| 168. | survey being to the satisfaction of the Classification Society surveyor. If such survey is |
| 169. | not required by the Classification Society, the Buyers shall have the option to require the |
| 170. | tailshaft to be drawn and surveyed by the Classification Society, the extent of the survey |
| 171. | being in accordance with the Classification Society's rules for tailshaft survey and |
| 172. | consistent with the current stage of the Vessel's survey cycle. The Buyers shall declare |
| 173. | whether they require the tailshaft to be drawn and surveyed not later than by the |
| 174. | completion of the inspection by the Classification Society. The drawing and refitting of |
| 175. | the tailshaft shall be arranged by the Sellers. Should any parts of the tailshaft system be |
| 176. | condemned or found defective so as to affect the Vessel's class, those parts shall be |
| 177. | renewed or made good at the Sellers' cost and expense to the satisfaction of the |
| 178. | Classification Society without condition/recommendation**. |
| 179. | (ii) The costs and expenses relating to the survey of the tailshaft system . shall be borne by |
| 180. | the Buyers unless the Classification Society requires such survey to be carried out or if |
| 181. | parts of the system are condemned or found defective or broken so as to affect the |
| 182. | Vessel's class, in which case the Sellers shall pay these costs and expenses. |
| 183. | (iii) The Buyers' representative(s) shall have the right to be present in the drydock, as |
| 184. | observer(s) only without interfering with the work or decisions of the Classification |
| 186. | (iv) The Buyers shall have the right to have the underwater parts of the Vessel cleaned |
| 187. | and painted at their risk, cost and expense without interfering with the Sellers' or the |
| 188. | Classification Society surveyor's work, if any, and without affecting the Vessel's timely |
| 189. | delivery. If, however, the Buyers' work in drydock is still in progress when the |
| 190. | Sellers have completed the work which the Sellers are required to do, the additional |
| 191. | docking time needed to complete the Buyers' work shall be for the Buyers' risk, cost and |
| 192. | expense. In the event that the Buyers' work requires such additional time, the Sellers |
| 193. | may upon completion of the Sellers' work tender Notice of Readiness for delivery whilst |
| 194. | the Vessel is still in drydock and, notwithstanding Clause 5(a), the Buyers shall be |
| 195. | obliged to take delivery in accordance with Clause 3 (Payment), whether the Vessel is in |
| 197. | *6(a) and 6(b) are alternatives; delete whichever is not applicable. In the absence of deletions, |
| 198. | alternative 6(a) shall apply. |
| 199. | ** Notes or memoranda, if any, in the surveyor’s report which are accepted by the Classification |
| 200. | Society without condition/recommendation are not to be taken into account. |
| 201. | 7. Spares, bunkers and other items |
| 202. | The Sellers shall deliver the Vessel to the Buyers with everything belonging to her and on board |
| 203. | and on shore. All spare parts and spare equipment including spare tail-end shaft(s) and/or |
| 204. | spare propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time ofinspection this |
Agreement
| 205. | used or unused, whether on board or not shall become the Buyers' property, but spares on |
| 206. | order are excluded.Forwarding charges, if any, shall be for the Buyers' account. The Sellers |
| 207. | are not required to replace spare parts including spare tail-end shaft(s) and spare |
| 208. | propeller(s}/propeller blade(s) which are taken out of spare and used as replacement prior to |
| 209. | delivery, but the replaced items shall be the property of the Buyers. Unused stores and |
| 210. | provisions shall be included in the sale and be taken over by the Buyers without extra payment. |
| 211. | Library and forms exclusively for use in the Sellers' vessel(s) and captain's, officers' and crew's |
| 212. | personal belongings including the slop chest are excluded from the sale without compensation, |
| 213. | as well as the following additional items:(include list) |
| 214. | Items on board which are on hire or owned by third parties, listed as follows, are excluded from |
| 215. | the sale without compensation:(include list) |
| ̶ | ECDIS (electronic charts), and /SF Watchkeeper software program |
| ̶ | NAVTOR NAVBOX and 2 NAVSTICKS, Power Supply and Octocoupler |
| ̶ | VIKING LIFE RAFTS 4xl 6 Persons and 2x6 Persons |
| ̶ | Refillable cylinders (Ox, Ac, Freon) |
| ̶ | FX60 Antenna & SC SIGMA Xtreme Rack 1 FBB Antenna and BDU (VSAT Backup) Fleet phone (Antipiracy) |
| ̶ | All laptop & hard drives |
| ̶ | Chris hired items: reefer spare kits |
| 216. | Items on board at the time of inspection which are on hire or owned by third parties, not listed |
| 217. | above, shall be replaced or procured by the Sellers prior to delivery at their cost and expense. |
| 218. | The Buyers shall take over remaining bunkers and unused lubricating and hydraulic oils and |
| 219. | greases in storage tanks and unopened drums and payeither: |
| 220. | (a) *the actual net price (excluding barging expenses) as evidenced by invoices or vouchers;-or |
| 221. | (b) *the current net market price (excluding barging expenses) at the port and date of delivery |
| 222. | of the Vessel or, if unavailable, at the nearest bunkering port, |
| 223. | for the quantities taken over. |
The quantities of bunkers and unused Lu boils remaining on bpard $hall be measured jointly by
the Sellers and the Buyers representatives on board one (l)·Banking Day prior to the expected
date of delivery with an allowance for consumption to be calculated until the expected time of
physical delivery. The allowance to be adjusted in case of a later then calculated delivery.
| 224. | Payment under this Clause shall be made at the same time and place and in the same |
| 225. | currency as the Purchase Price. |
| 226. | "inspection" in this Clause 7, shall mean the Buyers' inspection according to Clause 4.(a) or (b) |
| 227. | (Inspection), if applicable. If the Vessel is taken over without inspection, the date of this |
| 228. | Agreement shall be the relevant date. |
| 229. | *(a) and (b) are alternatives, delete whichever is not applicable. In the absence of deletions |
| 230. | Alternative (a) shall apply. |
| 232. | The place of closing: e-closing |
| 233. | (a) In exchange for payment of the Purchase Price the Sellers shall provide the Buyers with the |
| 234. | following delivery documents: to be mutually agreed and which shall comply with the Buyers' |
Nominated Flag State and registry and to form part of an addendum to this Agreement.
| 235. | (i) Legal Bill(s) of Sale in a form recordable in the Buyers' Nominated Flag State, |
| 236. | transferring title of the Vessel and stating that the Vessel is free from all mortgages, |
| 237. | encumbrances and maritime liens or any other debts whatsoever, duly notarially attested |
| 238. | and legalised orapostilled, as required by the Buyers' Nominated Flag State; |
| 239. | (ii) Evidence that all necessary corporate, shareholder and other action has been taken by |
| 240. | the Sellers to authorise the execution, delivery and performance of this Agreement; |
| 241. | (iii) Power of Attorney of the Sellers appointing one or more representatives to act on behalf |
| 242. | of the Sellers in the performance of this Agreement, duly notarially attested and legalised |
| 243. | or apostilled (as appropriate); |
| 244. | (iv) Certificate or Transcript of Registry issued by the competent authorities of the flag state |
| 245. | on the date of delivery evidencing the Sellers' ownership of the Vessel and that the |
| 246. | Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by |
| 247. | such authority to the closing meeting with the original to be sent to the Buyers as soon as |
| 248. | possible after delivery of the Vessel; |
| 249. | (v) Declaration of Class or (depending on the Classification Society) a Class Maintenance |
| 250. | Certificate issued within three (3) Banking Days prior to delivery confirming that the |
| 251. | Vessel is in Class free of condition/recommendation; |
| 252. | (vi) Certificate of Deletion of the Vessel from the Vessel's registry or other official evidence of |
| 253. | deletion appropriate to the Vessel's registry at the time of delivery, or, in the event that |
| 254. | the registry does not as a matter of practice issue such documentation immediately, a |
| 255. | written undertakingfrom the Sellers to effect deletion from the Vessel's registry forthwith |
| 256. | and provide a certificate or other official evidence of deletion to the Buyers promptly and |
| 257. | latest within four (4) weeks after the Purchase Price has been paid and the Vessel has |
| 259. | (vii) A copy of the Vessel's Continuous Synopsis Record certifying the date on which the |
| 260. | Vessel ceases to be registered with the Vessel's registry, or, in the event that the registry |
| 261. | does not as a matter of practice issue such certificate immediately, a written undertaking |
| 262. | from the Sellers to provide the copy of this certificate promptly upon it being issued |
| 263. | together with evidence of submission by the Sellers of a duly executed Form 2 stating |
| 264. | the date on which tl=le Vessel shall cease to be registered with the Vessel’s registry; |
| 265. | (viii)Commercial Invoice for the Vessel; |
| 266. | (ix) Commercial Invoice(s) for bunkers, lubricating and hydraulic oils and greases; |
| 267. | (x) A, copy of the Sellers' letter to their satellite communication provider cancelling the |
| 268. | Vessel's communications contract which is to be sent immediately after delivery of the |
| 270. | (xi) Any additional documents as may reasonably be required by the competent authorities of |
| 271. | the Buyers' Nominated Flag State for the purpose of registering the Vessel, provided the |
| 272. | Buyers notify the Sellers of any such documents as soon as possible after the date of |
| 274. | (xii) The Sellers' letter of confirmation that to the best of their knowledge, the Vessel is not |
| 275. | black listed by any nation or international organisation. |
| 276. | (b) At the time of delivery the Buyer shall provide the Sellers with delivery documents to be |
mutually agreed and to form part of an addendum to this Agreement.
| 277. | (i) Evidence that all necessary corporate, shareholder and other action has been taken by |
| 278. | the Buyers to authorise the execution, delivery and performance of this Agreement; and |
| 279. | (ii)Power of Attorney of the Buyers appointing one or more representatives to act on behalf |
| 280. | of the Buyer in the performance of this Agreement, duly notarially attested and legalised |
| 281. | or apostilled (as appropriate). |
| 282. | (c) If any of the documents listed in the AddendumSub-clauses (a) and (b) above are not in the |
English
| 283. | language they shall be accompanied by an English translation by an authorised translator or |
| 284. | certified by a lawyer qualified to practice in the country of the translated language. |
| 285. | (d) The Parties shall to the extent possible exchange copies, drafts or samples of the |
| 286. | documents listed in the AddendumSub clause (a) and Sub-clause (b) above for review and |
comment-by the
| 287. | other party not later than seven (7)(state number of days), or if left blank, nine (9) days prior to |
| 288. | the Vessel's intended date of readiness for delivery as notified by the Sellers pursuant to |
| 289. | Clause 5(b) of this Agreement. |
| 290. | (e) Concurrent with the exchange of documents in the AddendumSub-clause (a) and Sub clause |
(b) above.
| 291. | the Sellers shall also hand to the Buyers the classification certificate(s) as well as all plans, |
| 292. | drawings and manuals, (excluding ISM/ISPS manuals), which are on board the Vessel. Other |
| 293. | certificates which are on board the Vessel shall also be handed over to the Buyers unless the |
| 294. | Sellers are required to retain same, in which case the Buyers have the right to take copies. |
| 295. | (f) Other technical documentation which may be in the Sellers' possession shall promptly after |
| 296. | delivery be forwarded to the Buyers at their expense, if they so request. The Sellers may keep |
| 297. | the Vessel's log books but the Buyers have the right to take copies of same. |
| 298. | (g) The Parties shall sign and deliver to each other a Protocol of Delivery and Acceptance |
| 299. | confirming the date and time of delivery of the Vessel from the Sellers to the Buyers. |
| 301. | The Sellers warrant that the Vessel, at the time of delivery, is free from all charters, |
| 302. | encumbrances, mortgages and maritime liens or any other debts whatsoever, and is not subject |
| 303. | to Port State or other administrative detentions. The Sellers hereby undertake to indemnify |
| 304. | the Buyers against all consequences of claims made against the Vessel which have been incurred |
| 305. | prior to the time of delivery. |
| 306. | 10. Taxes, fees and expenses |
| 307. | Any taxes, fees and expenses in connection with the purchase and registration in the Buyers' |
| 308. | Nominated Flag State shall be for the Buyers' account, whereas similar charges in connection |
| 309. | with the closing of the Sellers' register shall be for the Sellers' account. |
| 310. | 11. Condition on delivery |
| 311. | The Vessel with everything belonging to her shall be at the Sellers' risk and expense until she is |
| 312. | delivered to the Buyers, but subject to the terms and conditions of this Agreement she shall be |
| 313. | delivered and taken over as she was at the date time of inspection this Agreement, fair wear and |
tear excepted.
| 314. | However, the Vessel shall be delivered free of cargo and free of stowaways with her Class |
| 315. | maintained without condition/recommendation*, free of average damage affecting the Vessel's |
| 316. | class, and with her classification certificates and national certificates, as well as all other |
| 317. | certificates the Vessel had at the time of inspection, clean, valid and unextended without |
| 318. | condition/recommendation* by the Classification Society or the relevant authorities for at least three (3) months after delivery. |
| 320. | "inspection" in this Clause 11, shall mean the Buyers' inspection according to Clause 4(a) or |
| 321. | 4(b) (Inspection), if applicable. If the Vessel is taken over without inspection, the date of this |
| 322. | Agreement shall be the relevant date. |
| 323. | *Notes and memoranda, if any, in the Surveyor's report which are accepted by the Classification |
| 324. | Society without condition/recommendation are not to be taken into account. |
| 326. | Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel |
| 329. | Should the Deposit not be lodged in accordance with Clause 2 (Deposit), the Sellers have the |
| 330. | right to cancel this Agreement, and they shall be entitled to claim compensation for their losses |
| 331. | and for all expenses incurred together with interest. |
| 332. | Should the Purchase Price not be paid in accordance with Clause 3 (Payment), the Sellers |
| 333. | have the right to cancel this Agreement, in which case the Deposit together with interest |
| 334. | earned, if any, shall be released to the Sellers. If the Deposit does not cover their loss, the |
| 335. | Sellers shall be entitled to claim further compensation for their losses and for all expenses |
| 336. | incurred together with interest. |
| 338. | Should the Sellers fail to give Notice of Readiness in accordance with Clause 5(b) or fail to be |
| 339. · | ready to validly complete a legal transfer by the Cancelling Date the Buyers shall have the |
| 340. · | option of cancelling this Agreement. If after Notice of Readiness has been given but before |
| 341. | the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and is not |
| 342. | made physically ready again by the Cancelling Date and new Notice of Readiness given, the |
| 343. | Buyers shall retain their option to cancel. In the event that the Buyers elect to cancel this |
| 344. | Agreement, the Deposit together with interest earned, if any, shall be released to them |
| 346. | Should the Sellers fail to give Notice of Readiness by the Cancelling Date or fail to be ready to |
| 347. | validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers |
| 348. | for their loss and for all expenses together with interest if their failure is due to proven |
| 349. | negligence and whether or not the Buyers cancel this Agreement. |
| 350. | 15. Buyers' representatives |
| 351. | After this Agreement has been signed by the Parties and the Deposit has been lodged, the |
| 352. | Buyers have the right to place two (2) representatives on board the Vessel at their sole risk and |
| 353. | expense for the last fifteen (15) days prior delivery. The right of the Buyers shall be subject to i) |
the charterers consent and ii) Buyers representatives providing negative Covid-19 test results
within 36 hours prior to embarkation at the intended port. Sellers shall exercise reasonable
efforts to obtain Charterers consent.
After embarkation, the Buyers representatives will strictly adhere to the Vessels health and
safety protocols relating to Covid-19 at all times, which shall include but not be limited to
submitting daily temperature readings and wearing face masks, and if requested by the master,
to immediately self-isolate should they show symptoms or signs of infection.
| 354. | These representatives are on board for the purpose of familiarisation and in the capacity of |
| 355. | observers only, and they shall not interfere in any respect with the operation of the Vessel. The |
| 356. | Buyers and the Buyers' representatives shall sign the Sellers and charterers' P&I Club's standard |
letter of
| 357. | indemnity prior to their embarkation and at all times adhere to the lawful the Vessel's Master. |
Any off hire due to the Buyers' representatives to be for Buyers account.
The Buyers shall also reimburse the Sellers at cost for any other·costs/expenses incurred as a
result of the Buyers representative's embarkation, as evidenced by supporting documentation.
| 358. | 16. Law and Arbitration |
| 359. | (a) This Agreement shall be governed by and construed in accordance with English law and |
| 360. | any dispute arising out of or in connection with this Agreement shall be referred to arbitration in |
| 361. | London in accordance with the Arbitration Act 1996 or any statutory modification or re- |
| 362. | enactment thereof save to the extent necessary to give effect to the provisions of this Clause. |
| 363. | The arbitration shall be conducted in accordance with the London Maritime Arbitrators |
| 364. | Association (LMAA) Terms current at the time when the arbitration proceedings are |
| 366. | The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall |
| 367. | appoint its arbitrator and send notice of such appointment in writing to the other party requiring |
| 368. | the other party to appoint its own arbitrator within fourteen (14) calendar days of that notice and |
| 369. | stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own |
| 370. | arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the |
| 371. | other party does not appoint its own arbitrator and give notice that it has done so within the |
| 372. | fourteen (14) days specified, the party referring a dispute to arbitration may, without the |
| 373. | requirement of any further prior notice to the other party, appoint its arbitrator as solerbitrator |
| 374. | and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on |
| 375. | both Parties as if the sole arbitrator had been appointed by agreement. |
| 376. | In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 the |
| 377. | arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at |
| 378. | the time when the arbitration proceedings are commenced. |
| 379. | (b) *This Agreement shall be governed by and construed in accordance with Title 9 of the |
| 380. | United States Code and the substantive law (not including the choice of law rules) of the State |
| 381. | of New York and any dispute arising out of or in connection with this Agreement shall be |
| 382. | referred to three (3) persons at New York, one to be appointed by each of the parties hereto, |
| 383. | and the third by two so chosen; their decision or that of any two of them shall be final, and |
| 384. | for the purposes of enforcing any award, judgment may be entered on an award by any court of |
| 385. | competent jurisdiction. The proceedings shall be conducted in accordance with the rules of the |
| 386. | Society of Maritime Arbitraters, Inc. |
| 387. | In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 the |
| 388. | arbitration shall be conducted in accordance with the Shortened Arbitration Procedure of the |
| 389. | Society of Maritime Arbitrators, Inc. |
| 390. | (c) This Agreement shall be governed by and construed in accordance with the laws of |
| 391. | (state place) and any dispute arising out of or in connection with this Agreement shall be |
| 392. | referred to arbitration at (state place), subject to the procedures applicable there. |
| 393. | *16(a), 16(b) and 16(c) are alternatives; delete whichever is not applicable. In the absence of |
| 394. | deletions, alternative 16(a) shall apply. |
| 396. | All notices to be provided under this Agreement shall be in writing. |
| 397. | Contact details for recipients of notices are as follows: |
| 398. | For the Buyers: via the brokers |
| 399. | For the Sellers: via the brokers |
| 401. | The written terms of this Agreement comprise the entire agreement between the Buyers and |
| 402. | the Sellers in relation to the sale and purchase of the Vessel and supersede all -previous |
| 403. | agreements whether oral or written between the Parties in relation thereto. |
| 404. | Each of the Parties acknowledges that in entering into this Agreement n has not relied on |
| 405. | and shall have no right or remedy in respect of any statement, representation, assurance or |
| 406. | warranty (whether or not made negligently) other than as is expressly set out in this Agreement. |
| 407. | Any terms implied into this Agreement by any applicable statute or 1aw are hereby excluded |
| 408. | to the extent that such exclusion can legally be made. Nothing in this Clause shall limit or exclude |
| 409. | any liability for fraud. |
19. Sanction
The Sellers and the Buyers represent and warrant to each other as of the date hereof and at the
date of delivery that none of them, nor any of their shareholders, are a person or entity listed or
targeted by any sanctions issued by the United Nations, the United States, the United Kingdom,
Switzerland or the European Union ("Sanctions'') or owned or controlled by any of the foregoing
("Restricted Person”).
The Sellers further represent and warrant as, of the date hereof and at the date of delivery that the
Vessel is not a Restricted Person and has not engaged in any activity or trade restricted under
Sanctions or that might lead the Vessel to become a Restricted Person.
If at any time before delivery there is a breach of any representation contained under paragraph 1
or 2, the non-breaching party may terminate this Agreement by giving written notice to the other
party.
20. Confidentiality
The negotiations and the terms and conditions of this Agreement shall be kept strictly private and
Confidential between Buyers and Sellers and not details of this sale shall be disclosed to any third
party except for any public announcements or regulatory filings required and/or in accordance
with NASDAQ/SEC filing. A breach of this confidentiality clause shall, however, not entitle any of
the Parties to terminal this Agreement.
21. Counterpart
This Agreement may be executed in counterparts in two originals, each of which when executed
and delivered shall constitute an original of this Agreement. No counterpart shall be effective
until each Party has executed at least on counterpart A signed copy received in pdf format shall
be deemed to be an original. and delivered shall constitute an original of this Agreement. No
counterpart shall be effective until each Party has executed at least on counterpart. A signed copy
received in pdf format shall be deemed to be an original.
For and on behalf of the Sellers [*****] __________________________ Name: [*****] Title: Authorised Signatory | For and on behalf of the Buyers [*****] __________________________ Name: [*****] Title: Authorised Signatory |
For and on behalf of [*****]
[*****]
Name: [*****]
Title: Director
| This Charter Party is a computer generated copy of the “SALEFORM 2012” form printed by authority of Norwegian Shipbrokers' Association using software which is the copyright of SDSD. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the preprinted text of this document which is not clearly visible, the text of the original approved document shall apply. Norwegian Shipbrokers' Association and SDSD assume no responsibility for any loss or damage caused as a result of discrepancies between the original approved document and this document |
