EXHIBIT 99.1
DATED July 8, 2004
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ATHENIAN SEA CARRIERS LIMITED
on behalf of the Sellers listed in Schedule 1
- and -
OMI CORPORATION
as Buyers
_______________________________
SALE AGREEMENT
_______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ INTERNATIONAL
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇ Piraeus
DPT/34578-16
1. DEFINITIONS AND INTERPRETATION...........................................3
2. OVERALL AGREEMENT........................................................6
3. SALE AND PURCHASE OF THE VESSELS.........................................6
4. SALE AND PURCHASE OF THE NEWBUILDING CONTRACTS...........................6
5. EN-BLOC NATURE OF TRANSACTION............................................8
6. PRICE....................................................................9
7. INSPECTION AND DESCRIPTION OF VESSELS...................................11
8. DOCUMENTS...............................................................11
9. RISK....................................................................12
10. CONFIDENTIALITY.........................................................12
11. OMI GUARANTEE...........................................................13
12. MISCELLANEOUS...........................................................13
13. APPLICABLE LAW AND JURISDICTION.........................................13
SCHEDULE I - DETAILS OF VESSEL AND NEWBUILDING CONTRACTS........................
SCHEDULE II - MOA's IN RESPECT OF THE VESSELS...................................
SCHEDULE III - FORM OF ASSIGNMENT AND NOVATION AGREEMENT........................
This Sale Agreement is made on 8th July 2004
BETWEEN:
(1) Athenian Sea Carriers Ltd, a company incorporated in Liberia and having its
principal place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ("ASC")
on behalf of the Sellers (the "Sellers") as defined below, of the one part;
and
(2) OMI Corporation, a corporation incorporated in The Republic of the ▇▇▇▇▇▇▇▇
Islands, of ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America ("OMI") on behalf of itself and such companies as it might nominate
of the other part.
WHEREAS:
(A) The Sellers are respectively the owners of the ▇▇▇▇▇▇▇▇ Islands flag tanker
vessels or the contractual purchasers of the tanker newbuildings under
construction at Hyundai Mipo Dockyard Co. Limited (the "Builder") listed in
Schedule I to this agreement.
(B) OMI have agreed to buy, and ASC to sell, the ▇▇▇▇▇▇▇▇ Islands flag tanker
vessels listed in Schedule I hereto, and the contracts for the construction
of the tanker newbuildings, as set out in Schedule I hereto, for the
aggregate sum of Five Hundred and Eighty Five Million United States Dollars
(US$585,000,000).
IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement save as otherwise provided, references to Clauses,
Sub-clauses and to Schedules are to clauses and sub-clauses of and to
Schedules to this Agreement.
1.2 Unless the context otherwise requires, references to the plural include the
singular and vice versa.
1.3 References to any document include the same as varied, supplemented or
replaced from time to time.
1.4 References to any enactment include re-enactments, amendments and
extensions thereof.
1.5 Clause headings are for convenience of reference only and are not to be
taken into account in construction.
1.6 In this Agreement, save as otherwise expressly provided;
"Assignment and Novation Agreements" means the assignment and novation
agreements in relation to the Newbuilding Contracts to be entered into
between the respective Sellers and Buyers pursuant to Clause 4.1.
"ASC Guarantees" shall mean the guarantees each dated 21st November 2002
entered into between ASC and the Builder in respect of each Newbuilding
Contract, pursuant to which ASC guaranteed to the Builder the performance
of each of the Sellers as buyers of their liabilities and responsibilities
under each respective Newbuilding Contract
"Buyer" shall mean, as the context requires, either OMI or such company as
OMI may nominate as purchaser of any Vessel or of any Newbuilding Contract.
"Captain ▇. ▇▇▇▇▇▇▇▇" shall mean the ▇▇▇▇▇▇▇▇ Islands flag Suezmax tanker
vessel "Captain ▇. ▇▇▇▇▇▇▇▇" owned by Free Seas Shipping Ltd. more
particularly described in Schedule I.
"Captain ▇. ▇▇▇▇▇▇▇▇ Time Charter" shall mean the time charter of the
Captain ▇. ▇▇▇▇▇▇▇▇ to Petrobras, for a term of 36 months from 25 November
2003, a copy of which has been supplied to OMI.
"Contract Price" shall mean the Contract Price of the relevant Vessel as
defined in the relevant Shipbuilding Contract.
"date of closing" shall mean the date for signature of the MOA's and, as
the case may be, of the Assignment and Novation Agreements, fixed by ASC
pursuant to Clause 6.4
"Dollars" and "US$" shall mean the lawful currency for the time being of
the United States of America.
"Glory" shall mean the ▇▇▇▇▇▇▇▇ Islands flag Suezmax tanker vessel
"Athenian Glory" owned by Smooth Seas Company Ltd more particularly
described in Schedule I.
"Horizon" shall mean the ▇▇▇▇▇▇▇▇ Islands flag 46.000 Dwt class tanker
vessel "Athenian Horizon" owned by Great Ionian Shipping Ltd. more
particularly described in Schedule I.
"Horizon Time Charter" shall mean the time charter on Shelltime 4 form of
the Horizon to ST Shipping for a period of not less than seventy-five (75)
and not more than one hundred and fifty (150) days, a copy of which has
been supplied to OMI.
"KOEXIM" shall mean The Export Import Bank of Korea of ▇▇-▇, ▇▇▇▇▇-▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇.
"MOAs" shall mean the Memoranda of Agreement to be entered into in respect
of the Vessels by the relevant Sellers and Buyers pursuant to Clause 3.1.
"Newbuilding Contract No. 1" shall mean the shipbuilding contract for the
Builder's Hull No. 0235 contracted by Great Land Shipping Ltd.
"Newbuilding Contract No. 2" shall mean the shipbuilding contract for the
Builder's Hull No. 0236 contracted by Great Sun Shipping Ltd.
"Newbuilding Contract No. 3" shall mean the shipbuilding contract for the
Builder's Hull No. 0237 contracted by Great Sky Enterprises Inc.
"Newbuilding Contract No. 4" shall mean the shipbuilding contract for the
Builder's Hull No. 0238 contracted by Great Deal Shipowners S.A.
"Newbuilding Contract No. 5" shall mean the shipbuilding contract for the
Builder's Hull No. 0239 contracted by Great Gulf Enterprises Inc.
"Newbuilding Contract No. 6" shall mean the shipbuilding contract for the
Builder's Hull No. 0240 contracted by Great Rainbow Shipowners S.A.
"Newbuilding Contract No. 7" shall mean the shipbuilding contract for the
Builder's Hull No. 0241 contracted by Great Atlantic Shipping Ltd.
"Newbuilding Contracts" shall mean Newbuilding ▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ No. 7, or as many of them as the context requires.
"Olympics" shall mean the ▇▇▇▇▇▇▇▇ Islands flag Suezmax tanker vessel
"Athenian Olympics" owned by Deep Seas Company Ltd. more particularly
described in Schedule I.
"Owners Nominated Supervisor" shall mean the person or persons nominated by
the relevant Seller pursuant to Article 4 Clause 1 thereof to be a "Buyer's
Representative" under any relevant Shipbuilding Contract.
"Petrobras" shall mean Petroleo Brasiliero S.A. - Petrobras of Rio de
Janeiro, Brazil.
"Purchase Price" shall mean the purchase price payable by OMI (or the
relevant Buyer) to the relevant Sellers in respect of each Vessel or
Newbuilding as provided in Clause 6.
"Refund Guarantees" shall mean the refund guarantees issued by KOEXIM
pursuant to Article X.Clause 8 of each Newbuilding Contract in favour of
the relevant Seller and "Refund Guarantee" shall mean the relevant one of
them.
"Sellers" shall mean the companies listed in Schedule I as owners of the
Vessels and as "BUYERS" under the Newbuilding Contracts, each a company
incorporated in Liberia and having its registered offices at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
"Side Agreement" and "Side Agreements" shall mean the series of side
agreements each dated 21st November 2002 and made between each of the
relevant Sellers as buyers for the first part and the Builder of the second
part, in connection with each of the Newbuilding Contracts, and pursuant to
which both parties have agreed that the Contract Price payable under the
relevant Newbuilding Contract includes the amount of US Dollars Eight
Hundred and Nineteen Thousand (US$819,000) as a reserve fund (the "Reserve
Fund") for the payment of extra costs, if any, which may be incurred and
payable by the Seller as buyer in respect of technical modifications to the
Vessel during construction. The Reserve Fund or the balance thereof after
paying such extra costs (if any) payable by the Sellers as buyers to the
Builder pursuant to the relevant Newbuilding Contract shall be credited or
paid to the Seller as buyer in respect of each Vessel on delivery in
accordance with the terms and conditions of the relevant Side Agreement.
"ST Shipping" shall mean ST Shipping and Transport Inc. of Baar,
Switzerland.
"Umbrella Agreement" shall mean the umbrella agreement dated 21st November
2002 made between the relevant Sellers and the Builder for the purpose of
regulating certain matters concerning the construction and delivery of the
Newbuilding Vessels, the interpretation of the Shipbuilding Contracts, and
the exercise and performance by the parties of their rights and obligations
thereunder.
"Vessels" shall mean the "Captain ▇. ▇▇▇▇▇▇▇▇", "Victory", "Olympics",
"Glory" and "Horizon".
"Victory" shall mean the ▇▇▇▇▇▇▇▇ Islands flag Suezmax tanker vessel
"Athenian Victory" owned by Open Seas Management S.A. more particularly
described in Schedule I.
2. OVERALL AGREEMENT
2.1 ASC on behalf of the Sellers agrees that each of the Sellers shall sell,
and OMI on its own behalf, and on behalf of companies nominated by it,
agrees to buy as an "en bloc" purchase, the Vessels and the Newbuilding
Contracts at a total consideration of Five Hundred and Eighty Five Million
Dollars (US$585,000,000) as more particularly set out herein.
3. SALE AND PURCHASE OF THE VESSELS
3.1 Subject to the provisions of Clause 3.3 below, the sale of each Vessel will
be effected on the terms of the Memoranda of Agreement in Saleform 93
format, copies of which are set out in Schedule II, and the relevant
Sellers and the Buyers will on the date of closing enter into such
Memoranda of Agreement .
3.2 The sale of the Captain ▇. ▇▇▇▇▇▇▇▇ will be subject to the Captain ▇.
▇▇▇▇▇▇▇▇ Time Charter. Free Seas Shipping Ltd. and the relevant Buyer will
enter into such tripartite deed with Petrobras as is envisaged by Clause 17
of the relevant MOA and such other documents as Petrobras may reasonably
require as a condition of their consent to such sale.
3.3 The sale of Horizon will be subject to the Horizon Time Charter. Great
Ionian Shipping Ltd. and the relevant Buyer will enter into such tripartite
deed with ST Shipping as is envisaged by Clause 17 of the relevant MOA and
such other documents as ST Shipping may reasonably require as a condition
of their consent to such sale.
4. SALE AND PURCHASE OF THE NEWBUILDING CONTRACTS
4.1 In consideration of the payment by the Buyers to the relevant Seller of the
Purchase Price in accordance with Clause 6.1, each of the Sellers set out
below as beneficial owner and with full title guarantee hereby agrees to
transfer and assign to the Buyer set out below opposite the relevant
Newbuilding Contract, the Newbuilding Contract contracted by that Seller;
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Seller Buyer
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇ ▇▇▇▇ Shipping Ltd. OMI or Jeannnette Shipping L.L.C.
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Newbuilding Contract No. 2 Great Sun Shipping Ltd. OMI or Lauren Shipping L.L.C.
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Newbuilding Contract No. 3 Great Sky Enterprises Ltd OMI or Brazos Shipping L.L.C.
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Newbuilding Contract No. 4 Great Deal Shipowners S.A. OMI or Wabash Shipping L.L.C.
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Newbuilding Contract No. 5 Great Gulf Enterprises Inc. OMI or Kansas Shipping L.L.C.
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Newbuilding Contract No. 6 Great Rainbow Shipowners S.A. OMI or Republican Shipping L.L.C.
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Shipping Ltd. OMI or Platte Shipping L.L.C.
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in each case absolutely and, save as expressly set out in the respective
Assignment and Novation Agreement, without further recourse to the relevant
Seller, all its rights, title and interest, both present and future, in and
to the Newbuilding Contract to which it is party (including the Side
Agreement to which it is party and which relates to the relevant
Newbuilding Contract), the Umbrella Agreement and the Refund Guarantee
relating thereto including without limitation;
4.1.1 all monies whatsoever (and all claims for such moneys) due or to
become due to or for the account of the relevant Seller at any
time during the construction of the vessel that is the subject of
the relevant Newbuilding Contract or the Umbrella Agreement
including (but not limited to) all refunds of moneys paid to the
Builder and damages for breach (or payments for variation or
termination) of such Newbuilding Contract or the Umbrella
Agreement; and
4.1.2 the relevant Refund Guarantee and any other guarantee, indemnity
or other security which may at any time be given to the relevant
Seller as security for the performance of the Builder's
obligations, or the payment of moneys due or to become due to the
Seller, under the relevant Newbuilding Contract (including,
without limitation, the right to make any demand there under) and
references to the foregoing shall mean any or all of the
constituent parts thereof, as the context may require all of
which the relevant Seller hereby warrants that it has not
assigned, mortgaged, charged or otherwise encumbered or disposed
of to any other person.
4.2 In consideration of the Sellers agreeing to transfer and assign their
rights, title and interest in and to the Newbuilding Contracts, the
Umbrella Agreement, the Side Agreements and the Refund Guarantees, and
subject to the approval of the Builder, each of the Sellers and the
relevant Buyers mentioned in Clause 4.1 agree on the date of closing to
enter into an assignment and novation agreement (an "Assignment and
Novation Agreement" and together the "Assignment and Novation Agreements")
in respect of the relevant Newbuilding Contract in the form set out in
Schedule III to this Agreement or in such other form as the Builder may
have required, and as has been approved by ASC and the Buyers, such
approval not to be unreasonably withheld or delayed.
4.3 The obligation of the Sellers and the Buyers to complete the sale and
purchase provided for by Clause 4.1 shall be subject to the following:
(a) the due execution and delivery by all relevant parties of the agreed
forms of the following documents:
(i) an Assignment and Novation Agreement in respect of each
Newbuilding Contract; and
(ii) notices of assignment to KOEXIM in respect of the relevant Refund
Guarantees, or if agreed by KOEXIM the issue and delivery to the
relevant Buyer in respect of each Newbuilding Contract by KOEXIM
of a guarantee in terms equivalent to the Refund Guarantee and
acceptable to the Buyers; upon which delivery the relevant Refund
Guarantee shall be returned to KOEXIM.
(b) the delivery to the relevant Buyer of the originals of the Newbuilding
Contract and the Side Agreement relating to the Vessel being acquired
by that Buyer and all relevant documents relating thereto and a
certified copy of the Umbrella Agreement;
(c) the delivery to the relevant Buyer of copies and/or the originals of
the Plans, Specifications and other technical information in their
possession relating to the vessel being constructed pursuant to the
Newbuilding Contract being acquired by that Buyer;
(d) the delivery to the Buyer of such evidence as the relevant Buyer may
reasonably require as to the due execution of the Newbuilding Contract
being acquired by that Buyer and the Umbrella Agreement by the
Builder;
(e) delivery of copies of the constitutional documents and of certificates
of good standing and of resolutions of the shareholders and directors
of each of the Sellers, the Buyer, the Builder and such evidence as
the Buyer may reasonably require in relation to the Refund Guarantor,
in each case authorising the execution of the documents contemplated
herein and original powers of attorney, where relevant;
(f) delivery of evidence of the acceptance by the process agents named in
Clause 13.3 and 13.4 of such appointments.
5. EN-BLOC NATURE OF TRANSACTION
5.1 Without prejudice to the other provisions of Clauses 2, 3 and 4, it is a
condition precedent to the obligation of each of the Sellers to sell the
Newbuilding Contracts and the Vessels that it has contracted to sell that
Memoranda of Agreement for the sale and purchase of all of the Vessels and
Assignment and Novation Agreements in respect of all of the Newbuilding
Contracts are entered into and become effective simultaneously, and
similarly to the obligation of each of the Buyers to purchase the Vessel or
the Newbuilding Contracts that it is to acquire pursuant to Clause 4.1 that
the sale by the Sellers of all of the Vessels and the Newbuilding Contracts
proceeds simultaneously.
5.2 Should the Buyers fail to pay any deposit as provided by the respective
MOAs or fail to take delivery of any Vessel, or to enter into any
Assignment and Novation Agreement, ASC and the Sellers shall be entitled
but not obliged, and without prejudice to their other remedies under this
Sale Agreement, the MOAs and the Assignment and Novation Agreements, by
notice in writing to OMI, to terminate this Sale Agreement and any MOA
under which the relevant Vessel has not yet been delivered.
5.3 Should the Sellers default in making delivery of any Vessel, or fail to
enter into an Assignment and Novation Agreement, the Buyers shall be
entitled but not obliged, and without prejudice to their other remedies
under this Sale Agreement, the MOAs and the Assignment and Novation
Agreements, by notice in writing to OMI, to terminate this Sale Agreement
and any MOA under which the relevant Vessel has not yet been delivered.
6. PRICE
6.1 In consideration of the agreement of the Sellers contained in Clauses 2, 3
and 4, the Buyers agree, subject to the provisions of sub-clauses 4.3 and
5.1, to pay to the relevant Seller
6.1.1 in respect of each Vessel the sum set out in the relevant MOA.;
6.1.2 in consideration of the assignment of the Sellers rights against
the builder of each Vessel under Article IX of the relevant
shipbuilding contracts as referred to in Clause 17 of each MOA to
assume the Sellers obligations in respect of forwarding costs if
any, payable thereunder and to pay the sum of Ten Thousand United
States Dollars (US$10,000) such payment to be paid together with
the balance of the Purchase Price in respect of the last of the
Vessels to be delivered to the Buyers;
6.1.3 in respect of Newbuilding Contract No. 1 the sum of Seventeen
Million Two Hundred and Thirty Nine Thousand Dollars
(US$17,239,000);
6.1.4 in respect of Newbuilding Contract No. 2 the sum of Fifteen
Million Eight Hundred and Forty Six Thousand Five Hundred Dollars
(US$15,846,500) and
6.1.5 in respect of each other Newbuilding Contract the sum of Thirteen
Million and Sixty One Thousand Five Hundred Dollars
(US$13,061,500),
representing a total cost for each Newbuilding Contract, in aggregate with
the sums payable to the Builder in accordance with the Newbuilding
Contracts and sub-clauses 6.2.1 to 6.2.4, of Thirty Eight Million Seven
Hundred Thousand Dollars (US$38,700,000).
6.2 Following payment to the Sellers of the Purchase Price, and subject to the
terms of the Newbuilding Contracts, each of the Buyers will be obliged to,
and agree and undertake with relevant Seller to, pay to the Builder the
following sums;
6.2.1 in respect of each of the Newbuilding Contracts, other than
Newbuilding ▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇; the
sum of Two Million Seven Hundred and Eight Five Thousand Dollars
(US$2,785,000) not later than the date upon which the Second
Instalment as referred to therein becomes payable to the Builder
under the relevant Newbuilding Contract;
6.2.2 in respect of each of the Newbuilding Contracts, other then
Newbuilding Contract No. 1 the sum of One Million Three Hundred
and Ninety Two Thousand Five Hundred Dollars (US$1,392,500) not
later than the date upon which the Third Instalment as referred
to therein becomes payable to the Builder under the relevant
Newbuilding Contract;
6.2.3 in respect of each Newbuilding Contract the sum of Two Million
Seven Hundred and Eighty Five Thousand Dollars (US$2,785,000) in
respect of each Vessel, not less than the date upon which the
Fourth Instalment as referred to therein becomes payable to the
Builder under the relevant Newbuilding Contract;
6.2.4 in respect of each Newbuilding Contract the sum of Nineteen
Million Four Hundred and Ninety Five Thousand Dollars
(US$19,495,000), not less than three (3) days prior to the date
upon which the vessel being constructed under such Newbuilding
Contract is delivered to the relevant Buyer by the Builder
pursuant to the relevant Newbuilding Contract; and
6.2.5 any further sums becoming due to the Builder from the Buyers in
respect of extras whether agreed by the Sellers prior to, or by
the Buyers subsequent to, the date of the Assignment and Novation
Agreements or otherwise pursuant to the relevant Newbuilding
Contract.
6.3 Payment of Sellers' Purchase Price in respect of each Vessel will be made
to the account set out in the relevant MOA and in respect of the
Newbuilding Contracts will be made:
(a) for Newbuilding Contract No. 1; to National Bank of Greece S.A.,
Piraeus Shipping Branch, ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Swift: XXXXX, Account No. XXXXXX, IBAN Code:
XXXXXXXXXXXXXX Beneficiary: Great Land Shipping Ltd.
(b) for Newbuilding Contract No. 2; as to US$3,554,247.51 to Citibank
NA New York, Swift: ▇▇▇▇▇▇▇▇, Beneficiary Bank: Calyon Paris,
Swift: ▇▇▇▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Reference: Bercy
Shipping/Great Sun, Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and as to the
balance to BNP Paribas, Athens Branch, Swift: XXXXX, Account No.
XXXXXXXX 10USD, IBAN Code: XXXXXXXXX, Beneficiary: Athenian Sea
Carriers Ltd.
(c) for Newbuilding Contract No. 3; to BNP Paribas, Athens Branch,
Swift: XXXXX, Account No. XXXXXX 45USD, IBAN Code: XXXXXXXXXX,
Beneficiary: Great Sky Enterprises Inc
(d) for Newbuilding Contract No. 4; to Alpha Bank A.E., Piraeus
Shipping Branch, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Swift:
XXXXXXXXX, Account No. XXXXXXXXXXXX, IBAN Code: XXXXXXXXXXXXX,
Beneficiary: Great Deal Shipowners S.A.; and
(e) for each of Newbuilding ▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇; to BNP Paribas, Athens Branch, Swift:
XXXXXX, Account No. XXXXXXXX 10 USD, IBAN Code: XXXXXXXXXXXXX,
Beneficiary: Athenian Sea Carriers Ltd.
6.4 Closing of the transfer and sale hereby agreed and payment of the Sellers'
Purchase Price will take place at the offices of ▇▇▇▇▇▇, Fenwick & Willan
International, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, on the date
hereof, or on such other date as may be agreed between the parties but not
later than seven days after the date of this Agreement. At such closing;
6.4.1 Each Buyer will in respect of the Vessel to be acquired by it
pursuant to Clause 3.1;
(i) enter into and execute an MOA, and
(ii) lodge the deposit provided for by the relevant MOA;
(iii) in the case of the Captain ▇. ▇▇▇▇▇▇▇▇ and the Horizon
enter into such tripartite agreement as Petrobras or ST
Shipping may reasonably require.
6.4.2 each Buyer will, in respect of the Newbuilding Contract to be
acquired by it pursuant to Clause 4.1:
(i) enter into and execute an Assignment and Novation
Agreement, to which the Builder will be party; and
(ii) pay the relevant Purchase Price in accordance with Clause
6.2.3 and 6.3 above; and
(iii) deliver to the Builder such guarantee or guarantees as the
Builder may require pursuant to the Assignment and Novation
Agreement.
6.4.3 each of the Sellers will, in respect of each Vessel that such
Seller has agreed to sell, enter into an MOA;
6.4.4 each of the Sellers will, in respect of the Newbuilding Contract
that such Seller has contracted to sell:
(i) enter into and execute and procure that the Builder enters
into and execute the relevant Assignment and Novation
Agreement;
(ii) deliver to the relevant Buyer the originals of the relevant
Newbuilding Contract, the Side Agreement and a certified
copy of the Umbrella Agreement;
(iii) deliver to the relevant Buyer the Plans, Specifications and
other technical information in its possession relating to
the relevant vessel (subject always to the Sellers' right
to make and retain copies thereof).
7. INSPECTION AND DESCRIPTION OF VESSELS
7.1 The Buyers have had the opportunity to inspect, and have accepted the
Classification records of the Vessels.
7.2 The Buyers have inspected one of the Vessels and accepted the results of
that inspection. According the sale of the Vessels is unconditional, save
as set out herein.
7.3 The Buyers have inspected and examined the Specifications and Plan referred
to in and attached to and forming an integral part of the relevant
Newbuilding Contract, and save as set out in the Assignment and Novation
Agreements the Sellers make no warranty or representation and give no other
undertaking in respect of the vessels being constructed under the
Newbuilding Contracts their description, or technical specification.
8. DOCUMENTS
8.1 The Buyers confirm that they have received copies of the following
documents:
8.1.1 The Newbuilding Contracts;
8.1.2 The Specifications/the Plans/the Makers List (in each case as
referred to in the Shipbuilding Contracts);
8.1.3 The Side Agreements;
8.1.4 The Refund Guarantees;
8.1.5 The Umbrella Agreement.
and the Buyers agree that they accept the terms of all such documents.
9. RISK
9.1 The Buyers accept the risk of any default by the Builder or KOEXIM under
the terms of respectively the Newbuilding Contracts or the Refund
Guarantees (or any guarantee replacing the Refund Guarantees) and of any
insolvency of the Builder or KOEXIM and shall have no recourse against the
Sellers in respect of or consequent upon any such default or insolvency nor
shall the Sellers be obliged to repay or return to the Buyers any sums paid
by the Buyers prior to such default or insolvency by reason of such default
or insolvency.
9.2 The Sellers make no warranty and accept no liability in respect of the
Newbuilding Contracts, the Umbrella Agreement, the Refund Guarantees, the
Side Agreements, the Specification, the Plan, or the Maker's List save as
to their completeness and due execution by the Sellers and the Agent, or in
respect of the Vessels. The Buyers acknowledge that they have been afforded
sufficient opportunity to investigate and execute due diligence enquiries
upon the Builder, the Refund Guarantor, the terms of the Newbuilding
Contract, the Umbrella Agreement, the terms of the Refund Guarantee, the
Side Agreements, the Specification and the Plan and have entered into this
Agreement on the basis of such independent appraisal and investigations.
Any such liability on the part of the Sellers, save as to their warranty of
completeness and due execution aforesaid, is hereby expressly waived and
excluded.
9.3 The Buyers have not relied, and will not hereafter rely, on the Sellers to
appraise or keep under review on their behalf the financial condition,
creditworthiness, affairs, status or nature of the Builder or the Refund
Guarantor, or any other party to any documents relating to, or any matter
or thing contemplated by the Newbuilding Contracts, the Umbrella Agreement,
Refund Guarantees (or any guarantee replacing the Refund Guarantees), the
Side Agreements or any such other document.
10. CONFIDENTIALITY
10.1 The parties agree that all information provided by the Sellers to the
Buyer(s) in connection with the Newbuilding Contracts and the Vessels shall
be treated as subject to an obligation of confidentiality save for any
disclosure required by law or otherwise by any relevant public market
authorities. The Buyers agree not, save for any disclosure required by law
or otherwise by any relevant public market authorities in respect of which
the Buyers will give the Sellers advance notice of the disclosure, to
disclose the same to any person other than the Buyers' financiers, lawyers
and other professional advisers and save as aforesaid further agree to
obtain from any such person to whom the Buyers shall disclose this
information an undertaking, enforceable by the Sellers, to treat such
information as confidential.
10.2 The parties agree to keep as confidential the existence, and terms of this
Agreement, and not, without the prior consent of the other of them, to
disclose to any person other than the parties' financiers, lawyers and
other professional advisers, the existence of this Agreement, or the sale
of the Vessels.
11. OMI GUARANTEE
11.1 OMI, by its execution of this Agreement, as primary obligor and not as
surety only, hereby irrevocably guarantees to ASC and to the Sellers, and
as an independent obligation agrees to procure the due and faithful
performance by each of the Buyers of, the Buyers' respective obligations to
the Sellers under the terms of this Agreement, to the intent that if any of
the Sellers fails to perform its obligations under this Agreement, OMI,
upon the relevant Seller's first written demand, will purchase the relevant
Vessel as if it were the relevant Buyer.
11.2 The obligations of OMI under this Clause 11 will not be released or varied
by the insolvency or liquidation, or by any want or lack of capacity, or
lack of due authorisation of the Buyers. Nor shall the liability of OMI
under this Clause 11 be released or waived by, or as a result of, any
variation or amendment to this Agreement, the MOA or the Assignment and
Novation Agreements, by any time or other accommodation granted to the
Buyers, or by any other fact, matter or thing which but for the provisions
of this Clause might have operated to release the liability of OMI as
guarantor of the Buyers.
12. MISCELLANEOUS
12.1 The Sellers undertake, upon demand, and at their own expense, to sign,
perfect, do, execute and register all such further assurances, documents,
acts and things and to issue and deliver such notices and procure such
consents and acknowledgements as shall be necessary or the Buyers may deem
advisable to perfect the sale of the Vessels to the Buyers in accordance
with the terms of this Agreement.
12.2 Neither party shall transfer or assign the benefit or burden of this
agreement without the prior written consent of the other, Provided always
that nothing in this Clause shall prevent the Sellers assigning the right
to receive payment of the Purchase Price or any part thereof.
13. APPLICABLE LAW AND JURISDICTION
13.1 This Agreement shall be governed by and construed in accordance with
English law.
13.2 The English courts shall have jurisdiction in relation to any dispute and
any suit, action or proceeding (referred to together in this Clause 13 as
"Proceedings" which may arise out of or in connection with this Agreement
and for such purposes irrevocably submits to the jurisdiction of such
courts.
13.3 Each of the Sellers and ASC hereby irrevocably agree that, for the purpose
of Proceedings in England, any legal process may be served upon HFW
Nominees Limited presently of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
who is hereby authorised to accept service on behalf of the Sellers and
ASC, which shall be deemed to be good service on the Sellers or ASC, as the
case may be.
13.4 Each of the Buyers and OMI hereby irrevocably agree that, for the purpose
of proceedings in England, any legal process may be served upon WFW Legal
Services Limited, presently of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
who is hereby authorised to accept service on behalf of the Buyers and OMI,
which shall be deemed to be good service on the Buyers or OMI as the case
may be.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be signed
the day and year first before written.
Signed by: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
For and on behalf of
ATHENIAN SEA CARRIERS LTD
Signed by: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
For and on behalf of
OMI CORPORATION
SCHEDULE I
DETAILS OF VESSEL AND NEWBUILDING CONTRACTS
Part I The Vessels - all ▇▇▇▇▇▇▇▇ Islands Flag registered in Majuro
--------------------------------------------------------------------------------------------------------
Name of Vessel Hull No. Date of Owner Registered No. GRT/NRT
Delivery
--------------------------------------------------------------------------------------------------------
Athenian Victory 1478 24.10.03 Open Seas 1895 81074/52045
Management S.A.
--------------------------------------------------------------------------------------------------------
Capt. ▇. ▇▇▇▇▇▇▇▇ 1479 24.11.03 Free Seas 1913 81074/52045
Shipping Ltd.
--------------------------------------------------------------------------------------------------------
Athenian Olympics 1480 05.04.04 Deep Seas 1914 81074/51751
Company Ltd
--------------------------------------------------------------------------------------------------------
Athenian Glory 1481 29.03.04 Smooth Seas 1915 81074/51751
Company Ltd.
--------------------------------------------------------------------------------------------------------
Athenian Horizon 0234 28.06.04 Great Ionian 2053 29242/11926
Shipping Ltd.
--------------------------------------------------------------------------------------------------------
*HHI = Hyundai Heavy Industries Co. Ltd
HMD = Hyundai Mipo Dockyard Co. Ltd.
Part II The Newbuilding Contracts - all with Hyundai Mipo Dockyard Co. Ltd.
--------------------------------------------------------------------------------------------------------
Hull No. Estimated Delivery Date Seller Pre-delivery
("BUYER" under the Instalments Paid
relevant Newbuilding
Contract)
--------------------------------------------------------------------------------------------------------
0235 11.04. Great Land Shipping Ltd. $5,570,000
--------------------------------------------------------------------------------------------------------
0236 01.05 Great Sun Shipping Co. $4,177,500
--------------------------------------------------------------------------------------------------------
0237 04.05 Great Sky Enterprises $1,392,500
--------------------------------------------------------------------------------------------------------
0238 03.06 Great Deal $1,392,500
Shipowners S.A.
--------------------------------------------------------------------------------------------------------
0239 04.06 Great Gulf $1,392,500
Enterprises Inc.
--------------------------------------------------------------------------------------------------------
0240 05.06 Great Rainbow $1,392,500
Shipowners S.A.
--------------------------------------------------------------------------------------------------------
0241 06.06 Great Atlantic $1,392,500
Shipping Ltd.
--------------------------------------------------------------------------------------------------------
SCHEDULE II
MOA's IN RESPECT OF THE VESSELS
SCHEDULE III
FORM OF ASSIGNMENT AND NOVATION AGREEMENT
