MEMORANDUM OF AGREEMENT Dated: January 12, 2007 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...
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MEMORANDUM
OF AGREEMENT
Dated:
January
12, 2007
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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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I
Duckling
Corporation, Panama
hereinafter
called the Sellers, have agreed to sell, and Star
Bulk Carriers Corp., Majuro -
Xxxxxxxx
Islands or nominee
hereinafter
called the Buyers, have agreed to buy-
Name:
I. DUCKLING
Classification
Society/Class: BUREAU
VERITAS
Built:
2003 By:OSHIMA
SHIPBUILDING CO. LTD, JAPAN
Flag:
PANAMA Place
of
Registration: PANAMA
Call
Sign: 3EF15 Grt/Nrt:
29,357/17,595
hereinafter
called the Vessel, on the following terms and conditions:
Definitions
“Banking
days” are days on which banks are open both in the country of the currency
stipulated
for the Purchase Price in Clause 1 and in the place of closing stipulated in
Clause 8.
“In
writing” or “written” means a letter handed over from the Sellers to the Buyers
or vice versa, a
registered letter, telex, telefax or other modern form of written communication.
“Classification
Society” or “Class”
means the Society referred to in line 4.
| 1. |
Purchase
Price USD
42,451,428.39
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| 3. |
Payment
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| 4. |
Inspections
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| b)* |
The
Buyers shall have the right to inspect the Vessel
and Vessel’s
classification records
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The
Sellers shall provide for inspection of the Vessel at/in (to
be advised by Sellers)
| * |
4
a) and 4b) are alternatives; delete whichever is not applicable.
In the
absence of deletions, alternative
4a) to apply.
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| 5. |
Notices,
time and place of delivery
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| a) |
The
Sellers shall keep the Buyers well informed of the Vessel’s itinerary and
shall provide
the Buyers with 20,15,
and 7,
5,2 daysapproximate
and 1 definite notice
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.
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b)
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The
Vessel shall be delivered and taken over safely afloat at a safe
and
accessible berth or anchorage
at/
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Expected
time of delivery: as
soon as practically possible following the Effective Date of the
Merger
(as defined in the Supplemental Agreement referenced in Clause 25) but not
later
than
the last discharging port of the last laden voyage
_________________
Date
of
cancelling (see Clauses 5 c), 6 b) (iii) and 14):as
per Supplemental Agreement referenced
in Clause 25
| c) |
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| 7. |
Spares/bunkers,
etc.
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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 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 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): To
Be Advised
The
Buyers shall take over the remaining bunkers (if
same are property of the Sellers)and
unused lubricating
oils in storage tanks and _____________________ sealed
drums and pay the current not market price (excluding barging expenses)
at the port and date of
delivery of the Vessel.See
Clause 20 _________________________________ Payment
under this Clause shall be made at the same time and place and in the same
currency as the
Purchase Price.
| 8. |
Documentation
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The
place
of closing: New
York, USA
In
exchange for payment of the Purchase Price the Sellers shall furnish the Buyers
with delivery documents,
namely:
| a) |
Legal
Xxxx of Sale in a form recordable in Xxxxxxxx
Islands (
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| b) |
Current
Certificate of Ownership issued by the competent authorities of the
flag
state of the
Vessel.
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| c) |
Confirmation
of Class issued within
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| d) |
Current
Certificate issued by the competent authorities stating that the
Vessel is
free from registered
encumbrances.
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| e) |
Certificate
of Deletion of the Vessel from the Vessel’s registry or other official
evidence of deletion
appropriate to the Vessel’s registry at the time of delivery, or, in the
event that the registry
does not as a matter of practice issue such documentation immediately,
a
written undertaking
by the Sellers to effect deletion from the Vessel’s registry forthwith and
furnish a Certificate
or other official evidence of deletion to the Buyers promptly and
latest
within 4 (four)
weeks after the Purchase Price has been paid and the Vessel has been
delivered.
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| f) |
Any
such additional documents as may reasonably be required by the competent
authorities for
the purpose of registering the Vessel, provided the Buyers notify
the
Sellers of any such documents
as soon as possible after the date of this Agreement. See
Clause 22
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At
the
time of delivery the Buyers and Sellers shall sign and deliver to each other
a
Protocol of
Delivery
and Acceptance confirming the date and time of delivery of the Vessel from
the
Sellers to the Buyers.
At
the
time of delivery the Sellers shall hand to the Buyers the classification
certificate(s) as well as all plans,
instruction books, maintenance records etc.,
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
to
have the right to take copies. Other technical documentation which
may be
in the
Sellers’ possession shall be promptly forwarded to the Buyers at their expense,
if they so request.
The Sellers may keep the Vessel’s log books but the Buyers to have the right to
take copies
of
same.
| 9. |
Encumbrances
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The
Sellers warrant that the Vessel, at the time of delivery, is free from all
charters (other
than term employment/charters
contemplated by the Supplemental Agreement referenced in Clause 25),
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. The
Vessel on delivery to be delivered free of cargo /cargo residues,
and free of any dunnage.
| 10. |
Taxes,
etc.
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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
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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 with her class maintained without
condition/recommendation*, free
of
average damage affecting the Vessel’s class, and with her classification
certificates and International/national
certificates
andsurveys,
as
well
as all other certificates the Vessel had at the time
of
agreement inspection,
valid and unextended
without condition/recommendation* by Class or the relevant authorities
for
a minimum of 1
month from at
the time of _______________ delivery.
“Inspection”
in this Clause 11 and
in Clause 7, Line 157, shall
mean the Buyers’ inspection according to Clause 4 a) or 4 b), if
_________________________________ applicable, or the Buyers’ inspection prior to
the signing of this Agreement. If the Vessel is taken over without
inspection, the date of this Agreement shall be the relevant date.
| * |
Notes,
if any, in the surveyor’s report which are accepted by the Classification
Society without
condition/recommendation are not to be taken into
account.
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| 12. |
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 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 as
per Supplemental Agreement referenced in Clause
25
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| 15. |
Buyers’
representatives See
Clause 21
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| 16. |
Arbitration
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b)*
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This
Agreement shall be governed by and construed in accordance with Title
9 of
the United
States Code and the Law of the State of New York and should any dispute
arise out of this
Agreement, the matter in dispute shall be referred to three persons
at New
York, one to be
appointed by each of the parties hereto, and the third by the two
so
chosen; their
decision or that of any two of them shall be final, and for purpose
of
enforcing any award, this Agreement
may be made a rule of the Court.
The
proceedings shall be conducted in accordance with the rules of the
Society
of Maritime Arbitrators,
Inc. New York.
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*
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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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Clauses
17-25 both inclusive are deemed are part of this
agreement
This
Charter Party is a computer generated copy of the “SALEFORM 1993” form printed
by authority of Norwegian Shipbrokers’ Association
using software which is the copyright of Strategic Software Ltd. Any insertion
or deletion to the form must be clearly visible. In the
event
of any modification made to the preprinted text of this document which is not
clearly visible, the text of the original approved document shall apply.
Norwegian Shipbrokers’ Association and Strategic Software Ltd. assume no
responsibility for any loss or damage caused
as
a result of discrepancies between the original approved document and this
document.
ADDITIONAL
CLAUSES
TO
THE MEMORANDUM OF AGREEMENT - SALE FORM 1993
DATED
JANUARY 12, 2007 FOR M.V. ‘I DUCKLING’ (THE VESSEL)
BETWEEN
I DUCKLING CORPORATION. PANAMA (THE SELLERS)
AND
STAR BULK CARRIERS CORP. XXXXXXXX ISLANDS OR
NOMINEE
(THE BUYERS)
CLAUSE
17
This
sale
is part of the sale and delivery of the following additional Motor
Vessels:
M.V.
“A
Duckling”
M.V.
“B
Duckling”
M.V.
“C
Duckling”
M.V.“F
Duckling”
M.V.
“G
Duckling”
M.V.
“J
Duckling”
M.V.
“Mommy Duckling”
registered
in the respective ownership of the following Owners:
A
Duckling Corporation, Panama
B
Duckling Corporation, Panama
C
Duckling Corporation, Panama
F
Duckling Corporation, Panama
G
Duckling Corporation, Panama
J
Duckling Corporation, Panama
Mommy
Management Corp., Panama
and
all
ultimately beneficially owned by TMT Co., Ltd., Taiwan (“TMT”). In the event
that
one
or more of the above vessels are not delivered pursuant to their respective
MOA’s
for
any reason whatsoever, TMT hereby agrees and assumes the obligation to
substitute the non-delivered vessel(s) with replacement tonnage pursuant and
subject
to the terms of the Supplemental Agreement referenced in Clause 25.
CLAUSE
18
This
sale
is subject to:
| i) |
STAR
MARITIME ACQUISITION CORP. Delaware (“Star Maritime”) a
listed company in the AMEX being the parent company of the Buyers
filing
a definitive proxy/registration statement (the “Registration Statement”)
with
the Securities and Exchange Commission (the “SEC”) and such
Registration Statement being declared effective by the
SEC.
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| ii) |
Star
Maritime obtaining the requisite approval of its stockholders for
the
Merger (as defined in Supplemental Agreement referenced in Clause
25)
and the sale of the vessels provided for in the Supplemental Agreement
referenced in Clause 25 at a duly convened stockholders’ meeting.
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CLAUSE
19
No
dry-docking / however the Buyers have the right at Buyers’ expense to carry out
an
under-water (defined as ‘parts below the sea water line at time of divers
inspection’)
inspection prior to or at the delivery port and the Sellers shall make the
vessel
available for such under-water inspection. Inspection of underwater parts
shall
be
carried out by divers approved by the class with the presence of class
surveyor
and the Sellers/Buyers representatives. Such diver inspection shall be
carried
out in a manner acceptable to class surveyor. 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 the delivery port.
In
the
event of any damage/s being found which lead to a recommendation by the
classification
society and immediate repairs are required, the Sellers shall then
dry-dock
the
Vessel in accordance with clause 6 of the Norwegian Sale Form 1993, and
Sellers
shall repair same to class satisfaction. Cancelling date to be extended
accordingly.
If
damage/s are found which lead to a recommendation by the classification society,
repair/s
of which maybe be carried out by the Buyers at a later stage, as per
classification
society recommendation, then in lieu of Buyers taking delivery of the
Vessel
with said recommendation/s the Sellers shall pay to the Buyers the estimated
repairing
direct cost - this amount will be deducted from the purchase price on
delivery.
This
estimated repairing direct cost shall be the average cost of 2 quotations from
reputable
yards/repair shops at or near the delivery port, 1 obtained by Buyers and 1
obtained
by Sellers determined in accordance with the cost of such repairs prevailing
at
the
time
of delivery of the Vessel, for repair works only without dry-docking costs
and
without
costs of possible time lost, and in any case for the direct cost/s
only.
It
is
understood that class shall be the sole arbiter in any matter under this Clause
19 affecting
the Vessel’s class.
The
costs
of class surveyor’s fee and diver inspection will be for the Buyers’
account.
CLAUSE
20
The
Buyers are to pay extra for unused/unbroached lubricating oils in drums and
designated storage tanks ‘remaining on board’ as per actual cost evidenced by
net invoice
prices including discounts. Also extra payment for bunkers ‘remaining on
board’
at
the Sellers’ last paid prices (either bought in the open market or paid to last
charterers)
CLAUSE
21
As
from
the Effective Date of Merger (as defined in the Supplemental Agreement
referenced
in Clause 25) Buyers shall have the right to place onboard up to a maximum
of
three
(3) representatives until delivery as observers for familiarisation purposes
only
without interference to the Vessel’s operation at Buyer’s risk and expense.
Representatives
are to sign Sellers’ indemnity form. Sellers shall assist where necessary
in the application for visas for Buyer’s ongoing representatives. Upon
Vessel’s
arrival at the delivery port Buyers shall have the right to place on board
three
(3) more representatives on a daily basis up until delivery. Buyers
representatives to have
the
right to communicate with their office / managers via the Vessel’s communication
means always at Buyers’ cost. The Buyers’ representatives shall have
full
access to Vessel’s all non-private spaces, as well as to instruction books,
plans, certificates,
records, documents, plans, drawings and shall have the right to take
photocopies
of same but should not interfere with the Vessel’s cargo discharge operations,
if any.
CLAUSE
22
Sellers
and Buyers to supply documentation which may be reasonably required and to
be
mutually agreed for the legal transfer of the Vessel and for her Xxxxxxxx
Islands
registration under new flag and ownership (such list to form an addendum to
the
MOA).
At
the
time of delivery, in addition to other documents to be agreed per this clause,
Buyers
shall furnish Sellers with the following delivery documents:
| (i) |
Novation
Agreement duly executed by Buyers;
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(ii)
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Secretary’s
Certificate of Buyers authorizing this MOA, the Supplemental Agreement
and the Novation Agreement in respect of the charter of the Vessel,
together with incumbency certificates; and
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(iii)
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Secretary’s
Certificate of each of Star Maritime and Star Bulk authorizing the
Master
Agreement, the Supplemental Agreement and this MOA, together with
incumbency certificates.
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At
the
time of delivery, in addition to other documents to be agreed per this clause,
Sellers
shall furnish Buyers with the following delivery documents:
| (i) |
Novation
Agreement duly executed by Sellers and the
charterer;
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| (ii) |
Secretary’s
Certificate of Sellers authorizing this MOA, the Supplemental Agreement
and the Novation Agreement in respect of the charter of the Vessel,
together with incumbency certificates; and
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(iii)
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Secretary’s
Certificate of each of TMT authorizing the Master Agreement, the
Supplemental
Agreement and this MOA, together with incumbency certificates.
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CLAUSE
23
Sellers
warrant that on the date hereof and on the date of closing, the Vessel shall
be
entitled to trade worldwide within Institute Warranty Limits without restriction
on limitation.
CLAUSE
24
All
instruction books, drawings, plans and manuals, on board or ashore in
owners/managers office that are in Sellers possession are to be delivered
to the
Buyers except ISM manuals and ship security plan. The Sellers to forward
office
set as soon as possible after delivery to the Buyer’s office. All forwarding
costs to be for Buyers account.
CLAUSE
25
This
agreement is one of the “MOAs” referred to and defined in (i) that certain
Supplemental Agreement dated the date hereof and executed and delivered
concurrently herewith by and among Buyers, Star Maritime as the 100pct
parent of
the Buyers, and TMT, the 100pct parent of the Sellers and is incorporated
herein
by reference, and (ii) the Master Agreement dated the date hereof and executed
and delivered concurrently herewith by TMT, Buyers and Star Maritime, and
is
incorporated by reference. If there is any inconsistency between the terms
of
this agreement and the terms of said Supplemental Agreement and/or said
Master
Agreement, the terms of said Supplemental Agreement and said Master Agreement
shall control.
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THE
SELLERS
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THE
BUYERS
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/s/
Nobu Su
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/s/
Prokopios Tsirigakis
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____________________
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_____________________
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