Exhibit 4.46
ADDITIONAL CLAUSES TO M/V “CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023 |
32. | Downpayment |
As security for the correct fulfillment of this Charter, the Charterers shall make a downpayment of US$7,000,000.- (United States Dollars Seven Million only) in cash (hereinafter called the “Deposit Downpayment”), of which US$3,500,000.- (United States Dollars Three Million Five Hundred Thousand only) is to be paid upon signing of BBCP, and additional US$3,500,000.- (United States Dollars Three Million Five Hundred Thousand only) is to be paid upon commencement of BBCP .
If this Charter terminates under sub-clause (b) of Clause 28 or in case of Clause 5, the Owners shall refund the Deposit Downpayment if already paid to the Charterers and the Charterers shall have the right to claim their further losses, if any.
If this Charter terminates under sub-clause (a) of Clause 28, the Owners shall not be liable to return the Deposit Downpayment to the Charterers and may have the right to claim their further losses, if any.
If the Charter terminates due to “Loss of Vessel” under sub-clause (c) of Clause 28, the Charterers shall recover the Deposit Downpayment from the insurance payments paid and the Owners shall not be liable to return the Deposit Downpayment to the Charterers.
33. | Mortgage and Assignment |
Excepting that the Owners shall be entitled to assign their rights, title and interest in and to this Charter by way of security to THE KAGAWA BANK, LTD. (the Mortgagee), neither Party shall assign its right or obligations or any part thereof to any third parties without the written consent of the other.
The Owners have the right to register a first priority mortgage on the Vessel in favor of the Mortgagee securing a loan (not exceeding the amount referred to above) under the relevant loan agreement under standard mortgage and security documentation but on the basis that the Owners undertake to procure from the Mortgagee a letter of quiet enjoyment in a form and substance satisfactory to the Charterers (the Letter of Quiet Enjoyment).
The Charterers agree to sign an acknowledgement of the Owners’ charter hire assignment (in form and substance satisfactory to the Charterers acting reasonably) or any other comparable document reasonably required by the Mortgagee, in favor of the Mortgagee (on the basis that this does not impose any greater liability to the Charterers than the liabilities they have under this Charter). During the course of the Charter the Owners have the right to register a substitute mortgage in favor of another bank provided such registration is effected in a similar amount to the loan amount outstanding with the Mortgagee at that time and a Letter of Quiet Enjoyment (in form and substance satisfactory to the Charterers and the Mortgagee) is provided in favor to the Charterers. Any costs incurred by the Charterers in respect of any of the above arrangements shall be for Owners’ account.
34. | Insurance |
For Hull insurance purposes, the insured amount shall be an amount determined by the Charterers but shall on the Delivery Date not be less than 110% of USD33,544,500.00
ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023 |
In respect of partial losses, any payment by Underwriters not exceeding USD500,000 shall be paid directly to the Charterers who shall apply the same to effect the repairs in respect of which payment is made. Any moneys in excess of USD500,000 payable under such insurance other than Total Loss shall be paid to the Charterers subject to the prior written consent of the Owners or the Owners’ bank but such consent shall not be unreasonably withheld or delayed. Such consent to be granted if the Owners are satisfied (acting reasonably) that all damage resulting from the partial loss will be made good and repaired and all liabilities in respect of repairing such damage will be discharged. If the Charterers or the Vessel’s insurers request the Owners consent or authority to the insurers making payment to a ship repairer on account of repairs being made to the Vessel as a result of it suffering such a partial loss, then, the Owners shall not unreasonably withheld or delay giving such consent or authority. In the absence of such prior written consent the money shall be paid to the Owners or the Owners’ bank. In case of repair work being expected exceeding USD300,000 the Charters will inform the Owners of details in a timely manner.
(a) Hull and Machinery insurance shall be taken out and maintained to be effective in the joint names of both the Charterers and the Owners as co-assured with the insurers against such fire and usual marine risks; and
(b) P&I Club insurance shall be effected by an entry or entries of the Vessel with or in any P&I Club to protect and indemnify the Owners as co-assured and the Vessel against all P&I risks (including, but not limited to, pollution spillage and leakage risks).
35. | Optional Periods |
There are no options to extend the Charter.
36. | Purchase of the Vessel by the Charterers |
(a) | The Charterers (or their guaranteed nominee) may exercise their Purchase Option to purchase the Vessel from the Owners at the end of the Charter Period, for US$20,210,000.- (United States Dollars Twenty Million Twenty One Hundred Thousand only) (the “Purchase Option Price”) to the Owners on a strictly “as is where is” basis. The Charterers shall pay such Purchase Option Price in cash to the Owners upon transfer of title to the Vessel pursuant to the Sale Contract under clause (b) below. |
(b) | A separate sale and purchase contract (the “Sale Contract”) shall be executed between the Charterers (or the buyer nominated by the Charterers) and the Owners as seller on standard Norwegian Saleform 2012 terms, the form of which is appended as Exhibit A. |
(c) | Notwithstanding the provisions of Clause 36(b) any Sale Contract shall include the following provisions: |
(i) | the Owners guarantee that the Vessel, at the time of delivery, is free from all charters, encumbrances, mortgages, maritime liens or other debts or liabilities whatsoever. Should any claims which have been incurred prior to the time of delivery be made against the Vessel, the Owners shall indemnify the buyer against all consequences of such claims; |
(ii) | the Owners shall furnish the buyer with documentation requested by the buyer including but not limited to: |
ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023 |
a. | evidence of the authorisation and capacity for the Owners to sell the Vessel and enter into all documentation in connection with such sale including but not limited to resolutions of the shareholders of the Owners, resolutions of the board of directors of the Owners and any power of attorney under which the Owners’ representatives sign any of the delivery documents (in each case notarised and apostilled or legalised), original certificates of good standing in respect of the Owners and certified true copies of the certificate of incorporation and articles of association (or equivalent) of the Owner; |
b. | documentation validly transferring title to the Vessel to the buyer; |
c. | any documentation required for the registration of the Vessel on the buyer’s chosen flag under the name of the buyer; |
d. | evidence that the Vessel is free from all registered encumbrances and has been (or will be shortly after delivery) deleted from its current Flag State registry; |
e. | evidence that the Vessel has class maintained status with the Classification Society; |
f. | documentation usually provided by a seller to a buyer in a second hand vessel sale and purchase transaction including but not limited to letters undertaking the vessel is not boycotted or blacklisted by any nation or organisation, undertakings to deliver deletion certificates and closed CSR forms within four (4) weeks of the delivery if not provided at delivery and commercial invoices for the Vessel and all other items purchased by the buyer at delivery; and |
g. | all classification, technical and other documents in the possession of the Owners in relation to the Vessel; |
(iii) | any taxes, notarial, consular and other charges and expenses connected with the purchase and registration under buyer's flag shall be for buyer's account. Any taxes, consular and other charges and expenses connected with closing of the Vessels current flag, shall be for sellers' account; and |
(iv) | all spares on board and on order shall be included in the sale. |
(d) | If following the expiry of the Charter Period, the Owners from its act or omission fails to transfer title to the Vessel to the Charterers, the Owners shall within 10 days of the Charterers’ written demand: |
ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023 |
(i) | pay to the Charterers the amount by which the fair market value of the Vessel (as determined by a broker appointed by the Charterers) exceeds the Purchase Option Price; and |
(ii) | keep the Charterers indemnified for all documented losses and expenses incurred by the Charterers due to the failure to transfer title. |
37. | Improvements and Additions |
The Charterers shall maintain, equip and operate the Vessel so as to comply in all mutual respects with the provisions of all laws and regulations of the Vessels flag country and of any other country or jurisdiction within which the vessel may operate.
The Charterers shall have the right to fit additional equipment to the Vessel and to make one or more improvements and additions to the Vessel at their expense and risk.
The Charterers shall also have the right to make structural or non–severable improvements and additions to the Vessel at their own cost, expense and risk provided that such improvements and additions shall not, or be reasonably likely to, diminish the market value of the Vessel or prejudice its marketability, in either case, in a material way.
With reference to the above second and third paragraphs, in the event that the Charterers fit additional equipment and/or make improvement, the Charterers shall give notice to the Owners of its details before completion of such fitting and/or improvement.
In the event of any structural changes to the Vessel or installation of new equipment becoming necessary for the continued operation of the Vessel by reason of new class requirements or by compulsory legislation, such as but not limited to Ballast Water Treatment System, the cost of measures needed for compliance shall be for the Charterers’ account
38. | Quiet Enjoyment |
(a) | The Owners agree and undertake that during the period of the Charter they will not (and will procure that the Mortgagee will not) interfere in any way whatsoever with the quiet use, possession and enjoyment of the Vessel by the Charterers provided that (i) the Charterers perform their obligation under this Charter, (ii) there are no grounds entitling the Owners to terminate the chartering of the Vessel to the Charterers under this Charter and (iii) notice of the Owners intention to terminate the Charter has not been served on the Charterers. |
(b) | The Owners shall ensure that on entering into any Financial Instrument, the prospective Mortgagee of the Vessel provides the Charterers with a Letter of Quiet Enjoyment in accordance with the terms of Clause 33 and Clause 38(a) above. In addition to the provisions of Clause 36, the Written Consent will confirm that to the extent that the Charterers have paid to the Owners or the Mortgagee the any loan outstanding balance or, if applicable the relevant purchase option price (as the same is set out in Clause 39), payable on such date, the Mortgagee will immediately release the Financial Instrument. |
39. | Total Loss Proceeds |
Upon the occurrence of a total loss of the type referred to in clause 13(d) of this Charter all insurance proceeds in respect of that loss shall be paid to the Owners who shall apply such proceeds, as follows;
ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023 |
(a) | Firstly, in payment of all the Owners’ and Charterers’ reasonable, properly incurred and documented costs incidental to the collection of the total loss proceeds; |
(b) | Secondly, in retention by the Owners of all amounts of outstanding hire and interest due and owing to the Owners by the Charterers under this Charter at such time; |
(c) | Thirdly, in retention by the Owners of an amount equal to the Outstanding BBC Principal Balance of the Owners at the relevant time of receipt of the total loss proceeds; and |
(d) | Fourthly, any balance shall be promptly paid by the Owners to the Charterers. |
For the purpose of this clause, Outstanding BBC Principal Balance means, at any relevant date, the amount set out in appendix 1 attached to this Charter during the period in which the date of receipt of the total loss proceeds occurs.
40. | Familiarization |
In the event that the Charterers have not exercised their purchase option and Charter Period expires, the Owners shall have the right to place two representatives onboard the Vessel prior to redelivery once the Charterers have given their thirty (30) days preliminary notice.
The Owners shall have the right at their expense but at the Charterers time to arrange for an underwater inspection by a diver approved by the Classification Society no later than 2 weeks prior to the redelivery of the Vessel.
The inspection shall take place at a convenient port at the Charterers option and shall be carried out without interference to the Vessel’s normal operation.
Should such underwater inspection reveal major concern of Class items requiring immediate rectification in accordance with specific instructions from the Classification Society whereby such repairs cannot be made to the Vessel without immediate dry-docking, then the Vessel shall be dry-docked as soon as possible by the Charterers in order to repair such Class items to the Classification Societies satisfaction at the Charterers reasonable expense and time.
Any expenses related to other repairs carried out dry-docking by the Owners, and which are not the responsibility of the Charterers under the Charter, shall be for the Owners’ account.
41. | Extra Payments |
In addition to above payments, the following costs are payable by the Charterers:
(a) | Any fees and expenses for flag registration of the Vessel in Charterers nominated flag state and deletion of the flag registration of the Vessel in Charterers nominated flag state. The flag of Panama will be maintained during the charter period. The Owners and the Charterers shall settle the flag annual tax for the year 2023 per Pro Rata Calculation. |
(b) | Annual flag maintenance fees including tonnage tax of Panama are the Charterers account. |
ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023 |
(c) | All other documentation and works required due to flag and ownership change, including change of DOC/SMC/ISSC/MLC/CLC, class certificates, change of country name on hull, change of radio and navigational aids registration, Annual Tonnage Tax of the flag country throughout the Charter period shall be for the Charterers’ time and cost including agent fees. In case of a change of Ownership after delivery under this Charter for Owners matter or reason, these costs to be for Owners’ account. |
42. | Representations and Warranties |
Each Party represents and warrants to the other Party that:
(a) | it is duly incorporated and validly existing and in good standing under the laws of its place of incorporation; |
(b) | it has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it, to execute and to comply with this Charter; |
(c) | all the consents referred to in paragraph (b) above remain in force and nothing has occurred which makes any of them liable to revocation; |
(d) | this Charter constitutes legal, valid and binding obligations enforceable against it in accordance with its terms; |
(e) | The execution by it of this Charter and its compliance with this Charter will not involve or lead to a contravention of: |
(i) | any law or regulation; |
(ii) | its constitutional documents; or |
(iii) | any material contractual or other material obligation or material restriction which is binding on it or any of its assets. |
43. | General |
(a) | The terms and conditions of this Charter shall not be varied otherwise than by an instrument in writing executed by or on behalf of the Owners and the Charterers. |
(b) | If, at any time, any provision of this Charter is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions under the law of that jurisdiction nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired. |
(c) | This Charter 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 the Charter. |
(d) | This Charter constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. |
(e) | A person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Charter. |
44. | Charterers’ representatives |
After this Agreement has been signed by the Parties and the first part of the Deposit Downpayment has been lodged, the Charterers have the right to place two (2) representatives on board the Vessel at their sole risk and expense.
ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023 |
These representatives are on board for the purpose of familiarization and in the capacity of observers only, and they shall not interfere in any respect with the operation of the Vessel. The Charterers and the Charterers’ representatives shall sign the Owners’ P&I Club’s standard letter of Indemnity prior to their embarkation.
*** End ***