Exhibit 4.32.5


 


NOVATION
AGREEMENT


 


 


Dated 29 March, 2004


 


 


WOODMERE TANKERS LDC


 


 


CALICO LEASING (GB) LIMITED


(formerly Natwest Leasing (GB) Limited)


 


 


and


 


 


KTL KENSINGTON, INC.


 


 


relating to a Conditional Sale Agreement


dated 25th November, 1996


m.v. Myrina


 


 


 


Allen & Overy


 


LONDON


 

















 


CONTENTS


 


 


Clause


 


	
  1.

  	
  Definitions

  	
   

  
	
  2.

  	
  Novation

  	
   

  
	
  3.

  	
  Conditions
  Precedent

  	
   

  
	
  4.

  	
  Consideration

  	
   

  
	
  5.

  	
  Costs

  	
   

  
	
  6.

  	
  Representations and
  Warranties

  	
   

  
	
  7.

  	
  Disclaimers and Exclusions

  	
   

  
	
  8.

  	
  Counterparts

  	
   

  
	
  9.

  	
  Applicable Law

  	
   

  



 

















 


THIS NOVATION  AGREEMENT is made on 29 March, 2004
between:


 


(1)           WOODMERE
TANKERS LDC a company incorporated in the Cayman Islands whose registered office
is at third floor, CIBC Financial Centre, PO Box 1234, George Town, Grand
Cayman, Cayman Islands (the Seller);


 


(2)           CALICO
LEASING (GB) LIMITED (formerly Natwest Leasing (GB) Limited) a company
incorporated in England and Wales whose offices is at 30 St Mary Axe Avenue,
London EC3A 8EP (the Old Purchaser); and


 


(3)           KTL
KENSINGTON INC, a company incorporated in Liberia whose registered office is at 80
Broad Street, Monrovia, Liberia (the New Purchaser)


 


WHEREAS:


 


(A)          The Seller and the Old Purchaser entered
into a conditional sale agreement (the Conditional Sale Agreement) dated 25th
November 1996 relating to one approximately 298,000 dwt double hulled very
large crude carrier M.V. “Myrina” (the Vessel);


 


(B)           The Old Purchaser and the Seller entered
into a charterparty by way of demise dated 12th February 1997 relating to the
Vessel (the Charterparty);


 


(C)           Following the termination of the
charterparty of the Vessel the Old Purchaser wishes to effect a Conditional
Sale Agreement Transfer in accordance with the provisions of Clause 18 of the
Charterparty.


 


THIS DEED WITNESSES as follows:


 


1.             DEFINITIONS


 


(a)           In this Agreement words and expressions defined in the
Charterparty shall have the same meanings when used herein and the following
expressions shall, unless otherwise specified, have the following meanings:


 


Deed of Release means the agreement so
entitled and to be made between the Seller, the Old Purchaser and the Agent
pursuant to which the Seller will release and discharge the Lessor Mortgage and
Assignment.


 


Effective Time means the date on, and time
at, which the Old Purchaser notifies the Seller and the New Purchaser in
writing that the conditions precedent listed in Clause 3 (Conditions
Precedent) are in a form and substance satisfactory to the Old Purchaser or
have been waived by the Old Purchaser.


 


Lessor Proceeds Account means the account of the Old
Purchaser with National Westminster Bank Plc at PO Box 34, 15 Bishopsgate,
London EC2P 2AP, Sort Code 50-00-00, account name “NatWest Leasing (GB)
Limited, re: Woodmere Tankers LDC” account number 95484493.


 


Old Purchaser’s Group means European International
Reinsurance Company Limited (EIR) any company which is a Subsidiary from
time to time of EIR, the Holding Company from time to time of EIR and any
company (besides EIR) which is from time to time a Subsidiary of its Holding
Company.


 


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(b)           The principles of construction set out in Clause 1.2
(Interpretation of the Charterparty) shall have effect as if set out in this
Agreement.


 


(c)           A person who is not a party to this Agreement has no
rights under the Contract (Rights of Third Parties) Act 1999 to enforce any
term of this Agreement.


 


2.             NOVATION


 


(a)           The novation to be effected pursuant to this Agreement
shall have effect from the Effective Time.


 


(b)           The New Purchaser undertakes to the Seller and to the
Old Purchaser to perform, discharge and observe all such obligations and
liabilities on the part of the Old Purchaser under the Conditional Sale
Agreement as fall to be performed, discharged or observed from the Effective
Time as if the New Purchaser were named in the Conditional Sale Agreement in
place of the Old Purchaser with effect from the Effective Time.


 


(c)           In consideration of the New Purchaser’s undertaking in
Clause 2(b), the Seller releases and discharges the Old Purchaser from all
claims, demands, obligations and liabilities whatsoever in respect of the
Conditional Sale Agreement which relate to the period beginning on the
Effective Time.


 


(d)           The Seller undertakes to the New Purchaser to perform,
discharge and observe all obligations and liabilities on the part of the Seller
under the Conditional Sale Agreement and acknowledges that the New Purchaser
shall be entitled to the rights and benefits of the Conditional Sale Agreement
as if the New Purchaser were named in the Conditional Sale Agreement in place
of the Old Purchaser with effect from the Effective Time.


 


(e)           In consideration of the Seller’s undertaking in
Clause 2(d), the Old Purchaser releases and discharges the Seller from all
claims, demands, obligations and liabilities whatsoever to the Old Purchaser in
respect of the Conditional Sale Agreement which relate to the period beginning
on the Effective Time.


 


(f)            Subject as amended by this Agreement, the Conditional
Sale Agreement shall continue in full force and effect and the transfer
effected by this Agreement shall be subject to, and with the benefit of, the
Initial Sub-Charter, if any.


 


3.             CONDITIONS PRECEDENT


 


Clause 2 shall have effect on the date and
time at which the Old Purchaser notifies the Seller and the New Purchaser that
the Old Purchaser has received the following conditions precedent in form and
substance satisfactory to the Old Purchaser:


 


(i)            a certified copy of the resolution of the
board of directors of the Seller and the New Purchaser approving the transactions
contemplated by this Agreement, together with any power of attorney issued
pursuant thereto;


 


(ii)           this Agreement duly executed by the parties
hereto;


 


(iii)          the Deed of Release duly executed by the
Seller;


 


(iv)          the written confirmation referred to in
Clause 18.9(ix) of the Charterparty;


 


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(v)           evidence that the consideration referred to
in Clause 4 (Consideration) has been credited to the Lessor Proceeds Account;


 


(vi)          Confirmation from the Agent and the Seller
that the Lease Discharge Date (as defined in the Lessor Direct Agreement) will,
subject to the Agent unconditionally and irrevocably withdrawing the Net
Novation Proceeds from the Lessor Proceeds Account, occur on the Effective
Time;


 


(vii)         an appraisal from an independent reputable
appraisor appointed by the Seller (which appraisal shall be dated no more than
15 days prior to the date hereof) evidencing the open market value of the
Vessel.


 


The conditions precedent in this
Clause 3 are for the benefit of the Old Purchaser and the Old Purchaser
may waive any of them by written notice given to the Seller and the New
Purchaser.


 


4.             CONSIDERATION


 


(a)           As consideration for the novation under Clause 2
(Novation) above, the New Purchaser shall pay to the Old Purchaser, by
crediting the Lessor Proceeds Account, the sum of £34,567,584.07 on the
Effective Time.


 


(b)           The consideration referred to in Clause 4(a) shall be
applied in accordance with the provisions of Clause 5.9 (Payment of Proceeds of
Sale) of the Lessor Direct Agreement.


 


5.             COSTS


 


The Seller shall pay all costs and expenses
(including legal fees and expenses) properly incurred by the Old Purchaser in
connection with this Agreement (including, without limitation the preparation,
negotiation and execution of this Agreement and all documents, agreements,
approvals and consents required in connection herewith).


 


6.             REPRESENTATIONS
AND WARRANTIES


 


(a)           Each of the parties to this Agreement represents and
warrants to the other party to this Agreement, that as at the date hereof:


 


(i)            it has full power and authority to enter into, and
perform all its obligations under this Agreement;


 


(ii)           this Agreement constitutes its legal, valid and
binding obligations; and


 


(iii)          the entry into and performance by it of this Agreement
does not and will not violate in any respect any existing law or regulation,
its constitutional documents or any agreement to which it is a party.


 


(b)           The Old Purchaser further represents and warrants to
the New Purchaser that:


 


(i)            it has not created any Lessor’s Lien;


 


(ii)           the Old Purchaser has not, save for the Lessor Granted
Security Documents and the Charterparty, executed any instrument or entered
into any arrangements whereby its rights to take title to the vessel under
Clause 5 of the Conditional Sale Agreement have been encumbered or otherwise
disposed of by the Old Purchaser.


 


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(iii)          the Old Purchaser has not exercised its right to take
title to the Vessel under Clause 5 of the Conditional Sale Agreement;


 


(iv)          the Old Purchaser has not revoked the appointment of
the Seller or the Agent as exclusive sales agent of the Lessor in relation to
the Vessel; and


 


(v)           the Old Purchaser has not revoked, and will not
revoke, the authority given to the Agent to instruct the Account Bank to pay to
the Agent the Net Novation Proceeds from the Lessor Proceeds Account pursuant
to Clause 5.9 (Payment of Proceeds of Sale) of the Lessor Direct Agreement.


 


7.             DISCLAIMERS AND EXCLUSIONS


 


(a)           The New Purchaser acknowledges and agrees that:


 


(i)            the Vessel has been designed, manufactured, assembled,
constructed, tested, trialed and examined without reference to or involvement
of the Old Purchaser or any other member of the Old Purchaser’s Group;


 


(ii)           neither the Old Purchaser nor any other member of the
Old Purchaser’s Group has made or given or shall be deemed to have made or
given any representation, warranty, term or condition, express or implied
(whether statutory or otherwise), as to the seaworthiness, capacity, state,
value, quality, durability, condition, design, construction, operation,
performance, description, merchantability, fitness for use or purpose or
suitability of the Vessel or any part thereof, as to the absence of latent or
other defects, whether or not discoverable, as to the absence of any
infringement of any patent, trademark, copyright, intellectual property or
other rights, or as to title to the Vessel or any other representation,
warranty, term or condition whatsoever, express or implied, with respect to the
Vessel, all of which are hereby excluded;


 


(iii)          the New Purchaser is taking possession of the Vessel
from the Seller on an “as is, where is, and with all faults” basis.


 


(b)           Save as otherwise expressly and specifically provided
by this Agreement the New Purchaser hereby waives as between itself and the Old
Purchaser all its rights, express or implied (whether statutory or otherwise),
against the Old Purchaser or in respect of the Vessel.


 


(c)           Without prejudice to the generality of the other
provisions of this Clause 7 the Old Purchaser shall be under no liability
to the New Purchaser whatsoever and howsoever arising and from whatever cause,
and whether in contract, tort or otherwise, in respect of any loss (consequential
or otherwise), liability, damage (including death, injury or disease) or
Unavailability of, or to, or in connection with, the Vessel or any person or
property whatsoever.


 


8.             COUNTERPARTS


 


(a)           This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
Agreement and any party may enter into this Agreement by executing a
counterpart.


 


9.             APPLICABLE LAW


 


(a)           This Agreement is governed by the laws of England.


 


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(b)           For the benefit of the Old Purchaser, each of the
Seller and the New Purchaser agrees that the courts of England have
jurisdiction to settle any disputes in connection with this Agreement and
accordingly submits to the jurisdiction of the English courts.


 


(c)           Each the Seller and the New Purchaser:


 


(i)            waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in connection with this
Agreement; and


 


(ii)           agrees that a judgment or order of an English court in
connection with this Agreement is conclusive and binding on it and may be
enforced against it in the courts of any other jurisdiction.


 


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IN WITNESS of which this Agreement has been entered into on the
date which appears first on page 1.


 


	
  SIGNED by Nicholas Sherriff

  	
  )

  	
  /s/ Nicholas Sherriff

  
	
  for
  and on behalf of

  	
  )

  	
   

  
	
  WOODMERE
  TANKERS LDC

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Bob Ratcliffe

  	
  )

  	
  /s/ Bob Ratcliffe

  
	
  for
  and on behalf of

  	
  )

  	
   

  
	
  CALICO
  LEASING (GB) LIMITED

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Nicholas Sherriff

  	
  )

  	
  /s/ Nicholas Sherriff

  
	
  for
  and on behalf of

  	
  )

  	
   

  
	
  KTL
  KENSINGTON, INC

  	
  )

  	
   

  



 


6