Contract
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Exhibit
10.4
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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
Code-name
SALEFORM
1993
Revised
1966, 1983 and 1986/87
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Dated:
12th
June
0000
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Xxxxxxxxxx
Shipping Pte Ltd of Singapore hereinafter called the Sellers, have
agreed to sell, and MC Shipping Inc or it’s guaranteed
nominee
hereinafter
called the Buyers, have agreed to buy
Name: ‘WINDERMERE’
Classification
Society/Class: Nippon Kaiji Kyokai
(Class NK)
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Built: 1995
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By:
Asakawa Shipbuilding Co.
Ltd.
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Flag:
Singapore
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Place
of Registration:
Singapore
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Call
sign: 9VRE
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GRT/NRT:
5,752 tons / 1,763
tons
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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.
"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.
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1.
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Purchase
Price
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US$
,12,400,000 (United States Dollars Twelve Million Four Hundred
Thousand). 1 (one) percent sale commission to be paid by Seller to
X.X Xxxxxx Shipbrokers Ltd.
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2.
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Deposit
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As
a
security for the correct fulfillment of this Agreement the Buyers shall pay
a
deposit of 10% (ten per cent) of the Purchase Price within
3(three) London banking days from the
date time of
this Agreement
has been signed by both parties and exchanged by
fax. This deposit shall be placed
with the Sellers nominated
bank
and
held
by them in a an interest
bearing joint account for the Sellers
and the Buyers, to be released in accordance with joint written instructions
of
the Sellers and Buyers. Interest, if any, to be credited to the
Buyers, Any fee charged for holding said deposit shall
be borne equally by the Sellers and the Buyers. Bank charge for
remitting the deposit from the joint account to the Sellers account to be borne
by the Buyers.
3.
Payment
The
said
Purchase Price shall be paid in full free of bank charges to the Sellers
nominated bank:- The Iyo Bank Ltd, Hashihama Branch, 1-1-4 Hashiama, Imabari,
Ehime Pref., Japan. Telephone: x00 000 000000. Facsimile:
x00 000 000000. PIC: Xx Xxxxxxxxx Xxxxxx. Account name: Windermere
Shipping Pte Ltd. Account No: 0000000
(US$)
In
cash on delivery of the vessel, but not later than 3
(three) London 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
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a)*
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The
Buyers have inspected and accepted the Vessel's classification records.
The Buyers have also inspected the Vessel
at/
and
have accepted the Vessel following this, and the
sale is outright and definite, subject only to the terms and
conditions of this Agreement.
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*
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4a)
and 4b) are alternatives; delete whichever is not applicable. In
the
absence of deletions, alternative 4a) to
apply.
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5.
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Notices,
time and place of delivery
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a)
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The
Sellers shall keep the Buyers well informed of the Vessel's itinerary
and
shall provide the Buyers with 15, 7,
and 3 days
approximate notice of the estimated time of arrival at the intended
place of
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b)
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The
Vessel shall be delivered and taken over
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Expected
time of delivery: Between 15th
July 2007 and 15th
August 2007
Date
of
cancelling (see Clauses 5 c), 6b) (iii) and
14):15th
August 2007
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c)
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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 date. 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.
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If
this Agreement is maintained with the new cancelling date all other
terms
and conditions hereof including those contained in Clauses 5 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.
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d)
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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.
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6.
Drydocking/Divers Inspection
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a)**
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b)**
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(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.
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(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.
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c)
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If
the Vessel is drydocked pursuant to Clause 6 a) or 6 b)
above
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(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).
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*
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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.
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**
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6
a) and 6 b) are alternatives; delete whichever is not applicable.
In the
absence of deletions, alternative 6 a) to
apply.
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7.
Spares/bunkers, etc.
The
Sellers shall deliver the Vessel to the Buyers with everything belonging to
her
on board and on Shore. All spare parts and spare equipment including spare
tail-end shaft(s) and/or spare propeller(s)/propeller blade(s), if any,
belonging to the Vessel at the time of inspection used or unused, whether on
board or not shall become the Buyers' property, but spares on order are to
be Included 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, 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):
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Crew Training Systems
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Logbooks (but Buyers to have right to take copies)
The
Buyers shall take over the remaining bunkers and unused
lubricating oils in storage tanks and sealed drums and
pay the Sellers’ last purchased price supported with
vouchers. Bunkers and the property of the Charterers and no payment
shall be made for these between Buyers and
Sellers. current net market price (excluding barging
expenses) at the port
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: Imabari,
Japan
In
exchange for purchase money payment of the
Purchase Price the Sellers are to provide
shall furnish the Buyers
with those documents that Buyers require to transfer title and
register vessel under her new flag.
Documentation
to be mutually agreed and Incorporated into the Memorandum of Agreement by
way
of addendum.
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9.
Encumbrances
The
Sellers warrant that the Vessel, at the time of delivery, is free from all
charters, encumbrances, mortgages and maritime liens or any other debts
whatsoever. The Sellers hereby undertake to indemnify the Buyers against all
consequences of claims made against the Vessel which have been incurred prior
to
the time of delivery.
10. Taxes,
etc.
Any
taxes, fees and expenses in connection with the purchase and registration under
the Buyers' flag shall be for the Buyers' account, whereas similar charges
in
connection with the closing of the Sellers' register 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
over substantially in the same condition as when
inspected as she was at
the time of inspection, fair
wear and tear excepted with the cargo tanks under inert gas or last
cargo vapours in the Sellers’ option and with any equipments and spare parts as
when inspected and complying with the minimum class
requirements. Spare parts which are taken out of and used as
replacement prior delivery shall not be replaced as long as the Vessel meets
minimum
class requirement.
However,
the Vessel shall be delivered with her present class
(Class NK) maintained without
condition/recommendation*
unextended
without condition/recommendation* by Class or the relevant authorities
for a minimum of 6 (six) months from delivery. All equipment
included in Class item to be in working order on delivery.
Vessel
is to be delivered to the Buyers simultaneously with delivery into present
time-charter. at the time of
delivery.
"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.
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*
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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.
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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 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. 254
15. Buyers'
representatives
After
this Agreement has been signed by both parties and the deposit has been lodged,
the Buyers have the right to place
one two representatives on board the
Vessel at their sole risk and expense for a period to the Vessel’s
delivery. upon arrival
at on or about
16. Arbitration
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a)*
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This
Agreement shall be governed by and construed in accordance with English
law and any dispute arising out of this Agreement shall be referred
to
arbitration in London in accordance with the Arbitration Acts
1950 and 1979 or
any statutory modification or re-enactment
thereof for the time being in force, one arbitrator being appointed
by
each party. On the receipt by one party of the nomination in
writing of the other party's arbitrator, that party shall appoint
their
arbitrator within fourteen days, failing which the decision of the
single
arbitrator appointed shall apply. If two arbitrators properly
appointed shall not agree they shall appoint an umpire whose decision
shall be final.
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b)*
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c)*
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16
a), 16 b) and 16 c) are
alternatives, delete whichever is not applicable. In the absence
of deletions, alternative 16 a) to apply.
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SELLERS:
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BUYERS:
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NAME:
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NAME:
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London,
18th June
2007
‘WINDERMERE’
ADDENDUM
NO. 1 to Memorandum of Agreement dated 12th
June 2007 between
Windermere Shipping Pte Ltd of Singapore (Sellers) and MC Shipping Inc (The
Buyers)
IT
HAS THIS DAY BEEN MUTUALLY AGREED between Sellers and Buyers
that:
The
Buyers nominated company will be:
Windermere
Maritime Limited
Otherwise
all other terms, conditions and exceptions of the present Memorandum of
Agreement to remain unaltered.
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SELLERS
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BUYERS
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