Contract
Exhibit 4.33
Norwegian Shipbrokers' Association's
Memorandum of Agreement for sale and purchase of ships. Adopted by BIMCO in 1956. Code-name SALEFORM 2012 Revised 1996, 1983 and 1986/8, 1993 and 2012. |
MEMORANDUM OF AGREEMENT
Dated: 16th May 2017
Contract No.: 17SCYL/45513MH
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UTIRIK SHIPPING COMPANY INC., Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH96960 (Name-ef-sellers) hereinafter called the "Sellers", have agreed to sell, and
TRAWIND (NINGBO) SHIPPING LOGISTIC CO., LTD., Xxxx 000, Xx.000 xxxxxxxx, Xx Xx Xxx Xxx, Xx Xxxxx Town, Jiang Bei District, Ningbo City, China (Name of buyers), hereinafter called the "Buyers",
Import Agent: China Communications Import & Export Co., Ltd with its registered office at 0/X, Xxxxx Merchants Tower, No.118 Xxxxxxx Xx, Chaoyang Dist. Beijing, P.R. China to act as the Buyers' Import Agent (hereinafter called the "Import Agent")
have agreed to buy:
Name of vessel: m/v DOUKATO
IMO Number: 9227285
Classification Society: Bureau Veritas
Class Notation: I+Hull+Mach unrestricted NAV+AUT-UMS, inwatersurvey
Year of Build: 2002____ Builder/Yard: Samsung Heavy Industries Co., Ltd, Koje, South Korea
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Flag: Xxxxxxxx Islands
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Place of Registration: Majuro_
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GT/NT: 40,085 / 24,319
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hereinafter called the "Vessel", on the following terms and conditions:
Definitions
"Banking Days" are days on which banks are open both in the country of the currency stipulated for the Purchase Price in Clause 1 (Purchase Price) and in the place of closing stipulated in Clause 8 (Documentation), China, Greece, United Kingdom and Germany. (add additional jurisdictions as appropriate).
"Buyers' Nominated Flag State" means P.R. China. (state flag state).
"Class" means the class notation referred to above.
"Classification Society" means the Society referred to above.
"Deposit" shall have the meaning given in Clause 2 (Deposit)
"Deposit Holder" means Ince & Co Singapore LLP (state name and location of Deposit Holder) or, if left blank, the
"In writing" or "written" means a letter handed over from the Sellers to the Buyers or vice verse, a registered letter, e-mail or telefax.
"Parties" means the Sellers and the Buyers.
"Purchase Price" means the price for the Vessel as stated in Clause 1 (Purchase Price).
"Sellers' Account" means Account No.:00-00000-000, IBAN: XX00 0000 0000 0000 0000 00, SWIFT: XXXXXXXX, CURRENCY: USD, CORRESPONDENT BANK: XX XXXXXX XXXXX BANK, NEW YORK, SWIFT- XXXXXX00 (state details of bank account) at the Sellers' Bank.
"Sellers' Bank" means BERENBERG, Xxxxx Xxxxxxxxxxxxx 00, 00000 Xxxxxxx, Xxxxxxx (state name of bank, branch and details) or, if left blank, the bank notified by the Sellers to the Buyers for receipt of the balance of the Purchase Price.
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1.
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Purchase Price
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The Purchase Price is US$ 6,150,000.- (United States Dollars Six Million One Hundred and Fifty Thousand)
Steamship Shipbroking Enterprises Inc. brokerage commission is covered on a yearly basis directly from the Sellers.
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2.
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Deposit
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As security for the correct fulfilment of this Agreement the Buyers shall lodge a deposit of 15 % (fifteen per cent)
Banking Days after the date that:
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(i)
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this Agreement has been signed by the Parties and exchanged
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(ii)
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the Deposit Holder has confirmed in writing to the Parties that the joint / escrow account has been
opened.
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The Deposit shall be released in accordance with joint written instructions of the Parties.
Interest, if any, shall be credited to the Buyers. Any fee charged for opening the joint account, holding and releasing the Deposit and closing fees charged by the Deposit Holder shall be borne equally by the Parties. The Parties shall provide to the Deposit Holder all necessary documentation to open and maintain the account without delay.
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3.
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Payment
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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):
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(i)
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the Deposit shall be released to the Sellers, and;
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(ii)
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the balance of the Purchase Price and all other sums payable on delivery by the Buyers to the Sellers under this Agreement shall be paid in full free of bank charges to the Sellers' Account via the Buyers' Import Agent by MT103/199, such funds to be held by Sellers' Bank in trust/suspense for the Buyers and only to credit them to Sellers' Account upon presentation of:
i) a Release Letter duly signed by the Buyers and the Sellers; and
ii) an original or scanned copy of the executed Protocol of Delivery and Acceptance by Sellers' and Buyers' authorized representatives.
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4.
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Inspection
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(a)* The Buyers appointed CCS surveyor who, on behalf of the Buyers, has inspected the Vessel at Singapore on 28th April, 2017 and approved the Vessel and waived her class records inspection, which are therefore accepted as they were at the time of the inspection. After the Deposit is lodged as per Clause 2 of this Agreement, the Buyers' surveyors have the right to inspect the Vessel at Singapore before her departure but the sale is outright and definite, subject only to the terms and conditions of this Agreement.
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5.
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Time and place of delivery and notices
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(a) The Vessel shall be delivered and taken over safely afloat at a safe and accessible berth or anchorage in the Sellers' option
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Notice of Readiness shall not be tendered before: 19th May 2017 to 16th June 2017
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(b) The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall provide the Buyers with
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When the Vessel is at the place of delivery and in every respect physically ready for delivery in accordance with
this Agreement, during the working time at the delivery place, the Sellers shall give the Buyers a written Notice of Readiness for delivery.
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(c) 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 proposing a new Cancelling Date. Upon receipt of such notification the Buyers shall have the option of either cancelling this Agreement in accordance with Clause 14 (Sellers' Default) within three (3) Banking 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 three (3) Banking 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 79.
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If this Agreement is maintained with the new Cancelling Date all other terms and conditions hereof including those contained in Clauses 5(b) and 5(d) shall remain unaltered and in full force and effect
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(de) Should the Vessel become an actual, constructive or compromised total loss before delivery the Deposit together with interest earned, if any, shall be released immediately to the Buyers whereafter this Agreement shall be null and void.
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6.
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Divers Inspection / Drydocking
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(a)*
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(i)
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The Vessel is to be delivered without drydocking, and the Buyers
inspection during her stay at Singapore by a diver approved by the Classification Society prior to the delivery of the
Vessel. Such option shall be declared latest ten (10)
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(ii)
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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 Class to impose a condition of class by way of imposing one or more Class condition(s)/recommendation(s), normal wear and tear excepted (the "Damage"), the Sellers will in their option and sole discretion either (i) repair the Vessel to the satisfaction of the Classification Society without condition or recommendation or (ii) deliver the Vessel with the Damage against a deduction from the Purchase Price in the amount of the estimated directs costs (of labour and materials unless the Classification Society does not require the Damage to be rectified before the Vessel's next scheduled drydocking survey) of carrying out the repairs to the satisfaction of the Classification Society without condition/ recommendation ('the Costs'), where after the Buyers shall have no further rights whatsoever in respect of the Damage and/or repairs. The Costs shall be the average of quotes for the cost obtained from two (2) reputable independent shipyards at or in the vicinity of the port of delivery, one (1) to be obtained by each of the Parties within two (2) Banking Days from the date of the imposition of the condition(s)/ recommendation(s), 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 estimation of the Costs. The Sellers may not tender Notice of Readiness prior to such estimate having been established. The Cancelling Date shall be extended by the additional time required to obtain the quotes for the Costs. If the Costs of the Damage as per above are estimated to be above the amount of US$ 100,000.-- (United States Dollars One Hundred Thousand) (the "Maximum Amount") then the Sellers shall have the option (but, for the avoidance of doubt, not the obligation) to cancel this Agreement. Should the Costs exceed the Maximum Amount and the Sellers inform the Buyers of their intention to cancel this Agreement then the Buyers shall have the right to accept the Maximum Amount as a lumpsum compensation to be deducted from the Purchase Price in full and final settlement of all their claims in connection with the Damage and take delivery of the Vessel as she is. Such option to be declared by the Buyers within two (2) Banking Days after receipt of Sellers notification that they intend to cancel the Agreement in accordance with this clause. In case this Agreement is cancelled in accordance with this clause then the Deposit together with interest, if' any, shall he released to the Buyers where after this Agreement shall become null and void without either Party having any claims against the other in relation to this Agreement. For the avoidance of doubt, any class
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condition(s)/recommendation(s) which were already imposed on the Vessel prior to inspection shall not be taken into consideration in view of this clause. The Sellers shall grant no further warranty and shall have no further liability with respect to the condition of the Vessel in excess of the stipulations of this clause.
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**Notes or 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.
7.
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Spares, bunkers and other items
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The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board.
Library and forms exclusively for use in the Sellers' Vvessel(s) and captain's, officers' and crew's personal belongings including the slop chest are excluded from the sale without compensation, as well as the following additional items: (include list)
1 PC Bridge
1 PC Master's office
1 PC Chief Engineer's office
1 SATLINK Business Network
Items on board which are on hire or owned by third parties, listed as follows, are excluded from the sale without compensation: (include list)
1. Gas bottles (Oxygen /Acetylene/Freon) from Drew Marine, total 7pcs empty
2. Gas bottles (Oxygen/Acetylene/Freon) from Drew Marine, total 3pcs full
The Buyers shall take over all remaining bunkers on board and unused unbroached lubricating and hydraulic oils and
greases in storage tanks and unopened sealed drums and pay either:
for the quantities taken over.
The quantities of bunkers and unused lubricating oils remaining on board at the time of delivery shall be established by joint survey by the Sellers and the Buyers' representatives on board the Vessel at least one (1) day prior to the expected date of delivery. Then an agreed allowance for consumption for the period between the joint survey and the time of physical delivery of the Vessel to be subtracted from the figures found during the joint survey. However, approximate bunker quantities on delivery to be declared by the Sellers to the Buyers latest jive (5) Banking Days prior to the expected date of delivery. For the Buyers import requirement, the quantities of bunkers shall be less than 10% (ten per cent) of the bunker tank capacity totally.
Payment under this Clause shall be made at the same time and place and in the same currency as the Purchase Price.
"inspection" in this Clause 7, shall mean the Buyers' inspection according to Clause 4(a). or 4(b) (Inspection), if applicable. If the Vessel is taken over without inspection, the date of this Agreement shall be the relevant date.
8.
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Documentation
The place of closing: in the Deposit Holder's office in Singapore. |
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9.
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Encumbrances
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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.
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Taxes, fees and expenses
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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. Local taxes, fees and tonnage dues at the place of delivery shall be for Buyers' account.
11.
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Condition on delivery
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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 to the Buyers and taken over substantially in the same condition as when inspected by CCS 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 present Class maintained and as per the attached Class Printout dated 28.04.2017.
Three (3) working days prior to the time of delivery the Sellers shall provide a Class Confirmation Certificate to the Buyers. The Vessel's International, National, Class and Trading Certificates valid at least at the time of delivery
"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.
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Name/markings
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Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel markings.
13.
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Buyers' default
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Should the Deposit not be lodged in accordance with Clause 2 (Deposit), the Sellers have the right to cancel this Agreement, and they shall be entitled to claim compensation for their losses and for all expenses incurred together with interest.
Should the Purchase Price not be paid in accordance with Clause 3 (Payment), the Sellers have the right to cancel this Agreement, in which case the Deposit together with interest earned, if any, 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.
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Sellers' default
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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. In the event that the Buyers elect to cancel this Agreement, the Deposit together with interest earned, if any, shall be released to them immediately.
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.
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Buyers' representatives
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After this Agreement has been signed by the Parties and the Deposit has been lodged, the Buyers have the right to place up to maximum two (2) representatives on board the Vessel at their sole risk and expense until the time of delivery.
These representatives are on board for the purpose of familiarisation and in the capacity of observers only, and always under Master's discretion, and they shall not interfere in any respect with the operation of the crew and/or of the Vessel. The Buyers and the Buyers' representatives shall sign the Sellers' P&I Club's standard letter of indemnity in the form of the Seller's P&I Club prior to their embarkation.
The Buyers shall pay to the Sellers at the time of delivery US$15.- (United States Dollars Fifteen) per day per person as meal charge. Other charge including communication, if any, shall be paid by the Buyers at the time of delivery.
The Sellers crew to demonstrate the normal operation of the Vessel to the Buyers crew at least two (2) hours after the Vessel's delivery.
16.
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Law and Arbitration
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(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 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 solerbitrator 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.
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Notices
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All notices to be provided under this Agreement shall be in writing.
Contact details for recipients of notices are as follows:
For the Buyers: TRAWIND (NINGBO) SHIPPING LOGISTIC CO., LTD.
c/o Dalian Trawing Shipping Co. Ltd.
FL4, No.l Times Plaza, Xx.00 Xxxxxx Xxxxxx, Xxxxxxxxx Xxxx., Xxxxxx, Xxxxx
Tel:x00 000 00000000 fax:x00 000 00000000
Email: xxxxxxxxxx00@x00.xxx
always with copy to: xxxxxxxx@xxxxxxx.xxx ; snp@,xxxxxx.xxx
For the Sellers: UTIRIK SHIPPING COMPANY INC.
c/o Steamship Shipbroking Enterprises Inc.
Xxxxxxx 0, 00000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxx
Tel: x00 000 0000 000 - Fax: x00 000 0000 000
e-mail: xxxx@xxxxx.xxx
always with copy to:
xxxxxxx@xxxxxxxxxxxx.xxx
xxxxxxxxxxx@xxxxxxxxxxxx.xxx
xxxxxxxxxxx@xxxxxxxxxxxx.xxx
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Entire Agreement
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The written terms of this Agreement comprise the entire agreement between the Buyers and the Sellers in relation to the sate 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. Delivery voyage
Further to Clauses 13 and 14 above (Buyers' default, Sellers' default) and in the event of the cancellation of this Agreement for whatsoever reason, any and all expenses incurred by Sellers for the delivery voyage of the Vessel from Singapore to Qinhuangdao area shall not be refundable to Buyers from the amount of the Deposit, from which they shall be deducted in the case that the Deposit is to be returned to Buyers pursuant to this Agreement and the total amount of the aforementioned expenses incurred by Sellers will be released separately to the Sellers' nominated bank account in full net of all bank charges upon receipt of the notice of cancellation of the Agreement by Sellers and Buyers.
20. Confidentiality
All negotiations are to be kept private and confidential between the parties involved, subject however to any disclosure requirement of the U.S. SEC and NASDAQ, Buyers' and Sellers' Bank or required by law. Should, however, details of the sale become known or reported on the market, neither the Buyers nor the Sellers shall have the right to withdraw from the sale or the right to fail to fulfil their obligations under this Agreement.
For and on behalf of Sellers
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For and of behalf of the Buyers
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/s/ Andreas Xxxxxxxx Xxxxxxxxxxxxx
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/s/ Liu Xing Hua
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Name:
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Andreas Xxxxxxxx Xxxxxxxxxxxxx
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Name:
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Liu Xing Hua
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Title:
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Director and Treasurer
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Title:
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Attorney-in-fact
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