Contract
Exhibit 10.2
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Norwegian Shipbrokers’
Association’s Memo- Code-name SALEFORM 1993 Revised 1966, 1983 and 1986/87. |
Dated: 8 November 2007
GOLDEN OCEAN GROUP LTD., HAMILTON, BERMUDA hereinafter called the Sellers, have agreed |
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to sell, and BRITANNIA BULK FINANCE LIMITED (whose performance is guaranteed by Britannia |
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Bulk Holdings PLC) |
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hereinafter called the Buyers, have agreed to buy |
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Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx (the “Vessel”) |
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Classification Society/Class: Det Norske Veritas, 1A1, Bulk Carriers, ESP, ES(s); CSR, BC-A, GRAB |
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(20), Hold nos. 2, 4 and 6 may be empty, ICE-IC (Hull Strength of 1B), BIS, EO, TMON, DG-B, |
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BWM-E (f). |
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By: Pipavav Shipyard Limited |
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Flag: Hong Kong |
Place of Registration: Hong Kong |
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Call Sign: N/A |
Grt/Nrt: N/A |
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contract dated 30 November 2006 between Pipavav Shipyard Limited (the “Yard”) and the |
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Sellers as amended and supplemented by (i) an addendum no. 1 thereto dated 20 April 2007 and |
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(ii) an agreement dated 20 April 2007, the specifications and general arrangement plan and |
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makers’ list supplemental thereto as further supplemented and amended from time to time with |
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the written approval of the Buyers or as requested in writing by the Buyers (together the |
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“Shipbuilding Contract”) |
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Definitions |
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“Banking days” are days on which banks are open both in the country of the currency |
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stipulated for the Purchase Price in Xxxxxx 0, Xxxxx, Xxxxxx and in the place of closing stipulated in |
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Clause 8. |
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“In writing” or “written” means a letter handed over from the Sellers to the Buyers or vice versa, |
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a registered letter, telex, telefax or other modern form of written communication. |
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“Classification Society” or “Class” means the Society referred to in line 4. |
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1. |
Purchase Price: US$ 60,000,000 (sixty million United States dollars) cash less 1% |
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address commission plus 1% brokerage to XXXX XXXXXXXX. |
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2. |
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As security for the
correct fulfillment of this Agreement the Buyers shall |
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down payment of |
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from the date of this |
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Agreement being signed by telefax/e-mail attachment by both parties to the Sellers’ bank |
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account no 9750.04.42321, Swift: ESSENOKX, IBAN no: XX000000 0000 000 in Skandinaviska |
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Enskilda
Banken, Oslo (the “Down Payment”). |
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This document is a computer generated SALEFORM 1993 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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The Down Payment shall be promptly released/returned to the Buyers upon the Buyers’ |
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termination of this Agreement upon the terms and conditions contained herein. |
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Interest on the account shall be LIBOR less 1/8 per cent per annum for 6 month periods. |
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Interest shall be payable every 6 months from the date of payment of the Down Payment. |
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3. |
Payment |
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The
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on
delivery of the Vessel, |
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having been delivered to the Sellers form the Yard pursuant to the Shipbuilding Contract and |
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Notice
of Readiness ha |
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4. |
Inspections |
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a)* |
The Buyers have |
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of
which is attached hereto |
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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 |
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date under the Shipbuilding Contract and shall |
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provide
the Buyers with 30, 15, 7, and 3 days notice of the estimated time of |
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give the Buyers a written Notice of Readiness for delivery. |
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The Vessel shall be delivered by the Sellers to the Buyers back-to-back to the delivery of |
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the same by the Yard to the Sellers pursuant to the terms of the Shipbuilding Contract. |
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b) |
The Vessel shall be delivered and taken over by the Buyers safely afloat at a safe and |
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accessible berth or |
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anchorage at/in PIPAVAV SHIPYARD LIMITED, INDIA after completion of successful sea |
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trials |
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Expected time of delivery: on/before 30 June 2009 |
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Date
of |
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c) |
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This document is a computer generated SALEFORM 1993 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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d) |
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6. |
Drydocking/Divers Inspection |
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This document is a computer generated SALEFORM 1993 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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7. |
Spares/bunkers, etc. |
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As per the terms of the Shipbuilding Contract. |
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8. |
Documentation |
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The place of closing: London |
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In exchange for payment of the Purchase Price the Sellers shall furnish the Buyers with the delivery |
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This document is a computer generated SALEFORM 1993 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
documents, |
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9. |
Encumbrances |
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The Sellers warrant that the Vessel, at the time of delivery, is free from all charters, encumbrances, |
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mortgages and maritime liens or any other debts whatsoever. The Sellers hereby undertake |
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to indemnify the Buyers against all consequences of claims made against the Vessel which have |
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been incurred prior to the time of delivery. |
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10. |
Taxes, etc. |
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Any taxes, fees and
expenses in connection with the purchase |
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shall be for the |
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purchase
by the Buyers of the Vessel from the sellers’ |
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Buyers’ account. |
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11. |
Condition on delivery |
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As per the terms of the Shipbuilding Contract. |
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This document is a computer generated SALEFORM 1993 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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12. |
Name/markings |
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Sellers and the Buyers shall, prior to the delivery of the Vessel from the Yard, seek the Yard’s |
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acceptance to deliver the Vessel to the Sellers with the Buyers’ designated name and formal |
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markings. The Buyer to advise this to the Sellers on the Sellers’ request. |
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13. |
Buyers’ default |
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Should the |
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right to |
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Agreement, and they shall be entitled to claim compensation for their losses and for all expenses |
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incurred together with interest. |
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Should the Purchase Price not be paid in accordance with Clause 3, the Sellers have the right to |
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earned shall be released to the |
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Sellers. If the |
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to claim further |
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compensation for their losses and for all expenses incurred together with interest. |
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14. |
Sellers’ default |
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See Clause 27. |
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15. |
Buyers’ representatives — see Clause 18 |
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16. |
Arbitration |
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a)* |
This Agreement shall be governed by and construed in accordance with English law and |
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any dispute arising out of this Agreement shall be referred to arbitration in London in |
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accordance with the
Arbitration Acts |
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modification or |
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re-enactment thereof for the time being in force, one arbitrator being appointed by each |
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party. On the receipt by one party of the nomination in writing of the other party’s arbitrator, |
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that party shall appoint their arbitrator within fourteen days, failing which the decision of the |
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single arbitrator appointed shall apply. If two arbitrators properly appointed shall not agree |
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they shall appoint an umpire whose decision shall be final. |
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000 |
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This document is a computer generated SALEFORM 1993 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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Clauses 17 to 38, all inclusive, as attached hereto, to apply and form an integral part of this Memorandum of Agreement.
This document is a computer generated SALEFORM 1993 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
ADDENDUM NO. 1 TO MEMORANDUM OF AGREEMENT
DATED 8 NOVEMBER, 2007
RE HULL NO. P002 at PIPAVAV SHIPYARD LTD
Clause 17 – Supervision
The Sellers confirm that they will appoint Frontline Management (Bermuda) Ltd as its supervisors at the Yard in accordance with Article IV of the Shipbuilding Contract, when construction of the Vessel commence (at steel cutting). The Sellers’ supervisors will supervise the construction of the Vessel in accordance with best shipbuilding supervisory practice ensuring the Yard’s compliance with the terms and conditions of the Shipbuilding Contract.
Clause 18 – Buyers’ Representatives
Following signing of this Agreement and the payment by the Buyers of the Down Payment in accordance with Clause 2, the Buyers shall, effective from the date of the Yard’s steel cutting for the Vessel, have the right to place 1 (one) representative at the Yard as a member of the Sellers’ site supervisory team to observe the construction of the Vessel, at the Buyers’ risk and expense.
Any questions or comments to the construction of the Vessel by such observer shall be addressed to the head of the Sellers’ supervisory team.
The Sellers shall forward all of the Buyers’ comments/questions to the Yard, subject to the same being in accordance with the Shipbuilding Contract. The Sellers will exercise their best endeavours to procure that the Yard deals with all such legitimate comments. If the Sellers’ and the Buyers’ representatives fail to agree, the Buyers’ comments shall be adapted as far/much as possible and the Sellers shall act based on such comments as far/much as possible, but always in accordance with the Shipbuilding Contract.
The Buyer’s representatives shall have the right to attend all tests and inspections and all trials along with the Sellers’ supervisory team at the premises of the Yard or its sub-contractors. The Sellers shall give the Buyers’ representative due notice of the time and schedule for any such tests, inspections and trials.
The Buyer’s representatives shall be allowed access to all areas where the Sellers’ supervisory team are allowed access in accordance with the Shipbuilding Contract. The Buyers’ representative shall have the right to point out any deficiencies in the construction of the Vessel compared to the Shipbuilding Contract to the head of the Sellers’ supervisory team. Interpretation of what may constitute a “deficiency” shall be based on the Shipbuilding Contract and, in respect of technical matters, decisions by the Class. Any decision by the Class shall be final and binding on both the Sellers and the Buyers.
The Buyers’ representative shall have full and unrestricted access to all documents, plans, drawings and all correspondence exchanged between the Sellers and the Yard and to/from the Classification Society, including test results, NCRs, etc. The Buyers’ representative shall have the right to attend all meetings with the Class.
The Sellers agree to communicate to the Buyers without delay all reasonable technical matters requiring a decision by the Sellers under the Shipbuilding Contract provided that the Sellers shall not be required to incur additional or extra cost as a result thereof.
If the Buyers’ representative act in contravention of the above referred provisions then the Sellers may request the substitution of such representative and the Buyers must do so. Such substitution shall not be construed as a waiver of Buyers’ rights hereunder.
Clause 19 – Progress reports
The Seller shall keep the Buyer advised of the progress of the Yard’s construction of the Vessel by providing copies of all progress reports as and when provided by the Sellers’ supervisory team, but minimum at every 1 (one) month interval from the date of steel cutting for the Vessel.
Clause 20 – Buyers’ Supplied Items
Any “buyers’ supplied items” as described in Article XVI the Shipbuilding Contract shall be supplied by the Buyers to the Sellers under this Agreement and the Sellers shall, in accordance with the terms of Article XVI of the Shipbuilding Contract, place the same onboard the Vessel.
The Sellers shall not supply any items to the Vessel other than the items supplied by the Yard under the Shipbuilding Contract. The Buyers have the right to place any additional items on board the Vessel in accordance with Article XVI of the Shipbuilding Contract, provided that this does not interfere with the construction of the Vessel or cause delays to her delivery time. Any “buyers’ supplied items” received by the Sellers at the Yard shall be put on board the Vessel without undue delay and without additional cost to the Buyers.
The Sellers is not responsible to the Buyers for any damage and/or loss of such “buyers’ supplied items”, but the Sellers will assign all rights of recovery from the Yard that the Sellers may have as a consequence thereof to the Buyers.
Clause 21 – Notice to the Builder
The parties to this Agreement agree that the Sellers shall notify the Yard of the existence of this Agreement when the Buyers have paid the Down Payment as provided in Clause 2 above.
The notice shall include a statement that no amendment or addendum can be made to the Shipbuilding Contract without the Buyers’ approval and, further, request the Yard to acknowledge such notice. The Sellers agree to use their best efforts to procure the Yard’s acknowledgement thereof.
From the date of receipt of the Down Payment, the Sellers shall pass to the Buyers any and all notices either sent or received from the Yard or the Class in relation to or connected with the construction of the Vessel.
Clause 22 – Modification / Changes / Etc.
The Shipbuilding Contract shall not be amended without the Buyers’ prior written approval. The Sellers shall not waive any right against or grant any forbearance to the Yard under the Shipbuilding Contract without the Buyers’ prior written approval, such approval not be unreasonably withheld. The Sellers shall not take any action (or make any omission) under the Shipbuilding Contract which is material to the interests of the Buyers without consultation with the Buyers.
The Sellers shall, at the request of the Buyers, exercise such rights as are set out in Article V of the Shipbuilding Contract to request variations to the Vessel.
The Sellers shall keep the Buyers advised of any claims or disputes between the Sellers and the Yard.
Any changes or modifications which are done to the Vessel while under construction at extra cost will be carried out at the Buyers’ expense subject to the prior approval of the Buyers having been provided. Similarly, any credits which may be obtained by reason of any changes or modifications to the Vessel while under construction, shall reduce the Purchase Price with the nominal amount of such credit.
Clause 23 – Liability for Representatives
The Sellers agree to assign all their rights against the Yard under the Shipbuilding Contract for liability in the event of personal injury and/or death of the Buyers’ representatives and the Buyers agree to indemnify the Sellers for any damage caused by the Buyers or Buyers’ representative at the Yard.
Clause 24 – Sea Trials
The Buyers shall have the right to place 3 (three) representatives on board the Vessel as observers only to attend the Vessel’s sea trials as per the Shipbuilding Contract. When a notice of a trial run is received by the Sellers from the Yard, the Sellers shall forward such notice to the Buyers.
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The results of the trial run shall be conclusive evidence of the condition and performance of the Vessel as far as the Buyers and the Sellers are concerned.
In case the Buyers’ representatives, upon conclusion of the trial run will remark upon any issues which will make the Yard liable to proceed to repairs/restoration/work/adjustments/etc. in order for the Vessel to comply with the Shipbuilding Contract, the Sellers shall use their best endeavours to procure that any such legitimate comments of the Buyers representatives are properly dealt with by the Yard.
Clause 25 – Adjustment of the Contract Price
If the Vessel, on delivery, has insufficient speed, excessive fuel consumption, reduced deadweight capacity as same are calculated in the Shipbuilding Contract, or if the delivery date is delayed, then the Sellers shall allow the Buyers such nominal reduction in the Purchase Price as will be allowed by the Yard to the Sellers on account of (a) insufficient speed (b) excessive fuel consumption or (c) reduced deadweight capacity or (d) late delivery of the Vessel as per the Shipbuilding Contract.
Clause 26 – Assignment of Warranties
The Sellers shall, on delivery, assign its rights under the warranties set forth in Article IX of the Shipbuilding Contract to the Buyers.
The Sellers, shall prior to delivery of the Vessel by the Yard to the Sellers, notify the Yard of this assignment and seek to obtain the Yard’s express acknowledgment thereof in writing.
The same shall apply to any and all warranties provided by third party suppliers in relation to the Vessel’s equipment.
In the unlikely event that the Yard and/or any third party supplier refuse to acknowledge such assignment, the Sellers shall, at the Buyers’ request, arrange for the novation of the Shipbuilding Contract to a wholly owned subsidiary prior to delivery. The Buyers shall then have the option to acquire the Vessel by way of purchasing all of the Sellers’ shares in and all loans provided by the Sellers to the subsidiary in order to finance instalments under the Shipbuilding Contract. Such purchase shall, in relation to the Vessel, be based on the terms of the Agreement and otherwise include warranties from the Sellers reflecting such transaction structure.
Clause 27 – Buyers’ termination
The Buyers shall be entitled to terminate this Agreement by written notice to the Sellers following the occurrence of any of the following events:
(i) the termination by the Yard of the Shipbuilding Contract prior to the delivery of the Vessel; or
(ii) the actual, construction or compromised total loss of the Vessel prior to the delivery thereof to the Sellers by the Yard; or
(iii) the Yard defaults in its obligations under the Shipbuilding Contract pursuant to Article XI, 4, (a), (b) or (c); or
(iv) the Sellers become entitled to cancel the Shipbuilding Contract due to excessive delays in relation to the agreed delivery date, in Article VIII, 4; or
(v) the Sellers fail to deliver the Vessel to the Buyers as per the terms of the Agreement following the delivery thereof by the Yard to the Sellers; or
(vi) the Sellers fail to deliver the Vessel to the Buyers by 27 March 2010,
it being understood and agreed that the parties hereto shall consult with each other prior to the date upon which (iv) occurs.
Subject to the Buyers notifying the Sellers of their termination of this Agreement as set out above. The Sellers shall, forthwith, release the Down Payment to the Buyers together with such interest as shall have accrued thereon whereafter this Agreement shall be nul and void.
Further, the Sellers undertake, on the Buyers behalf, to, on a best efforts basis, seek to redeem any “buyers’ supplied items” provided by the Sellers as per Clause 20 of the Shipbuilding Contract if the Agreement is terminated by the Buyers as per the above.
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Clause 28 – Confidentiality
The contents of this Agreement are strictly private and confidential and may not be disclosed to any third parties other than those associated with this transaction apart from such information as the Sellers must disclose to the Oslo Stock Exchange and the Buyers are obliged to announce to their investors. Further, the Buyers shall be permitted to make disclosure of the contents herein to their financiers and their respective advisors. If, despite best efforts of the parties, details of the Agreement become known, this does not entitle any party to withdraw from or frustrate this Agreement.
Clause 29 – Miscellaneous
Other than the rights of the Buyers to terminate this Agreement under Clause 27 hereof, should any terms and conditions in this Agreement contradict any terms of the Shipbuilding Contract, then, as far as the Buyers and the Sellers are concerned, the terms of the Shipbuilding Contract shall supersede the terms of this Agreement.
The Buyers confirm that they and their employees or servants or agents will not, until the Buyers have accepted delivery of the first of the six vessels (including the Vessel) purchased from the Sellers and other subsidiaries of the Sellers, disclose the specifications or the makers list relevant to the Vessel and the Shipbuilding Contract or any part thereof to any third party not associated with this transaction unless for re-sale purposes.
Clause 30 – Sellers’ representations and undertakings
The Seller hereby represents to the Buyers as follows:
(a) The Shipbuilding Contract (as novated) is valid and binding on the parties thereto;
(b) The Sellers have not granted any security interest in, assigned or otherwise granted to any third party any right, title or interest in and to the Shipbuilding Contract, the Down Payment and/or the refund guarantees under the Shipbuilding Contract;
(c) The Sellers undertake that they will not assign or otherwise transfer or seek to assign any of the rights, titles or interests referred to in (b) now or in the future.
Clause 31 – Notices
All notices, authorisations, approvals, waivers, requests and other communications hereunder (“notices”) shall be in writing, shall be addressed as provided below and shall be delivered in person, sent by e-mail, mailed (registered and postage prepaid) or sent by an international courier dispatch service to the relevant adressee. All notices shall be deemed to be properly given or made upon the earliest of (a) actual delivery, (b) 15 (fifteen) days after being sent by prepaid registered mail as aforesaid, (c) immediately at time of a full and effective transmission by e-mail, and (d) at the time of delivery by an internationally recognised courier dispatch service. For the purpose of notice, the addresses and e-mail of the parties are set forth below:
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BRITANNIA BULK PLC |
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To the Sellers |
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c/o GOLDEN OCEAN MANAGEMENT AS |
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Clause 32 - Documents
The following Appendices are attached and form an integral part of this Agreement:
1. Appendix “A” - List of Documents to be delivered on signing of the Agreement;
2. Appendix “B” - List of Delivery Documents;
3. Appendix “C” - Shipbuilding Contract (including specifications, GA-plan and makers list)
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Clause 33 – Status of Construction
The Sellers confirm that there are no present indications from the Yard of any delays to the agreed date of delivery pursuant to the Shipbuilding Contract, nor any indications of financial difficulties associated with or involving the Yard.
Clause 34
[Intentionally left blank]
Clause 35 – Closing
Closing of the Buyers’ purchase of the Vessel shall be held in London.
The Buyers shall have the right to have representatives present at the closing meeting between the Yard and the Buyers - if the Yard do not agree one place for simultaneous exchange.
Clause 36
The Sellers will register the Vessel in its ownership prior to selling it on to the Buyers. The Sellers will, subsequent to taking delivery of the Vessel from the Yard under the Shipbuilding Contract, close the sale thereof to the Buyers on the terms set forth in this Agreement. The documents to be exchanged at the closing between the parties hereto are set out in Appendix B.
Clause 37 - Security Assignment
The Buyers shall be entitled to assign their rights and obligations hereunder to Xxxxxxx Xxxxx Credit Partners, L.P. as part of their financing of the Down Payment-and the Sellers hereby confirm that they will acknowledge such assignment by signing and returning any Acknowledgement accompanied by a Notice of Assignment sent to them by the Buyers.
Clause 38
The Shipbuilding Contract has been approved by the Buyers who in addition to their rights to the benefit of liquidated damages as described in Clause 25 above, shall retain all rights related to acceptance or rejection and cancellation and rescission therein such that the Sellers shall not exercise any right of rejection, cancellation or rescission under the Shipbuilding Contract without first obtaining the written consent of the Buyers. The Buyers shall thus have the right if they so elect to require Sellers to accept delivery of the vessel under the Shipbuilding Contract (and then give delivery to the Buyers thereunder) even if a right to reject, cancel or rescind has accrued under the Shipbuilding Contract.
The Sellers |
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The Buyers |
Golden Ocean Group Ltd |
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Britannia Bulk Finance Limited |
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By: Xxxxxx Billung |
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By: Xxxxx Xxxxxx |
Title: Attorney-in-Fact |
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Title: Director |
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Appendix “A” to the Memorandum of Agreement dated 8 November 2007
Documents to be provided by the Sellers to the Buyers at time of signing of the Agreement
(a) A Secretary’s
Certificate from the Sellers confirming the identity of its directors and
officers
and attaching copies (certified to be true and correct) of:
(i) its articles of incorporation and bye-laws;
(ii) a resolution by its board approving this Agreement;
and an original:
(iii) Certificate of Good Standing;
(iv) Power of Attorney authorizing a person to sign this Agreement on the Sellers’ behalf.
(i)
(b) Copies, certified to be true, complete and correct of each of:-
(i) the Shipbuilding Contract;
(ii) the refund guarantees issued pursuant to the Shipbuilding Contract;
(iii) the parent guarantee issued by the Sellers pursuant to the Shipbuilding Contract;
(iv) all Indian Governmental Licences and approvals relating to the Shipbuilding Contract and the Refund Guarantees.
APPENDIX “B” to the Memorandum of Agreement dated 8 November 2007
A. Documents to be provided by the Sellers:-
(1) All documentation to be received by the Sellers from the Yard under or pursuant to the Shipbuilding Contract, including, but not limited to:-
(a) originals of the documents referred to in Article VII-3 (a), (b), (c), (d), (e) and (f) thereof;
(b) to the extent that originals are available, the Yard’s “Builder’s Certificate” for the Vessel and if issued, the Yard’s xxxx of sale for the Vessel. To the extent that originals of such documents are not available because of the Sellers’ obligation to lodge them with the Hong Kong Ship Registry, the Sellers shall provide certified copies of the same;
(c) any original Power of Attorney (and/or other original corporate authority documentation) produced by the Yard authorising the execution by the Yard of its Builder’s Certificate, xxxx of sale and all other protocols and documents executed by it under or pursuant to the Shipbuilding Contract;
(d) a copy of the commercial invoice for the Vessel issued by the Yard.
(2) A legal xxxx of sale for the Vessel in two originals in a form recordable in the Hong Kong Ship Registry stating that the Vessel is free from all encumbrances, taxes, mortgages and maritime liens or any other debts or claims whatsoever, notarially attested and apostilled, the notary to expressly confirm the authenticity of the signature and the due authority of the person executing the Bills of Sale on behalf of the Sellers;
(3) Evidence that the sale of the Vessel to the Buyers has been duly authorised by the Sellers by way of an original Secretary’s Certificate duly notarised and apostilled confirming the identity of the Sellers’ directors and officers and further attaching:
(a) original minutes of separate meetings of the board of directors and shareholders of the Sellers resolving to sell the Vessel to the Buyers duly notarised and apostilled;
(b) an original Power of Attorney of the Sellers, duly notarised and apostilled, authorising the Sellers’ appointed representatives to execute all necessary documents in order to sell the Vessel to the Buyers;
(c) a certified copy of the Sellers’ bye-laws;
(d) an original Certificate of Good Standing of the Sellers dated not earlier than ten (10) Banking Days prior to the date of delivery of the Vessel;
(4) An original Certificate of Ownership and Freedom from Encumbrances for the Vessel issued by the Hong Kong Ship Registry and dated the date of delivery of the Vessel confirming that the Vessel is (i) owned by the Sellers and (ii) free of all registered encumbrances. In the event that an original Certificate of Ownership and Freedom from Encumbrances is not available at the Closing Meeting, the Sellers shall arrange for the Hong Kong Ship Registry to send a fax copy of the original Transcript of Register to the Closing Meeting and the Sellers shall provide an undertaking to deliver the original Certificate of Ownership and Freedom from Encumbrances to the Buyers within five (5) Banking Days of delivery.
(5) If, as a matter of practice, the same is issued by the Hong Kong Ship Registry, an original and valid consent to the sale and deletion of the Vessel issued by the Hong Kong Ship Registry.
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(6) An original Certificate of Deletion for the Vessel issued by the Hong Kong Ship Registry dated the date of delivery of the Vessel or if as a matter of practice, an original Deletion Certificate is not available at the time of delivery of the Vessel, a letter from the Sellers to the Buyers undertaking to provide an original Deletion Certificate (and if so required by Buyers for the purposes of registering the Vessel under Panama flag duly notarized and / or authenticated by means of an Apostille as aforesaid) to the Buyers as soon as possible following delivery but in any event within four (4) weeks of the date of delivery of the Vessel;
(7) To the extent that the Buyers may seek to register the Vessel under either Liberian or Xxxxxxxx Islands flag and pursuant to the requirements for first registration of vessels on those registries, the Sellers shall authorise the Classification Society, to issue to the Liberian / Xxxxxxxx Islands Ship Register (as the case may be) a Statement or Affidavit indicating status of class, statutory certification, including all conditions of class and any outstanding recommendations/deficiencies and to the extent known by class any reasons why the Vessel is currently not fit to proceed to sea prior to completion of any outstandings and to release to the Liberian / Xxxxxxxx Islands Ship Register (as the case may be) any other documents requested by that Registry. The Sellers shall authorize the Classification Society as above sufficiently in advance of the closing to allow for review by the Marine Safety Division of the Liberian / Xxxxxxxx Islands Ship Register (as the case may be) and in any event not later than seven (7) Banking Days prior to delivery in order to facilitate the Buyers’ compliance with registration requirements imposed by the relevant ship register.
(8) A Letter of Undertaking from the Sellers to deliver to the Buyers, as soon as practicable but in any event within 30 days from the date of delivery, an original Closed Continuous Synopsis Record (CSR) for the Vessel issued by the Hong Kong Ship Registry.
(9) An original Confirmation of Class issued by the Classification Society and dated not earlier than three (3) Banking Days prior to the date of delivery of the Vessel confirming that the Vessel is free from recommendations and/or conditions;
(10) To the extent not already provided, COPIES of the following documents for the Vessel:
(i) Certificate of Hong Kong Registry;
(ii) Radio Licence;
(iii) International Tonnage Certificate;
(iv) Safety Construction Certificate;
(v) Safety Equipment Certificate;
(vi) Safety Radio Certificate;
(vii) International Oil Pollution Prevention Certificate; and
(viii) International Load Line Certificate;
(ix) ISM Code – Document of Compliance;
(x) ISM Code – Safety Management Certificate;
(xi) ISPS Code – International Ship Security Certificate; and
(xii) ISPS Code – Continuous Synopsis Record;
(11) All classification, statutory and trading certificates for the Vessel valid and unextended without conditions/recommendations at the date of delivery of the Vessel;
(12) All plans, manuals, specifications and other documents relating to the maintenance and operation of the Vessel;
(13) A commercial invoice for the Vessel in two (2) originals;
(14) An invoice for bunkers and lubricating oils on board the Vessel on delivery with all supporting vouchers;
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(15) Any such additional documents as may reasonably be required by the Buyers’ intended ship registry for the purpose of registering title to the Vessel in the name of the Buyers, provided that the Buyers notify the Sellers of any such documents no later than 10 Banking Days prior to the delivery date.
B. Documents to be provided by the Buyers: -
(1) a copy of the minutes of a meeting of the board of directors of the Buyers, resolving to purchase the Vessel from the Sellers;
(2) an original Power of Attorney of the Buyers, duly notarised and apostilled, authorising its appointed representatives to execute all necessary documents in order to purchase the Vessel from the Sellers;
(3) an original Director’s Certificate of the Buyers duly notarised and legalised, confirming the names of the directors and officers of the Buyers and attaching, as true and correct copies, the following documents:-
(a) the Certificate of Incorporation of the Buyers; and
(b) the Articles of Incorporation and/or Bye-laws of the Buyers;
(4) a Certificate of Good Standing of the Buyers dated not earlier than ten (10) Banking Days prior to the date of delivery of the Vessel.
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.
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Golden Ocean Group Ltd.
8th November 2007
Dear Sirs
Memorandum of Agreement (the “MoA”) dated 8th November 2007 for the sale and purchase of Pipavav Hull No. P002 by Golden Ocean Group Ltd to Britannia Bulk Finance Limited (the “Company”).
Terms defined in the MoA shall have the same meanings when used in this letter of guarantee.
In consideration of your signing the MoA with the Company, We, Britannia Bulk Holdings Plc, hereby guarantee to you that the Company will perform all of its obligations under and in connection with the MoA and, in case of failure by the Company to fulfil such obligations then we undertake to you that we shall procure that the Company does so.
Our obligations under this letter of guarantee shall remain fully valid and enforceable notwithstanding any waiver or release granted under or in connection with the MoA by either the Company or yourselves or any supplement or amendment to the MoA or any variation to the terms of the MoA agreed between the Company and yourselves to the intent that we shall remain liable under this letter of guarantee in respect of all of the Company’s obligations irrespective of anything that would otherwise release or discharge our liability at all times while the Company is liable under or in connection with the MoA itself.
We shall be entitled to the full benefit of all defences and rights of counterclaim in relation to our obligations under this letter of guarantee, including those to which the Company is entitled under the MoA itself.
We represent and warrant to you that:
(a) as at the date hereof we are duly incorporated and validly existing as a company under the laws of England;
(b) the execution of this letter of guarantee in our name and the authorisation to the person signing this letter of guarantee for us have each been duly authorised by our board of directors and no other consents or approvals are required in order for this letter of guarantee to be valid and enforceable against us; and
(c) this letter of guarantee constitutes the legal, valid, binding and enforceable obligation of ourselves.
All formal communications under this letter of guarantee shall be sent to us at the same address as is set out in Clause 31 of the MoA.
Clause 16 (Arbitration) of the MoA applies equally to this guarantee as if its terms where herein set out in full.
Yours faithfully |
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BRITANNIA BULK HOLDINGS PLC |
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Name: X. X. Xxxxxx |
Xxxxxxx Xxxxxxxx |
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Title: Director |
Director |
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Britannia Bulk Holdings plc |
Phone: |
x00 (0)00 0000 0000 |
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Dexter House |
Fax: |
x00 (0)00 0000 0000 |
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2 Royal Mint Court |
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xxxxxxxxxx@xxxxxxxx.xxx |
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Xxxxxx XX0X 0XX |
Internet |
xxx.xxxxxxxx.xxx |
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Reg In Eng. No 06402167 |
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