Contract
Exhibit 4.97
MEMORANDUM OF AGREEMENT
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Norwegian Shipbrokers' Association's
Memorandum of Agreement for sale and purchase of ships. Adopted by BIMCO 1956.
Code-name
SALEFORM 2012
Revised 1966, 1983 and 1986/87, 1993 and 2012
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Dated: 27th January 2017
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Xxxx Xxxxxx AS, Norway hereinafter called the "Sellers", and
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XXXXXX SHIPHOLDING S.A., of Xxxxxxxx Islands, hereinafter called the "Buyers", have agreed to buy:
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Name of vessel:
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XXXX CORONA
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IMO Number:
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9651367
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Classification Society:
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American Bureau of Shipping (ABS)
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Class Notation:
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+A1, (E), OFFSHORE SUPPORT VESSEL, AH, FIRE FIGHTING CLASS 1, xXXX, XXX-0
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Year of Build:
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2012
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Builder/Yard:
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Fujian, CHINA
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Flag:
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NIS
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Place of Registration:
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NORWAY
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GRT/NRT:
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1680/504
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hereinafter called the Vessel, on the following terms and conditions:
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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 (Purchase Price), in the place of closing stipulated in Clause 8
(Documentation) and in Norway, Malta and Greece.
"Buyers' Nominated Flag State" means Malta flag.
"Class" means the class notation referred to above.
"Classification Society" means the Society referred to above.
"In writing" or "written" means a letter handed over from the Sellers to the Buyers or vice versa, a registered letter, e-mail or telefax.
"Parties" means the Sellers and the Buyers.
"Purchase Price" means the price for the Vessel as stated in Clause 1 (Purchase Price).
1. Purchase Price
The Purchase Price is USD 3,850,000 (UNITED STATES DOLLARS THREE MILLION EIGHT HUNDRED AND FIFTY THOUSANDS)
2. Deposit
As a security for the correct fulfilment of this contract, the Buyers shall lodge a deposit of
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(i) |
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(ii) |
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3. Payment
On delivery of the Vessel, but not later than three (3) Banking Days after the date that Notice of
Readiness has been given in accordance with Clause 5 (Time and place of delivery and
Notices):
(i) |
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(i |
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4. Inspection
a)* Buyers hereby waive inspection of the Vessel. Buyers have inspected and accepted Vessel's Class records. This sale is on an outright and definite basis, subject only to the terms and conditions of this Agreement.
5. Time and place of delivery and notices
(a) The Vessel shall be delivered with tanks free of cargo and taken over safety afloat at sea or at a safe and accessible berth or anchorage at Worldwide range in the Sellers' option.
Expected time of delivery: 8th February 2017 to 8th March 2017 in Sellers' option.
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Cancelling Date (see Clauses 5(c), 6(a)(i), 6(iii) and 14): 8th March 2017 in Buyers' option.
(b) The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall provide the Buyers with 15/10/7 and 3 days notice of the date the Sellers intend to tender Notice of Readiness and of the intended place of delivery.
When the Vessel is at the place of delivery and physically ready for delivery in accordance with this Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery.
(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 proposing a new Cancelling Date. Upon receipt of such notification the Buyers shall have the option of either cancelling his agreement in accordance with Clause 14 (Sellers' Default) within three (3) Banking 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 three (3) Banking 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 79.
If this agreement is maintained with the new Cancelling Date all other terms and conditions hereof including those contained in Clauses 5(b) and 5(d) shall remain unaltered and in full force and effect.
(d) Cancellation, failure to cancel or acceptance of the new Cancelling Date shall be entirely without prejudice to any claim for damages the Buyers may have under Clause 14 (Sellers' Default) for the Vessel not being ready by the original Cancelling Date.
(e) Should the vessel become an actual, constructive or compromised total loss before delivery the Deposit together with interest earned shall released immediately to the Buyers whereafter this Agreement shall be null and void.
(a)** |
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(i) |
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(ii) |
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(iii) |
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(i) |
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(ii) |
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(iii) |
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(v) |
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*6 a) and 6 b) are alternatives; delete whichever is not applicable. In the absence of deletions, alternative 6 a) to apply.
**Notes or memoranda, if any, in the surveyor's report which are accepted by the Classification Society without condition/recommendation are not to be taken into account
7. Spares, bunkers and other items
The Sellers shall deliver the Vessel to the Buyers without any removal and- 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 delivery used or unused, whether or board or not shall become the Buyers' property, but spares on order are excluded. 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. Unused stores and provisions shall be included in the sale and be taken over by the Buyers without extra payment.
The Buyers shall take over remaining bunkers and unused lubricating and hydraulic oils and greases in storage tanks and unopened drums and pay the oils and greases at
(a) *the actual net price (excluding barging expenses) as evidenced by invoices or vouchers;
for the quantities taken over as measured by the Chief Engineer of the Sellers in the presence of Buyers' representative.
Payment under this Clause shall be made at the same time and place and in the same currency as the Purchase Price.
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8. Documentation
The place of closing: Greece
(a) In exchange for payment of the Purchase Price the Sellers shall provide the Buyers with the following listed delivery documents.
(i) |
Three (3) originals of Legal Xxxx of Sale (Maltese Form) duly executed, notarially attested and legalized by Apostille.
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(ii) |
Original Resolutions of the sole Director of the Sellers approving the sale of the vessel to the Buyers and authorising the issuance of a Power of Attorney (Item 8. (iii)) and the execution of the relevant delivery documents, said document to be notarially attested and legalized by Apostille.
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(iii) |
Original Power of Attorney issued pursuant to the document referred to under Item 8.(ii) appointing attorneys-in-fact to execute Sellers' delivery documents, attend the documentary closing and effect legal and physical delivery of the Vessel, said document to be notarially attested and legalized by Apostille.
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(iv) |
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(v) |
Undertaking that Sellers will provide Buyers as soon as practicable and in any case not later than thirty (30) days from the delivery for the Vessel with an original Deletion Certificate evidencing deletion of the Vessel from NIS Registry.
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(vi) |
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(vii) |
Original or copy of written statement of remaining bunkers and unused lubricating oils as on board on delivery.
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(viii) |
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(ix) |
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(x) |
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(xi) |
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(xii) |
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(b) At the time of delivery the Buyers shall provide the Sellers with the below listed documents
(i) |
Original Resolutions of the Sole Director of the Buyer, approving the purchase of the Vessel and authorization to execute and perform this Agreement, notarially attested and legalized by Apostille.
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(ii) |
Power of Attorney of the Buyers appointing one or more representatives to act on behalf of the Buyers in the performance of this Agreement, duly notarially attested and legalised by Apostilled.
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(c) If any of the documents listed in Sub-clauses (a) and (b) above are not in the English language they shall be accompanied by an English translation by an authorised translator or certified by a lawyer qualified to practice in the country of the translated language.
(d) Upon receipt of the full Purchase Price by Sellers, the Attorneys-in-fact of Parties 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.
9. Encumbrances
The Sellers warrant that the Vessel, at the time of delivery, is free from all charters, encumbrances, mortgages and maritime liens or any other debts whatsoever, and is not subject to Port State or other administrative detentions. 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, fees and expenses
Any taxes, fees and expenses in connection with the purchase and registration under the Buyers' Nominated Flag State 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 in good working condition 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 is where is Vessel will be delivered with her Class maintained without condition/recommendation and with her classification, national and international certificates, as well as all other certificates the Vessel has the time of delivery, valid and unextended without condition/recommendation by Class or the relevant authorities as on board.
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12. Name /markings
After delivery to the Buyers, the name of the Vessel will be changed but her funnel markings will not be changed.
13. Buyers' default
Should the Purchase Price not be paid in accordance with Clause 3 (Payment), the Sellers have the right to cancel this Agreement, in which case the Deposit together with interest earned, if any, 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 proven losses and for all reasonable expenses incurred together with interest.
14. Sellers' default
Should the Sellers fail to give Notice of Readiness in accordance with Clause 5(b) or fail to be ready to validly complete a legal transfer by the Cancelling Date the Buyers shall have the option of cancelling this Agreement. 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 by the Cancelling Date 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 Cancelling Date or fail to be ready to validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers for their proven loss and for all reasonable expenses together with interest whether or not the Buyers cancel this Agreement.
15. Buyer's representatives
After this-Agreement has been signed by the Parties and the Deposit has been lodged, the Buyers have a right to place two (2) representatives on board the Vessel at their sole risk and expense.
These representatives are on board for the purpose of familiarisation and in the capacity of observers only, and they shall not interfere in any respect with the operation of the Vessel. The Buyers and the Buyers' representatives shall sign the Sellers' P&I Club's standard letter of indemnity prior to their embarkation.
16. Law and Arbitration
(a)* This Agreement shall be governed by and construed accordance with English law and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause.
The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced.
The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within fourteen (14) calendar days that notice and
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stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the fourteen (14) days specified, the party referring a dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both Parties as if the sole arbitrator had been appointed by agreement.
In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
b)* This Agreement shall be governed by and construed in accordance with Title 9 of the United States Code and the substantive law (not including the choice of law rules) of the State of New York and any dispute arising out of or in connection with this Agreement shall be referred to three (3) persons at New York, one to be appointed by each of other 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 the purposes of enforcing any award, judgment may be entered on an award by any court of competent jurisdiction. The proceedings shall be conducted in accordance with the rules of the Society of Maritime Arbitrators, Inc.
c)* This Agreement shall be governed by and construed in accordance with the laws of (state place) and any dispute arising out of or in connection with this Agreement shall be referred to arbitration at (state place), subject to the procedures applicable there.
*16(a), 16(b) and 16(c) are alternatives; delete whichever is not applicable. In the absence of deletions, alternative 16(a) shall apply.
17. Notices
All notices to be provided under this Agreement shall be in writing.
Contact details for recipients of notices are as follows:
For the Buyers:
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c/o TMS Offshore Services Ltd.
Athens licensed shipping office
11, Fragkoklissias xxx.
XX 000 00
Xxxxxxx, Xxxxxx, Xxxxxx
Email: xxxxxxxxxx@xxx-xxxxxxxx.xxx
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For the Sellers:
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Xx. Xxxxxxx Xxxxx
Chairman
0/0, Xxxxxxxxx Xxxxxx, Xxxxxxxx XXX0000, XXXXX
Email: xxxx@xxxxxxxxxxxxxx.xxx
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18. Entire Agreement
The written terms of this Agreement comprise the entire agreement between the Buyers and the Sellers in relation to the sale and purchase of the Vessel and supersede all previous agreements whether oral or written between the Parties in relation thereto.
Each of the Parties acknowledges that in entering into this Agreemen, it has not relied on and shall have no right or remedy in respect of any statement, representation, assurance or warranty (whether or not made negligently) other than as is expressly set out in this Agreement.
Any terms implied into this Agreement by any applicable statute or law are hereby excluded to the extent that such exclusion can legally be made. Nothing in this Clause shall limit or exclude any liability for fraud.
For and on behalf of the Sellers
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For and on behalf of the Buyers
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Xx. Xxxxxxx Xxxxx, L.L.D; L.L.M.
0/0, Xxxxxxxxx Xxxxxx
Xxxxxxxx XXX0000
XXXXX
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Xx. Xxxxxx Xxxxx
0/0, Xxxxxxxxx Xxxxxx
Xxxxxxxx XXX0000
XXXXX
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/s/ Xx. Xxxxxxx Xxxxx, L.L.D;L.L.M.
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/s/ Prokopios (Akis) Tsirigakis
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Name: Xx. Xxxxxxx Xxxxx
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Name: Mr. Prokopios (Akis) Tsirigakis
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Title: Chairman of Xxxx Crusader AS
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Title: Attorney-in-fact of XXXXXX SHIPHOLDING S.A.
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