MEMORANDUM OF AGREEMENT
Exhibit 10.15
Dated: 3 May 2006
Potomac Seaway Carriers Co. of 00 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx hereinafter called the Sellers, have agreed to sell, and
Xxxxxxxx Maritime Limited (“QML”) of Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx
Islands MH96960 or a company to be nominated by QML pursuant to
clause 29 hereof
hereinafter called the Buyers, have agreed to buy
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Name:
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Hull No 1375 see also clause 25 hereof | |
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Classification Society/Class:
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Nippon Kaiji Kyokai | |
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Built: expected on or before 2006
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By: Tsuneishi Shipbuilding Co., Ltd, of 1083 Tsuneishi, Numakuma-cho, Numakuma-gun, Hiroshima Prefecture, Japan (the “Builder”) | |
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Flag: see clause 8, line 206
hereof
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Place of Registration: see clause 8, line 206 hereof | |
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Call Sign: n/a
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Grt/Nrt: about 43,500/27,000 and otherwise in accordance with the Specifications | |
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Register Number: n/a
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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, and in the place of
closing stipulated in Clause 8. where a payment is
to be made under this Agreement.
“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.
“Charter” means the time charter dated
21 November 2005, made between the Charterer and Metrostar,
as agent for, inter alios, the Sellers, as the same has been
amended from time to time until the date of this Agreement,
pursuant to which time charter the Sellers have agreed, inter
alios, to let the Vessel and the Charterer has agreed to take on
charter the Vessel on a time charter basis until
31 December 2010, a copy of which charter is attached
hereto as Appendix “A”.
“Charterer” means Xxxxx X.X. of Geneva, Switzerland
and includes its successors in title.
“Metrostar” means Metrostar Management Corp. of 00
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
“Resale Agreement” means the “Saleform 1993”
memorandum of agreement dated 3 May 2005 made between the
Intermediate Seller and Metrostar or its nominee and by a
nomination letter Metrostar has nominated the Sellers pursuant
to which the Intermediate Seller shall deliver the Vessel to the
Sellers, a copy of which is attached hereto as
Appendix “B”.
“Shipbuilding Contract” means the shipbuilding
contract made between the Builder and Kambara Kisen Co., Ltd.
(“Kambara”) as transferred by means of a nomination to
Chijin Shipping S.A. of 53rd Street, Urbanizacion Obarrio, Torre
Bancosur, Panama City, Republic of Panama (the
“Intermediate Seller”) in relation to the construction
of the Vessel by the Builder for delivery and sale to the
Intermediate Seller.
“Shipyard” means, in relation to the Vessel, the
Builders’ facilities where the Vessel is being built and
which are located at Numakuma, Japan or Tadotsu, Japan, as the
case may be.
“Specifications” means the specifications and plans to
the Shipbuilding Contract delivered to the Sellers by the
Intermediate Seller pursuant to clause 20 of the Resale
Agreement, a copy of which specifications and plans are attached
hereto as Appendix “C”.
“United States Dollars” and “US$” means the
lawful currency of the United States of America at any relevant
time.
| 1. | Purchase Price |
US$43,300,000 minus any adjustments as provided in
clause 21.
| 2. | Deposit |
As security for the correct fulfillment of this Agreement the
Buyers shall pay a deposit of 10% (ten per cent) of the Purchase
Price within on the later of (i) the day
falling three banking days from the date of
this Agreement is signed by the parties hereto and
(ii) 15 May 2006. This deposit shall be placed with a
first class bank nominated by the Sellers and accepted by the
Buyers (provided always such bank is incorporated in the US,
England or Greece and the branch thereof where the deposit will
be held is in any of these countries) and held by them in an
interest bearing joint bank account for the Sellers and the
Buyers, to be released in accordance with joint written
instructions of the Sellers and the Buyers.
AccruedIinterest, if any, to
be credited to the Buyers. Any fee charged by the bank nominated
by the Sellers pursuant to line 20 above for holding the said
deposit shall be borne equally by the Sellers and the Buyers.
| 3. | Payment |
The remaining 90% of the said Purchase Price shall be paid in
full free of bank charges three (3) days prior to the
estimated delivery date in the name of the Buyers or the
Buyers’ financier to a first class bank nominated by the
Sellers and accepted by the Buyers (provided always such bank is
incorporated in the US, England or Greece and the branch thereof
where the deposit will be held is in any of these countries).
The Purchase Price will be released by the Buyers or their
financiers on delivery of the Vessel and upon the signing of the
Protocol of Delivery and Acceptance from the Sellers and the
Buyers 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 — see Clause 24 |
* Notes, if any, in the surveyor’s report
which are accepted by the Classification Society without
condition/recommendation are not to taken into account.
4a) 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
Vessel’s itineraryestimated time of
delivery and shall provide the Buyers with 30, 15, 10 and
3 days approximate notice and 1 day definite notice
thereof of the estimated time of arrival at the intended
place of drydocking/underwater inspection/delivery.
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) Subject to the Vessel having completed her sea trials in
accordance with the Shipbuilding Contract and the Specifications
and subject to the terms of this Agreement,
Tthe Vessel shall be delivered and taken over
safely afloat at a safe and-accessible berth or anchorage
at/in the Seller’s option, at the Shipyard
alongside the Builder’s pier or Builder’s anchorage.
If the Vessel is delivered to the Buyers at the Builders’
pier, the Buyers shall remove the same therefrom as soon as
practically possible after being instructed by the Builder to do
so.
Expected time of delivery: upon delivery of the Vessel from the
Intermediate Seller to the Sellers
Date of canceling (see Clauses 5c) 6b) (iii)
and 14): 15 December 2006.
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, unless the
Builder, in accordance with the relevant clauses of the
Shipbuilding Contract, agrees to reconstruct the Vessel in which
case the Buyers shall have the option to declare in writing that
the deposit should not be released to it whereafter this
Agreement shall remain in place
| 6 | Drydocking/Divers Inspection |
** 6a) and 6b) are alternatives delete whichever is
not applicable. In the absence of deletions alternative 6a) to
apply
* Notes, if any, in the surveyor’s report
which are accepted by the Classification Society without
condition/recommendation are not to taken into account.
| 7. | Spares/bunkers, etc. |
The Sellers shall deliver the Vessel to the Buyers with
everything belonging to her on board and on shore All spare
parts and spare equipment including spare tail-end shaft(s)
and/or spare
propeller(s)/propeller blade(s), if any, belonging to the Vessel
at the time of inspection, used or unused,
whether onboard or not shall become the Buyers’ property
but including for the avoidance of doubt and
without limiting the generality of the foregoing spares on
order, if any, as well as all those parts and equipment
mentioned in the Shipbuilding Contract[, the Resale Agreement]
and the Specifications 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 and navigational equipment shall be included in the
sale without extra payment, if they are the property of
the Sellers. Unused stores and provisions, if any,
shall be included in the sale and be taken over by the Buyers
without extra payment. All items listed in section III of
the Specifications such as entertainment equipment, hardware,
crockery, gymnastic apparatus, consumable stores, etc. to be for
Buyers’ account. Spare parts to be in accordance with the
requirements of the Classification Society.
The Buyers shall take over remaining bunkers and unused
lubricating oils in storage tanks and sealed drums and pay an
amount equal to that payable by the Sellers to the Intermediate
Sellers or, as the case may be, the Builder. the current
net market price (excluding barging expenses) 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 |
The place of closing; London, England or Piraeus, Greece in the
Buyer’s option
In exchange for payment of the Purchase Price the Sellers shall
furnish the Buyers with delivery documents, namely:
a) Three originals of a Legal Xxxx of Sale in a form
recordable in (the country in which the Buyers are to register
the Vessel) and which the Buyers should nominate at least 10
running days prior to the delivery of 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) All delivery documents to be delivered to the Sellers by
the intermediate Seller
and/or the
Builder under the Shipbuilding Contract [and the Resale
Agreement], including the document called the
“Builder’s Certificate”.
c) Any such additional documents as may reasonably be
required by the competent authorities for the purpose of
registering the Vessel, as well as any such additional documents
that the Buyers shall require for the purpose of ascertaining
(i) the proper constitution of the Sellers and
(ii) that all appropriate corporate and other action has
been taken in connection with the authorization and the
performance by the Sellers of this Agreement, the novation of
the Charter as provided in clause 19 hereof together with
any documents referred therein, and the assignment of the
warranty of quality as provided in clause 18 hereof
together with any documents referred therein, provided the
Buyers notify the Sellers of any such documents as soon as
possible after the date of this Agreement and provided further
that in relation to the Charterer, the Builder, the Intermediate
Seller, the Shipbuilding Contract, etc. the Sellers shall use
their best endeavours to provide the Buyers with documentation
similar to the one they shall deliver in relation to the
Sellers, this Agreement, the novation of the Charter, etc.
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) (Provided that the Buyers supply
the Builder with the necessary information required by the
Classification Society for issuing such certificates in the
Buyers’ name) (as provided in Clause 11 hereof) as
well as all plans etc., relating to the Vessel and her equipment
which are whether or not the same are on board
the Vessel. Other certificates which are
whether or not the same 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 (including the Specifications,
the Vessel’s shipbuilding drawings, equipment manuals, sea
trial records, correspondence with the Builder or the
Classification Society concerning the Vessel or its equipment)
shall be promptly forwarded to the Buyers at their expense. The
Sellers shall also deliver to the Buyers any ship replica model
that the Builder has produced in relation to the Vessel and the
cost of forwarding such replica model to the Buyers shall be
borne by the Buyers, if they so request. The Sellers may
keep the copies of the Vessel’s log books—but the
Buyers to have the right to take copies of same. The
Buyers and the Sellers agree to arrange for an undocumented
transfer, i.e. for the Vessel to be registered directly in the
Buyers’ name, and the Sellers shall procure that the
Intermediate Seller also shall not register its title prior to
tendering delivery to the Sellers pursuant to their contractual
arrangements.
| 9. | Encumbrances |
The Sellers warrant that the Vessel at the time of delivery
under this Agreement, is free from all charters (save for the
Charter, in relation to which the Sellers agree to exercise
their best endeavours in order that the delivery of the Vessel
under this Agreement is effected expeditiously, efficiently and
with minimum cost and delays to all parties involved)
encumbrances, Mortgages and maritime liens or any other debts or
claims whatsoever. The Sellers hereby undertake to indemnify the
Buyers against all consequences of claims made against the
Vessel which have been incurred prior to the time of delivery.
| 10. | Taxes, etc. |
Subject to clause 8 hereof, Aany taxes,
fees and expenses in connection with the purchase and
registration under the Buyers’ flag shall be for the
Buyers’ account, whereas similar charges in
connection with the closing of the Sellers’
register in connectioned with the
delivery of the Vessel to the Sellers by the Intermediate Seller
shall be for the Sellers’ account.
| 11. | Condition on delivery |
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 overas she
was at the time of inspection, fair wear and tear
excepted in brand new condition as is at the time of
delivery of the Vessel to the Sellers by the Intermediate Seller
and always in compliance with the Specifications and the
Shipbuilding Contract and otherwise in accordance with
clause 22. HoweverFurthermore, the Vessel
shall be delivered with her class maintained without
condition/recommendation*,save for any recommendation which
customarily applies to newbuilding vessels free of average and
damage affecting the Vessel’s class, and with her
classification certificates and national and international
certificates, as well as all other certificates the Vessel had
at the time of inspection, delivery from the
Builder, valid and unextended for 5 months (as always
issued by the Builder) from the date the Vessel is delivered to
the Buyers under this Agreement without
condition/recommendation* by Class or the relevant authorities
and save as provided in line 219 above and provided further that
the Buyers shall accept the provisional certificates issued by
the Class on delivery at the time of delivery
“Inspection” in this Clause 11, shall mean the
Buyers’ inspection according to Clause 4 a) or 4b), 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.
| 12. | Name/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. It 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 or
should the Sellers be in breach of any of their obligations
under clause 8 or 18 to 23 (inclusive), 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 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 or are in breach of any of
clauses 8 or 18 to 23 (inclusive) as foresaid 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 – see clause 24 |
* Notes, if any, in the surveyors report which are accepted
by the Classification Society without condition/recommendation
are not to be taken into account.
| 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 199650 and
1979 or any statutory modification or re-enactment
thereof for the time being in force, one arbitrator being
appointed by each party. On the receipt by one party of the
nomination in writing of the other party’s arbitrator, that
party shall appoint their arbitrator within fourteen days,
failing which the decision of the single arbitrator appointed
shall apply. If two arbitrators are properly appointed they
shall in turn appoint a third arbitrator and the three
arbitrators will be deciding by majority and their majority
decision will be final in the event the two arbitrators
appointed by the parties hereto fail to agree on the appointment
of the third arbitrator then the President of the Lloyds
Maritime Arbitration Association at the relevant time shall be
asked by either party hereto to appoint the third arbitrator
shall not agree they shall appoint an umpire whose
decision shall be final.
Clauses 17 to 30, inclusive, as attached, and form an
integral part of this 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
CLAUSES TO THE MEMORANDUM OF AGREEMENT DATED 3 MAY 2006
BETWEEN XXXXXXXX MARITIME LIMITED AND POTOMAC SEAWAY CARRIERS
CO.
Clause 17
The Buyers shall have the right to assign as security any of
their rights under this Agreement to a bank or other financial
institution providing the Buyers with finance in relation to the
acquisition of the Vessel.
Clause 18
On or prior to the delivery of the Vessel under this Agreement,
the Sellers undertake to assign to the Buyers all their rights,
interest and title (a) under the relevant article of the
Shipbuilding Contract dealing with the Vessel’s so called
warranty of quality, (b) in any claims made thereunder
outstanding at the time of such assignment and (c) under
any other suppliers’ or equipment manufacturers’
warranties that are available to the Sellers.
The assignment of the rights described above, shall be effected
by (a) the Sellers executing a deed in a form acceptable to
the Buyers (the “Deed of Assignment”) and (b) the
Builder, the Intermediate Seller or such other relevant supplier
or manufacturer countersigning a notice of assignment again in
form acceptable to the Buyers, such notice to be duly executed,
provided however that in the event that the Builder or any
supplier or manufacturer does not consent to the assignment of
the relevant warranty, the Sellers hereby further undertake to
act as the agent of the Buyers in raising, handling and closing
any claims that the Buyers may want to raise under the said
warranty always following the instruction of the Buyers. The
Sellers shall not refuse any request by the Buyers to raise a
claim under the said warranty of quality on the understanding
that the Sellers shall not be liable to meet a claim if there is
a failure to recover the same from the Builder or, as the case
may be, the relevant supplier or manufacturer, provided however,
that the Sellers shall, on the request of the Buyers, commence
legal proceedings against the Builder or, as the case may be,
supplier or manufacturer in connection with any disputed or
non-recoverable claim made under the relevant warranty.
The Sellers undertake with the Buyers that following the date of
this Agreement, they shall:
(a) at the Sellers expense, provide the Buyers with a true
and complete certified copy of the Shipbuilding Contract and the
Resale Agreement pursuant to which the Sellers have obtained the
benefit of the relevant warranties as well as list of any claims
made thereunder;
(b) not in any manner vary, waive, surrender, assign to any
person other than the Buyers or suspend any of their rights
under the relevant warranties; and
(c) advise the Buyers of any event that falls within any of
the warranties to be assigned to the Buyers hereunder as well as
of any claim made under the warranty in connection with such
event or otherwise.
Finally, the Sellers agree to draft the Deed of Assignment and
to reflect the requirements of this clause 18 and any other
matter reasonably required by the Buyers in relation thereto.
Clause 19
The Vessel is sold subject to the Charter which the Buyers have
reviewed and accepted. The Sellers hereby undertake with the
Buyers to (a) novate all their rights and obligations
insofar as the Vessel is concerned under the Charter in favour
of the Buyers on or prior the delivery of the Vessel to the
Buyers and (b) procure that Metrostar and the Charterer
agree such novation pursuant to a novation agreement to be
entered among Metrostar (as agent for the Sellers), the
Charterer, the Sellers and the Buyers (the “Novation
Agreement”).
The Sellers further undertake with the Buyers that terms of the
Novation Agreement shall be acceptable to the Buyers and that
they shall provide therein, inter alia but without prejudice to
the generality of the foregoing, that any hire paid by the
Charterer to the Sellers under the Charter in advance insofar as
the Vessel is concerned in relation to a period of trading
falling after the Vessel is delivered to the Sellers hereunder
should be paid by the Sellers to the Buyers and that the Sellers
shall remain responsible
for any cargo claims or claims under the Charter insofar as the
Vessel is concerned arising prior to the delivery of the Vessel
to the Buyers hereunder.
The Sellers further hereby undertake with the Buyers that
following the date of this Agreement and until delivery of the
Vessel to the Buyers under this Agreement, they will:
(a) not, without the previous written consent of the Buyers:
(i) agree to any variation of the Charter; or
(ii) release the Charterer from any of the Charterer’s
obligations under the Charter or waive any breach of the
Charterer’s obligations thereunder or consent to any such
act or omission of the Charterer as would otherwise constitute
such breach: or
(iii) determine the Charter for any reason whatsoever
(including withdrawal of the Vessel under the Charter for
non-payment of charter hire in accordance with the terms
thereof); and
(b) supply to the Buyers all information, accounts and
records that may be necessary or of assistance to enable the
Buyers to verify the amount of all payments of charterhire and
any other amount payable under the Charter.
The Sellers also undertake with the Buyers that:
(a) they shall not, without first obtaining the Buyers
prior written consent, reach any agreement, as contemplated by
the terms of the Charter, with the Charterer as regards the
daily charter hire rate to be applicable to the Vessel for a
particular calendar year; and
(b) any such agreement with the Charterer as regards the
daily charter hire rate to be applicable to the Vessel for a
particular calendar year, shall only be reached after the
Sellers have received written instructions by the Buyers at what
rate the Buyers wish the Sellers to conclude such an agreement
with the Charterer; and
(c) they shall (i) advise the Buyers as to the time
and place of any meeting or telephone or video conference to
take place with the Charterer as regards the daily charter hire
rate to be applicable to the Vessel for a particular calendar
year, (ii) provide the Charterer with any correspondence or
other information relevant to such meeting or conference and the
discussion to take place thereat and (ii) make arrangements
for a representative of the Buyers to attend any such meeting or
conference with the Charterer.
Finally, the Sellers hereby represent and warrant to the Buyers
that:
(a) the Charter is free from all encumbrances and other
interests and rights of every kind;
(b) the executed original of the Charter to be delivered by
the Sellers to the Buyers under this Agreement prior to the
Vessel be is true and complete, the Charter constitutes the
valid and binding obligations of the parties thereto enforceable
in accordance with its terms, is in full force and effect and
there have been no amendments or variations thereof or defaults
thereunder from the date of this Agreement;
(c) the Vessel has been delivered to and accepted by the
Charterer for service under the Charter; and
(d) there are no commissions, rebates, premiums or other
payments in connection with the Charter other than as disclosed
to the Buyers in writing prior to the date hereof.
Clause 20
At the Buyers’ request, the Sellers shall provide the
Buyers with sufficient copies of their audited annual financial
statements (which for the avoidance of doubt shall include a
balance sheet, a profit and loss and a cash flow statement)
prepared in accordance with International Accounting Standards
and being for such period as requested by the Buyers.
Clause 21
To the extent that the Sellers or the Intermediate Seller
receive the benefit of a reduction (the “reduction”)
in the purchase price to be paid by either of them under their
respective contracts by operation of the provisions of
clause 18 of the Resale Agreement, then the Buyers would
automatically be entitled to receive, in the Buyer’s
option, either a reduction in the Purchase Price or a lump sum
payment by the Sellers to the Buyers on delivery of the Vessel
under this Agreement, in either case equal to the amount of the
reduction.
Clause 22
(a) The Vessel shall be delivered to the Sellers in
accordance with the Shipbuilding Contract, the Resale Agreement
and the Specifications, as these may be amended
and/or
supplemented from time to time in accordance with the provisions
of Clause 22(b) hereof.
(b) The Sellers further hereby undertake that following the
date of this Agreement and until delivery of the Vessel to the
Buyers under this Agreement, they will:
(i) not, without the previous written consent of the Buyers:
(A) agree, nor permit the Intermediate Seller to agree, to
any amendments, supplements or changes whatsoever to the
Shipbuilding Contract, the Specifications, the Resale Agreement
(whether or not the said amendments, supplements or changes are
necessitated by change in Classification society rules and
regulations) or any other document relating to the construction
of the Vessel;
(B) agree, nor permit the Intermediate Seller to agree, to
any substitution of materials pursuant to the terms of
Article V paragraph 3 of the Shipbuilding Contract;
(C) release the Builder
and/or the
Intermediate Seller from any of their obligations under the
Shipbuilding Contract
and/or the
Resale Agreement or waive any breach of the Builder’s
and/or the
Intermediate Seller’s obligations thereunder or consent to
any such act or omission of the Builder or, as the case may be,
the Intermediate Seller as would otherwise constitute such
breach; or
(D) terminate the Resale Agreement for any reason
whatsoever other than in accordance with Clause 23 hereof.
(c) Failure of the Sellers to comply with the terms of
Clauses 22(a) or 22(b) shall constitute a Sellers’
default and the provisions of Clause 14 hereof shall apply.
Clause 23
If for any reason whatsoever the Sellers become entitled under
the Resale Agreement to terminate such agreement or to reject
the Vessel, then the Sellers shall, before exercising such right
of termination or rejection, advise in writing the Buyers of the
existence thereof and shall act in relation to the said right(s)
in accordance with the Buyers’ instructions. Within seven
(7) Banking Days from receiving such advice the Buyers
shall in turn advise the Sellers in writing:
(i) if they wish the relevant agreement to be terminated
or, as the case may be, the Vessel to be rejected. Upon such
notice the deposit together with the interest earned shall be
released immediately to the Buyers after which this Agreement
shall be null and void; or
(ii) if they do not wish the relevant agreement to be
terminated or, as the case may be, the Vessel to be rejected, of
the terms, if any, upon which the Buyers will be willing for the
Sellers to continue the Resale Agreement or accept the Vessel.
Upon receipt by the Sellers of the said notice and depending on
the instructions contained therein, the Sellers would either
(a) negotiate the terms on which delivery of the Vessel
would be taken or the relevant agreement would be continued or
(b) unconditionally continue the relevant agreement, take
delivery of the Vessel and deliver the Vessel to the Buyers. In
the event that the Builder or, as the case may be, the
Intermediate Seller does not agree to the terms requested by the
Buyers in their notice to the Sellers, then the Sellers, having
first
obtained the Buyers’ prior written consent, shall be
entitled to terminate the Resale Agreement, or, as the case may
be, reject the Vessel whereupon the provisions of
sub-paragraph (i) shall apply.
Clause 24
As soon as the Buyers make the deposit provided under
Clause 2 of this Agreement, the Sellers shall use their
best endeavours to procure that the Buyers are allowed by the
Builder to place an observer at the Shipyard until delivery of
the Vessel hereunder to work along with the Seller’s
supervision team stationed at the Shipyard. Such observer would
be permitted to attend all work sites, inspections, tests, plan
approvals, meetings, sea trials taking place at the Shipyard or
at the Builder’s sub-contractors premise and, in general,
to do anything else that a buyer’s representative is
permitted to do under the terms of the Shipbuilding Contract as
if the said observer was a member of the Seller’s team.
Such observer shall not interfere directly with the Builder
and/or with
the construction process, but shall be entitled to raise
comments with, or make observations to, the Seller’s
supervision team which in turn shall be obliged to pass the same
to the Builder for consideration. It is hereby understood that
if, after having used their best endeavours, the Sellers fail to
obtain the Builder’s consent to place a Buyer’s
representative at the Shipyard in accordance with this
Clause 24, then the Sellers would be absolved from
arranging for a Buyer’s observer to attend the construction
process of the Vessel.
Clause 25
It is hereby agreed that it will be for the Buyers and not for
the Sellers to provide the name of the Vessel and the Sellers
agree, subject to receiving adequate notice, that they will pass
the Buyers’ proposed name to the Builder and arrange that
the same is imprinted by the Builder on the Vessel’s hull
and on the Vessel’s papers. To the extent the Builder
requires any additional payment for making such imprints, then
such payment shall be for the Buyers’ account.
Subject to the Builder’s consent, the Sellers shall procure
that any naming ceremony, as well as any delivery ceremony,
relating to the Vessel is attended by the Buyers (as well as the
Sellers) as if it were a ceremony arranged by the Builder for
the Buyers’ guests and personnel.
Clause 26
The Sellers undertake with the Buyers to provide to the Buyers,
promptly after receiving the same, a copy of all notices,
demands, correspondence, documents, etc., received by the
Sellers and or their agents, attorneys, employees under or in
connection with the Shipbuilding Contract
and/or the
Resale Agreement.
Clause 27
Any and all notices and communications in connection with this
Agreement shall be in English and addressed as follows:
| if to the Buyers at: |
Xxxxxxxx Maritime Limited
c/x Xxxxxxxx Maritime LLC
Xxxxxxxx 00 & Xxxxxx Xxxxxx
000 00 Xxxxxxx
Xxxxxx
Xxxxxx
|
Fax number:
|
000 0000 000 | |
|
Attn.:
|
Xx. Xxxxxxxx Molaris |
| if to the Sellers to: |
Potomac Seaway Carriers Co.
c/o Metrostar Management Corp.
00 Xxxxxxxxxxxxx Xxxxxx
000 00 Xxxxxx
Xxxxxx
|
Fax number:
|
000 0000 000 | |
|
Attn:
|
Xx. Xxxxxxxxx Xxxxxxxx |
Clause 28
The existence of this Agreement as well as the terms hereof
should remain strictly private and confidential subject to any
disclosure requirements imposed on QML by the
U.S. Securities and Exchange Commission (“SEC”)
or the rules of NASDAQ and subject further to the following
paragraph of this Clause 28.
The restriction imposed by this Clause 28 shall not apply
in relation to a party to the extent (a) such party is
required by law to disclose this Agreement and/or the
circumstances surrounding it or (b) the relevant
information has been disclosed to the public other than by a
person who would had been subject to the confidentiality
obligations imposed by this Clause 28 or (c) a party
is required to disclose this Agreement
and/or the
terms thereof to its financiers, legal advisers, auditors etc.
Clause 29
The Sellers agree that QML is entitled to nominate one of its
subsidiaries as the buyer of the Vessel (such subsidiary being
called for the purposes of this Agreement, the
“Nominee”) under this Agreement. It is further agreed
between the Sellers and the Buyers that any such nomination is
to be made by QML in writing at least 10 running dates before
delivery of the Vessel and in connection therewith QML will also
provide to the Sellers a copy of its letter nominating the
Nominee as Buyers, which nomination shall be accepted by the
Nominee countersigning such letter.
Finally, it is hereby agreed between the parties thereto, that
upon such nomination taking place the Nominee shall become the
“Buyers” for the purposes of this Agreement and shall
have all the rights and obligations QML had by signing this
Agreement. QML will remain responsible for all the obligations
the Buyers have under this Agreement, notwithstanding the
nomination of the Nominee, provided however that, to the extent
that the Nominee duly performs and discharges (or procures the
performance and discharge of) the duties and liabilities
undertaken by the Buyers in this Agreement, then such
performance and discharge of the said duties and liabilities by
the Nominee shall be deemed to be proper and due performance and
discharge of QML’s duties and liabilities under this
Agreement and the Sellers’ shall not be construed by virtue
of the terms of this Clause 29 that they have the right to
ask QML to perform again any duty or liability that has already
been performed by the Nominee.
Clause 30
This Agreement is subject to QML raising the necessary funds for
acquiring the Vessel and 16 other vessels it has agreed to
purchase from affiliates of the Sellers, and declaring its
success in achieving so not later than 10 May 2006.
Should QML not declare its success to the Sellers in accordance
with this Clause 30, the deposit together with the interest
earned shall be released immediately to the Buyers, after which
this Agreement shall be null and void.
IN WITNESS WHEREOF the parties hereto have caused this Agreement
to be duly executed on the day and year first written above.
/s/ XXXXXXXXX
XXXXXXXX
Signed for and on behalf of
POTOMAC SEAWAY CARRIERS CO.
by
/s/ XXXXX
XXXXXXXXXXXXX
Signed for and on behalf of
XXXXXXXX MARITIME LIMITED
by
its Chief Commercial Officer and Chief Operating Officer
