| 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 |
Year of Build: 2015 | Builder/Yard: Daewoo Shipbuilding & Marine Engineering Co., Ltd. | |
Flag: Marshall Islands | Place of Registration: Majuro | GT/NT: 157,092/101,147 |
| 1. | Purchase Price |
The Purchase Price is USD 72,500,000 (United States Dollars Seventy Two Million Five Hundred Thousand) | |
| 2. | |
| 3. | Payment |
On delivery of the Vessel, 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 notices): |
| (ii) | the to the Sellers under this Agreement shall be paid in full free of bank charges to the Sellers' Account; provided, however, part of the Purchase Price may be satisfied by setting off up to 1/3rd of any Company Termination Fee (as defined in the Merger Agreement) due to Euronav NV from GNRT against the Purchase Price. Procedure of payment of the Purchase Price and any moneys under the MOA to be always subject to the mutual agreement of the Sellers and Buyers and their respective Banks. |
| 4. | Inspection |
(a)* The Buyers have inspected and accepted the Vessel's classification records. accepted the Vessel following this inspection and the sale is outright and definite, subject only to the terms and conditions of this Agreement. _________ |
| 5. | Time and place of delivery and notices |
| 6. | Divers Inspection / Drydocking |
| (i) | The Buyers shall have the option at their cost and expense to arrange for an underwater inspection by a diver approved by the Classification Society prior to the delivery of the Vessel. Such option shall be declared latest nine (9) days prior to the Vessel's intended date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) of this Agreement. The Sellers shall at their cost and expense make the Vessel available for such inspection. This inspection shall be carried out without undue delay and in the presence of a Classification Society surveyor arranged for by the Sellers and paid for by the Buyers. The Buyers' representative(s) shall have the right to be present at the diver's inspection as observer(s) only without interfering with the work or decisions of the Classification Society surveyor. The extent of the inspection and the conditions under which it is performed shall be to the satisfaction of the Classification Society. If the conditions at the place of delivery are unsuitable for such inspection, the Sellers shall at their cost and expense make the Vessel available at a suitable alternative place near to the delivery port, in which event the Cancelling Date shall be extended by the additional time required for such positioning and the subsequent re-positioning. The Sellers may not tender Notice of Readiness prior to completion of the underwater inspection. |
| (ii) | If the rudder, propeller, bottom or other underwater parts below the deepest load line are found broken, damaged or defective so as to affect the Vessel's class, then (1) unless repairs can be carried out afloat to the satisfaction of the classification society, the Sellers shall arrange for the vessel to be drydocked at their expense for inspection by the classification society of the vessel's under water parts below the deepest load line, the extent of the inspection being in accordance with the Classification Society's rules (2) such defects shall be made good by the Sellers at their cost and expense to the satisfaction of the Classification society without condition/recommendation** and (3) the Sellers shall pay for the underwater inspection and the Classification Society's attendance. Notwithstanding anything to the contrary in this Agreement, if the Classification Society do not require the aforementioned defects to be rectified before the next class drydocking survey, the Sellers shall be entitled to deliver the Vessel with these defects against a deduction from the Purchase Price of the estimated direct cost (of labour and materials) of carrying out the repairs to the satisfaction of the Classification Society, whereafter the Buyers shall have no further rights whatsoever in respect of the defects and/or repairs. The estimated direct cost of the repairs shall be the average of quotes for the repair work obtained from two reputable independent shipyards at or in the vicinity of the port of delivery, one to be obtained by each of the Parties within two (2) Banking Days from the date of the imposition of the condition/recommendation, unless the Parties agree otherwise. Should either of the Parties fail to obtain such a quote within the stipulated time then the quote duly obtained by the other Party shall be the sole basis for the estimate of the direct repair costs. The Sellers may not tender Notice of |
| Readiness prior to such estimate having been established. | ||
If the Vessel is to be drydocked pursuant to Clause 6(a)(ii) and no suitable dry docking facilities are available at the port of delivery, the Sellers shall take the Vessel to a port where suitable drydocking facilities are available, whether within or outside the delivery range as per Clause 5(a). Once drydocking has taken place the Sellers shall deliver the Vessel at a port within the delivery range as per Clause 5(a) which shall, for the purpose of this Clause, become the new port of delivery. In such event the Cancelling Date shall be extended by the additional time required for the drydocking and extra steaming, but limited to a maximum of fourteen (14) days. | ||
(c) If the Vessel is drydocked pursuant to Clause 6 (a)(ii) | ||
| (i) | The Classification Society may require survey of the tailshaft system, the extent of the survey being to the satisfaction of the Classification surveyor. If such survey is not required by the Classification Society, the Buyers shall have the option to require the tailshaft to be drawn and surveyed by the Classification Society, the extent of the survey being in accordance with the Classification Society's rules for tailshaft survey and consistent with the current stage of the Vessel's survey cycle. The Buyers shall declare whether they require the tailshaft to be drawn and surveyed not later than by the completion of the inspection by the Classification Society. The drawing and refitting of the tailshaft shall be arranged by the Sellers. Should any part of the tailshaft system be condemned or found defective so as to affect the Vessel's class, these parts shall be renewed or made good at the sellers' cost and expense to the satisfaction of Classification Society without condition/recommendation**. |
| (ii) | The costs and expenses relating to the survey of the tailshaft system shall be borne by the Buyers unless the Classification Society requires such survey to be carried out or if parts of the system are condemned or found defective or broken so as to affect the Vessel's class, in which case the Sellers shall pay these costs and expenses. |
| (iii) | The Buyers' representative(s) shall have the right to be present in the drydock, as observe(s) only without interfering with the work or decisions of the Classification Society surveyor. |
| (iv) | The Buyers shall have the right to have the underwater parts of the Vessel cleaned and painted at their risk, cost and expense without interfering with the Seller's or the Classification Society surveyor's work, if any, and without affecting the Vessel's timely delivery. If, however, the Buyers' work in drydock is still in progress when the Sellers have completed the work which the Sellers are required to do, the additional docking time needed to complete the Buyers' work shall be for the Buyers' risk, cost and expense. In the event that the Buyers' work required such additional time, the Sellers may upon completion of the Sellers' work tender Notice of Readiness for delivery whilst the Vessel is still in drydock and, notwithstanding Clause 5(a), the Buyers shall be obliged to take delivery in accordance with Clause 3 (Payment), whether the Vessel is in drydock or not. |
| 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 inspection |
| 8. | Documentation The place of closing: in the Buyers option either at the premises of the Buyers head office In Antwerp, Belgium or at the Buyers ship management office in Piraeus, Greece, or in London (a) In exchange for payment of the Purchase Price the Sellers shall provide the Buyers with the following delivery documents: |
| (i) | Four (4) Legal Bill(s) of Sale in a British form 10A recordable in the Buyers' Nominated Flag State, transferring title of the Vessel and stating that the Vessel is free from all mortgages, encumbrances and maritime liens or any other debts whatsoever, duly notarially attested and legalised |
| (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; original corporate and shareholder resolutions of the Sellers to be delivered to the Buyers notarized and legalized by apostille. |
| (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 |
| (iv) | Certified by a Director or Officer of the Sellers true and complete copies of the Certificate and Articles of Incorporation and of the By-Laws or comparable governance documents, if any, of the Sellers together with any amendments thereto duly notarially attested and legalized by apostille. |
| (v) | Certificate issued by the Corporate Registry of the Sellers place of incorporation confirming that the Sellers are duly registered, in legal existence and listing names of the Sellers' registered officers/directors. This document shall be dated not earlier than seven (7) Banking Days prior to the delivery date. |
| (vi) | Certificate or Transcript of Registry issued by the competent authorities of the Sellers 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 or the Sellers to the closing meeting upon proper discharge of any Seller's mortgages and encumbrances existing on the Vessel prior to delivery with the original to be sent to the Buyers as soon as possible after delivery of the Vessel; |
| (vii) | 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 Vessel is in Class free of condition/recommendation; |
| (viii) | Certificate of Deletion of the Vessel from the Vessel's registry or other official evidence of deletion appropriate to the Vessel's registry at the time of delivery, or, in the event that the registry does not as a matter of practice issue such documentation immediately, a written undertaking by the Sellers to effect deletion from the Vessel's registry forthwith and provide a certificate or other official evidence of deletion to the Buyers promptly and latest within four (4) weeks after the Purchase Price has been paid and the Vessel has been delivered; |
| (ix) | A copy of the Vessel's Continuous Synopsis Record certifying the date on which the Vessel ceased to be registered with the Vessel's registry, or, in the event that the registry does not as a matter of practice issue such certificate immediately, a written undertaking from the Sellers to provide the copy of this certificate promptly upon it being issued together with evidence of submission by the Sellers of a duly executed From 2 stating the date on which the Vessel shall cease to be registered with the Vessel's registry; all original CSRs to be handed over on board the Vessel at the time of Delivery; |
| (x) | Commercial Invoice for the Vessel; |
| (xi) | Commercial Invoice(s) for bunkers, lubricating and hydraulic oils and greases; |
| (xii) | A copy of the Sellers' letter to their satellite communication provider cancelling the Vessel's communication contract which is to be sent immediately after delivery of the Vessel; |
| (xiii) | Any additional documents as may reasonably be required by the Buyers and the competent authorities of the Buyers' Nominated Flag State for the purpose of registering the Vessel, provided the Buyers notify the Sellers of any such documents as soon as possible and within reasonable time after the date of this Agreement; and |
| (xiv) | The Sellers' letter of confirmation and undertaking that to the best of their knowledge: |
(b) At the time delivery the Buyers shall provide the Sellers with: | ||
| (i) | Certificate of Directors Resolutions issued by the Buyers Executive Committee members the Buyers to authorise the execution, delivery and performance of this Agreement; and | |
| (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, duly notarially attested and legalised or apostilled (as appropriate). |
| (iii) | The Buyers' Certificate of Incorporation and Good Standing confirming the good standing of the Buyers and providing information on the current Directors and Executive Committee Members of the Buyers together with copy of Buyers' Articles of Association attached to it, issued within one (1) month prior to the delivery, duly notarized attested and legalized by apostille (as appropriate). | |
(c) If any of the documents listed in Sub clauses (a) and (b) above are not in the English language they shall be accompanied by an English translation by an authorised translator or certified by a lawyer qualified to practice in the country of the translated language. (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 ten (10) (state number of days), Vessel's intended date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) of this Agreement. (e) Concurrent with the exchange of documents in Sub-clause (a) and Sub-clause (b) above, the Sellers shall also hand to the Buyers the classification certificate(s) as well as all plans, drawings and manuals, (excluding ISM/ISPS manuals), which are on board the Vessel. Other certificates which are on board the Vessel shall also be handed over to the Buyers unless the Sellers are required to retain same, in which case the Buyers have the right to take copies. (f) Other technical documentation which may be in the Sellers' possession shall promptly after delivery be forwarded to the Buyers at their expense, if they so request. The Sellers may keep the Vessel's log books but the Buyers have the right to take copies of same. (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. | ||
| 9. | Encumbrances The Sellers warrant that the Vessel, at the time of delivery, is free from all charters, encumbrances, mortgages and maritime liens or any other debts whatsoever, and is not subject to Port State or other administrative detentions. The Sellers hereby undertake to indemnify the Buyers against all consequences of claims made against the Vessel which have been incurred prior to the time of delivery. |
| 10. | Taxes, fees and expenses |
Any taxes, fees and expenses in connection with the purchase and registration in the Buyers' Nominated Flag State shall be for the Buyers' account, whereas similar charges in connection with the closing of the Sellers' register shall be for the Sellers' account. | |
| 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 inspection, fair wear and tear excepted. | |
However, the Vessel shall be delivered free of cargo and free of stowaways with her Class maintained without condition/recommendation*, free of average damage affecting the Vessel's class, and with her classification certificates and national, international, trading and statutory certificates, as well as all other certificates the Vessel had at the time of inspection, valid and unextended for a period of six (6) months without |
condition/recommendation* by the Classification Society or the relevant authorities at the time of delivery. The Sellers shall notify the Buyers of any matters to their knowledge prior to delivery which upon being reported to the Classification Society would lead to the withdrawal of the Vessels Class or to the imposition of a recommendation relating to her Class. "inspection" in this Clause 11, shall mean the Buyers' inspection according to Clause 4(a) or 4(b) (Inspections), if applicable. If the Vessel is taken over without inspection, the date of this Agreement shall be the relevant date. |
*Notes and memoranda, if any, in the surveyor's report which are accepted by the Classification Society without condition/recommendation are not to be taken into account. |
| 12. | Name/markings |
Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel markings. | |
| 13. | Buyers' default |
Should the Purchase Price not be paid in accordance with Clause 3 (Payment), the Sellers have the right to cancel this Agreement | |
| 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. | |
Should the Sellers fail to give Notice of Readiness by the Cancelling Date or fail to be ready to validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers for their loss and for all expenses together with interest if their failure is due to proven negligence and whether or not the Buyers cancel this Agreement. |
| 15. | Buyers' representatives |
After this Agreement has been signed by the Parties Buyers have the right to place two (2) representatives on board the Vessel at their sole risk and expense. | |
These representatives are on board for the purpose of familiarisation and in the capacity of observers only, and they shall not interfere in any respect with the operation of the Vessel. The Buyers and the Buyers' representatives shall sign the Sellers' P&L Club's standard letter of indemnity prior to their embarkation. Sellers and Buyers shall mutually and in good faith decide when and where the Buyers can place their representatives at the first opportunity and at a convenient port of embarkation on board the Vessel without disrupting the safety, operation and operation of the Vessel. Buyers' representatives to be allowed to use the Vessel's communication equipment. | |
| 16. | Law and Arbitration |
(a) *This Agreement shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Agreement shall be referred to 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. | |
The arbitration shall be conducted in the English language and 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 fourteen (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 fourteen (14) days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the fourteen (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 the sole arbitrator had been appointed by agreement. | |
In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced. | |
| 17. | Notices |
| For the Buyers: | EURONAV NV De Gerlachekaai 20, 2000 Antwerp, Belgium Telephone: +32 3 247 44 11 Fax: +32 3 247 44 09 PIC: Alexander Staring – COO E-mail: management@euronav.com Normal working hours: 09.00 18.00 CET | |
| For the Sellers: | c/o GENER8 MARITIME INC. 299 Park Avenue, 2nd Floor New York, NY 10171 Telephone: 212-763-5600 Fax: PIC: Sean Bradley Email: sbradley@gener8mgmt.com |
| 18. | Entire Agreement |
The written terms of this Agreement 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. | |
| 19. Confidentiality | |
Each Party undertakes that it shall not at any time during this Agreement, disclose the commercial terms of this Agreement or any information which should reasonably be considered to be private or confidential concerning the business (including, without limitation, any customer |
or suppliers of the other Party to any person which is not (i) an employee, (ii) professional advisor, (iii) representative or (iv) director or officer of such Party and any agents or affiliates of such Party (on a need to know basis) (v) potential financing parties (and then only on a need to know basis) or except as may be required by law, court order or any governmental or regulatory authority. The Buyers shall make any public announcement, communication or circular (announcement) or press release concerning this Agreement as required by law or any governmental or regulatory authority including, without limitation, any relevant securities stock exchange. | |
20. Effectiveness of this MOA. This MOA shall be null and void and no longer effective if (a) the Transactions (as defined in the Merger Agreement) close prior to June 30, 2018 or such later date as mutually agreed; or (b) the Buyers shall breach the provisions of the Merger Agreement resulting in its termination and the Sellers determine that they do not wish to sell the Vessel, in the Sellers' sole discretion. | |
| For and on behalf of the Sellers | For and on behalf of the Buyers |
| Name: George Fikanis | Name: H. De Stoop |
| Title: VP | Title: CFO |
/s/ George Fikanis | /s/ H. De Stoop |
| Sean Bradley | Egied Verbeeck |
| Commercial Director | General Counsel |
/s/ Sean Bradley | /s/ Egied Verbeeck |
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