1. The Sellers: APL (Bermuda) Ltd, Canon's Court, 22 Victoria Street, Hamilton, HM12, Bermuda 1.(a) Guarantor (optional)*: | |
2. The Buyers or Nominee**: Micronesia Shipping Company Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 2 (a) Guarantor (optional)*: Performance is to be Guaranteed by Diana Containerships Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 | |
| 3. Name of the Vessel: M/V APL Spinel | 4. IMO No./Official No./Call-Sign: 9081215 |
5. Type, Built Yard, Built Year & GT: Container vessel, Samsung Heavy Industries Co. Ltd, Koje, S. Korea, Blt 1996, 53,519 dwt | 6. (a) Flag/Port of Registry: Singapore / Singapore |
| 7. Classification Society ("Class"): American Bureau of Shipping | (b) Bare-beat Registry (if any):: |
8. Purchase Price: USD 30,000,000.00 (Thirty Million United States Dollars) (i) Deposit (10 % of Purchase Price): USD 3,000,000.00 (Three Million United Stales Dollars) (a) Payee Bank: DnB Bank ASA, Singapore branch (b) Value Date: Within three (3) banking days from the date or this Agreement and the time-charterparty have been signed by email or fax by both parties. | |
(ii) Balance Purchase Price (Purchase Price less Deposit): USD 27,000,000.00 (Twenty Seven Million United States Dollars) + any extras under Clause 7 (a) Payee Bank: Citibank NA New York - CITIUS33, For account and under: Citibank NA Singapore, Pre-cable advice: CITISGSG, Favouring: APL (Bermuda) Ltd - Ace.: 0-811864-005, SWIFT MTI03 must be released to Citibank, Singapore (swift code CITISGSG) before 4pm Singapore time on the Value date. | |
| (iii) Place or Closing: Singapore | (iv) Daily Cost of Delayed Delivery: 7,500.00 USD |
9. (i) Physical Inspection (Port and Date): Rotterdam, 15th of October 2011 (ii) Pre-Delivery Divers Inspection (Port): Any prior port to intended delivery | |
10. Delivery Place (at safe and accessible anchorage or berth in): Singapore-South Japan range incl. full PRC at the option of the Sellers Delivery Date (Range):9th January 2012 to l5th of March 2012 in Sellers option Cancelling Date: 15th of March 2012 in Buyers option | |
| Declaration: It is hereby mutually agreed that this Agreement shall be performed according to the terms and conditions set out herein. Additional clauses, if any, shall be deemed to be fully incorporated into this Agreement. | |
11. Signatures – For and on behalf of: The SELLERS: (Name/title) /s/ VP STRATEGIC FLEET PROCUREMENT GUARANTOR, if any: (Name/Title) | The BUYERS: (Name/Title) /s/ Symeon Palios Director and President GUARANTOR, if any: (Name/Title) /s/ Ioannis Zafirakis Director, Chief Operating Officer, and Secretary |
| 1 | Whereas it is hereby agreed on this day that the Sellers identified in Box 1 have agreed to sell and the Buyers identified |
| 2 | in Box 2 have agreed to buy, the Vessel with specifications stated in Box 3, 4, 5, 6, 7, for the Purchase Price stated in |
| 3 | Box 8, subject to the following terms and conditions: |
| 4 | 1. Deposit |
| 5 | The Buyers shall pay a deposit of 10 per cent of the Purchase Price specified in Box 8 (i) as security for the fulfillment |
| 6 | of this Agreement to the bank nominated by the Sellers in Box 8 (i) (a), with a value date no later than that specified |
| 7 | upon in Box 8 (i) (b) of this Agreement. Notwithstanding that the amount received may be lesser due to bank |
| 8 | remittance charges imposed during the normal course of transfer, such amount shall stand as due fulfillment of the |
| 9 | Buyers obligation to pay the deposit and be held in a joint escrow account of both the Sellers and the Buyers, which |
| 10 | shall be released to the Sellers as part of the Purchase Price in accordance with joint written instructions of the Sellers |
| 11 | and the Buyers. The Sellers are to arrange the opening of the joint escrow account latest by 2 banking days prior to the |
| 12 | Value Date. The Buyers, latest together with their remittance of the Deposit, are to arrange bank-to-bank confirmation |
| 13 | from the remitting bank to the bank specified in Box 8 (i) (a) that the Buyers, and the remitting party if different, are a |
| 14 | known customer of the bank and should it be required by the bank in Box 8 (i) (a), the Buyers will also arrange for the |
| 15 | bank-to-bank confirmation to include the confirmation by the remitting bank that they know the source of funds. Both |
| 16 | Sellers and Buyers shall comply with the anti-money laundering laws and regulations of the country in which the |
| 17 | bank(s) specified in Box 8 are located. |
| 18 | Any interest earned on the deposit shall accrue to the Buyers whereas any closing fee/fees charged for holding the |
| 19 | deposit shall be borne equally by the Sellers and the Buyers. |
| 20 | 2. Payment |
| 21 | (a) The Buyers shall pay the Balance Purchase Price specified in Box 8 (ii) in full including any extras under Clause 7 |
| 22 | free of bank/transfer charges to Sellers' nominated bank account at Sellers' bank stated in Box 8 (ii) (a) upon delivery |
| 23 | of the Vessel. The agreed Purchase Price shall be paid for same day value within 3 full banking days, (being banking |
| 24 | days in the place of closing and in the country of the Purchase Price currency) after the Sellers tender the written |
| 25 | notice* of actual readiness of the Vessel for delivery in accordance with Clause 5 (b). |
| 26 | (b) The Buyers may delay to take delivery of the Vessel for up to a maximum of further seven (7) consecutive days |
| 27 | paying to the Sellers the sum specified in Box 8 (iv) per day, or part thereof, as compensation for such delay provided |
| 28 | that the Buyers have declared their intention to take late delivery prior to the expiry of the specified 3 full banking |
| 29 | days. Any such amount due shall be paid at the time and place and in the same currency as the Purchase Price and any |
| 30 | additional amounts due under Clause 7. If such delay exceeds seven (7) consecutive days then the Sellers shall have the |
| 31. | right to cancel this Agreement and claim damages for their losses incurred. |
| 32 | *Throughout this Agreement, a written notice is to mean a registered letter, telex, tele-fax, e-mail or other modern form of written |
| 33 | communication between the Sellers and the Buyers. |
| 34 | 3. Inspections* |
| 35 | (a) The Buyers have physically inspected the Vessel at the place and on the date specified in Box 9 (i) as well as the |
| 36 | Classification records and have accepted the Vessel making the sale outright, subject only to the terms and conditions |
| 37 | of this Agreement. |
| 38 | (b) The Seller shall rnake the Vessel available for Physical Inspection as per Box 9(i) hereof., |
| 39 | The Buyers shall undertake-the Physical Inspection ** without undue delay to the Vessel. Should the Buyers cause |
| 40 | undue-delay, the Sellers-shall be compensated for the losses incurred-by them. The sale shall become definite and |
| 41 | outright, subject only to the terms and conditions of this Agreement, if the Vessel is accepted by the Buyers after the |
| 42 | inspection and a written notice of acceptance from the Buyers is received by the Sellers within 72 hours after |
| 43 | completion of Physical Inspection of the Vessel. If the Buyers decline the Vessel or if such notice of acceptance is not |
| 44 | received by the Sellers within the afore-mentioned time, the deposit together with any interest earned shall be |
| 45 | immediately released to the Buyers, whereafter this Agreement shall be null and void. |
| 46 | *3 (a) and 3 (b) are alternatives: delete whichever is not applicable. In the absence of deletions, alternative 3 (a) shall apply. |
| 47 | **In the context of this Agreement, Physical Inspection of the Vessel is to mean only inspection of the Vessel physically including |
| 48 | taking photographs without opening up of the Vessel and without cost to the Sellers. The Physical. Inspection to include inspection of |
| 49 | Vessel's Classification records, continuous synopsis record, maintenance records, deck and engine log books and available ballast |
| 50 | spaces. |
| 51 | 4. Condition on Delivery |
| 52 | Until the Vessel is delivered and taken over by the Buyers, the Vessel and everything belonging to her shall be at |
| 53 | Sellers' risk and expense, subject to the terms of this Agreement. The Sellers shall deliver the Vessel to the Buyers in |
| 54 | substantially the same condition as the Vessel was at the time of inspection*, with the exception of fair wear and tear, |
| 55 | with present Class maintained free from any outstanding Class conditions and/or recommendations**, free from |
| 56 | damage affecting Vessel's Class, with all Class and trading certificates (both national and international) clean and valid |
| 57 | at the time of delivery. All cargo spaces shall be clean and free of any cargo, subject only to immovable residues. If the |
| 58 | Vessel is not in the same condition as the Vessel was at the time of inspection, the Buyers may reject the Vessel but |
| 59 | only if the difference in condition has a substantial impact upon the Buyers' ability to trade the Vessel. Otherwise, the |
| 60 | Buyers' remedy for differences in condition shall lie in damages. |
| 61 | The burden of proof as to the condition of the Vessel at the time of inspection shall be on the Buyers. |
| 62 | *Inspection shall mean the Buyers' inspection according to 3(a) or 3(b) as applicable. If the Vessel is taken over without |
| 63 | inspection, the date of this Agreement shall be the relevant date. |
| 64 | **Any notes in Class reports which are accepted by Class without imposing a condition/recommendation are not to be taken into |
| 65 | account and shall not constitute outstanding Class conditions and/or recommendation within the meaning of this Clause. |
| 66 | 5. Notices and Notice of Actual Readiness |
| 67 | (a) Prior to the arrival of the Vessel at the Delivery Place specified in Box 10, the Sellers shall provide the Buyers with |
| 68 | 30, 15, 7, and 3 days advance written notices to keep the Buyers advised of the estimated date and port of delivery and |
| 69 | of the Vessel's itinerary. Following the tender of any notice, Sellers are to take reasonable steps not to hinder delivery |
| 70 | by the date set out in the notice. |
| 71 | (b) Upon the arrival of the Vessel at the Delivery Place and when the Vessel is physically ready in accordance with |
| 72 | Clause 4 for delivery and Sellers have ready all of the Sellers' documents required by Clause 8 (save for the Certificate |
| 73 | of Ownership or equivalent, Class Maintained Certificate, Invoice for Bunkers and Lubricants and the Protocol of |
| 74 | Delivery and Acceptance), the Sellers shall tender a written Notice of Actual Readiness of the Vessel to the Buyers. |
| 75 | Subject only to Clause 2 (b), the Buyers shall take delivery of the Vessel within 3 full banking days after the Sellers |
| 76 | tender such notice. |
| 77 | (c) However, if the Vessel becomes an actual; constructive or compromised total loss before delivery, the Sellers incur |
| 78 | no liability under this Agreement, the Buyers arc entitled to the immediate return of the deposit and any interest earned |
| 79 | thereon and thereafter this Agreement shall be null and void. |
| 80 | 6. Pre-Delivery Divers Inspection |
| 81 | Prior to delivery, the Sellers shall make the Vessel available to the Buyers for underwater inspection. The Sellers shall |
| 82 | be responsible for ensuring that the port, anchorage or berth chosen for underwater inspection of the Vessel is suitable |
| 83 | and permitting such inspection. |
| 84 | (a) The Buyers shall have the right to appoint, at their own expense, a Class approved diver to inspect the Vessel's |
| 85 | underwater parts below the deepest load line including rudder and propeller upon the Vessel's arrival at the port |
| 86 | specified in Box 9(ii). The Sellers shall grant Buyers sufficient daylight hours within which to conduct the said |
| 87 | inspection and Sellers shall be obliged to ensure attendance of the Class surveyor to monitor the said inspection |
| 88 | which may be attended by Buyers' and Sellers' representatives without interference to Class and/or the divers. |
| 89 | However, should the Buyers fail to arrange for such inspection then they shall lose the right of such divers |
| 90 | inspection. |
| 91 | (i) If any defects are found during underwater inspection including rudder and propeller that shall affect the |
| 92 | Vessel's present Class and the repair of which Class agrees can be deferred to the Vessel's next scheduled |
| 93 | dry-docking, the Buyers' sole remedy shall be the payment by the Sellers of the estimated cost of repair of |
| 94 | such defects only excluding any dry-dock costs, as per the average of the quotations of two reputable repair |
| 95 | yards independent of the Sellers and the Buyers in the delivery area, one to be selected by each party. The said |
| 96 | average amount in respect of the cost of repair shall be deducted from the Purchase Price to be paid to the |
| 97 | Sellers at the time of delivery of the Vessel. The costs of Class attendance and divers fees incurred for the |
| 98 | underwater inspection shall be borne by the Buyers unless damage is found and the Class imposes a |
| 99 | recommendation in which case both costs shall be borne by the Sellers. |
| 100 | (ii) If damage is found for which Class requires immediate repair, then Sellers shall repair such damage without |
| 101 | delay prior to delivery. Should the Sellers be required to dry-dock the Vessel to repair such damage, then |
| 102 | Clause 6 (b) shall apply. |
| 103 | (b) Where the Sellers are required to dry-dock the Vessel under Clause 6 (a) (ii), the Sellers shall also enable the |
| 104 | inspection of the Vessel's bottom, rudder, propeller, tail shaft and other underwater parts by a surveyor of the |
| 105 | Classification Society to the satisfaction of the Classification Society standards. The Sellers shall be obliged to |
| 106 | rectify any defects found that affect the present Class of the Vessel within the agreed time or if no agreement is |
| 107 | reached then latest within 14 days of such damage being found (and, insofar as necessary, the Cancelling Date |
| 108 | shall be extended to allow the full agreed or 14 days' repair period), failure of which shall enable the Buyers to |
| 109 | cancel the Agreement and recover the deposit together with interest. |
| 110 | (i) The Buyers shall bear the cost of the survey of the tail shaft system unless the Classification Society requires |
| 111 | such survey to be carried out, in which case the Sellers shall bear the cost.. The expenses in connection with |
| 112 | putting the Vessel in and taking her out of dry-dock including dry-dock dues and Classification Society's fees |
| 113 | shall be paid by the Sellers if any condition or recommendation, excluding surveyor notes is issued as a result |
| 114 | of the survey. In all other cases Buyers shall pay the aforesaid expenses, dues and fees. |
| 115 | (ii) The Buyer shall have the right to place a representative for observation whilst the Vessel is in dry-dock |
| 116 | without interfering with the Classification surveyor's work or decisions, during the Classification Society |
| 117 | inspections. |
| 118 | (iii) The Buyers shall have the right to have the underwater parts of the Vessel cleaned and painted at their risk and |
| 119 | expense without interfering with the Classification Society's or the Sellers' work, and without affecting timely |
| 120 | delivery of the Vessel. Upon the completion of the Sellers' work, the Sellers may tender Notice of Actual |
| 121 | Readiness of the Vessel for delivery notwithstanding the non-completion of Buyers' work and |
| 122 | notwithstanding that the Vessel is not at the Delivery Place, upon which the Buyers shall be obliged to take |
| 123 | delivery of the Vessel in accordance with the aforesaid notice. All dry-docking expenses incurred after such |
| 124 | delivery except undocking expenses under Clause 6 (a) (ii) shall be borne by the Buyers. |
| 125 | The Classification Society shall be the only entity to determine whether any underwater damage constitutes a condition |
| 126 | of Class, and such determination shall be final and binding on both parties. |
| 127 | 7. Spares/ Bunkers & Others |
| 128 | The Sellers shall deliver the Vessel to the Buyers with everything belonging to her including all spare parts and spare |
| 129 | equipment on board and on shore except those spare parts that are on order. Any forwarding charges shall be the |
| 130 | Buyers' expense. However, the Sellers are not required to replace any spare parts that are taken out of spare and used |
| 131 | as replacement in the Vessel prior to delivery unless required by Class. The radio installation and navigational |
| 132 | equipment shall be included in the sale, along with all unused stores and provisions without extra payment. Any |
| 133 | crockery, plates, cutlery, linen and other items bearing the Sellers' name, if taken by the Sellers, shall be replaced with |
| 134 | unmarked items. However, the following items shall be excluded without compensation; |
| 135 | (a) Items that are on use exclusively in Sellers' Vessel like library, forms etc; |
| 136 | (b) Personal belongings including slop chest of the Vessel captain, officers and crew; |
| 137 | (c) Items on hire; |
| 138 | 1. Oxygen bottles - 6 bottles |
| 139 | 2. Acetylene bottles - 4 bottles |
| 140 | 3. Freon bottles - 3 bottles |
| 141 | 4. Iridium laptop - Model - HP Compaq NX 6320... |
| 142 | 5. Reefer Spare parts as per e-mail sent to the Buyers on the 16th of December 201, 10.03 Greek |
| 143 | time…………………………….. |
| 144 | (d) Others,if any…………………………. |
| 145 | ………………………………. |
| 146 | The remaining bunkers, unused lubricants of all grades and greases in designated storage tanks (not header tanks) and |
| 147 | unopened drums shall be taken over by the Buyers, on payment of the net price excluding barging expenses paid by the |
| 148 | Sellers at the date of last supply to the Vessel and evidenced by relevant invoices or vouchers; copies of which shall be |
| 149 | made available to the Buyers at the time of delivery. Payment under this Clause shall be made in the same currency |
| 150 | and at the same time and place as the Purchase Price. . For avoidance of doubt, during handover the bunkers remaining |
| 151 | onboard are to remain the property of the Sellers as time charterers and, although bunkers will be measured and agreed |
| 162 | by the respective representatives of the Sellers and the Buyers at the time of delivery, there will be no payment for |
| 153 | bunkers on delivery, with the Buyers to buy same hack upon redelivery from time charter. |
| 154 | 8. Documentation |
| 155 | (a) As soon as practically possible after the Deposit in Box 8 (i) has been paid in accordance with Clause 1: the Sellers |
| 156 | shall forward the Buyers scanned or photocopies of all requested Plans, Registry, Class, Safety/Trading Certificates |
| 157 | and other documents reasonably required for preparation of Buyers registration and management documentation. |
| 158 | (b) At the Place of Closing specified in Box 8 (iii) at the time of delivery the Sellers and the Buyers shall sign and |
| 159 | deliver to each other a signed Protocol of Delivery and Acceptance stating the date, time and place of delivery of the |
| 160 | Vessel from the Sellers to the Buyers. |
| 151 | The Sellers shall furnish the Buyers with the following documents (unless otherwise specified all to be originals in |
| 162 | English or with official English translations) in exchange for payment of the full Purchase Price of the Vessel: |
| 163 | (i) Two (2) One (1) Bills of Sale to be notarially attested and then legalized by the appropriate authorities as |
| 164 | required by the Buyers' incoming flag specifying that the Vessel is free from all encumbrances as set out in Clause |
| 165 | 9(a) of this Agreement. The notarial certificate is to confirm the identity of the signatory, his/her ability to bind the |
| 166 | Sellers and the authenticity of the signature. |
| 167 | (ii) Extract of the Resolutions of the Sellers' Board of Directors and Shareholders meetings authorizing the sale |
| 168 | and transfer of the Vessel pursuant to this Agreement and appointing persons to represent the Sellers in connection |
| 169 | with the sale of the Vessel and the execution of Bills of Sale and any other documents in connection with the sale of |
| 170 | the Vessel including the issuance of a Power of Attorney. Such Resolutions are to be notarially attested and then |
| 171 | legalized by the appropriate authorities if required by the Buyers' incoming flag. The notarial certificate is to confirm |
| 172 | the identity of the signatory, his/her ability to bind the Sellers and the authenticity of the signature. |
| 173 | (iii) Power of Attorney issued by the Sellers authorizing their named representative(s) to effect the sale and |
| 174 | transfer of the Vessel to the Buyers, pursuant to this Agreement and carry out any delivery/closing formalities |
| 175 | including receiving the Deposit and the Balance Purchase Price or any other amounts pursuant to this Agreement. |
| 176 | Such Power of Attorney is to be notarially attested and then legalized by the appropriate authorities if required by the |
| 177 | Buyers' incoming flag. The notarial certificate is to confirm the identity of the signatory, his/her ability to bind the |
| 178 | Sellers and the authenticity of the signature. |
| 179 | (iv) One (1) Certificate of Ownership or equivalent, dated on the date of Vessel's delivery or such other date as the |
| 180 | parties may agree, issued by the competent authorities showing that the Vessel is registered in the ownership of the |
| 181 | Sellers and is free from registered mortgages and encumbrances. |
| 182 | (v) A certified true copy of the Sellers' constitutive documents. |
| 183 | (vi) A current Certificate of Good Standing or Equivalent. |
| 184 | (vii) Three (3) Commercial Invoices setting out the main particulars of the Vessel and the Purchase Price of the |
| 185 | Vessel. |
| 186 | (viii) One (1) Commercial Invoice setting out the particulars and cost of bunkers and lubricants remaining on board |
| 187 | together with copies of the respective vouchers. |
| 188 | (ix) Certificate of Deletion or in lieu thereof, a Letter of Undertaking to provide the Certificate of Deletion and |
| 189 | closed CSR from the present Ship Registry within 30 days from the date of delivery. |
| 190 | (x) Letter from the Sellers confirming to certify to the best of their knowledge at the time of delivery that the Vessel |
| 191 | is free from all encumbrances, charters, mortgages, maritime liens, writs (save where security has been |
| 192 | furnished), port state and other administrative detentions, stowaways, trading commitments and any other debts |
| 193 | whatsoever., and undertaking to The Seller shall indemnify fully Buyers against all consequences |
| 194 | of any claims against the Buyers that may arise due to claims against the Vessel originating prior to the time of the Vessel's |
| 195 | delivery. to the-Buyers. |
| 196 | (xi) Three (3) Protocols of Delivery and Acceptance. (One each to be retained by the Buyers, the Sellers and the |
| 197 | closing Bank) |
| 198 | (xii) Class Maintained Certificate dated not more than 3 working days prior to the date of delivery. However, if the |
| 199 | Class Maintained Certificate is issued prior to the underwater inspection, then a copy of the Class report following |
| 200 | the divers' inspection also to be included. |
| 201 | (xiii) The Sellers' letter of confirmation that to the best of their knowledge the Vessel: |
| 202 | — has not sustained grounding or any other damage to underwater parts since underwater inspection (or |
| 203 | most recent dry-docking in case there is no divers' inspection). |
| 204 | — is not black listed by any government, state, country, political sub division and union. |
| 205 | (xiv) A copy of Sellers or Sellers manager's letter(s) to the respective authorities confirming cancellation of all |
| 206 | Inmarset and other communication contracts for the Vessel effective at the time of delivery. |
| 207 | (xv) Letter from the Sellers confirming to the best of Sellers knowledge and belief, wages of crew have been duly |
| 208 | paid when due and the Sellers crew do not have any outstanding claim against the Vessel at the time of delivery. |
| 209 | (c) At the time of delivery of the Vessel the Buyers shall furnish the Sellers with the following documents (unless |
| 210 | otherwise specified all to be originals in English or with official English translations): |
| 211 | (i) A certified true copy of the Buyers' constitutive documents, the Buyers in-house attorney-at-law to certify the |
| 212 | constitutive documents as a true copy. |
| 213 | (ii) A current Certificate of Good Standing or equivalent. |
| 214 | (iii) Resolution of the Board of Directors of the Buyers approving the purchase of the Vessel from the Sellers and |
| 215 | granting a power of attorney to authorized representatives of the Buyers. Such Resolution to be aposlilled. |
| 216 | notarially attested and then legalized by the appropriate authorities as required by the Sellers. The notarial |
| 217 | certificate is to confirm the identity of the signatory, his/her ability to bind the Buyers and the authenticity of the |
| 218 | signature. |
| 219 | (iv) Power of Attorney of the Buyers authorizing the Buyers' representatives or their nominees to do all such acts |
| 220 | and things which the attorney may consider necessary or desirable on behalf of the Buyers with respect to the |
| 221 | purchase and taking delivery of the Vessel but including specifically, acceptance of the Bill of Sale, signing of the |
| 222 | Protocol of Delivery and Acceptance, release/payment of Deposit and Balance Purchase Price or any other |
| 223 | amounts pursuant to the Agreement. Such Power of Attorney to be apostilled. notarially' attested-and-then-legalized |
| 224 | by the appropriate authorities as required by the Sellers. The notarial certificate is to confirm the identify of the |
| 225 | signatory, his/her ability to bind the Buyers and the authenticity of the signature. |
| 226 | (v) Certificate from the President of the Buyers confirming the names of the Board of Directors and shareholders |
| 227 | of the Buyers. |
| 228 | (vi) A declaration duly signed by two (2) Directors of the Buyers, which shall be apostilled, stating that: |
| 229 | a. The Buyers are not in violation of any anti-corrupt practices law or anti-terrorism law or any similar law relating |
| 230 | to money laundering, terrorism or terrorist financing; and |
| 231 | b. The Buyers will not fund all or part of any payment of the Purchase Price of the Vessel out of proceeds derived |
| 232 | from transactions that violate any prohibition under any anti-terrorism law or any similar law relating to money |
| 233 | laundering, terrorism or terrorist financing. |
| 234 | (vii) A corporate guarantee duly signed and delivered by Diana Containcrships Inc., the parent company of the |
| 235 | Buyers, to the Sellers in relation to the due performance of the Buyers of their obligations under this Agreement. |
| 236 | (d) As soon as possible but not later than 14 days prior to the Vessel's expected readiness for delivery, the Sellers and |
| 237 | the Buyers shall exchange by fax or email (copies to the extent possible) or drafts of the documents listed in sub |
| 238 | clauses (b) & (c) above for the other Party's review and comments. Copies of executed versions which are to be in |
| 239 | strict conformity with the drafts are also to be circulated latest 3 days prior to delivery. |
| 240 | At the time of delivery onboard the Vessel, the Sellers shall hand over to the Buyers all Classification Certificates, |
| 241 | Plans, Drawings, Record Books, Instruction Manuals (excluding ISM or other documents specific only to the |
| 242 | Sellers/their Managers). All other certificates and documents onboard and pertinent to the Vessel shall also be handed |
| 243 | over to the Buyers unless the Sellers are required to retain same, in which case photocopies are to be left onboard. All |
| 244 | other documents which may be in the Sellers'/Sellers manager's possession shall be promptly forwarded to the Buyers |
| 245 | after delivery. Forwarding charges, if any, to be for the Buyers' account. The Sellers may keep the Vessel's log books |
| 246 | but the Buyers to be so advised and have the right and opportunity to take copies of same. |
| 247 | 9. Encumbrances |
| 248 | a) It is a condition of this Agreement, any breach of which will entitle the Buyers to reject the Vessel, that the Vessel, |
| 249 | at the time of delivery, is free from all encumbrances, charters, mortgages, maritime liens, writs (save where security |
| 250 | has been furnished), port state and other administrative detentions, stowaways, trading commitments and any other |
| 251 | debts whatsoever. |
| 252 | b) The Sellers hereby undertake to indemnify fully the Buyers against all consequences of any claims against the |
| 253 | Buyers that may arise due to claims against the Vessel originating prior to the time of delivery of the Vessel to the |
| 254 | Buyers. |
| 255 | 10. Expenses |
| 256 | The Buyers shall bear all expenses including taxes and fees in connection with the purchase and registration of the |
| 257 | Vessel under the Buyers' flag, and similarly the Sellers shall bear all expenses in connection with closing of the |
| 258 | Sellers' Registry. |
| 259 | 11. Vessel Name |
| 260 | After the end of the time-charter party as per Clause 18 below, the The Buyers undertake, upon delivery of the Vessel, |
| 261 | shall to change the name of the Vessel and alter its funnel markings. |
| 262 | 12. Buyers Default |
| 263 | (a) In the event of failure by the Buyers to pay the agreed Deposit or to provide the bank-to-bank confirmation set out |
| 261 | in Clause 1 by the Value Date, the Sellers have the right to cancel this Agreement and they shall be entitled to claim |
| 265 | compensation for their losses and expenses (but with no automatic right to compensation in the amount of the Deposit). |
| 266 | (b) The failure to pay the agreed Purchase Price, and any additional amounts due under Clause 7 and Clause 2(b), |
| 267 | within the deadline provided by Clause 2(a) or, if applicable, Clause 2(b), shall vest the Sellers with the right to cancel |
| 268 | this Agreement and the Deposit with any interest earned thereon shall be forfeited to the Sellers (irrespective of the |
| 269 | amount of the Sellers' actual losses and expenses). Insofar as the Deposit does not cover the Seller's actual losses and |
| 270 | expenses, they shall be entitled to claim further compensation for those losses and expenses not so covered. |
| 271 | (c) The burden of proving any loss and expense shall be on the Sellers. |
| 272 | 13. Sellers Default |
| 273 | (a) In the event of failure on the part of the Sellers to give Notice of Actual Readiness in accordance with Clause 5(b) |
| 274 | latest within the Cancelling Date specified in Box 10 or, Notice of Actual Readiness for Delivery having been |
| 275 | tendered, failure on the part of the Sellers to provide the documents required by Clause 8 and/or to deliver the Vessel |
| 276 | as provided in Clause 9, the Buyers shall have the option to cancel this Agreement. |
| 277 | (b) If after Notice of Actual Readiness has been given but before the Buyers have taken delivery, the Vessel ceases to |
| 278 | be physically ready for delivery and is not made physically ready again in accordance with Clause 4 and a Notice of |
| 279 | Actual Readiness for Delivery re-tendered latest within the Cancelling Date in Box 10, the Buyers shall retain their |
| 280 | right to cancel. |
| 281 | (c) In the event the Buyers choose to cancel this Agreement the Deposit together with interest earned shall be released |
| 282 | to them immediately. |
| 283 | (d) In addition, save where the failure was caused by matters outside of the Sellers' reasonable control, the Buyers shall |
| 284 | be entitled to claim compensation for all their losses and expenses caused by failure of the Sellers to give Notice of |
| 285 | Actual Readiness latest within the Cancelling Date in Box 10 or, if Notice of Actual Readiness for Delivery has been |
| 286 | tendered, caused by failure by the Sellers to provide the documents required by Clause 8 and/or to deliver the Vessel as |
| 287 | provided in Clause 9. The burden of proving any loss and expense, additional or otherwise, shall be on the Buyers. The |
| 288 | burden of proving that the failure was caused by matters outside of the Sellers' reasonable control shall be on the |
| 289 | Sellers. |
| 290 | 14. Buyers Representatives |
| 291 | The Buyers arc entitled to place two representatives on board the Vessel after signing a letter of indemnity in Sellers |
| 292 | usual form, for the purpose of familiarization and as observers at their expense and risk after this Agreement has been |
| 293 | signed by both parties and the Deposit has been lodged. The Buyers' Representatives are to remain onboard until |
| 294 | delivery under the Master's control, but are to be allowed access to the Vessel's main spaces, machinery and |
| 295 | equipment without interference to the Vessel or her operations. |
| 296 | 15. Arbitration & Governing Law |
| 297 | i)* This Agreement and any guarantee contained herein shall be governed by and construed in accordance with |
| 298 | Singapore/English* Law and any and all disputes arising out of or in connection with this Agreement, including any |
| 299 | question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in |
| 300 | Singapore in accordance with the Arbitration Rules of the Singapore Chamber of Maritime Arbitration for the time |
| 301 | being in force at the commencement of the arbitration. |
| 302 | ii)* This Agreement and any guarantee contained herein shall be governed by and construed in accordance with |
| 303 | …………….………. Law and any and all disputes arising out of or in connection with this Agreement, including |
| 304 | any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in |
| 305 | ……………………… in accordance with the ………………………… Rules for the time being in force at the |
| 306 | commencement of the arbitration. |
| 307 | 15(i) and (ii) are alternatives; delete whichever is not applicable. In the absence of deletions, alternative 15 (i) and Singapore law |
| 308 | shall apply to the exclusion of any other law. In the absence of selection by the parties as to the applicable law, seat of arbitration |
| 309 | and arbitration rules under alternative 15 (ii); Singapore law shall apply to the exclusion of any other law, Singapore shall be the |
| 310 | seat of arbitration and the arbitration rules of the Singapore Chamber of Maritime Arbitration shall apply. |
| 311 | 16. Confidentiality Clause |
| 312 | All negotiations are to be kept strictly private and confidential between the parties involved, subject however to any |
| 313 | disclosure requirements of the U.S. SEC and NASDAQ. Both Parties agree in good faith to keep the terms and |
| 314 | conditions of this Agreement private and confidential except as required by law. In the event the sale or details thereof |
| 315 | become known or reported in the market neither the Sellers nor the Buyers shall have the right to withdraw from the |
| 316 | sale or fail to fulfill all their obligations under this Agreement. |
| 317 | 17. Entire Agreement Clause |
| 318 | This Agreement and any Addenda thereto contain the entire agreement between the Sellers and the Buyers relating to |
| 319 | the transaction which is the subject of this Agreement and all negotiations, understandings and agreements whether in |
| 320 | writing or otherwise between the Sellers and the Buyers are superseded and/or replaced by this Agreement. |
| 321 | 18. Time Charter |
| 322 | The Vessel to be chartered to APL (Bermuda) Ltd (or Guaranteed nominee or other entity of the NOL Group with |
| 323 | similar or better net worth than APL (Bermuda) Ltd, for a period of 24 months at a rate of USD 24.750 per day |
| 324 | including overtime with 45 days more or less in charterers option. Commencement of the time-charter party to |
| 325 | commence simultaneously upon delivery of the Vessel to the Buyers under this Agreement. |
| 326 | Further in Charterers option 12 option 12 months including overtime. |
| 327 | Rate for first option: USD 24.750 per day including overtime. |
| 328 | Rate for second option: USD 28.000 per day including overtime. |
| 329 | Period always with 45 days more or less whatever period finally performed. |
| 330 | Options always to be called latest close of business Singapore on anniversary date 20 and 32 months. |
