Exhibit 4.28
MEMORANDUM OF AGREEMENT
Dated: 4 April 2006
Parnis Shipping Company Limited, do Top Tanker Management Inc, 109-1l1 Xxxxxxxxx
Xxxxxx, Xxxxxx, 000 00 Xxxxxx hereinafter called the Sellers, have agreed to
sell, and Partankersill AS, Dronning Mauds xxxx 0, 0000 Xxxx, Xxxxxx
hereinafter called the Buyers, have agreed to buy
Name: "Stainless"
Classification Society/Class: ABS
Built: 1992 By: Samsung Heavy Industries, South Korea
Flag: Xxxxxxxx Islands Place of Registration: Majuro, Xxxxxxxx Islands
Call Sign: V7HI7 Grt: 80,569, dwt 149,599
IMO Number: 9014822
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 51,600,000 (US dollars Fifty One Million Six Hundred
Thousand).
(subject as stated in Clause 21)
2. Deposit
deleted
3. Payment
The said Purchase Price shall be paid as more particularly described in Clause
21 and in full free of bank charges to the Sellers' bank, The Royal Bank of
Scotland, Shipping Business Centre, 0-00 Xxxxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX 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. (See also Clause 21)
4 Inspections
a)* The Buyers have inspected and accepted the Vessel's classification records.
The Buyers have also inspected the Vessel atlia Khor Fakkan, the United
Arab Emirates, on about 9 February 2006 and have accepted the Vessel
following this inspection and therefore the sale is outright and definite,
subject only to the terms and conditions of this Agreement.
* 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 7, and 3 days approximate notice of the
estimated time of arrival at the intended place of delivery. When the
Vessel is at the place of delivery and in every respect physically ready
for delivery in accordance with this Agreement, the Sellers shall give the
Buyers a written Notice of Readiness for delivery.
b) The Vessel shall be delivered and taken over safely afloat at a safe and
accessible berth or Anchorage, or at high sea by mutual agreement between
the Buyers and the Sellers. Latest with the 3 days approximate notice of
delivery Sellers to nominate exact delivery place.
Expected time of delivery Between 27th March, 2006 and 1st May, 2006
Date of cancelling (see Clauses 5 c) 6 b) (iii) and 14): 2nd May 2006
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 2 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 2 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, whereafter-this Agreement shall be null and void.
6. Drydocking/Divers Inspection
deleted
7. Spares/bunkers, etc.
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 lout
(.)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.
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):
(See Clause 20)
8. Documentation (See also Clause 19)
The place of dosing: Piraeus/New York
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
Buyers 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
The Sellers warrant that the Vessel, at the time of delivery, is free from all
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.
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 similar charges
in connection with the closing of the Sellers' register 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 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 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.
"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.
* 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
deleted
13. Buyers' default
Should the Purchase Price not be paid in accordance with Clause 3 and Clause 21,
the Sellers have the right to cancel the Agreement, and the Sellers shall be
entitled to claim further compensation for their losses and for all expenses
incurred together with interest.
14. Sellers' default
Should the Sellers fail to give Notice of Readiness in accordance with Clause 5
a) or fail to be ready to validly complete a legal transfer by the date
stipulated in line 61 the Buyers shall have the option of cancelling 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.
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 costs
and expenses together (including, without limitation, any break funding costs)
with interest if their failure is due to proven negligence and they shall make
due compensation for the Buyers' loss whether or not the Buyers cancel this
Agreement.
15. Buyers' representatives
deleted
16. Arbitration
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.
17. The Buyers (as owners) have entered into a bareboat charterparty (the
"Charter") of even da herewith with the Sellers (as charterers), whereunder
the Vessel is chartered to the Sellers for such period and on such terms
and conditions as more particularly described therein. Delivery of the
Vessel to the Buyers under this Agreement shall be subject to the
simultaneous delivery to and acceptance by the Buyer (as charterers) under
the Charter.
18. Delivery of the Vessel at sea (if applicable) shall be subject to any
necessary consents from to Vessel's register and insurers.
19. In addition to the documents listed in Clause 8, the Sellers and the Buyers
shall agree and provide such additional and normal documentation for
closing as is reasonably required by the Sellers and the Buyers, a list of
which shall be separately agreed between the parties latest within 3
Banking Days from the execution of the MoA, and incorporated into the MoA
by way of an Addendum hereto, and which shall include, without limitation,
(i) a multipartite agreement between the Sellers, the
BuyersT4he-Buyerel-bank and the current time-charterer of the Vessel,
confirming, inter alia, the time-charterer's consent to the sale of the
Vessel to the Buyer, and the assignment and step-in rights to the Buyers
and Buyers' bank in the event of a breach by the Sellers (in their capacity
as charterers) under this Charter, and (ii) a co-ordination agreement
between the Sellers, the Buyers and Buyers' bank regarding the
subordination and coordination of rights between the first priority
interest of the banks and the second priority interest of the Sellers in
relation to the Sellers' credit referred to in Clause 21 (iii).
20. Remaining stores, provisions, bunkers and lubricating oils onboard the
Vessel at the time of delivery hereunder shall remain the property of the
Sellers.
21. Of the total purchase price of USD 51,600,000 (US Dollars Fifty One Million
Six Hundred Thousand) (the "Purchase Price") the Buyers shall pay USD
[45,375,300] (US Dollar forty five million three hundred and seventy five
thousand three hundred) to the Royal Bank of Scotland, Shipping Business
Centre, 0-00 Xxxxx Xxxxxx Xxxxxx XX0X 0XX, SORTCODE: 16-0101, SWIFT:
XXXXXX0X, IBAN:XX00 XXXX0000 0000000000, IBANBIC: XXXXXX0X, ACCOUNT KEY:
TOPTAN-USD1, BENEFICIARY:TOPTANKERS INC (correspondent bank: American
Express Bank Limited, New York - SWIFT: AEIBUS33XXX) as and when provided
in Clause 3 immediately after the Sellers have taken delivery of the Vessel
as charterers under the Charter, provided that:
(i) The Buyers shall be entitled to deduct USD {703,500-3 (US Dollar
seven hundred and three thousand five hundred) from the Purchase
Price, being an amount equal to the first hire payment due to the
Buyers by the Sellers as charterers under the Charter. If Buyers elect
to make such deduction, the cash element to the Purchase Price as set
out in (a) above shall be reduced accordingly and the Buyers shall
provide to the Sellers as charterers a commercial invoice crediting
amount to them under the Charter.
(ii) Commission in the amount of USD 361,200 (US Dollar three hundred
and sixty one thousand two hundred) shall be payable to Pareto Private
Equity ASA upon delivery of the Vessel under this Agreement and the
Charter and the Buyers shall be entitled to deduct such amount from
the cash element of the Purchase Price and make such payment on behalf
of the Sellers.
(iii) The amount of USD 5,160,000 (US Dollars five million one hundred
and sixty thousand) shall be deducted and deferred to be paid by the
Buyers on such terms and conditions set out in more detail in a
certain Seller's Credit Agreement of even date herewith entered into
between the Sellers and the Buyers.
22. All costs and expenses arising in connection with the Initial registration
of the Vessel in the name of the Buyers and in connection with the
maintenance of such registration shall be borne by the Buyers and, if and
to the extent from time to time paid by Sellers shall be reimbursed by the
Buyers to the Sellers upon written demand.
For and on behalf of For and on behalf of
Imitos Shipping Company Limited Partankers III AS
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