d1470586_ex4-42.htm


Exhibit 4.42








	
MEMORANDUM OF AGREEMENT

	



	  	  







 



Dated:  18 February 2014








	
Harbour Business International Corp., of the British Virgin Islands


hereinafter called the Sellers, have agreed to sell, and

	
1


 













	
Zephyros Marine Inc., of the Marshall Islands


hereinafter called the Buyers, have agreed to buy the  

	
2













	
Name: Hamburg Max

	
3













	
Classification Society/Class:

	
BV

	
4


	
Built: Feb 1994

	
By: Hyundai Heavy Industries Co., Ltd., Korea

	
5


	
Flag: Isle of Man

	
Place of Registration: Douglas

	
6


	
Call sign: MGQP5

	
Grt/Nrt: 39,012/24,407

	
7


	
Register IMO Number: 9050395

	
8













	
hereinafter called the Vessel, on the following terms and conditions:

	
9













	
Definitions

	
10













	
"Banking days" are days on which banks are open in the country of the currency

	
11


	
Stipulated for the Purchase Price in Clause 1, and in the place of closing stipulated in Clause 8, in the country of the Vessel's flag and Greece and UK.

	
12













	
"in  writing" or "written" means a letter handed over from the Sellers to the Buyers or vice versa,

	
13


	
a registered letter, telefax or other modern form of written communication

	
14













	
"Classification Society" or "Class" means the Society referred to in line 4.

	
15













	
1.

	
Purchase Price:

	
USD 16,000,000 Cash (United States Dollars sixteen million only)

	
16













	
2.           Deposit

	
17


	
As security for the correct fulfilment of this Agreement  the  Buyers shall pay a deposit of 10%

	
18


	
(ten per cent) of the Purchase Price within banking days from the date of this

	
19


	
Agreement. This deposit shall be placed with

	
20


	
and held  by them in a joint  account  for the  Sellers  and  the  Buyers, to be released in accordance

	
21


	
with joint written instructions of the  Sellers  and   the  Buyers.  Interest, if any, to  be  credited to  the

	
22


	
Buyers. Any fee charged  for holding  the said deposit  shall  be  borne  equally  by  the  Sellers  and  the

	
23


	
Buyers.

	
24













	
3.           Payment

	
25





 


	
The said Purchase Price and the monies due for bunkers / unused lubricants remaining on board (ROB) shall be paid in full free of bank charges to Sellers' bank account, Account No.: USD A/C NO: 6774114607484, IBAN: GR21 0171 7740 0067 7411 4607 484, Swift No.: PIRBGRAA, Correspondent Bank: BANK OF NEW YORK MELLON, ADRESS NEW YORK, Swift No.: IRVTUS3NXXX

	
26













	
on delivery of the Vessel, but not later than 3 banking days after the Vessel is in every respect

	
27


	
physically ready for delivery in accordance with the terms and conditions of this  Agreement and

	
28


	
Notice of Readiness has been given in accordance with Clause 5.


 

	
29













	
4           Inspections

	
30
















  





  











  














	
a)*

	
The   Buyers   have inspected and accepted the Vessel's classification records.  The Buyers

	
31


	  	
have also  inspected   the  Vessel  at/in Paranagua, Brazil on November 2013 

	
32


	  	
and  have  accepted  the  Vessel  following this inspection and the sale is outright and definite,

	
33


	  	
subject only to the terms and conditions of this Agreement.

	
34













	
b)*

	
The  Buyers  shall have  the right  to inspect  the  Vessel's   classification  records   and   declare

	
35


	  	
whether same are accepted  or  not within

	
36













	
The Sellers shall provide for inspections of the Vessel at/in

	
37













	
The  Buyers  shall  undertake  the  inspection   without  undue  delay  to  the  Vessel.   Should  the

	
38


	
Buyers  cause  undue  delay  they  shall  compensate  the  Sellers  for the losses thereby incurred.

	
39


	
The  Buyers  shall  inspect  the  Vessel without opening up   and without    cost  to  the  Sellers

	
40


	
During  the  inspection,  the  Vessel's  deck  and  engine  log  books  shall  be  made  available for

	
41


	
examination  by  the  Buyers. If the  Vessel  is  accepted  after  such  inspection,  the  sale shall

	
42


	
become outright and definite, subject  only  to  the  terms  and  conditions  of  this  Agreement,

	
43


	
provided the  Sellers receive   written notice  of  acceptance  from  the  Buyers  within  72 hours

	
44


	
after  completion  of  such  inspection.

	
45


	
Should  notice  of  acceptance  of   the  Vessel's classification  records  and  of  the Vessel not be

	
46


	
received  by  the  Sellers  as  aforesaid, the deposit together  with   interest earned   shall  be

	
47


	
released  immediately to the  Buyers, whereafter  this  Agreement shall be   null and void.

	
48













	
*

	
4 a) and 4b) are alternatives; delete whichever is not applicable. In the absence of deletions,

	
49


	  	
alternative 4a) to apply.

	
50













	
5.           Notices, time and place of delivery

	
51













	
a)

	
The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall

	
52


	  	
provide the Buyers with 15/13/10/8/7/5/3 approximate and 2 and 1 days definite notices of the  expected time and place of arrival at the

	
53


	  	
intended time and place of drydocking/underwater inspection/delivery. When the Vessel is at the place

	
54


	  	
of delivery and in every respect physically ready for delivery in accordance with this

	
55


	  	
Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery.


 

	
56













	
b)

	
The  Vessel  shall  be  delivered  to the Buyers free of stowaways, free of cargo safely afloat  at  a safe and accessible berth, port  or

	
57


	  	
Anchorage  at/in Busan, South Korea / China range

	
58


	  	
in the Sellers' option.

	
59













	  	
Expected time of delivery: 21 February 2014 to 11 March 2014 in Sellers option.


 

	
60













	  	
Date of cancelling (see Clauses 5 c), 6 b) (iii) and 14): 11 March 2014 at Buyers' option

	
61













	
c)

	
If the Sellers  anticipate that, notwithstanding the exercise of due  diligence by them, the

	
62


	  	
Vessel will not be ready for delivery by the cancelling date they may notify the Buyers in

	
63


	  	
writing stating the date when they anticipate  that  the  Vessel will be ready for  delivery and

	
64


	  	
propose a new  cancelling date. Upon receipt  of  such  notification  the  Buyers shall  have the

	
65


	  	
option  of  either  cancelling  this Agreement in accordance  with Clause 14 within 4 7  running

	
66


	  	
days  of  receipt  of  the  notice  or of accepting  the  new  date  as the new cancelling date. If the

	
67


	  	
Buyers  have  not declared   their option within 4 7 running days of receipt of the Sellers'

	
68


	  	
notification or  if  the  Buyers  accept the new date,   the date proposed in the Sellers' notification

	
69


	  	
shall  be deemed  to be  the  new  cancelling  date  and  shall  be  substituted for the cancelling

	
70


	  	
date stipulated  in line 61.

	
71













	  	
If  this  Agreement  is maintained  with  the  new  cancelling  date  all  other  terms and conditions

	
72


	  	
hereof  including  those  contained  in  Clauses  5 a)   and   5 c) shall remain unaltered and in full

	
73


	  	
force and  effect. Cancellation  or  failure  to cancel  shall  be entirely  without  prejudice to any

	
74


	  	
claim  for  damages the Buyers  may have  under  Clause 14  for  the  Vessel not being ready by

	
75


	  	
the  original  cancelling date

	
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d)

	
Should the Vessel become  an  actual,  constructive or compromised total loss before delivery

	
77











  





  











  














	  	
the deposit together  with  interest  earned shall be released immediately to the Buyers

	
78


	  	
whereafter this Agreement shall be null and void

	
79













	
6.           Drydocking / Divers Inspection See clause 18.

	
80













	
a)**

	
The Sellers shall place the Vessel in drydock at the port of delivery for inspection by the

	
81


	  	
Classification Society of the Vessel's underwater parts below the deepest load line, the

	
82


	  	
extent of the inspection being in accordance with the Classification Society's rules.  If the

	
83


	  	
rudder, propeller, bottom or other underwater parts below the deepest load line are found

	
84


	  	
broken, damaged or defective so as to affect the Vessel's class, such defects shall be made

	
85


	  	
good at the Sellers' expense to the satisfaction of the Classification Society without

	
86


	  	
condition/recommendation*.

	
87













	
b)**

	
(i)           The Vessel is to be delivered without drydocking.  However, the Buyers shall

	
88


	  	
have the right at their expense to arrange for an underwater inspection by a diver approved

	
89


	  	
by the Classification Society prior to the delivery of the Vessel.  The Sellers shall at their

	
90


	  	
cost make the Vessel available for such inspection. The extent of the inspection and the

	
91


	  	
conditions under which it is performed shall be to the satisfaction of the Classification

	
92


	  	
Society. If the conditions at the port of delivery are unsuitable for such inspection, the

	
93


	  	
Sellers shall make the Vessel available at a suitable alternative place near to the delivery

	
94


	  	
port.

	
95













	  	
ii)           If the rudder, propeller, bottom or other underwater parts below the deepest load line

	
96


	  	
are found broken, damaged or defective so as to affect the Vessel's class, then unless

	
97


	  	
repairs can be carried out afloat to the satisfaction of the Classification Society, the Sellers

	
98


	  	
shall arrange for the Vessel to be drydocked at their expense for inspection by the

	
99


	  	
Classification Society of the Vessel's underwater parts below the deepest load line, the

	
100


	  	
extent of the inspection being in accordance with the Classification Society's rules.  If the

	
101


	  	
rudder, propeller, bottom or other underwater parts below the deepest load line are found

	
102


	  	
broken, damaged or defective so as to affect the Vessel's class, such defects shall be made

	
103


	  	
good by the Sellers at their expense to the satisfaction of the Classification Society

	
104


	  	
without condition/recommendation*. In such event the Sellers are to pay also for the cost of

	
105


	  	
the underwater inspection and the Classification Society's attendance.

	
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(iii)           If the Vessel is to be drydocked pursuant to Clause 6 b) (ii) and no suitable dry-

	
107


	  	
docking facilities are available at the port of delivery, the Sellers shall take the Vessel

	
108


	  	
to a port where suitable drydocking facilities are available, whether within or outside the

	
109


	  	
delivery range as per Clause 5 b). Once drydocking has taken place the Sellers shall deliver

	
110


	  	
the Vessel at a port within the delivery range as per Clause 5 b) which shall, for the

	
111


	  	
purpose of this Clause, become the new port of delivery. In such event the cancelling date

	
112


	  	
provided for in Clause 5 b) shall be extended by the additional time required for the

	
113


	  	
drydocking and extra steaming, but limited to a maximum of 14 running days.

	
114













	
c)

	
If the Vessel is drydocked pursuant to Clause 6 a) or 6 b) above

	
115













	  	
(i)           the Classification Society may require survey of the tailshaft system, the extent of

	
116


	  	
the survey being to the satisfaction of the Classification surveyor. If such survey is not

	
117


	  	
required by the Classification Society, the Buyers shall have the right to require the tailshaft

	
118


	  	
to be drawn and surveyed by the Classification Society, the extent of the survey being in

	
119


	  	
accordance with the Classification Society's rules for tailshaft survey and consistent with

	
120


	  	
the current stage of the Vessel's survey cycle. The Buyers shall declare whether they

	
121


	  	
require the tailshaft to be drawn and surveyed not later than by the completion of the

	
122


	  	
inspection by the Classification Society. The drawing and refitting of the tailshaft shall be

	
123


	  	
arranged by the Sellers. Should any parts of the tailshaft system be condemned or found

	
124


	  	
defective so as to affect the Vessel's class, those parts shall be renewed or made good at

	
125


	  	
the Sellers' expense to the satisfaction of the Classification Society without

	
126


	  	
condition/recommendation*.

	
127













	  	
(ii)           the expenses relating to the survey of the tailshaft system shall be borne

	
128


	  	
by the Buyers unless the Classification  Society requires such survey to be carried out, in

	
129


	  	
which case the Sellers shall pay these expenses. The Sellers shall also pay the expenses

	
130


	  	
if the Buyers require the survey  and  parts of the system are condemned or found defective

	
131


	  	
or broken so as to affect the Vessel's class*.

	
132
















  





  











  














	  	
(iii)           the expenses in connection with putting the Vessel in and taking her out of

	
133


	  	
drydock, including the drydock dues and the Classification Society's fees shall be paid by

	
134


	  	
the Sellers if the Classification Society issues any condition/recommendation* as a result

	
135


	  	
of the survey or if it requires survey of the tailshaft system. In all other cases the Buyers

	
136


	  	
shall pay the aforesaid expenses, dues and fees.

	
137













	  	
(iv)           the Buyers' representative shall have the right to be present in the drydock, but

	
138


	  	
without interfering with the work or decisions of the Classification surveyor.

	
139













	  	
(v)           the Buyers shall have the right to have the underwater parts of the Vessel

	
140


	  	
cleaned and painted at their risk and expense without interfering with the Sellers' or the

	
141


	  	
Classification surveyor's work, if any, and without affecting the Vessel's timely delivery. If,

	
142


	  	
however, the Buyers' work in drydock is still in progress when the Sellers have

	
143


	  	
completed the work which the Sellers are required to do, the additional docking time

	
144


	  	
needed to complete the Buyers' work shall be for the Buyers' risk and expense. In the event

	
145


	  	
that the Buyers' work requires such additional time, the Sellers may upon completion of the

	
146


	  	
Sellers' work tender Notice of Readiness for delivery whilst the Vessel is still in drydock

	
147


	  	
and the Buyers shall be obliged to take delivery in accordance with Clause 3, whether

	
148


	  	
the Vessel is in drydock or not and irrespective of Clause 5 b).

	
149













	
*

	
Notes, if any, in the surveyor's report which are accepted by the Classification Society

	
150


	  	
without condition/recommendation are not to be taken into account.

	
151













	
**

	
6 a) and 6 b) are alternatives; delete whichever is not applicable. In the absence of deletions,

	
152


	  	
alternative 6 a) to apply

	
153













	
7.

	
Spares/bunkers, etc.

	
154













	
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board and on

	
155


	
shore, including broached/unbroached stores and provisions and spares on order without extra payment. All spare parts and spare equipment  including  spare  tail-end shaft(s) and/or spare

	
156


	
propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of inspection used or

	
157


	
unused, whether on board or not shall become the Buyers' property.

	
158


	
Forwarding charges, if any, shall be for the Buyers' account. The Sellers are not required to

	
159


	
replace spare parts including spare tail-end shaft(s) and spare propeller(s)/propeller blade(s) which

	
160


	
are taken out of spare and used as replacement prior to delivery, but the replaced items shall be the

	
161


	
property of the Buyers. The radio installation, GMDSS and navigational equipment shall be included in the sale

	
162


	
without extra payment if they are the property of the Sellers. Unused stores and  provisions shall be

	
163


	
included in the sale and be taken over by the Buyers without extra payment.

	
164













	
The Sellers have the right to take ashore crockery, plates, cutlery, linen and other articles bearing the

	
165


	
Sellers' flag or name, provided they replace same with similar unmarked items. Library, forms, etc,

	
166


	
exclusively for use in the Sellers' vessel(s), shall be excluded without compensation. Captain's,

	
167


	
Officers' and Crew's personal belongings including the slop chest are to be excluded from the sale,

	
168


	
as well as the following additional items (including items on hire): cylinders of Oxygen/Acetylene/Refrigerant and ECDIS system.

	
169













	
The Buyers shall take over the remaining bunkers and unused lubricating oils in storage tanks and

	
170


	
sealed drums and pay the current net market  price (excluding  barging  expenses) at the port and date

	
171


	
of delivery of the Vessel   Buyers shall take over and pay for bunkers remaining on board with cost as per Platts prices at the closest port to the delivery port published one (1) banking day prior to the Vessel's delivery. Buyers shall also take over and pay extra for remaining unbroached lubricants respectively in sealed drums or in designated storage tanks not having passed to the engines/equipment through Vessel's system at Sellers' net contract prices excluding barge costs of last supply as evidenced by the relevant copies of invoices. Exact quantities of remaining bunkers and lubricating oils shall be measured and agreed by and between the Sellers' and the Buyers' representatives latest by one (1) Banking day prior to expected date of delivery of the Vessel.

	
172


	
Payment under this Clause shall be made at the same time and place and in the same currency as

	
173


	
the Purchase Price.

	
174













	
8.

	
Documentation

	
175













	
The place of closing: Athens or Piraeus, Greece

	
176
















  





  











  














	
In exchange for  payment  of  the  Purchase  Price  and delivery of the Vessel the  Sellers  shall  furnish  the  Buyers and the Buyers shall furnish the Sellers with the delivery

	
177


	
documents stated in Clause 17 of this Agreement. namely:


 

	
178













	
a)

	
Legal Bill of Sale in a form recordable in           (the country in  which  the Buyers  are

	
179


	  	
to register the Vessel),  warranting that  the  Vessel  is  free  from  all  encumbrances,  mortgages

	
180


	  	
and  maritime   liens  or  any  other  debts   or  claims  whatsoever,  duly  notarially  attested  and

	
181


	  	
legalized by the consul of such country or other competent  authority.

	
182













	
b)

	
Current Certificate of  Ownership  issued  by  the  competent  authorities  of  the  flag  state  of

	
183


	  	
the Vessel.

	
184













	
c)

	
Confirmation of Class issued within 72 hours prior to delivery.

	
185













	
d)

	
Current Certificate issued by the competent  authorities  stating  that  the  Vessel  is  free  from

	
186


	  	
registered encumbrances

	
187













	
e)

	
Certificate of Deletion of the Vessel from the  Vessel's  registry  or  other  official  evidence  of

	
188


	  	
deletion appropriate to the Vessel's registry at the time of delivery, or,  in  the  event  that  the

	
189


	  	
registry does not  as  a  matter  of  practice  issue  such  documentation  immediately,  a  written

	
190


	  	
undertaking by the Sellers to effect deletion from the Vessel's  registry  forthwith  and  furnish  a

	
191


	  	
Certificate or other official evidence of deletion to  the  Buyers  promptly  and  latest  within  4

	
192


	  	
(four) weeks after the  Purchase  Price  has  been paid and the  Vessel has been delivered.

	
193













	
f)

	
Any  such  additional  documents  as  may  reasonably  be  required  by  the  competent  authorities

	
194


	  	
for  the purpose of  registering  the  Vessel, provided  the   Buyers  notify  the  Sellers  of  any  such

	
195


	  	
documents as soon as possible after the date of this Agreement

	
196













	
At the  time  of  delivery  the  Buyers  and  Sellers  shall  sign  and  deliver  to  each  other  a  Protocol  of

	
197


	
Delivery and Acceptance confirming the date and time of delivery of  the Vessel  from  the  Sellers  to  the

	
198


	
Buyers.

	
199













	
At the time of delivery the Sellers shall hand over to the Buyers the classification certificate(s) as well as all

	
200


	
Plans etc., which are on board the Vessel. Other certificates which  are  on  board  the  Vessel  shall  also

	
201


	
be handed over  to  the  Buyers  unless  the  Sellers  are required to  retain same,  in  which  case  the

	
202


	
Buyers to have the right to take copies. Other technical documentation which may

	
203


	
be in the Sellers' possession shall be promptly forwarded to the Buyers at  their  expense, if  they  so

	
204


	
request. The Sellers  may  keep  the  Vessels  log  books but the Buyers   to  have  the  right  to  take

	
205


	
copies of same.


 


 

	
206


	
9.       Encumbrances

	
207













	
The Sellers warrant  that the Vessel, at the time of  delivery, is free from all  charters, encumbrances,

	
208


	
Mortgages, taxies, levies, duties and maritime liens or other liens or any other debts whatsoever and is not subject to port state or administrative detentions.  The   Sellers   hereby undertake

	
209


	
to indemnify  the  Buyers  against  all consequences  of  claims made against  the Vessel which   have

	
210


	
been incurred prior to the time of delivery.

	
211













	
10.      Taxes, etc.

	
212













	
Any taxes, fees and expenses in connection  with  the  purchase  and  registration  under the Buyers' flag

	
213


	
shall be for the  Buyers' account, whereas similar charges in  connection with  the  closing of the  Sellers'

	
214


	
register shall be for the Sellers' account.

	
215













	
11.      Condition on delivery

	
216













	
The Vessel with everything belonging  to  her shall be at the  Sellers' risk and expense until she is

	
217


	
delivered to the Buyers, but subject  to the  terms and conditions  of  this  Agreement she  shall  be

	
218


	
delivered and taken over as she was at the time of inspection, fair wear and tear excepted.

	
219


	
 The Vessel shall be delivered with  her  class  maintained  without   condition/recommendation*,

	
220


	
free  of  average  damage  affecting  the Vessels class,  and  with her classification certificates and 

	
221











  





  











  














	
National/international trading certificates and Continuous Survey of Machinery (CSM), as well as all other certificates the Vessel had at the time of inspection, clean, valid and

	
222


	
unextended at the time of

	
223


	
delivery.

	
224


	
"Inspection" in this Clause 11, shall mean the Buyers' inspection according  to  Clause  4  a)  or  4  b),  if

	
225


	
applicable, or the Buyers' inspection prior to the signing of this Agreement.  If  the  Vessel  is  taken  over

	
226


	
without inspection, the date of this Agreement shall be the relevant date.

	
227













	
*          Notes, if any, in the surveyor's report  which are accepted by the Classification Society

	
228


	
            without condition/recommendation are not to be taken into account.

	
229













	
12.      Name / markings

	
230













	
Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel markings.


 

	
231













	
13.      Buyers' default

	
232













	
Should the deposit not be paid in accordance with Clause 2, the Sellers have the right to cancel  this

	
233


	
Agreement, and  they shall be entitled to  claim  compensation for their losses and for all expenses

	
234


	
incurred together with interest.

	
235


	
Should the Purchase Price and the monies due for bunkers / unused lubricants not  be  paid  in  accordance  with  Clause  3,  the  Sellers  have  the  right  to

	
236


	
cancel the Agreement, in which case the deposit  together  with interest  earned  shall  be released  to  the

	
237


	
Sellers.  If the  deposit  does  not  cover  their  loss, but in case of such cancellation the  Sellers  shall  not be  entitled  to  claim  further

	
238


	
compensation for any losses suffered and/or for any expenses incurred together with interest.

	
239













	
14.      Sellers' default

	
240













	
Should the Sellers fail to give Notice of Readiness in accordance  with  Clause  5  a)  or  fail  to  be  ready

	
241


	
to  validly  complete  a  legal  transfer  by  the  date stipulated  in  line  61  the   Buyers   shall   have

	
242


	
the  option  of  cancelling  this  Agreement  provided  always  that  the   Sellers   shall   be   granted   a

	
243


	
maximum  of  3  Banking  days   after Notice of Readiness has been  given  to  make  arrangements

	
244


	
for the documentation set  out  in Clause  8.  If  after  Notice  of  Readiness  has  been  given  but  before

	
245


	
the Buyers  have  taken  delivery,  the  Vessel  ceases  to  be  physically  ready  for  delivery  and  is  not

	
246


	
made physically ready  again  in  every  respect  by  the  date stipulated  in  line  61  and  new  Notice  of

	
247


	
Readiness given, the Buyers shall retain their option to cancel. In  the  event  that  the  Buyers  elect

	
248


	
to  cancel this Agreement  the  deposit  together  with  interest earned shall be released to them

	
249


	
immediately.

	
250


	
Should the Sellers fail to give Notice of Readiness by the date stipulated in line  61  or  fail  to  be  ready

	
251


	
to validly complete a legal transfer  as  aforesaid  they  shall  make due compensation  to  the  Buyers  for

	
252


	
their  loss  and  for  all  expenses  together  with   interest if   their failure   is   due to proven

	
253


	
negligence and whether or not the Buyers cancel this Agreement.

	
254













	
15.      Buyers' representatives

	
255













	
After this  Agreement  has  been  signed  by  both  parties  and  the deposit  has  been  lodged, the  Buyers

	
256


	
have the right to place two  representatives  on  board  the  Vessel  at  their  sole  risk  and  expense  upon

	
257


	
arrival at  ________ on or about _________ immediately.

	
258


	
These  representatives/crew shall remain on  board until delivery of the Vessel to, and acceptance of the Vessel by, the Buyers for  the  purpose  of  familiarisation and   in   the capacity of

	
259


	
observers only, and  they  shall  not  interfere  in  any  respect  with  the  operation  of  the  Vessel.  The

	
260


	
Buyers' representatives/crew shall sign the Sellers' letter of indemnity prior to their embarkation.

	
261


	
 


16.      Arbitration

	
 


262













	
a)*           This  Agreement  (and any non-contractual obligations connected with this Agreement) shall  be  governed  by  and  construed  in  accordance  with  English  law   and

	
263


	
any dispute arising out  of  this  Agreement and/or any non-contractual obligations connected with this Agreement shall  be  referred  to  arbitration  in  London  in

	
264


	
accordance  with  the  Arbitration  Acts  1996 or  any   statutory   modification   or

	
265


	
re-enactment thereof for the  time  being  in  force,  one  arbitrator  being  appointed  by  each

	
266


	
party.  The arbitrators shall be full members of the London Maritime Arbitrators Association ("LMAA"). On

	
267











  





  











  














	
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

	
268


	
single arbitrator appointed shall apply.  If two arbitrators are properly  appointed

	
269


	
they shall appoint a third arbitrator failing which the third arbitrator shall be appointed by the President of the LMMA at the time within 21 days of the two arbitrators being appointed.

	
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b)*           This  Agreement  shall  be  governed  by  and  construed  in  accordance  with  Title  9  of   the

	
271


	
United States Code and the Law of the State of New York  and  should  any  dispute  arise  out  of

	
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this Agreement, the matter in dispute shall be referred to three  persons  at  New  York,  one  to

	
273


	
be appointed by each  of  the  parties  hereto,  and  the  third  by  the  two  so  chosen;  their

	
274


	
decision or that of any two of them shall be final, and for purpose of enforcing any  award,  this

	
275


	
Agreement may be made a rule of the Court.

	
276


	
The proceedings shall be conducted in accordance  with  the  rules  of  the  Society  of  Maritime

	
277


	
Arbitrators, Inc.  New York.

	
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c)*           Any dispute arising out of this Agreement shall be referred to arbitration at London in accordance with the Arbitration Act 1996 and subsequent alterations (if any), LLMAA rules to apply

	
279


	
, subject to the procedures applicable there.

	
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The laws of England shall govern this Agreement.

	
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*           16 a), 16 b) and 16 c) are altematives; delete whichever is not applicable.  In the absence of

	
282


	
deletions, altemative 16 a) to apply.

	
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17. Delivery Documents







A. In exchange of the payment of the Purchase Price and other monies due under Clause 3 of this Agreement, the Sellers shall furnish the Buyers with the following delivery documents, namely:


 


(a)           Three originals of a legal bill of sale in British form in the English language (the "Bill of Sale") in favour of the Buyers, evidencing the transfer of all (100 percent) of the shares and interest in and title to the Vessel to the Buyers and warranting that the Vessel is free from all mortgages, encumbrances, charters, maritime liens or other liens, claims, taxes, levies, duties and any other debts whatsoever, duly executed by the Sellers and duly certified by a notary public and legalized by Apostille at Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs Office in the UK.


 


(b)           Fax or email copy of Transcript of Register issued by the Isle of Man Registry and dated the delivery date showing the Vessel to be registered in the ownership of the Sellers and free and clean from encumbrances to be faxed to the closing meeting in Greece. The original of such Transcript of Register will be provided to the Buyers not later than seven (7) Banking days after the delivery date of the Vessel to the Buyers and the Sellers shall provide an undertaking to that end.


 


(c)           A certified true copy of the certificate of incorporation of the Sellers certified by the Sellers' Greek counsel.


 


(d)           An original set of Minutes of all the members of the Board of Directors of the Sellers or Resolutions of the Sellers adopted by unanimous consent approving, authorizing and confirming the entry into this Agreement and any amendments and/or addendums thereto, authorising the sale of the Vessel in accordance with the provisions of this Agreement and authorizing persons to conclude the sale, transfer and delivery of the Vessel to the Buyers and sign, execute and deliver on behalf of the Sellers, inter alia, the Bill of Sale, a protocol of delivery and acceptance and any other document required to be executed by the Sellers in respect of the delivery of the Vessel from the Sellers to the Buyers thereof pursuant to this Agreement and also authorizing the execution of Power(s) of Attorney to a specific person or persons


 






  





  











  








empowering them to execute and deliver such documents and take such steps as may be necessary or appropriate in order to transfer and deliver the Vessel to the Buyers, such Minutes to be duly certified by a notary public and legalized by Apostille at Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs Office in the UK .


 


(e)           Original written resolutions of the Sole Shareholder, approving the BOD minutes or Resolutions of the Sellers under 17. A. (d) above, duly legalised by Apostille by the Special Agent of the Republic of the Marshall Islands in Greece.


 


(f)           An original Power of Attorney of the Sellers executed pursuant to the Minutes referred to in item (d) hereinabove duly certified by a notary public and legalized by Apostille at Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs Office in the UK.


 


(g)           An original set of the director's certificate of incumbency of the Sellers certifying the name of all present directors/officers and shareholders of such Sellers and attaching copies of all the correct and complete and up-to-date constitutional documents in full force and effect of the Sellers (Memorandum and Articles of Association) with any amendments, duly certified by a notary public and legalized by Apostille at Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs Office in the UK.


 


(h)           An original Certificate of Goodstanding of the Sellers dated no more than 7 (seven) Banking days prior to the delivery date showing the Sellers to be in good standing under the laws of the British Virgin Islands.


 


(i)           Two original Protocols of Delivery and Acceptance (one for the Sellers and one for the Buyers to be exchanged at the closing in Greece) confirming the delivery of the Vessel by the Sellers to the Buyers.


 


(j)           Commercial Invoice in three (3) copies dated the delivery date, stating the full particulars of the Vessel and the Purchase Price of the Vessel signed and stamped by the Sellers.


 


(k)           Commercial Invoice in three (3) copies providing for description, quantities and price of any unused lubricating oils and bunkers remaining on board the Vessel on the delivery date in accordance with the provisions of Clause 7, together with any supporting invoices/vouchers of the lubricating oils.


 


(l)           An original letter of confirmation from the Sellers stating that to the best of their knowledge the Vessel is not blacklisted by Arab Boycott League in Damascus or any other organisation, nation, government, state, country, political sub-division or union as of the delivery date.


 


(m)           An original statement from the Master of the Vessel that all crew wages have been duly paid up to the delivery date.


 


(n)           A full list of pending insurance claims signed by a Director of the Seller.


 


(o) (i) A letter of undertaking by the Sellers to effect deletion from the Vessel's Registry forthwith and provide the Buyers with the original Transcript of Closed Register from the Vessel's Registry within seven (7) running days after delivery of the Vessel and to also provide the Vessel's new flag with a Closed Continuous Synopsis Record issued by the Vessel's Registry within thirty (30) running days after delivery


 






  





  











  








of the Vessel; ii) A copy of the Transcript of Closed Register to be provided to the Buyers on the delivery date; and (iii) a Closed Continuous Synopsis Record from the Vessel's Registry to be issued and delivered to the Vessel's new flag administration as paragraph (o)(i) above within 30 running days after the delivery of the Vessel.


 


(p) Vessel's present Class Statement/Affidavit stating i) the Vessel's certificates and their statues (i.e. validity and expiration date), ii) any class items and conditions whether outstanding or not iii) the current survey status setting forth any overdue surveys and iv) that the Vessel is fit to proceed at sea, dated no more than 5 (five) Banking Days prior to delivery of the Vessel with a copy of the Vessel's Class Certificate attached. One copy of the same to be sent by fax or email four (4) days prior to the delivery of the Vessel to the Buyers. Furthermore, Sellers will authorize their Classification Society to release directly to Marshall Islands Maritime Authorities any classification information which may be needed by them for registration purposes within fifteen (15) running days prior to the expected date of delivery of the Vessel to the Buyers.


 


(q) Original Class Maintenance Certificate issued by the Vessel's present Class and dated not more than three (3) Banking days prior to the date of delivery of the Vessel evidencing that the Vessel is class maintained.


 


(r) An original letter of confirmation from the Sellers addressed to the Buyers confirming that the Vessel has not, during the last 6 months period prior to the delivery date, traded with or called in Israel, Cuba, Iran, Syria, North Korea or any other areas sanctioned or boycotted by the European Union and/or the United States of America and/or the United Nations, dated the delivery date.


 


(s) An original letter of confirmation from the Sellers that to the best of their knowledge the Vessel has not touched bottom or suffered any underwater damage from her last drydock up to the date of her delivery.







(t) One original letter from the Sellers confirming that any outstanding radio accounts shall be settled by the Sellers as soon as practically possible after the Vessel's delivery with no liability regarding the same to be incurred against the Buyers.







(u) Recent AGM free certificate from authorized company.







(v) Any such additional documents as may be required by the Marshall Islands authorities for the purpose of transferring title and registering the Vessel, provided that the Buyers notify the Sellers of any such documents as soon as possible and in no event later than seven (7) days prior to the expected delivery of the Vessel.







B. In exchange of delivery of the Vessel, the Buyers shall furnish the Sellers with the following delivery documents, namely:


 



(a)           Copy of the Certificate of Incorporation of the Buyers, certified as true by the Buyers' Legal Counsel.




 






  





  











  













 



	
(b)

	
Original Good Standing Certificate of the Buyers dated no more than 7 (seven) Banking prior to the delivery date showing the Buyers to be in good standing under the laws of the Marshall Islands.







 



	
(c)

	
An original set of resolutions or minutes of the Board of Directors of the Buyers authorising the purchase of the Vessel in accordance with the provisions of this Agreement, the ratification of this Agreement signed and the execution on behalf of the Buyer of (inter alia) the acceptance of the Bill of Sale (if applicable), a protocol of delivery and acceptance and any other document required to be executed by the Buyers in respect of the delivery of the Vessel from the Sellers to the Buyers pursuant to this Agreement, and authorising further execution of a Power of Attorney authorising the execution any and all other documents and undertakings provided in this Agreement such resolutions to be duly legalised by Apostille by the Special Agent of the Republic of the Marshall Islands in Greece.







 



	
(d)

	
An original set of the officer's certificate of incumbency of the Buyers certifying the names of all present directors/officers of the Buyer and attaching copies of all correct and complete constitutional documents in full force and effect of the Buyers (Copies of the Articles of Incorporation or other constitutional documents and By-Laws (as the case may be) (together with any amendment thereto up to and including the delivery date)) such officer's certificate to be duly legalised by Apostille by the Special Agent of the Republic of the Marshall Islands in Greece.







 



	
(e)

	
An original Power of Attorney of the Buyers issued in accordance with the resolutions referred to under 17. B. (d) above authorising the persons signing the documents on their behalf such power of attorney to be duly legalised by Apostille by the Special Agent of the Republic of the Marshall Islands in Greece.







 


The parties undertake to exchange drafts of the above documents and agree final formats latest seven (7) Banking days prior to the delivery date of the Vessel.


 


18. DRYDOCKING







NO DRYDOCKING CLAUSE TO APPLY AND CLAUSE 6 OF SALESFORM 1993 IS DELETED.







HOWEVER, PROMPTLY BEFORE OR AFTER THE VESSEL'S ARRIVAL AT THE DELIVERY PORT AND PRIOR TO THE VESSEL'S DELIVERY THE BUYERS HAVE THE RIGHT TO CARRY OUT AN INSPECTION OF THE VESSEL'S UNDERWATER (BELOW SUMMER LOADLINE) PARTS BY CLASS APPROVED DIVERS WITH VIDEO LINK TO THE ATTENDING CLASS SURVEYOR, SUCH DIVERS INSPECTION TO BE AT BUYERS RISK AND EXPENSE.







BUYERS TO ADVISE SELLERS FIVE (5) DAYS PRIOR TO DELIVERY IF THEY INTEND TO CARRY OUT UNDERWATER INSPECTION. IF THE DECLARED BY SELLERS DELIVERY PORT IS NOT FEASIBLE FOR AN UNDERWATER INSPECTION BUYERS SHALL PROMPTLY ADVISE SELLERS OF AN ALTERNATIVE PLACE NEAR TO THE DELIVERY PORT, TO BE MUTUALLY AGREED, WHERE SELLERS ARE TO MAKE THE VESSEL AVAILABLE, AT SELLERS' COST, FOR SUCH AN INSPECTION. THE EXTENT OF THE INSPECTION AND CONDITIONS UNDER WHICH IT IS






  





  











  








PERFORMED SHALL BE TO THE SATISFACTION OF THE CLASSIFICATION SOCIETY. IN CASE THE UNDERWATER INSPECTION TAKES PLACE AT A PRIOR PORT OTHER THAN THE DELIVERY PORT THEN THE SELLERS SHALL PROVIDE THE BUYERS WITH A LETTER OF UNDERTAKING CONFIRMING THAT THE VESSEL HAS NOT TOUCHED BOTTOM FROM THE PLACE OF THE UNDERWATER INSPECTION TO THE DELIVERY PORT.







THE DIVERS INSPECTION TO BE CARRIED OUT IN A MANNER AND UNDER CONDITIONS CONSIDERED SUITABLE BY THE ATTENDING CLASS SURVEYOR FOR SUCH UNDERWATER INSPECTION. ATTENDANCE ARRANGEMENTS AND FEES FOR THE ATTENDING CLASS SURVEYOR SHALL BE FOR THE SELLERS ACCOUNT AND THE COST OF THE DIVERS FOR THE BUYERS ACCOUNT.







A) IF ANY DAMAGE IS FOUND TO THE VESSELS UNDERWATER PARTS WHICH LEADS TO IMPOSING RECOMMENDATION(S) AGAINST THE VESSEL, AND REQUIRES SAME TO BE REPAIRED PRIOR TO THE VESSELS NEXT DUE DRYDOCKING DATE, THEN THE SELLERS SHALL REPAIR SUCH DAMAGE TO THE SATISFACTION OF CLASSIFICATION SOCIETY AT THE SELLERS TIME AND EXPENSE, PRIOR TO THE VESSELS DELIVERY TO THE BUYERS. SHOULD THE VESSEL BE REQUIRED TO DRYDOCK TO EFFECT SUCH REPAIRS TO CLASS SATISFACTION, THEN THE BUYERS SHALL HAVE THE RIGHT TO SCRAPE/PAINT THE VESSELS UNDERWATER PARTS AT THE BUYERS RISK + EXPENSE WHILST THE VESSELS IS IN DRYDOCK. ALL COSTS AND MATERIALS ASSOCIATED WITH THE BUYERS WORKS AND ANY EXTRA DRYDOCKING TIME REQUIRED FOR THE BUYERS TO CARRY OUT/COMPLETE THEIR WORKS SHALL ALWAYS BE FOR THE BUYERS ACCOUNT. SUCH BUYERS WORKS SHALL NOT INTERFERE WITH THE SELLERS WORKS AND NOT TO DELAY THE DELIVERY OF THE VESSEL. IN THE EVENT THAT THE SELLERS HAVE COMPLETED THEIR WORKS IN THE DRYDOCK TO THE SATISFACTION OF CLASS AND THE BUYERS WORKS ARE NOT YET COMPLETED, THEN THE SELLERS HAVE THE RIGHT TO TENDER NOTICE OF READINESS FOR DELIVERY TO THE BUYERS WHILST THE VESSEL IS IN DRYDOCK. IN THE EVENT OF THE VESSEL BEING REQUIRED TO DRYDOCK FOR REPAIRS AND THERE ARE NO SUITABLE DRYDOCKING FACILITIES AVAILABLE AT THE DELIVERY PORT, THEN THE SELLERS SHALL TAKE THE VESSEL IN BALLAST TO THE NEAREST PORT/PLACE WHERE SUITABLE DRYDOCKING FACILITIES ARE AVAILABLE, AND A NEW DELIVERY PORT TO BE AGREED BETWEEN THE PARTIES. IT IS HEREBY MUTUALLY AGREED BY THE SELLERS AND THE BUYERS, THAT IN THE EVENT OF DAMAGE AFFECTING CLASS BEING FOUND DURING THE DIVERS INSPECTIONS AS MENTIONED ABOVE, THEN THE AGREED CANCELLING DATE SHALL AUTOMATICALLY BE EXTENDED BY THE ADDITIONAL TIME REQUIRED FOR THE DRYDOCKING, REPAIRS AND EXTRA STEAMING, BUT LIMITED TO A MAXIMUM OF 14 RUNNING DAYS. CLASS ATTENDANCE FEES AND DIVERS COSTS TO BE FOR SELLERS ACCOUNT.







B) IF ANY DAMAGE(S) TO THE VESSELS UNDERWATER PARTS IS FOUND WHICH LEADS TO CLASS IMPOSING A RECOMMENDATION(S) AGAINST THE VESSEL BUT AGREE TO POSTPONE PERMANENT REPAIRS TO SAME UNTIL THE VESSEL'S NEXT DUE DRYDOCKING DATE THEN, IN LIEU OF THE SELLERS REPAIRING SUCH DAMAGE(S), THE SELLERS TO COMPENSATE THE






  





  











  








BUYERS BY WAY OF REDUCTION FROM THE AGREED PURCHASE PRICE AND THE BUYERS SHALL TAKE DELIVERY OF THE VESSEL AS SHE IS WITH SUCH RECOMMENDATION (S) OUTSTANDING. THE SELLERS AND THE BUYERS SHALL EACH OBTAIN A QUOTATION FOR THE REPAIR OF SUCH DAMAGE FROM 2 SEPARATE REPUTABLE SHIP REPAIR YARDS IN THE AREA, AND THE COMPENSATION AMOUNT TO THE BUYERS SHALL BE THE AVERAGE OF THE TWO REPAIR QUOTATIONS RECEIVED BY THE BUYERS AND SELLERS RESPECTIVELY AS MENTIONED ABOVE. CLASS ATTENDANCE FEES AND DIVERS COSTS TO BE FOR SELLERS ACCOUNT.







19. P AND C







THE TERMS AND CONDITIONS OF THE SALE TO BE KEPT STRICTLY PRIVATE AND CONFIDENTIAL BY ALL PARTIES INVOLVED, SAVE AS REQUIRED OTHERWISE BY THE SECURITIES AND EXCHANGE COMMISSION OR US STOCK LISTED EXCHANGE RULES APPLICABLE TO THE SELLERS.


 


 


20. Notices


 


Any and all notices and communication in connection with this Agreement shall be in English in writing and shall be sent:


 


 



	
(a)  

	
if to the Sellers at:







 


Attention: Stamatis Tsantanis


 


Telephone: +30 210 8931507


 


e-mail: snt@seanergymaritime.com.gr


 


 


or such other address as the Sellers may notify the Buyers.


 



	
(b)  

	
If to the Buyers at:







 


Attention:  Mr. K. Petropoulos


 


Telephone:  +30 216 4001548


 


e-mail:   PetropoulosK&piraeusbank.gr


 


or such other address as the Buyers may notify the Sellers


 


 


22. Contracts (Rights of Third Parties) Act 1999


 


 


Nothing contained in this Agreement confers or purports to confer on any third party any benefit or any right to enforce any term hereof pursuant to the Contracts (Rights of Third Parties) Act 1999.


 






  





  











  








 







 


 


23. 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.







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 the Sellers

	  	
For the Buyers


	  	  	  
	  	  	  /s/ Oikonomou K.
	 /s/ Stamatis Tsantanis 	  	  /s/ K. Petropoulos
	
Name: Stamatis Tsantanis

	  	
Name: K. Petropoulos, Oikonomou K.


	
Title:  Authorized Director

	  	
Title: