Exhibit 4.12
MEMORANDUM OF AGREEMENT
Dated: 09/03/2006
Taygetus Shipping Company Limited, Liberia hereinafter called the Sellers, have
agreed to sell, and KOMARF HOPE 28 Shipping Company, Liberia hereinafter called
the Buyers, have agreed to buy
Name: M/T Timeless
Classification Society/Class: Det Norske Veritas
Built: 1991
By: Hyundai Heavy Industries Co. Ltd., Ulsan, Korea
Flag: Liberia
Place of registration: Monrovia, Liberia
Call Sign: ELNX9
Grt/Nrt: 79718 / 46569
Official Number: 9480
hereinafter called the Vessel, on the following terms and conditions:
Definition
"Banking days" are days on which banks are open both in the country of the
currency stipulated for the Purchase Price in Clause 1 and in the place of
closing stipulated in Clause 8.
"In writing" or "written" means a letter handed over from the Sellers to the
Buyers or vice versa, a registered letter, telex, telefax or other modern form
of written communication.
"Classification Society" or "Class" means the Society referred to in line 4.
1. Purchase price. (See also Clause 17)
USD 48,000,000.- cash (United States Dollars Forty Eight Million only).
2. Deposit.
As security for the correct fulfilment of this Agreement the Buyers shall pay a
deposit of 2,5% (two and a half per cent) of the Purchase Price within three (3)
banking days from the date of this Agreement signed by both parties by fax. This
deposit shall be placed with The Royal Bank of Scotland, Shipping Business
Centre, 5-10 Great Tower Street, London EC3P 3HX, Sort Code: 16-01-01,Swift:
RBOSGB2L, Account Key: TASHCO-USD1, lban: GB82 RBOS 1663 0000 3151 53
Beneficiary: Taygetus Shipping Company LW, Correspondent Bank: American Express
Bank Limited, New York Swift AEIBUS33XXX in the name of the Sellers.
3. Payment (Subject to Clause 17).
The said Purchase Price shall be paid in full free of bank charges to The Royal
Bank of Scotland, Shipping Business Centre, 5-10 Great Tower Street, London EC3P
3HX, Sort Code: 16-01-01, Swift: RBOSGB2L, Account Key: TASHCO-USD1, lban: GB82
RBOS 1663 00003151 53 Beneficiary: Taygetus Shipping Company Ltd, Correspondent
Bank: American Express Bank Limited, New York Swift AEIBUS33XXX on delivery of
vessel in accordance with clause 5.
4. Inspections.
a)* The Buyers have inspected and accepted the Vessel's classification records.
The Buyers have also inspected the Vessel at Quintero Chile within March,
2006 and have accepted the Vessel following this inspection and the sale is
outright and definite, subject only to the terms and conditions of this
Agreement.
b)* Paragaph deleted.
* 4a) and 4b) are alternatives; delete whichever is not applicable. In the
absence of deletions, alternative 4a) to apply.
5. Notice, time and place of delivery.
a) When the Vessel is at the place of delivery and in every respect physically
ready for delivery in accordance with this Agreement, the Sellers shall
give the Buyers a written Notice of Readiness for delivery on or before
March 15, 2006.
b) After the receipt of the notice of Readiness for Delivery. the Vessel shall
be delivered and taken over safely afloat at a safe and accessible berth or
anchorage or at high sea on March 15, 2006 or, if later, on such other date
as agreed between the Sellers and the Buyers that reasonably takes into
account the time needed for the BBC (as defined in Clause 17) and the
related financing transactions to take into effect (the procedure of which
shall be as provided for in Clause 5 of the BBC).
c) Expected time of delivery: Between 15th March 2006 and 30th March, 2006
Date of cancelling (see clauses 5 c), 6 b) (iii) and 14): 30th April, 2006
If the Sellers anticipate that, notwithstanding the exercise of due
diligence by them, the Vessel will not be ready for delivery by the
cancelling date they may notify the Buyers in writing stating the date when
they anticipate that the Vessel will be ready for delivery and propose a
new cancelling dale. Upon receipt of such notification the Buyers shall
have the option of either cancelling this Agreement in accordance with
Clause 14 within 2 running days of receipt of the notice or of accepting
the new date as the new cancelling date. If the Buyers have not declared
their option within 2 running days of receipt of the Sellers' notification
or if the Buyers accept the new date, the date proposed in the Sellers'
notification shall be deemed to be the new cancelling date and shall be
substituted for the cancelling date stipulated in line 61.
If this Agreement is maintained with the new cancelling date all other
terms and conditions hereof including those contained in Clauses 5 a) and 5
c) shall remain unaltered and in full force and effect. Cancellation or
failure to cancel shall be entirely without prejudice to any claim for
damages the Buyers may have under Clause 14 for the Vessel not being ready
by the original cancelling date.
d) Should the Vessel become an actual, constructive or compromised total loss
before delivery the deposit together with interest earned shall be released
immediately to the Buyers whereafter this Agreement shall be null and void.
6. No Drydocking/Divers Inspection Clause to apply.
a)** Paragraph deleted.
b)** Paragraph deleted.
c) Paragraph deleted.
7. Spares/bunkers, etc.
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 used or unused, whether on
board or not shall become the Buyers' property, but spares on order are to be
excluded. Forwarding charges, if any, shall be for the Sellers account. The
Sellers are not required to replace spare parts including spare tail-end
shaft(s) and spare propeller(s)/propeller blade(s) which are taken out of spare
and used as replacement prior to delivery, but the replaced items shall be the
property of the Buyers. The radio installation and navigational equipment shall
be included in the sale without extra payment if they are the property of the
Sellers. Unused stores and provisions shall be included in the sale and be taken
over by the Buyers without extra payment.
The Sellers have the right to take ashore crockery, plates, cutlery, linen and
other articles bearing the Seller's flag or name, provided they replace same
with similar unmarked items. Library, forms, etc., exclusively for use in the
Sellers' vessel(s),shall be excluded without compensation. Captain's Officers'
and Crew's personal belongings including the slop chest are to be excluded from
the sale, as well as the following additional items (including items on hire):
(See Clause 20)
Paragraph deleted.
18. Documentation. (See also Clause 19)
The place of closing: Athens, Greece
In exchange for payment of the Purchase Price the Sellers shall furnish the
Buyers with delivery documents, namely:
a) Legal Bill of Sale in a form recordable in ____________ (the country in
which the Buyers are to register the Vessel), warranting that the Vessel is
free from all encumbrances, mortgages and maritime liens or any other debts
or claims whatsoever, duly notarially attested and legalized by the consul
of such country or other competent authority.
b) Current Certificate of Ownership issued by the competent authorities of the
flag state of the Vessel.
c) Confirmation of Class issued within 72 hours prior to delivery.
d) Current Certificate issued by the competent authorities stating that the
Vessel is free from register encumbrances.
e) Recordation of Bill of Sale evidencing the sale of the Vessel to the Buyers
issued by the Liberia registry.
f) Any such additional documents as may reasonably be required by the
competent authorities for the purpose of registering the Vessel provided
the Buyers notify the Sellers of any such documents as soon as possible
after the date of this Agreement.
In addition to the documents above Buyers will furnish Sellers with the
following documents:
a) Minutes of the Board of Directors resolving the Purchase of the Vessel
and acceptance of delivery of the vessel
b) Power of Attorney as per the minutes above
c) Certificate of Incorporation dated not earlier than thirty (30) days
from delivery.
At the time of delivery the Buyers and Sellers 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.
At the time of delivery the Sellers shall hand to the Buyers the classification
certificate(s) as well as all plans etc., 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
to have the right to take copies. Other technical documentation which may be in
the Sellers' possession shall be promptly forwarded to the Buyers at Sellers'
expense, if they so request. The Sellers may keep the Vessel' s log books but
the Buyers to have the right to take copies of same.
9. Encumbrances
The Sellers warrant that the Vessel, at the time of delivery, is free from all
encumbrances, mortgages and maritime liens or any other debts whatsoever. 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,etc.
Any taxes, fees and expenses in connection with the purchase and registration
under the Buyers' flag shall be for the Buyers account, where as similar charges
in connection with the closing of the Sellers' register shall be for the
Sellers' account.
11. Condition on delivery
The Vessel 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
with her class maintained without condition/recommendation*, free of average
damage affecting the Vessel's class and with her classification certificates and
national certificates, as well as all other certificates the Vessel had at the
time of inspection, valid and unextended without condition/recommendation* by
Class or relevant authorities at the time of delivery. "Inspection" in this
Clause 11, shall mean the Buyer's inspection according to Clause 4 a) or 4 b),
if applicable, or the buyers inspection prior to the signing of this Agreement.
If the Vessel is taken over without inspection, the date of this agreement shall
he the relevant date.
* Notes, if any, in the surveyor's reports which are accepted by the
Classification Society without condition/recommendation are not to be taken
account.
12. Name / Markings
Paragraph deleted.
13. Buyers' default
This clause shall apply only in the event that the default in this clause is
attributable to the Buyers' gross negligence or wilful misconduct.
Should the deposit not be paid in accordance with Clause 2, the Sellers have the
right to cancel this Agreement, and then shall be entitled to claim compensation
for their losses and for all expenses incurred together with interest.
Should the Purchase Price not he paid in accordance with Clause 3, the Sellers
have the right to cancel the Agreement, in which case the deposit together with
interest earned shall be released to the Sellers If the deposit does not cover
their loss , the Sellers shall be entitled to claim further compensation for
their losses and for all expenses incurred together with interest.
14. Sellers' default
This clause shall apply only in the event that the default in this clause is
attributable to the Sellers' gross negligence or wilful misconduct.
Should the Sellers fail to give Notice of Readiness in accordance with Clause 5
a) or fail to be ready to validly complete a legal transfer by the date
stipulated in line 61 the Buyers shall have the option of cancelling this
Agreement provided always that the Sellers shall be granted a maximum of 3
banking days after Notice of Readiness has been given to make arrangements for
the documentation set out in Clause 6. 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 in every
respect by the date stipulated in line 61 and new Notice of Readiness given the
Buyers shall retain their option to cancel. In the event that the Buyers elect
to cancel this Agreement the deposit together with interest earned shall be
released to them immediately.
Should the Sellers fail to give Notice of Readiness by the date stipulated in
line 61 or fail to be ready to validly complete a legal transfer as aforesaid
they shalt 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
Paragraph deleted.
16. Arbitration
a)* This Agreement shall be governed by and construed in accordance with
English law and any dispute arising out of this Agreement shall be referred
to arbitration in London in accordance with the Arbitration Acts 1950 and
1979 or any statutory modification or re-enactment thereof for the time
being in force, one arbitrator being appointed by each party. On the
receipt by one party of the nomination in writing of the other party' s
arbitrator, that party shall appoint their arbitrator within fourteen days,
failing which the decision of the single arbitrator appointed shall apply.
If Iwo arbitrators properly appointed shall not agree they shall appoint an
umpire whose decision shall be final.
b)* Paragraph deleted
c)* Paragraph deleted
17. Seller's Credit.
Notwithstanding anything herein to the contrary (including, Clause 3), Sellers's
credit (in the amount of 10% of the Purchase Price, "Sellers's Credit) shall be
made in accordance with, and as more fully described in, the bareboat
charterparty entered into on the same date herewith by and between the Sellers
as charterers and the Buyers as owners ("BBC").
18. Bareboat Charterparty
Under the BBC, the Vessel shall be chartered to the Sellers for such period and
on such terms and conditions as more particularly described therein. Delivery of
the Vessel to the Buyers under this Agreement shall be subject to the
simultaneous delivery to and acceptance by the Sellers (as Charterers) under the
BBC.
19. Paragraph deleted.
20. Remaining Stores, Stores, etc.
Remaining stores, provisions, bunkers and lubricating oils onboard the Vessel at
the time of delivery hereunder shall remain the property of the Sellers.
21. The Sellers shall comply with the Buyers' requests which may be made for
the Buyers' compliance with the loan and guarantee facility agreement
entered into on, or to be entered into around, the even date herewith by
and among, inter alios, the Buyers as borrower, Fortis Bank (Nederland) W.
V. as agent and arranger and the lenders specified therein.
For and on behalf of For and on behalf of
Taygetus Shipping Company Ltd KOMARF HOPE 28 Shipping Company
/s/ Stamatis Tsantanis /s/ K. H. Kwan
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