Contract
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MEMORANDUM
OF AGREEMENT
Dated:
January
12, 2007
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Norwegian
Shipbrokers' Association’s Memorandum
of Agreement for sale and purchase of ships.
Adopted by The Baltic and International Maritime
Council (BIMCO) in 1956.
Code-name
SALE
FORM 1993
Revised
1966,1983 and 1986/87.
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G
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:
G.DUCKLING
Classification
Society/Class: N.K.K.
Built:
2001 By:
TSUNEISHI
SHIPBUILDING, JAPAN
Flag:
PANAMA Place
of
Registration: PANAMA
Call
Sign: 3EGW2 Grt/Nrt:
30,303/17,734
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
40,917,039.41
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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)
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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
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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
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Date
of cancelling
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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 net market price (excluding barging expenses)
at the
port and date of delivery of the Vessel.See
Clause 20
| 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:
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a)
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Legal
Xxxx of Sale in a form recordable in Xxxxxxxx
Islands (
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b)
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Current
Certificate of Ownership issued by the competent authorities of the
flag
state of the Vessel.
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c)
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Confirmation
of Class issued within
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d)
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Current
Certificate issued by the competent authorities stating that the
Vessel is
free from registered
encumbrances.
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e)
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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)
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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. |
Encumbrance
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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.
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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
certificatesand
surveys,as
well
as all other certificates the Vessel had at the time of agreement
inspection,
valid and __________________ unexpended 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.
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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
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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.
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The
proceedings shall be conducted in accordance with the rules of the Society
of
Maritime Arbitrators, Inc. New York.
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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. ‘G DUCKLING’ (THE VESSEL)
BETWEEN
G 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.
“I
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
I
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)
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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:
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(i)
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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:
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(i)
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Novation
Agreement duly executed by Sellers and the
charterer;
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(ii)
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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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