Exhibit 4.63
Private & Confidential
DATED 16 JUNE 2006
SUPPLEMENTAL AGREEMENT
relating to a memorandum of agreement dated 14 March 2006
in relation to m.v. Vanguard
Contents
Clause Page
1 Definitions.........................................................2
2 Consent of Original Owner...........................................3
3 Assumption of liability and obligations.............................3
4 Amendments to Original MOA..........................................3
5 Conditions..........................................................4
6 Counterparts........................................................4
7 Applicable law......................................................5
THIS SUPPLEMENTAL AGREEMENT is dated 16 June 2006 and made BETWEEN:
(1) Pageon Shipping Company Limited, a company incorporated in the Republic
of Cyprus with its registered office at 284 Arch. Makarios Ill Avenue,
Limassol, Cyprus (the "Original Owner");
(2) Comoros Shipping Limited, a company incorporated in the Republic of
Cyprus with its registered office at 41 Themistokli Dervi, Hawai,
Nicosia Tower, 8th floor, Flat/office 806-807, P.C. 1066, Lefkosia,
Cyprus (the "Current Owner"); and
(3) Isomar Marine Company Limited, a limited liability company incorporated
in the Republic of Cyprus with its registered office at 1 Costakis
Pantelides Avenue, Kolokasides Building, 1010 Nicosia, Cyprus, Cyprus
(the "New Owner").
WHEREAS:
(A) this Agreement is supplemental to a "NSF93" memorandum of agreement
dated 14 March 2006 (the "Original MOA") made between the Original Owner
(therein referred to as the "Sellers") and the Current Owner (therein
referred to as the "Buyers") relating to the sale by the Original Owner
and the purchase by the Current Owner of m.v. Vanguard (the "Ship"),
currently registered in the name of the Current Owner under Cyprus flag
with IMO number 8913605;
(B) the Current Owner has taken delivery of the Ship pursuant to the terms
of the Original MOA and has paid to the Original Owner the Cash Part of
the Purchase Price (as such term is defined in clause 17 of the Original
MOA);
(C) pursuant to clause 17 of the Original MOA it has been agreed between the
Original Owner and the Current Owner that part of the Purchase Price (as
defined therein) amounting to US$2,610,000 (the "Sellers' Credit") will
not be paid by the Current Owner to the Original Owner on the delivery
and acceptance of the Ship under the Original MOA and that payment the
Sellers' Credit shall be made in the manner and at the time provided in
clause 17 of the Original MOA;
(D) the Original Owner and the Current Owner have entered into a "Barecon
2001" bareboat charter dated 14 March 2006 (the "Charter") whereby the
Current Owner has let and the Original Owner has taken on demise charter
the Ship on the terms contained therein;
(E) the Current Owner wishes to transfer the ownership of the Ship to
Oceanmaximum Shipping Limited of Nicosia, Cyprus (the "Intermediate
Owner") pursuant to a memorandum of agreement dated 14 March 2006 and
made between the Current Owner and Oceanbulk Maritime S.A. who at a
later date nominated as buyers the Intermediate Owner (the "First MOA")
who in turn wishes to transfer the ownership of the Ship to the New
Owner pursuant to a memorandum of agreement dated 14 March 2006 and made
between the Intermediate Owner and the New Owner;
(F) the Current Owner and the New Owner wish to novate the Charter in favour
of the New Owner to enable the New Owner to charter the Ship to the
Original Owner following the transfer of the Ship to the New Owner; and
(G) this Agreement sets out the consent of the Original Owner, at the
request of the Current Owner, to (i) the transfer of ownership of the
Ship from the Current Owner to the Intermediate Owner and from the
Intermediate Owner to the New Owner and (ii) the said novation of the
Charter.
NOW IT IS HEREBY AGREED as follows:
1 Definitions
1.1 Defined expressions
Words and expressions defined in the Original MOA shall unless the
context otherwise requires or unless otherwise defined herein, have the
same meanings when used in this Agreement.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"Effective Date" means the date on which the Ship is delivered and
accepted by the Intermediate Owner under the First MOA;
"Existing Mortgage" means the third priority statutory mortgage dated 17
March 2006 executed by the Current Owner in favour of the Original Owner
in respect of the Ship; and
"Existing Register" means the register of ships of the Republic of
Cyprus.
1.3 Original MOA
References in the Original MOA to "this Agreement" shall, with effect
from the Effective Date and unless the context otherwise requires, be
references to the Original MOA as amended by this Agreement and words
such as "herein", "hereof", "hereunder", "hereafter", "hereby" and
"hereto", where they appear in the Original MOA, shall be construed
accordingly.
1.4 Headings
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.5 Construction of certain terms
In this Agreement, unless the context otherwise requires:
1.5.1 references to clauses and schedules are to be construed as
references to clauses of, and schedules to, this Agreement and
references to this Agreement includes its schedules;
1.5.2 references to (or to any specified provision of) this Agreement
or any other document shall be construed as references to this
Agreement, that provision or that document as in force for the
time being and as amended in accordance with terms thereof, or,
as the case may be, with the agreement of the relevant parties;
1.5.3 words importing the plural shall include the singular and vice
versa;
1.5.4 references to a person shall be construed as references to an
individual, firm, company, corporation, unincorporated body of
persons or any government entity; and
1.5.5 references to a "guarantee" include references to an indemnity
or other assurance against financial loss including, without
limitation, an obligation to purchase assets or services as a
consequence of a default by any other person to pay any
Indebtedness and "guaranteed" shall be construed accordingly.
2 Consent of Original Owner
2.1 Consent
The Original Owner agrees with the Current Owner and the New Owner that
as of the date of this Agreement the Original Owner consents to:
2.1.1 the transfer of the Ship by the Current Owner to the
Intermediate Owner and by the Intermediate Owner to the New
Owner; and
2.1.2 the novation of the Charter by the Current Owner in favour of
the New Owner.
2.2 Discharge of Mortgage
The Original Owner hereby agrees that it shall, simultaneously with the
delivery of the Vessel to the Intermediate Owner under the First MOA,
execute and thereafter register at the Existing Register, a deed of
discharge in respect of the Existing Mortgage.
3 Assumption of liability and obligations
3.1 Substitution
It is hereby agreed that, as and with effect from the Effective Date,
the New Owner shall be, and is hereby made, a party to the Original MOA
in respect of the provisions of clause 17 of the MOA and in substitution
for the Current Owner as regards the provisions of clause 17 of the
Original MOA and the Original MOA shall henceforth be construed and
treated in all respect as if the New Owner was named in clause 17
instead of the Current Owner from the time the Original MOA was executed
by the Original Owner and the Current Owner.
3.2 Assumption of liability
The New Owner hereby agrees with the Original Owner that, as and with
effect from the Effective Date, it shall be indebted to the Original
Owner for the full amount of the Sellers' Credit and all other sums
which may be or become due to the Original Owner pursuant to clause 17
of the Original MOA and the New Owner further agrees that it shall duly
and punctually perform all the liabilities and obligations whatsoever
from time to time to be performed or discharged by the Original Owner
under clause 17 of the Original MOA and shall be bound by the terms of
the Original MOA as if the New Owner had at all times been named therein
as the Buyer.
3.3 Release
The Original Owner hereby agrees that, as and with effect from the
Effective Date, it shall release and discharge the Current Owner from
all liabilities, obligations, claims and demands whatsoever touching or
concerning clause 17 of the Original MOA and in respect of anything done
or omitted to be done under or in connection therewith but without
prejudice to the rights of the Original Owner and the New Owner against
each other in respect of any such liabilities, obligations, claims and
demands.
4 Amendments to Original MOA
4.1 Amendments
Clause 17 of the Original MOA shall, with effect on and from the
Effective Date, be (and it is hereby) deleted and the following new
clause inserted in its place (and the Original MOA (as so amended) will
continue to be binding upon the Original Owner, the Current Owner and
the New Owner upon such terms as so amended):
"a) At the time stipulated in Clause 3, the Buyers shall pay to the
Sellers part of the Purchase Price amounting to United States Dollars
Twenty-three million four hundred and ninety thousand (US$23,490,000)
(the "Cash Part of the Purchase Price") while the balance amounting to
United States Dollars Two million six hundred and ten thousand
(US$2,610,000) shall be credited (the "Sellers' Credit") and shall be
payable by isomar Marine Company Limited of 1 Costakis Pantelides
Avenue, Kolokasides Building, 1010 Nicosia, Cyprus (the "New Buyers") to
the Sellers in accordance with the terms of this Clause 17.
b) Subject to the provisions of Clause 17(c) hereinbelow, the Sellers'
Credit shall be payable by the New Buyers to the Sellers in one
instalment, free of interest, immediately upon either expiration of the
"Barecon 2001" form demise charter dated 14 March 2006 made between the
Sellers and the Buyers (the "Original Charter") as novated in favour of
the New Buyers and amended pursuant to a novation agreement dated 16
June 2006 made between the Sellers, the Buyers and the New Buyers (the
"Novation Agreement" and together with the Original Charter the
"Bareboat Charter") by effluxion of time or the sale of the Vessel to
another party (the "buying party") as described in Clause 22(b) of the
Bareboat Charter provided however that such sale is on terms that the
buying party shall pay to the New Buyers the relevant acquisition price
in cash and in full at the time of delivery and acceptance of the Vessel
by the buying party. IT IS HEREBY FURTHER AGREED THAT in the event that
the New Buyers sell the Vessel on terms providing that the buying party
shall pay for the acquisition of the Vessel by, inter alia, agreeing to
take over the New Buyers' obligation under this Clause 17 to repay the
Sellers' Credit to the Sellers, then (1) the Seller's Credit shall not
be repayable upon such sale being agreed or the relevant delivery and
acceptance of the Vessel thereunder taking place (since the sale
consideration is not payable in cash and in full on delivery and
acceptance of the Vessel) and (2) the Sellers shall execute any such
document and take any such action as the New Buyers may consider
necessary or desirable for the buying party to (i) take the place of the
New Buyers under this Clause 17 and under the Bareboat Charter and 00
receive the benefit of any of the securities provided under the Bareboat
Charter and, in particular but without limitation to the foregoing,
clauses 32Aa, 32Ab and 32C thereof.
c) In the event that the Bareboat Charter be terminated because of any
of the reasons provided in Clause 28(a) of the Bareboat Charter and/or
any other reason attributable to the Sellers as charterers under the
Bareboat Charter, then upon such termination taking place, the Purchase
Price shall be automatically reduced by an amount (such amount referred
to as the "Purchase Price Reduction Amount") which is equal to the
lesser of (i) the Seller's Credit and (U) the total amount of hire that
would have been paid to the New Buyers under the terms of the Bareboat
Charter had the Bareboat Charter continued uninterrupted for its full
duration up to 14 March 2011 and such reduction shall have as a result
the reduction of the Sellers' Credit by an amount equal to the Purchase
Price Reduction Amount.
As security for the payment of the Sellers' Credit, as hereinabove, the
New Buyers shall provide the Sellers with a second priority statutory
Mortgage over the Vessel, being subordinate to a first priority
statutory Mortgage over the Vessel in favour of Fortis Bank NV/SA, as
more particularly described in the Bareboat Charter.".
4.2 Continued force and effect
Save as clauses 16 and 17 have been amended by this Agreement, no other
provision of the Original MOA shall be amended by this Agreement and the
Original MOA and this Agreement shall be read and construed as one
instrument.
5 Conditions
The consent of the Original Owner referred to in clause 2 shall be
subject to the conditions precedent contained in schedule 1 being
satisfied.
6 Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original but all counterparts shall
together constitute one and the same instrument.
7 Applicable law
7.1 Law
This Agreement is governed by, and shall be construed in accordance
with, English law.
7.2 Arbitration
The provisions of clause 16 of the Original Agreement shall be deemed
incorporated in this Agreement and the terms of the said clause shall
apply herein mutatis mutandis, provided however that if each party to
this Agreement appoints its own arbitrator it will not be required for
an umpire to be appointed and any decision to be taken in relation to
any such arbitration shall be taken by the panel of the three appointed
arbitrators.
IN WITNESS whereof the parties to this Agreement have caused this
Agreement to be duly executed as a deed on the date first above written.
SIGNED, SEALED and DELIVERED as a
DEED by PAGEON SHIPPING COMPANY LIMITED
by E. Alexandropolou
its duly authorised attorney-in-fact /s/ E. Alexandropolu
pursuant to a power of attorney dated 13 June 2006 ------------------------
in the presence of Attorney-in-fact
/s/ Angela Makri
Norton Rose
Piraeu
SIGNED, SEALED and DELIVERED as a
DEED by ISOMAR MARINE COMPANY LIMITED
by M. Gatto
its duly authorised attorney-in-fact /s/ M. Gatto
pursuant to a power of attorney dated 15 June 2006 ------------------------
in the presence of Attorney-in-fact
/s/ Angela Makri
Norton Rose
Piraeu
SIGNED, SEALED and DELIVERED as a
DEED by COMOROS SHIPPING LIMITED
by A. Tatagia
its duly authorised attorney-in-fact /s/ A. Tatagia
pursuant to a power of attorney dated 14 June 2006 ------------------------
in the presence of Attorney-in-fact
/s/ Angela Makri
Norton Rose
Piraeus