MEMORANDUM OF AGREEMENT
Exhibit 4.33
Norwegian Shipbrokers’ Association’s
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Memorandum of Agreement for sale and
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purchase of ships. Adopted by BIMCO in 1956.
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Code-name
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SALEFORM 2012
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Revised 1966, 1983 and 1986/87, 1993 and 2012
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Contract No:
18MH01GTB6XD0023
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Dated 27th April 2018
TEMPO MARINE CO. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH96960, hereinafter called the “Sellers”, have agreed to sell, and
GUANGZHOU HEYANG SHIPPING CO., LIMITED, register
address of F2, No. 101 Zhucun Avenue West, Zhucun Road, Zengcheng District, Guangzhou City, China, hereinafter called the “Buyers”, have agreed
to buy:
Name of vessel: MAGANARI
IMO Number: 9223497
Classification Society: Bureau Veritas
Class Notation: Bulk Carrier ESP- heavycargo-nonhomload Holds n. 2,4,6, may be empty-Unrestricted navigation – MACH
Year of Build:
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Builder/Yard: 2001, KANASASHI CO LTD, TOYOHASHI, JAPAN
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Flag: Malta
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Place of Registration: Valletta
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GT/NT: 39126 / 25373
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hereinafter called the “Vessel”, on the following terms and conditions:
Definitions
“Banking Days” are days on which banks are open both in the country of the currency stipulated for the Purchase Price in
Clause 1 (Purchase Price) and in the place of closing stipulated in Clause 8 (Documentation) [and Malta, USA, England, China and Greece].
“Buyers’ Nominated Flag State” means P.R.C. Flag.
“Class” means the class notation referred to above.
“Classification Society” means the Society referred to above.
“Deposit” shall have the meaning given in Clause 2 (Deposit)
“Deposit Holder” means Xxxxxx Xxxxxxx Xxxxxxx, Hong Kong which shall hold and release the Deposit and Balance in accordance
with this Agreement.
“Buyers’ import agent” means CHINA NATIONAL MACHINERY IMP & EXP CORP .
“In writing” or “written” means a letter handed over from the Sellers to the Buyers or vice versa, a registered letter,
e-mail or telefax.
“Parties” means the Sellers and the Buyers and the Buyers’ Import agent.
“Purchase Price” means the price for the Vessel as stated in Clause 1 (Purchase Price).
“Sellers’ Account” means (state details of bank account) at the Seller’s Bank.
“Sellers’ Bank” means (state name of bank, branch and details) or, if left blank, the bank notified by the Sellers to the Buyers for receipt of the Deposit and the Balance of the Purchase Price.
1. |
Purchase Price
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The Purchase Price is USD$9,700.000 (USD Nine Million Seven Hundred Thousand)
2. |
Deposit
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As security for the correct fulfilment of this Agreement the Buyers’ shall lodge a deposit of 10% (ten
per cent), of the Purchase Price (the “Deposit”) via Buyers’ import agent through telegraphic transfer in an interest bearing account for the Parties with the Deposit Holder within (5) Banking Days after the date that:
(i) |
This Agreement has been signed by the Parties and exchanged by e-mail or telefax; and
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(ii) |
The Deposit Holder has confirmed in writing to the Parties that the account has been Opened; and
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The Deposit shall be released in accordance with joint written instructions of the Parties’. Interest,
if any, shall be credited to the Buyers. Any fee charged for holding and releasing the Deposit shall be borne equally by the Parties. The Parties shall provide to the Deposit Holder all necessary documentation to open and maintain the account
without delay.
3. |
Payment
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The 90% balance of the Purchase Price together with extra charges including but not limited to bunkers/
luboils etc (the “Balance”) shall be remitted via Buyers' import agent through telegraphic transfer in full free of bank charges to the Deposit Holder's account one day in advance of the day of delivery and shall be hold by the Deposit Holder at
the Buyers' sole account in accordance with the Escrow Agreement. On delivery of the Vessel, but not later than three (3) Banking Days after the vessel in every respect ready for delivery in accordance with terms and the condition of this agreement
and Notice of Readiness has been given in accordance with Clause 5 (Time and place of delivery and notices)
(i) |
the Deposit shall be released to the Sellers bank account; and
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(ii) |
the balance of the Purchase Price and all other sums payable on delivery by the Buyers to the Sellers under this Agreement shall be paid in full free of bank
to the Sellers’ Account.
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4. |
Inspection
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(a)* The Buyers have inspected and accepted the Vessel's classification records. The Buyers together
with CCS surveyor have also inspected the Vessel at/in Hong Kong on 23'" March 2018 and further CCS inspection was carried out on 20th April 2018. The Buyers have
accepted the Vessel following this inspection and the sale is outright and definite. subject only to the terms and conditions of this Agreement
*4(a)
and 4(b) are alternatives; delete whichever is not applicable. In the absence of deletions, alternative 4(a) to apply.
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Time and place of delivery and notices
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(a) The Vessel shall be delivered and taken over safely afloat at a safe and always accessible drydock
at Zhoushan Xinys Shipyard, China. If no drydock is available according to the expected delivery schedule then tne Vessel will be delivered to he Buyers at the anchorage of the Shipyard. The expense prior to the delivery will be taken by the
Sellers and the expense after the delivery will be responsible by the Buyers.
Notice of Readiness shall not be tendered before: 20th May 2018
Cancelling Date (see Clauses
5(c), 6 (a)(i), 6 (a) (iii) and 14): 24th May 2018
(b) The Sellers shall keep the Buyers well informed of the Vessel’s itinerary and shall provide the
Buyers with twenty (20), fifteen (15), ten (10), seven (7), five (5) days’ notice of the expected time of delivery and 3/2/1 definite days of the date the
Sellers intend to tender Notice of Readiness and of the intended place of delivery.
When the Vessel is at the place of delivery and physically ready for delivery in accordance with this
Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery.
The Buyers shall take delivery of the Vessel within three (3) bankmg days
(Saturday/Sunday/holidays in Malta/USA/Greece/EngIand/Hong Kong/China excluded) after the Sellers have tendered to the Buyers a Nouee of Readiness for Delivery, the date of tendering such notice being exclusive. The Notice of Readiness for Delivery
shall be submitted by the Sellers to the Buyers (anytime, day and night including Saturday, Sunday and holidays) once the Vessel Is ready for delivery.
(c) If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the Vessel
will not be ready for delivery by the Cancelling Date they may notify the Buyers in writing stating the date when they anticipate that the Vessel will be ready for delivery and proposing a new Cancelling Date. Upon receipt of such notification the
Buyers shall have the option of either cancelling this Agreement in accordance with Clause 14 (Sellers’ Default) within one (1) Banking Days of receipt of the notice or of accepting the new date as the new Cancelling Date. If the Buyers have not
declared their option within one (1) Banking Days of receipt of the Sellers’ notification or if the Buyers accept the new date, the date proposed in the Sellers’ notification shall be deemed to be the new Cancelling Date and shall be substituted
for the Cancelling Date stipulated in line 79.
If this Agreement is maintained with the new Cancelling Date all other terms and conditions hereof
including those contained in Clauses 5(b) and 5(d) shall remain
unaltered and in full force and effect.
(d) Cancellation, failure to cancel or acceptance of the new Cancelling Date shall be entirely without
prejudice to any claim for damages the Buyers may have under Clause 14 (Sellers’ Default) for the Vessel not being ready by the original Cancelling Date.
(e) Should the Vessel become an actual, constructive or compromised total loss before delivery the
Deposit together with interest earned, if any, shall be released immediately to the Buyers whereafter this Agreement shall be null and void.
6. |
Drydocking /Divers Inspection
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(a)* No DryDocking shall apply.
The Buyers also waive their right of divers inspection. The Sellers shall issue an undertaking letter that Sellers guarantee
the vessel does not touch the bottom/grounding from the last drydocking to the date of delivery.
(i) |
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(ii) |
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(iii) |
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(i) |
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(iii) |
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(iv) |
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7. |
Spares, bunkers and other items
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The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board 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 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. Unused stores and provisions shall be included in the sale and be taken over by the Buyers without extra payment.
Library and forms exclusively for use in the Sellers’ vessel(s) and captain’s, officers’ and crew’s
personal belongings including the slop chest are excluded from the sale without compensation, as well as the following additional items:
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All Log Books for Deck, Engine and Radio.
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All lSPS, ISM and quality documentation and correspondence. SSP (Ship Security Plan) Training video library. books.
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Crew/Officers library/walport videos
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All Master's Slopchest/Bonded stores. all Master's and crew's personal belongings
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Personal lap-top computers
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Personal cell phones
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Contents of Master's safe
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Certificates/documents to be returned to authorities
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Training video library, books.
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Logbooks shall be retained by the Sellers. However, the Buyers have the right to take photocopies/copy
of the logbooks onboard before delivery at the Buyers’ cost.
Items on board which are on hire or owned by third parties, listed as follows, are excluded from the
sale without compensation: INFINITY Communication Box
Items on board at the time of inspection which are on hire or owned by third parties, not listed above,
shall be replaced by the Sellers prior to delivery at their cost and expense.
Buyers to pay extra for remaining bunkers at Sellers' actual net price (excluding barging expenses),
which to be evidenced by invoices/vouchers/hire statements. In case invoices/vouchers/hire statements are not available then pnces to be paid at Singapore platts prices available one (1) day before vessel's delivery to the Buyers. Also. Buyers to
pay extra for vessel’s unused/sealed lubricants and greases that have not passed through vessel's systems in designated storage tanks and sealed drums/pails at Seller's last prices evidenced by invoices/vouchers.
The Sellers guarantee that tne quantity of the HFO, MOO (including LSMGO) remaining on board at time of
delivery shall not exceed 25% of total tank capacity (including daily service tank, settling tank and designated fuel oil tanks) of each type If the last port prior to the delivery port is Hong Kong Macau or Taiwan, the quantity limit shall be not
exceeding 5% of total tank capacity.
Payment under this Clause shall be made at the same time and place and in the same currency as the
Purchase Price.
“inspection” in this Clause 7, shall mean the Buyers’ inspection according to Clause 4(a) or 4(b)
(Inspection), if applicable. If the Vessel is taken over without inspection, the date of this Agreement shall be the relevant date.
*(a) and (b) are alternatives, delete whichever is not applicable. In the absence of
deletions alternative (a) shall apply.
8. |
Documentation
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The
place of closing: Xxxxxx Xxxxxxx Xxxxxx, Hong Kong
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(e) Concurrent with the exchange of documents in Sub-clause (a) and Sub-clause (b) above, the Sellers
shall also hand to the Buyers the classification certificate(s) as well as all plans, drawings and manuals, (excluding ISM/ISPS manuals), which are on board the Vessel. Other certificates which are on board the Vessel shall also be handed over to
the Buyers unless the Sellers are required to retain same, in which case the Buyers have the right to take copies.
(f) Other technical documentation which may be in the Sellers’ possession shall promptly after delivery
be forwarded to the Buyers at their expense, if they so request. The Sellers may keep the Vessel’s log books but the Buyers have the right to take copies of same.
(g) The Parties 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.
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Encumbrances
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The Vessel shall be delivered free from all charters, encumbrances, mortgages and maritime liens or any
other debts whatsoever, and is not subject to Port State or other administrative detentions. The Sellers hereby undertake to indemnify the Buyers
against all consequences of claims made against the Vessel which have been incurred prior to the time of delivery.
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Taxes, fees and expenses
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Any taxes, fees and expenses in connection with the purchase and registration in the Buyers’ Nominated
Flag State shall be for the Buyers’ account, whereas similar charges in connection with the closing of the Sellers’ register shall be for the Sellers’ account.
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Condition on delivery
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The Vessel with everything belonging to her shall be at the Sellers’ risk and expense until she is
delivered to the Buyers, but subject to the terms and conditions of this Agreement she shall be delivered and taken over as she was at the time of inspection, fair wear and tear excepted.
However, the Vessel shall be delivered free of cargo and free of stowaways with her Class maintained
without condition/recommendation*, free of average damage affecting the Vessel’s class, and with her classification certificates and national certificates, as well as all other certificates the Vessel had at the time of inspection, valid and
without condition/ recommendation* by the Classification Society or the relevant authorities at the time of delivery. Buyers acknowledge that vessels next bottom survey in Dry Dock is due by May 23rd, 2018 and accept to take delivery with such survey due.
For the avoidance of doubt Sellers list hereinbelow Vessel’s major survey due dates which are as follows.
- Annual Surveys -are due by 20th May 2018,
- Bottom Survey in Dry Dock-is due by 23rd May 2018,
- Aux Oil-fired Boiler 1 - Internal - is due by 23rd May 2018"
“inspection” in this Clause 11, shall mean the Buyers’ inspection according to Clause 4(a) or 4(b)
(Inspections), if applicable. If the Vessel is taken over without inspection, the date of this Agreement shall be the relevant date.
*Notes and memoranda, if any, in the surveyor’s report which are accepted by the
Classification Society without condition/recommendation are not to be taken into account.
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Name/markings
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Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel markings.
13. |
Buyers’ default
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Should the Deposit not be lodged in accordance with Clause 2 (Deposit), the Sellers have the right to
cancel this Agreement, and they shall be entitled to claim compensation for their losses and for all expenses incurred together with interest.
Should the Purchase Price not be paid in accordance with Clause 3 (Payment), the Sellers have the right
to cancel this Agreement, in which case the Deposit together with interest earned, if any, shall be released to the Sellers. If the Deposit does not cover their loss, the Sellers shall be entitled to claim further compensation for their losses and
for all expenses incurred together with interest.
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Sellers’ default
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Should the Sellers fail to give Notice of Readiness in accordance with Clause 5(b) or fail to be ready
to validly complete a legal transfer by the Cancelling Date the Buyers shall have the option of cancelling this Agreement. If after Notice of Readiness has been given but before the Buyers have taken delivery, the Vessel ceases to be physically
ready for delivery and is not made physically ready again by the Cancelling Date and new Notice of Readiness given, the Buyers shall retain their option to cancel. In the event that the Buyers elect to cancel this Agreement, the Deposit together
with interest earned, if any, shall be released to them immediately.
Should the Sellers fail to give Notice of Readiness by the Cancelling Date or fail to be ready to
validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers for their loss and for all expenses together with interest if their failure is due to proven negligence and whether or not the Buyers cancel this
Agreement.
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Buyers’ representatives
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After this Agreement has been signed by the Parties and the Deposit has been lodged, the Buyers have the
right to place two (2) representatives on board the Vessel at their sole risk and expense.
These representatives are on board for the purpose of familiarisation and in the capacity of observers
only, and they shall not interfere in any respect with the operation of the Vessel. The Buyers and the Buyers’ representatives shall sign the Sellers’ P&I Club’s standard letter of indemnity prior to their embarkation.
Said Buyers representatives to be allowed to use vessel's communication equipment and said charges will
be settled by Buyers representatives on board and to the Master directly, but before delivery Buyers' representatives to pay a victualling daily rate cf usd 10 per rep.
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Law and Arbitration
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(a) *This Agreement shall be governed by and construed in accordance with English law and any dispute
arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the
provisions of this Clause.
The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA)
Terms current at the time when the arbitration proceedings are commenced.
The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall
appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within fourteen (14) calendar days of that notice and stating that it will appoint its arbitrator as
sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the
fourteen (14) days specified, the party referring a dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The
award of a sole arbitrator shall be binding on both Parties as if the sole arbitrator had been appointed by agreement.
In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 the arbitration
shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
*16(a), 16(b) and 16(c) are alternatives; delete whichever is not applicable, In the
absence of deletions, alternative 16(a) shall apply.
17. |
Notices
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All notices to be provided under this Agreement shall be in writing.
For the Buyers Xxx. Xxxx Xxxxx
Xxxxxxxxx & Stemoco Shanghai
Email: xxx.xxxxx@xxxxxxx.xxx
Mobile: 00 000 0000 0000
For the Seller: Xx. Xxxxxx
Xxxxxxxxxx
Shipinvest Brokers Ltd.
Email: XxX@xxxxxxxxxx.xx
Tel: x00 000 00 00 000
18. |
Entire Agreement
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The written terms of this Agreement comprise the entire agreement between the Buyers and the Sellers in
relation to the sale and purchase of the Vessel and supersede all previous agreements whether oral or written between the Parties in relation thereto.
Each of the Parties acknowledges that in entering into this Agreement it has not relied on and shall
have no right or remedy in respect of any statement, representation, assurance or warranty (whether or not made negligently) other than as is expressly set out in this Agreement.
Any terms implied into this Agreement by any applicable statute or law are hereby excluded to the extent
that such exclusion can legally be made. Nothing in this Clause shall limit or exclude any liability for fraud.
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The Vessel shall be delivered with her cargo holds clean swept. and free of cargo However, Sellers have the option to deliver the vessel with her cargo holds
as they are left by the Slevedores after completion of discharge of cargo on board by paying Buyers a lump-sum amount of USD 4,500 in lieu of
cargo holds cleaning.
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20. |
P&C: All details of these negotiations and any eventual sale shall be kept strictly private and confidential among all parties concerned, except where
required by statutory or requirements for stock listed companies
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For and on behalf of the Sellers
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For and on behalf of the Buyers
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/s/ Xxxxxxxx X. Kuklamanos |
/s/ Linxue Jun
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Name: Xxxxxxxx X. Kuklamanos
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Name: Linxue Jun
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Title: Attorney-in-Fact
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Title: Attorney-in-Fact
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For and on behalf of the Buyers’ import agent
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/s/ Xxxxx Xy Dong
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Name: Xxxxx Xy Dong
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Title: Attorney-n-Fact
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