Contract
Exhibit 4.5
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MEMORANDUM OF AGREEMENT |
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Norwegian Shipbrokers’ Association’s Memo-randum of Agreement for sale and purchase of ships. Adopted by The Baltic and International Maritime Council (BIMCO) in 1956. |
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Code-name |
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Revised 1966, 1983 and 1986/87. |
Pan Shipping L.P., C/O Wallbrook Trustees (IOM) Limited,
Grosvenor House, 00/00 Xxxxx Xxxxxx,
Xxxxxxx, Xxxx xx Xxx, XX00 0XX
hereinafter called the Sellers, have agreed to sell, and
Britannia Xxxx Xxx,
Xxxxxx, Xxxxxx Xxxxxxx or their guaranteed nominee
hereinafter called the Buyers, have agreed to buy
Name: M/V “FOREMOST”
Classification Society/Class: American Bureau of Shipping
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Built: November 1998 |
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By: Eisa Estaleiro Ilha S.A., BrasiI |
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Flag: Panama |
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Place of Registration: Panama |
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Call Sign: 3FWF8 |
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Grt/Nrt: 37,978//23,259 |
Register IMO Number: 9057458
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 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 US$ 28,500,000.- (United States Dollars Twenty Eight Million Five Hundred Thousand) less 4.73% commission deductable from the Purchase Price and payable by the Buyers.
2. Deposit
As security for the correct fulfilment of this
Agreement the Buyers shall pay a deposit of 10 5% (ten,
five per cent) of the Purchase Price within Three (3) London /New York banking days from the date a faxed copy of this Agreement is signed by Buyers. This deposit shall be placed with Sellers’ nominated bank in London
being Jyske Bank A/S, London Branch and held by them in a joint interest bearing account for the Sellers and the Buyers,
to be released in accordance with joint written instructions of the Sellers and
the Buyers in exchange
for the transfer of title/closing documentation. Interest, if any, to be credited to the Buyers,
Any fee charged for holding the said deposit shall be borne equally by the
Sellers and the Buyers. If
the Vessel under the terms and condition of this Agreement is not delivered
within and expiry of Three (3) months of signing this agreement, the Buyer
shall increase the balance deposit up to 7.5% (seven and a half percent). The
deposit shall be increased to 10% (ten percent) when Charterers (Deiulemor)
provide Sellers with Twenty (20) days approximate notice of redelivery
notwithstanding when this happens.
3. Payment
The said Purchase Price less the 4.73% commission shall be paid in full free of bank charges to Sellers’ nominated bank in London on delivery of the Vessel in exchange for the transfer of title/closing documentation, but not later than 3 banking days after the Vessel is in every respect
physically ready for delivery in accordance with the terms and conditions of this Agreement and Notice of Readiness has been given in accordance with Clause 5.
4. Inspections
a)* The
Buyers have waived their
right to inspect inspected
and accepted the Vessel’s classification records. The Buyers have also
inspected the Vessel at/in Kaokslung,
Taiwan on 23rd/24th July 2006 and have accepted the Vessel following
this inspection, including
her speed performances, and
the sale is outright and definite, subject only to the terms and conditions of
this Agreement.
b)* The Buyers shall have the right to inspect the Vessel’s classification
records and declare whether same are accepted or not within
The Sellers shall provide for inspection of the Vessel
at/in.
The Buyers shall
undertake the inspection without undue delay to the Vessel Should the Buyers
cause undue delay they shall compensate the Sellers for the losses thereby
incurred. The Buyers shall inspect the Vessel without opening up and without
cost to the Sellers. During the inspection, the Vessel’s dock and engine log
books shall be made available for examination by the Buyers. If the Vessel is
accepted after such inspection, the sale shall become outright and definite,
subject only to the terms and conditions of the Agreement, provided the Sellers
receive written notice of acceptance from the Buyers within 72 hours after
completion of such inspection.
Should notice of
acceptance of the Vessel’s classification records and of the Vessel not be received
by the Sellers as aforesaid, the deposit together with interest earned shall be
released immediately to the Buyers, whereafter this Agreement shall be null and
void.
* 4 a) and 4b) are alternatives; delete whichever is
not applicable. In the absence of deletions, alternative 4a) to apply.
5. Notices, time and place of delivery
a) The
Sellers shall keep the Buyers well informed of the position of the Vessel and subsequent changes thereto known to the Sellers’s ltinerary and shall provide
the Buyers with 20, 15, 10, 5 and 2 days notice of approximate date of
readiness for the estimated time of arrival at the intended place
of drydocking/underwater – inspection/delivery. If however, approximate redelivery notice is received by Sellers from
Charterers (Deiulemor) earlier than Twenty (20) days, then Sellers to advise
the Buyers of such notice accordingly. 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.
b) The
Vessel shall be delivered charterfree
and taken over with clean swept holds,
safety afloat at a safe and always accessible berth, or safe anchorage, at/in a
place mutually agreeable
between Sellers and Buyers,
In
the Sellers’ option.
Expected time of delivery: between 22nd October 2006 and 22nd February 2007
Data of cancelling (see Clauses 5 c), 6 b) (iii) and 14): 23rd February 2007 in Buyers’ option.
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 propose a new cancelling data. Upon receipt of such notification the Buyers shall have the option of either cancelling this Agreement in accordance with Clause 14 within 7 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 7 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. Drydocking/Divers Inspection (see clause 17)
a)** The Sellers shall place the Vessel in
drydock at the port of delivery for inspection by the Classification Society of
the Vessel’s underwater parts below the deepest load line, the extent of the
inspection being in accordance with the Classification Society’s rules. 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, such
defects shall be made good at the Sellers’ expense to the satisfaction of the
Classification Society without condition/recommendation*.
b)** (i) The Vessel is to be delivered without
drydocking However, the Buyers shall have the right at their expense to arrange
for an underwater inspection by a diver approved by the Classification Society
prior to the delivery of the Vessel. The
Sellers shall at their cost make the Vessel available for such inspection. The
extent of the inspection and the conditions under which it is performed shall
be to the satisfaction of the Classification Society. If the conditions at the
port of delivery are unsuitable for such inspection, the Sellers shall make the Vessel available at a suitable
alternative place near to the delivery port.
(ii) 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, then unless repairs can be
carried out afloat to the satisfaction of the Classification Society, the
Sellers shall arrange for the Vessel to be drydocked at their expense for
inspection by the Classification Society of the Vessel’s underwater parts below
the deepest load line, the extent of the inspection being in accordance with
the Classification Society’s rules. 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, such defects shall be made good
by the Sellers at their expense to the satisfaction of the Classification
Society without condition/recommendation*. In such event the Sellers are to pay
also for the cost of the underwater inspection and the Classification Society’s
attendance.
(iii) If the Vessel is to be drydocked pursuant to
Clause 6 b) (ii) and no suitable dry docking facilities are available at the
port of delivery, the Sellers shall take the Vessel to a port where suitable
drydocking facilities are available, whether within or outside the delivery
range as per Clause 5 b). Once drydocking has taken place the Sellers shall
deliver the Vessel at a port within the delivery range as per Clause 5 b) which
shall, for the purpose of this Clause, become the new port of delivery. In such
event the cancelling date provided for in Clause 5 b) shall be extended by the
additional time required for the drydocking and extra steaming, but limited to
a maximum of 14 running days.
c) If the Vessel is drydocked
pursuant to Clause 6 a) or 6 b) above
(i) the Classification Society may require survey of
the tailshaft system, the extent of the survey being to the satisfaction of the
Classification surveyor. If such survey is not required by the Classification
Society, the Buyers shall have the right to require the tailshaft to be drawn
and surveyed by the Classification Society, the extent of the survey being in
accordance with the Classification Society’s rules for tailshaft survey and
consistent with the current stage of the Vessel’s survey cycle. The Buyers
shall declare whether they require the tailshaft to be drawn and surveyed not
later than by the completion of the inspection by the Classification Society.
The drawing and refitting of the tailshaft shall be arranged by the Sellers.
Should any parts of the tailshaft system be condemned or found defective so as
to affect the Vessel’s class, those parts shall be renewed or made good at the
Sellers’ expense to the satisfaction of the Classification Society without
condition/recommendation*.
(ii) the expenses relating to the survey of the
tailshaft system shall be borne by the Buyers unless the Classification Society
requires such survey to be carried out, in which case the Sellers shall pay
these expenses. The Sellers shall also pay the expenses if the Buyers require
the survey and parts of the system are condemned or found defective or broken
so as to affect the Vessel’s class*.
(iii) the expenses in connection with putting the
Vessel in and taking her out of drydock, including the drydock dues and the
Classification Society’s fees shall be paid by the Sellers if the
Classification Society issues any condition/recommendation* as a result of the
survey or if it requires survey of the tailshaft system. In all other cases the
Buyers shall pay the aforesaid expenses, dues and fees.
(iv) the Buyers’ representative shall have the right
to be present in the drydock, but without interfering with the work or decisions
of the Classification surveyor.
(v) the Buyers shall have the right to have the
underwater parts of the Vessel cleaned and painted at their risk and expense
without interfering with the Sellers’ or the Classification surveyor’s work, if
any, and without affecting the Vessel’s timely delivery. If, however, the
Buyers’ work in drydock is still in progress when the Sellers have completed
the work which the Sellers are required to do, the additional docking time
needed to complete the Buyers’ work shall be for the Buyers’ risk and expense.
In the event that the Buyers’ work requires such additional time, the Sellers
may upon completion of the Sellers’ work tender Notice of Readiness for
delivery whilst the Vessel is still in drydock and the Buyers shall be obliged
to take delivery in accordance with Clause 3, whether the Vessel is in drydock
or not and irrespective of Clause 5 b).
* Notes, if any, in the
surveyor’s report which are accepted by the Classification Society without
condition/recommendation are not to be taken into account.
** 6 a) and 6 b) are alternatives; delete whichever is not applicable. In
the absence of deletions, alternative 6 a) to apply.
7. Spares/bunkers, etc.
The Sellers shall deliver the Vessel to the Buyers
with everything belonging to her on board, and on shore and
on order. All spare parts and
spare equipment which shall be at least to
the minimum requirements of the classification society and including other
spare parts on board the Vessel at Buyers’ inspection, Including
spare tail and shaft/(s) and/or spare propellers(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 Buyers’ 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 All
wireless and navigational aids equipment which were
onboard the Vessel at the time of inspection except equipment hired or owned by
the charterers and the technical managers shall be included in the
sale without extra payment if they are the property of the Sellers. All Unused broached / unbroached 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 Sellers’ 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);
· Unliors Bottles
· Videotel and Walport training videos
· ECDIS software
· TESMA SQEMS (electronic & hard copy)
· SEP manual
· (SOPEP) ship security plan and TESMA licensed software
The Buyers shall take
over the remaining bunkers and unused lubricating oils in storage tanks and sealed
umbroached drums, greases and hydraulics and pay the current Sellers’ net
cost (purchase) market price (excluding barging expenses). All prices to be evidenced
by original invoices, at
the port and date of delivery of the Vessel.
Payment under this Clause shall be made at the same time and place and in the same currency as the Purchase Price.
8. Documentation (see also clause 18)
The place of closing: London. The cost of meeting room for closing including communication and any incidental costs to be borne equally by Seller and Buyers.
In exchange for payment of the Purchase Price the Sellers shall furnish
the Buyers with delivery documents, namely:
a) Legal Xxxx 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 registered
encumbrances.
e) Certificate of Deletion of
the Vessel from the Vessel’s registry or other official evidence of deletion
appropriate to the Vessel’s registry at the time of delivery, or, in the event
that the registry does not as a matter practice issue such documentation
immediately, a written undertaking by the Sellers to effect deletion from the
Vessel’s registry forthwith and furnish a Certificate or other official
evidence of deletion to the Buyers promptly and latest within 4 (four) weeks
after the Purchase Price has been paid and the Vessel has been delivered.
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.
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/manuals/drawings/charts and instruction books etc., which are on board the Vessel and in Sellers’ possession for the main engine / all auxiliaries / deck machinery/ radio and navigational equipment. Any such items held in Owners office to be released to the Buyers at the time of delivery.
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 their 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
charters, encumbrances, mortgages, and maritime liens, arrests, detentions, taxes or any other
debts or claims whatsoever and free of stowaways. 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
connected with the closing of the Sellers’ register, Sellers’ crew repatriation
and all port charges on arrival and until delivery of the Vessel shall be for
the Sellers’ account. Any taxes, fees and expenses in
connection with the purchase and registration under the Buyers’ flag shall be
for the Buyers’ account including all port
charges following delivery., whereas similar charges in
connection with the closing of the Sellers’ register shall be for the Sellers’
account.
11. Condition on delivery (see also Clauses 17)
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 and taken over in substantially the same condition as when inspected as
she was at the time of inspection, fair wear and tear excepted.
However, the Vessel shall be delivered with her present class
maintained free of without
conditional recommendation*, free of average damage affecting the Vessel’s
class and with all continuous survey cycles
completely upto date with no outstanding items, and with her. All class
and trading classification certificates and national certificates, as required under present flag to be as
well as all other certificates the Vessel had at the time of inspection, clean and valid for a minimum of Three (3) months and
from the date of unextended without condition/recommendation* by
Class or the relevant authorities at the time of delivery without extensions or notation. At the time of delivery the
Sellers to provide a certificate from the Vessel’s class confirming the present
class is maintained without recommendations or notations.
“Inspection” in this Clause 11, shall mean the Buyers’ 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 be the relevant date.
* Notes, 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. Name/markings
Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel markings.
13. Buyers’ default
Should the deposit not be paid in accordance with Clause 2, 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, 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
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 8. 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 any accrued interest
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 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. Buyers’ representatives
After this Agreement has been signed by both parties via fax and the initial 5% (five per cent) deposit has been lodged, the Buyers have
the right to place two representatives on board the Vessel at their sole risk
and expense upto the time and place of
delivery, upon arrival at on or about
These representatives are on board for the purpose of familiarisation and in the capacity of observers only, and they shall not interfere in any respect with the operation of the Vessel. The Buyers’ representatives shall sign the Sellers’ letter of indemnity prior to their embarkation.
Upon Sellers tendering the Two (2) days approximate notice of Vessel’s expected readiness to tender the actual notice of readiness for delivery, the Buyers shall be allowed to place a further representative on board and up to Two (2) other crew members to be allowed onboard during daylight hours when Sellers crew shall demonstrate and familiarise Buyers’ representatives/crew on the operation of the Vessels’ equipment, machinery and systems.
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, arbitrators to be members of LMAA, 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 two arbitrators property appointed shall not agree they shall appoint an umpire whose decision shall be final.
b)* This
Agreement shall be governed by and construed in accordance with Title 9 of the
United States Code and the Law of the State of New York and should any dispute
arise out of this Agreement, the matter in dispute shall be referred to three
persons at New York, one to be appointed by each of the parties hereto, and the
third by the two so chosen; their decision or that of any two of them shall be
final, and for purpose of enforcing any award, this Agreement may be made a
rule of the Court.
The proceedings shall be conducted in accordance with
the rules of the Society of Maritime Arbitrators, Inc., New York.
c)* Any dispute arising out of this
Agreement shall be referred to arbitration at
subject to the procedures applicable there. The laws
of
shall govern the Agreement.
* 16 a), 16 b) and 16 c) are alternatives; delete whichever is not applicable. In the absence of deletions, alternative 16 a) to apply.
Additional Clause 17 to 20 herewith attached form an integral part of this Agreement.
Appendix
to Memorandum of Agreement code-name SALEFORM 1993 – dated 30th August 2006
M/V “FOREMOST”
Clause 17.
The vessel is to be delivered without drydocking but Buyers shall have the right to request and carry out a divers inspection of Vessel’s underwater parts by Vessel’s class approved divers with video equipment. Such underwater inspection to be attended by class surveyor, Buyers’ representative and Sellers’ representative. Cost of divers and class surveyor fee for Buyers account. If the condition at the port of delivery are unsuitable for such inspection, the Sellers shall make the Vessel available at a suitable alternative place in Sellers’ option in or near to such delivery port at their own cost and expense.
If any damage is found affecting class which in the opinion of class surveyor present at inspection would constitute a recommendation requiring the Vessel to drydock immediately, then clause 6 of NSF 93 to apply and the Vessel to be drydocked in accordance with the terms and conditions of said clause. Further, the cancelling date to be extended without any compensation and damages imposed on the Sellers for the period corresponding to that of the Sellers finding a proper drydock, transporting the Vessel from the port of underwater inspection up to the drydock, and making and completing the required repair at the drydock.
If any damage is found which in the opinion of class surveyor present at inspection would constitute a recommendation not requiring the Vessel to drydock until the next scheduled drydocking, then Sellers and Buyers to apply to two shipyards mutually agreed in the delivery area for quotations for repairs of said damage the cost to be the direct cost to repair such damage (ie no drydock fees, no offhire etc.).
Thereafter it shall be in the Sellers’ option whether to repair said damages prior to delivery or to deliver the Vessel with said damage the buyers to take delivery with such class recommendation, against a reduction in price of the cost of repairs, which to be defined as the average of the two quotations obtained.
If no damage found by class surveyor to affect class then the Vessel to be delivered without pre-delivery drydocking.
Clause 18.
Sellers to assist Buyers and provide them with all information and original and copies of certificates as may be required for Buyers’ registration purposes. Agreement on list of delivery documents to be incorporated in this Agreement in a form of an Addendum. Photocopies of all executed delivery documents to be faxed to Buyers well in advance of delivery.
Clause 19.
Sellers to provide a letter stating that to the best of their knowledge the Vessel is not blacklisted by the Arab Boycott League in Damascus or any other nation or organisation.
Clause 20.
All details of this Agreement to be kept private and confidential by both parties and is not to be discussed with any unrelated third parties.
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On behalf of the SELLERS |
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On behalf of the BUYERS |
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/s/ Xxxxxx Xxxxxxx |
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/s/ X. X. Xxxxxx |
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Name: |
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Name: |
X. X. Xxxxxx |
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Title: |
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Title: |
Director |
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Addendum No. 1.
To the Memorandum of Agreement
Dated the 30th August 2006
It is Agreed on this 22nd day of January 2007 the following documents in English (or if not in English, translated into English and certified, signed and stamped, by a lawyer that the translation is true and accurate) will be provided by the Seller to the Buyer and the Buyer to the Seller respectively at the time of Closing in exchange for the Purchase Price. Except as otherwise provided or agreed copies of all documents will be sent by fax or e-mail to the Buyer and Seller respectively at least four (4) days prior to the date of the Closing.
Documents to be provided by the Sellers
1. LEGAL XXXX OF SALE in two originals, transferring the title of the whole of the vessel, “FREE FROM ALL ENCUMBRANCES, MORTGAGES AND MARITIME LIENS, OR ANY OTHER DEBTS OR CLAIMS WHATSOEVER”, duly notarised and apostilled.
2. OWNERSHIP AND FREE OF ENCUMBRANCES CERTIFICATE, issued on the day of delivery by the proper authorities (Panama Register), confirming that the Sellers are the current owners and the Vessel is free of all encumbrances.
3. CLASS MAINTENANCE CERTIFICATE, by the vessel’s class association, stating that “the vessel is free of any conditions, recommendations and notations”, as per M.O.A., issued up to two (2) business days before closing.
4. MINUTES OF A MEETING OF THE BOARD OF DIRECTORS AND OFFICERS OF THE SELLERS, RESOLVING THE SALE OF THE VESSEL AND AUTHORISING THE SIGNATORY OF THE XXXX OF SALE TO EFFECT THE TRANSFER OF THE VESSEL TO THE BUYERS.
5. POWER OF ATTORNEY, in favour of the person who will sign the Xxxx of Sale and effect the transfer of ownership of the vessel to the contracted Buyers notarised and apostilled.
6. CERTIFIED TRUE COPY OF THE CERTIFICATE OF INCORPORATION, ARTICLES OF INCORPORATION AND BY LAWS OF THE SELLERS TO BE NOTARISED AND APOSTILLED.
7. Commercial Invoices, on the Sellers’ Letterhead paper, for the Vessel’s price and remaining bunkers and lubricants in triplicate.
8. Letter of Undertaking from the Sellers, on the Sellers’ Letterhead paper, to confirm that the Vessel has not been blacklisted by any nation and organisation including but not limited to the Arab Boycott League in Damascus.
9. Letter of Undertaking from the Sellers stating, Vessel is to be delivered free of Port State Control deficiencies and detentions, at the time of, and at the port of, delivery.
10. Original Good Standing Certificate issued by Isle of Man authorities showing Directors.
11. The following certificates/documents to be delivered on board the Vessel (and faxed to Buyers earliest possible but not later than five days prior to delivery):
1) Copy of Vessel’s Certificate of Registry
2) Original Certificate of Classification
3) Original International Tonnage Certificate
4) Original International Load Line Certificate
5) Original Safety Radio Telegraphy Certificate
6) Original Safety Equipment Certificate (Safety items certificates i.e. for Life Rafts, Fire extinguishers, Breathing Apparatus, E.B.B.D. Co2 in engine room)
7) Original International Oil Pollution Prevention Certificate (IOPP-MARPOL)
8) a. Original of the latest Continuous Synopsis Record (attached by form II and form III, if any)
b. Original of previous Continuous Synopsis Record Number, if any (attached by form II and form III)
9) Copy of Radio Licence
10) Copy of Minimum Safe Xxxxxxx Certificate
11) GMDSS equipment list + amendments including approved drawings of GMDSS station and AIS
12) Copy of Last ss/drydocking Survey report and all Class Survey report as found on board including up-dated Class survey Status
13) Original Safety Construction Certificate
14) Original Deratting Exemption Certificate
15) Original Suez & Panama Canal Tonnage Certificates
16) Ship’s security certificate
17) Trim and stability booklet with class endorsement
18) BC Code Certificate
19) Complete ESP file up to date including all thickness measurement reports.
20) Cargo Securing Manual
21) Copy of latest entries in the Garbage Manual
22) Cargo Gear Equipment Certificates
23) Approved Loading Manual and Grain Loading
24) Class approved Loading Program including a approved manuals and test conditions
25) Original Continuous Synopsis Record (CSR) fully up to date Certificate
26) Class assessment and approvals of all URS requirements
27) Class approved drawings of water ingress detection system
28) Original crew accommodation certificate including all records and reports
12. Letter from the Sellers confirming that all crew wages and dues are fully paid up to and including the date of delivery and those costs covering the repatriation of the crew.
13. Letter of Undertaking from the Sellers to indemnify the Buyers against all consequences of claims made against the vessel which have been incurred prior to the time of delivery.
Documents to be provided by the Buyers
A. Corporate resolution and Minutes of a Meeting of the directors of Navigator Bulk Services S.A., resolving the purchase and taking delivery of the Vessel and authorizing the signatory of the relevant documents, hereunder the MOA and the Protocol of Delivery and Acceptance.
B. Power of Attorney granting the necessary authority for completion of the transfer of the Vessel to representatives of Buyers, which are not mentioned as having the necessary authority in the legal opinion to be provided by the Buyers such Power of Attorney to be duly notarized and legalized/apostilled.
C. Certified copy of the Articles of Association of Navigator Bulk Services S.A.
D. Legal opinion that the Buyer is acting within the Articles of Association, and that representatives who do not have a Power of Attorney can act on behalf of and with binding effect on the Buyers, such opinion to be issued by an attorney who is certified to practice in the country of incorporation of the Buyer such Legal Opinion to be duly notarized and legalized/apostilled.
E. Letter from the Panamanian Consulate showing that the Panama Government has no objection that the Vessel be sold to Navigator Bulk Services S.A.
F. Undertaking on Buyers’ letterhead with the following wording: “We refer to a memorandum of agreement dated 30 August (the “MOA”). Britannia Bulk PLC hereby informs that it has made use of its right to nominate a different buyer. The nominated buyer is Navigator Bulk Services S.A. and Britannia Bulk PLC hereby undertakes to guarantee for the correct fulfilment of the MOA by Navigator Bulk Services S.A.”
Documents to be provided jointly by Buyers and Sellers
I. Letter of Undertaking concerning the payment of the Bunkers
II. Letter concerning the dual execution of the memorandum of Agreement
III. At the time of delivery of the Vessel safely afloat, free from all encumbrances, mortgages, and maritime liens, in accordance with the Memorandum of Agreement dated August 30, 2006 the Buyers, Messrs, Navigator Bulk Services S.A. and Sellers, Messrs, Pan Shipping L.P., of Isle of Man 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. The Protocol of Delivery and Acceptance shall be executed and signed by the both the Buyers and the Sellers.
To which the Parties have set their hand on the day and date first above written
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/s/ X.X. Xxxxxx |
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/s/ Xxxxxx Xxxxxxx |
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Navigator Bulk Services S.A. |
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Pan Shipping L.P |
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(Xxxxxx Xxxxxxx on behalf of |
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Pan Shipping LP) |
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EXHIBIT B
RESOLUTIONS OF BRITANNIA BULK PLC
AND
NAVIGATOR BULK SERVICES S.A.
(Registered Number 03842976)
(the “Company”)
MINUTES of a meeting of the Board of Directors of the Company on 14 February 2007 at 9:30 am.
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PRESENT: |
Xxxxx Tage |
Chairman |
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Xxxxxxxx Xxxxxx |
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Xxxxx Xxxx |
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Xxxxxxx Xxxxxx |
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Xxxxxxx Xxxxxxxx |
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NOT PRESENT: |
Xxx Xxxxxxxxxx |
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1. CHAIRMAN, NOTICE AND QUORUM
1.1 Xxxxx Tage took the chair (the “Chairman”) for the meeting.
1.2 The Chairman noted that a quorum was present and that due notice of the meeting had been given to all Directors. Accordingly, the Chairman declared the meeting open.
2. NOTIFICATION OF INTERESTS
In accordance with section 317 of the Companies Acx 0000, each of the Directors present declared his interest as a Director in the business to be transacted at the meeting.
3. BUSINESS OF THE MEETING
3.1 The Chairman noted that the Company, as debtor, had entered into a Vessel Acquisition Account and Security Agreement dated 16 November 2006 with Wilmington Trust Company, as trustee, (the “VAASA”) and that pursuant to clause 6.2(b) of the VAASA, the Company was entitled to withdraw funds from the Vessel Acquisition Account (as defined in the VAASA) to acquire marine vessels flagged under certain jurisdictions.
3.2 The Chairman noted that the Company, as buyer, had entered into a Memorandum of Agreement dated 30 August 2006 with Pan Shipping L.P. c/o Wallbrook Trustees (IOM) Limited, as seller, in respect of the sale and purchase of a Panamanian flagged vessel built in November 1998 and known as “Foremost”.
3.3 The Chairman also noted that pursuant to clause 6.2(b)(vii) of the VAASA, the Company, or a Restricted Subsidiary (as defined in the VAASA), was under an
obligation to enter into a binding Time Charter with a third party, that is not an affiliate of the Company or a Restricted Subsidiary, with respect to Foremost for a minimum term of 2 years and on terms reasonably believed by the Board of Directors of the Company to be commercially reasonable and consistent with industry practice.
3.4 The Chairman further noted that Navigator Bulk Services S.A., a Restricted Subsidiary incorporated in Panama, had entered into a Time Charter dated 22 December 2006 with Glory Wealth Shipping Service Ltd., as charterer, (the “Charter”) for a minimum period of 24 months and a maximum period of 26 months in respect of Foremost.
3.5 It was reported that the purpose of the meeting was to consider and, if thought fit, to resolve to ratify and approve the entry by Navigator Bulk Services S.A. into the Charter.
4. PRODUCTION AND CONSIDERATION OF DOCUMENTS
4.1 A copy of the Charter was produced to the meeting.
4.2 The Charter was carefully considered by the Board and IT WAS RESOLVED THAT:
(a) the terms and conditions of the Charter were commercially reasonable and consistent with industry practice;
(b) it was bona fide in the best commercial interests of the Company and its wholly-owned subsidiary, Navigator Bulk Services S.A., to enter into the Charter; and
(c) all acts taken and transactions or agreements made prior to the adoption of these resolutions by any of the Directors in the name of the Company or Navigator Bulk Services S.A. in connection with the foregoing matters, are hereby ratified, confirmed and adopted by the Company.
5. CLOSE
There being no further business, the Chairman brought the meeting to a close.
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/s/ Xxxxx Tage |
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Chairman |
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Date: February 2007 |
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NAVIGATOR BULK SERVICES S.A. (THE “COMPANY”)
MINUTES OF A MEETING OF
THE BOARD OF DIRECTORS
HELD ON 14 FEBRUARY, 2007 AT 10:45 A.M. IN THE CITY OF LONDON
Present in person or by proxy: Messrs: Xxxxx Tage, Xxxxx Xxxxx Xxxx, Xxxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxx and Xx. Xxxxxxx Xxxxxxxx, being all the members of the Board of Directors.
Notice to the meeting was waived by all present.
Mr. Xxxxx Tage President of the Company declared the meeting opened and Xx. Xxxxxxx Xxxxxxxx, the Secretary took the minutes thereof.
The President brought up for discussion the following considerations, which were unanimously approved:
The Company, organized under the laws of the Republic of Panama, hereby consents to the adoption of the following resolutions and to the taking of the actions contemplated thereby, in each case with the same force and effect as if presented to and adopted at a meeting of said Board of Directors (the “Board”):
WHEREAS, Britannia Bulk Plc (“Britannia Bulk”) intends to request the withdrawal of funds, in connection with the acquisition of a vessel, from a vessel acquisition account established by that certain Vessel Acquisition Account and Security Agreement (the “VAASA”) dated November 16, 2006 by and between Britannia Bulk and Wilmington Trust Company, as trustee (the “Trustee”).
WHEREAS, Britannia Bulk, as buyer, has entered into a Memorandum of Agreement dated August 30, 2006 with Pan Shipping L.P. c/o Wallbrook Trustees (IOM) Limited, as seller, in respect of the sale and purchase of the “Foremost” a Panamanian flagged vessel built in November 1995.
WHEREAS, under the provisions of the VAASA, it is a condition precedent to the withdrawal of funds from the vessel acquisition account for the Company to (i) enter into a binding Time Charter with a third party, that is not an affiliate of the Company or Britannia Bulk, with respect to Foremost for a minimum term of 2 years and on terms reasonably believed by the board of Britannia Bulk to be commercially reasonable and consistent with industry practice and (ii) deliver to the Trustee a ship mortgage in a form reasonably satisfactory to the Trustee granting to the Trustee a first priority lien over Foremost subject to Permitted Collateral Liens (as defined in the VAASA) (the “Ship Mortgage”).
WHEREAS, the Company has entered into a Time Charter dated 22 December 2006 with Glory Wealth Shipping Service Ltd., as charterer, (the “Charter”) for a minimum period of 24 months and a maximum period of 26 months in respect of Foremost.
WHEREAS, the Board has determined that the Company will derive economic and other benefits from the entering into the Charter.:
After considerations were duly made by the Board members,
IT WAS RESOLVED:
FIRST: that the terms and conditions of the Charter were commercially reasonable and consistent with industry practice.
SECOND: that it was bona fide and in the best commercial interests of the Company to enter into the Charter.
THIRD: to approve the form, terms and provisions of the Ship Mortgage in the form presented to this meeting and to approve the entry by the Company, as mortgagor, into the Ship Mortgage for the benefit of the Trustee, as mortgagee.
FOURTH: to authorize any officer or director of the Company, as attorneys in fact of the Company, each of them acting individually, to act on behalf of the Company and sign the Ship Mortgage as well as any other document related or necessary to complete the validity of same (including, but not limited to, the Acceptance of Sale of the Foremost for the registration of ownership title in the Republic of Panama).
FIFTH: that any of said officers or directors is hereby authorized in the name of and on behalf of the Company to take such further action and to do all things that may appear in his or her discretion to be necessary in connection with renewals, extensions for any period, increases, amendments, modifications, rearrangements, restatements, retirements and/or compromises of the Ship Mortgage or other documents executed in connection with the resolutions described above.
SIXTH: that any of said officers or directors is authorized and empowered to do or cause to be done all such acts or things and to sign and deliver, or cause to be signed and delivered, all such documents, agreements, contracts, instruments, certificates and other written obligations (including, without limitation, the Ship Mortgage and any and all notices and certificates required or permitted to be given or made to the Trustee under the terms of any of the instruments executed on behalf of the Company in connection with the resolutions described above), in the name and on behalf of the Company or otherwise, as any of said officers or directors, in his or her discretion, may deem necessary, advisable or appropriate to effectuate or carry out the purposes and intent of the foregoing resolutions and to perform the obligations of the Company under all documents, agreements, contracts, certificates, instruments or other written obligations executed on behalf of the Company in connection with the foregoing resolutions;
SEVENTH: that the execution by any of said officers or directors of any document authorized by the foregoing resolutions or any document executed in the accomplishment of any action or actions so authorized, is (or shall become upon delivery) the enforceable and binding act and obligation of the Company, without the necessity of the signature or attestation of any other officer or director of the Company or the affixing of the corporate seal; and
EIGHTH: that all acts, transactions, or agreements undertaken prior to the adoption of these resolutions by any of the officers, directors or representatives of the Company in its name and for its account with the Trustee in connection with the foregoing matters are hereby ratified, confirmed and adopted by the Company.
There being no further business brought up for discussion, the meeting was closed.
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(Original signed) Xxxxx Tage |
(Original signed) Xx. Xxxxxxx Xxxxxxxx |
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President / Director |
Secretary / Director |
The undersigned Xx. Xxxxxxx Xxxxxxxx, Secretary of the Company, hereby confirm that the above is a true extract of the minutes of the Meeting of the Board of Directors of the Company held on 14 February, 2007.
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/s/ Xxxxxxx Xxxxxxxx |
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Xx. Xxxxxxx Xxxxxxxx |
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