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
SALEFORM
1993
Revised
1966, 1983 and 1986/87.
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J
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:
J.DUCKLING
Classification
Society/Class: BUREAU
VERITAS
Built:
JUNE,
2003 By:
TSUNEISHI
HEAVY INDUSTRIES (CEBU) INC., PHILIPPINES
Flag:
PANAMA Place
of
Registration: PANAMA
Call
Sign: 3EGV7 Grt/Nrt:
30,054/18,207
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
43,985,817.36
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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 days approximate
and 1 definite notice
of the estimated time of arrival at the
_________________________ intended place of
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| b) |
The
Vessel shall be delivered and taken over safely afloat
at a safe and
accessible berth or anchorage at/in a
port worldwide (range/s to be advised) __________________
in the Sellers’
option.
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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
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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:
| 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
and
surveys,
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)* |
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. ‘J DUCKLING’ (THE VESSEL)
BETWEEN
J 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.
“I
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
I
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 may 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) |
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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| (ii) |
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) |
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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| (ii) |
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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