Exhibit 4.88
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MEMORANDUM OF AGREEMENT
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Code-name
SALEFORM 1993
Revised 1966, 1983 and 1986/87
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Dated: 4 May 2018
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Aquarius Owners Inc., a company incorporated and
existing under the laws of Xxxxxxxx Islands hereinafter called the Sellers, have agreed to sell, and
Xxx Xxx Shipping 1626 Limited, a company
incorporated and existing under the laws of the Xxxxxxxx Islands hereinafter called the Buyers, subject to Clause 17 of this Agreement have agreed
to buy
Name: Nasaka
Classification Society/Class: Nippon Kaiji
Kyokai NK
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Built: 2014
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By: Tsuneishi Shipbuilding Co. Ltd.,
Japan
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Flag: Malta
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Place of Registration: Valletta
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Call Sign: 9HA4572
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Grt/Nrt: 43089/27447
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Register Number:
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IMO Number: 9602423
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hereinafter called the Vessel, on the following terms and conditions: ______
Definitions
"Banking dDays" are days excluding Saturdays and Sundays on which banks are generally open for business both in (i) Athens and Beijing; (ii) in relation to a day on which a payment is to be made or
calculated in Dollars, Athens, New York and Beijing. 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, telexemail, telefax or other modern form of written communication.
"Classification Society" or "Class" means the Society referred to in line 4.
1. Purchase Price
United States Dollars Twenty Four Million (USD24,000,000)
2. Deposit
As security for the correct fulfilment of this Agreement
the Buyers shall pay a deposit of 10% (ten per cent) of the Purchase Price within ____ banking days from the date of this Agreement. This deposit shall be placed with ______________ and held by them in a joint account for the Sellers and the
Buyers, to be released in accordance with joint written instructions of the Sellers and the Buyers. Interest, if any, to be credited to the Buyers. Any fee charged for holding the said deposit shall be borne equally by the Sellers and the
Buyers.
3. Payment
The said Purchase Price shall be paid in accordance with Clause
18 of this Agreement.full free of bank charges to _____________________ on delivery of the Vessel, 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
a)* The Buyers have inspected and accepted the Vessel's classification records. The Buyers have
also inspected the Vessel at/in ______ on ______ and have accepted the Vessel following this inspection and the sale is outright and definite, subject only to the terms and conditions of this Agreement.
b)* The Buyers shall have the right to inspect the Vessel's classification records and declare
whether same are accepted or not within ______ The Sellers shall provide for inspection of the Vessel at/in ______ The Buyers shall undertake the inspection without undue delay to the Vessel.Should the Buyers cause undue delay they shall
compensate the Sellers for the losses thereby incurred. The Buyers shall inspect the Vessel without opening up and without cost to the Sellers. During the inspection, the Vessel's deck and engine log books shall be made available for
examination by the Buyers. If the Vessel is accepted after such inspection, the sale shall become outright and definite, subject only to the terms and conditions of this Agreement, provided the Sellers receive written notice of acceptance from
the Buyers within 72 hours after completion of such inspection. Should notice of acceptance of the Vessel’s classification records and of the Vessel not be received by the Sellers as aforesaid, the deposit together with interest earned shall be
released immediately to the Buyers, whereafter this Agreement shall be null and void.
* 4 a) 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 itinerary and shall provide
the Buyers with________, ________ and __________ days 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 and legally ready for delivery in accordance with this Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery.
b) The Vessel shall be delivered and taken over safely afloat at the place where the Vessel is
located at the same time simultaneously with the delivery of the Vessel by the Buyers to the Sellers under the BBC (as defined in Clause 17 of this Agreement) provided that the terms and conditions for the chartering of the Vessel by the buyers
to the Sellers under the BBC (as defined in Clause 17 of this Agreement) are satisfied. The delivery of the Vessel under this Agreement and the delivery of the Associated Vessels (as defined in the BBC) under the Associated BBCs (as defined in
the BBC) shall take place on the same day. It is hereby agreed that the Vessel may be delivered at Sea. a safe and accessible berth, or anchorage
at/in _______________ in the the Sellers' option.
Expected time of delivery: on or about 18 May
2018
Date of cancelling (see Clauses 5 c), 6 b) (iii) and 14 of this Agreement): 30 June 2018, in the Buyers’ option to exercise.
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 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.
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.
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, in which case the Sellers shall compensate the Buyers all the costs and expenses properly documented and incurred by the Buyers arising out of or in connection
with this Agreement.
6. Drydocking/Divers Inspection
a )** The Sellers shall place the Vessel in drydock
at the port of delivery 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 at the Sellers' expense to the satisfaction of the Classification
Society without condition/recommendation*.
b)** (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.
(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.
c) If the Vessel is drydocked pursuant to Clause 6 a) or 6 b) above
(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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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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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 including all such spare parts and equipment as necessary to comply with the minimum requirements imposed on the Vessel by the Vessel’s technical manager, the
Classification Society, the Buyers’ choice of flag and under the BBC (as defined in Clause 17 of this Agreement), if any. 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 deliveryinspection used or unused, whether on board or not shall become the Buyers'
property, butincluding spares on order which shall be taken over by the Buyers without extra compensation to the Sellers. The Sellers shall provide the Buyers with an inventory at the time of delivery.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 paymentif 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.
Remaining bunkers, lubricating oil and
other consumerable stores (excluding spare parts) on board the Vessel at the time of delivery shall be excluded from the sale and subject to the terms of Clause 9 of the BBC (as defined in Clause 17 of this Agreement). 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):______
The Buyers shall take over the remaining bunkers and unused
lubricating oils in storage tanks and sealed drums and pay 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: Hong Kong or Singapore or
such other venue as may be agreed between the Sellers and the Buyers from time to time.
In exchange for payment of the Purchase Price in accordance with Clause 18 of this Agreement, the Sellers and the Buyers shall simultaneously or in advance provide the Buyers with the delivery documents as set out in Schedule 1 hereto as agreed between the Sellers and the Buyers.furnish the Buyers with delivery documents, namely:
a) Legal Xxxx of Sale in a form recordable in ________ the
country in which the Buyers are
to register
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) Current Certificate of Ownership issued by the competent
authorities of the flag state of the Vessel.
c) Confirmation of Class issued within 72 hours prior to delivery.
d) Current Certificate issued by the competent authorities
stating that the Vessel is free from registered encumbrances.
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.
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.
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 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. At the time of delivery the Sellers shall leave on board the
Vessel the classification certificate(s) as well as all plans etc., which are on board the Vessel. Other certificates which are on board the Vessel shall also be left on board. Other technical documentation which may be in the Sellers’
possession shall be retained by the Sellers for the operation of the Vessel under the terms of the BBC.
9. Encumbrances
The Sellers warrant that, and the
Buyers’ obligation to take delivery of the Vessel hereunder are conditional upon, the Vessel, at the time of delivery, is free from all arrests, taxes,
detentions,
stowaways, claims,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 and administrative claims and detentions arising from such claims 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 and similar
charges in connection with the sale and the closing of the Sellers' register (if
any) 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 as she was at the time of inspection, fair wear and tear
excepteddelivery on a strictly “as is, where is” basis.
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 national certificates, as well as all other certificates the Vessel had at the time of inspection, valid and unextended without condition/recommendation* by Class or
the relevant authorities at the time of delivery. The Sellers shall notify the Classification Society of any matters coming to their knowledge prior to the delivery of
the Vessel which upon being reported to the Classification Society would lead to the withdrawal of the Vessel’s class or the imposition of a recommendation relating to her class.
"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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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.
12. Name/markings
Upon delivery the Buyers undertake not
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 Clauses 3 and 18 of this Agreement or on such later date as may be agreed by the Sellers and the Buyers, the Sellers have the right to
cancel the Agreement, in which case but the Buyers shall not be liable to any loss, costs or expenses incurred by the Sellers arising out of or in connection with the Buyers default.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
In the event thatShould the Sellers (i) fail to give Notice of Readiness in
accordance with Clause 5 a) or (ii) fail to be ready to validly complete a legal transfer of the Vessel on or before by the date stipulated in line 61, or (ii) the
Sellers shall otherwise default in the delivery of the Vessel according to the terms of
this Agreement, the Buyers shall have the right in their option to cancel of cancelling this Agreement, in which case this Agreement shall be null and void and the Sellers shall compensate the Buyers all reasonable and
properly documented costs and expenses incurred by the Buyers arising out of or in connection with 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.
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 two representatives on board the Vessel at their sole risk and expense upon arrival at on or about _____
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' representatives shall sign the Sellers' letter of indemnity prior to their embarkation.
16. Arbitration (See Rider Clause 22 of this
Agreement)
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 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.
b )* 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.
c )* Any dispute arising out of this Agreement shall
be referred to arbitration at , subject to the procedures applicable there.
The laws of shall govern
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.
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Buyers:
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Sellers:
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/s/ Xxx Xxxx Chun
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/s/ Xxxxxx Xxxxxxx
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Xxx Xxx Shipping 1626 Limited
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Aquarius Owners, Inc.
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By: Xxx Xxxx Xxxx
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By: Xxxxxx Xxxxxxx
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Title: Attorney-in-fact
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Title: Xxxxxxxx-xx-xxxx
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XX 00000 0002 8195977 v1
