MEMORANDUM OF AGREEMENT Dated: Dated as of 23rd February 2005
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Dated:
Dated
as of 23rd
February 2005
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Xxxxxxxx
x.x. Shipping AS
hereinafter called the Sellers, have agreed to sell, and MC
Eid Shipping Limited hereinafter
called the Buyers, have agreed to buy
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Name:
LPG/C
XXXXX XXXXXXXX
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Classification
Society/Class: Lloyds
Register
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Built:
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1991
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By:
Kawasaki
- Kobe, Japan
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Flag:
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Bahamas
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Place
of Registration: Nassau
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Call
Sign: C6TF6
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Grt/Nrt:
42286
/ 15519
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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.
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1.
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Purchase
Price US$ 50,717,250
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2.
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Deposit
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As
security for the correct fulfilment of this Agreement the Buyers shall pay
a
deposit of 10 % (ten per cent) of the Purchase Price within 3
banking
days from the date of all subjects lifted and this Agreement signed by both
Sellers and Buyers by fax copy this Agreement.
This
deposit shall be placed free of bank charges with DnB
NOR Bank ASA, Oslo SWIFT address: XXXXXXXX, Account 5011 04 43428, with cover
through XXXXXX0X and
held
by them in a joint account for the Sellers and the Buyers, to be released
in
accordance with joint written instructions of the Sellers and the Buyers.
Interest, if any, to be credited to the Buyers. Any fee charged for holding
the
said deposit shall be borne equally by the Sellers and the Buyers.
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Payment
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The
said
Purchase Price shall be paid in full free of bank charges by SWIFT
to
DnB
NOR Bank ASA, Oslo SWIFT address: XXXXXXXX, Account 7010 04 43412, with cover
through XXXXXX0X
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.
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4.
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Inspections
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a)*
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The
Buyers have inspected and accepted the Vessel's classification
records.
The Buyers have also inspected the Vessel at/in Gib/Xxxxxx
on
12-14th
February 2005 and
have accepted the Vessel following this inspection and the sale
is
outright and definite, subject only to the terms and conditions
of this
Agreement.
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b)*
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*
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4a)
and 4b) are alternatives; delete whichever is not applicable.
In the
absence of deletions, alternative 4a) to apply.
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5.
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Notices,
time and place of delivery
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a)
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The
Sellers shall keep the Buyers well informed of the Vessel's itinerary
and
shall provide the Buyers with 20,
15, 10, 7, 5,
and 3
days approximate
notice
of delivery
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b)
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The
Vessel shall be delivered and taken over safely afloat at a safe
and
accessible berth or anchorage at/in Singapore,
Fujairah, N.W. Europe, Med, USEC, USG, Caribs., Argentina, or Brazil
in
the Sellers' option.
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Expected
time of delivery: 15th
March - 1st
May 2005
Date
of
cancelling (see Clauses
5 c),
6
b)
(iii)
and
14):
1st
May in Buyers’ Option.
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c)
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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 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 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.
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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 the deposit together with interest earned shall be released immediately
to the Buyers whereafter this Agreement shall be null and void.
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6.
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Drydocking/Divers
Inspection
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b)**
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(i)
The Vessel is to be delivered without drydocking. However, the
Buyers
shall have the right at their expense to arrange for an underwater
inspection by a diver approved by the Classification Society prior
to the
delivery of the Vessel. The Sellers shall at their cost make the
Vessel
available for such inspection. The extent of the inspection and
the
conditions under which it is performed shall be to the satisfaction
of the
Classification Society. If the conditions at the port of delivery
are
unsuitable for such inspection, the Sellers shall make the Vessel
available at a suitable alternative place near to the delivery
port.
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(ii)
If
the rudder, propeller, bottom or other underwater parts below the deepest
load
line are found broken, damaged or defective so as to affect the Vessel's
class,
then unless repairs can be carried out afloat to the satisfaction of the
Classification Society, the Sellers shall arrange for the Vessel to be drydocked
at their expense for inspection by the Classification Society of the Vessel's
underwater parts below the deepest load line, the extent of the inspection
being
in accordance with the Classification Society's rules. If the rudder, propeller,
bottom or other underwater parts below the deepest load line are found broken,
damaged or defective so as to affect the Vessel's class, such defects shall
be
made good by the Sellers at their expense to the satisfaction of the
Classification Society without condition/recommendation*. In such event the
Sellers are to pay also for the cost of the underwater inspection and the
Classification Society's attendance.
(iii)
If
the Vessel is to be drydocked pursuant to Clause
6 b)
(ii)
and no suitable dry-docking facilities are available at the port of delivery,
the Sellers shall take the Vessel to a port where suitable drydocking facilities
are available, whether within or outside the delivery range as per Clause
5 b).
Once
drydocking has taken place the Sellers shall deliver the Vessel at a port
within
the delivery range as per Clause
5 b)
which
shall, for the purpose of this Clause, become the new port of delivery. In
such
event the cancelling date provided for in Clause
5 b)
shall
be extended by the additional time required for the drydocking and extra
steaming, but limited to a maximum of 14 running days.
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c)
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If
the Vessel is drydocked pursuant to Clause 6
a)
or 6
b)
above
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(i)
the
Classification Society may require survey of the tailshaft system, the extent
of
the survey being to the satisfaction of the Classification surveyor. If such
survey is not required by the Classification Society, the Buyers shall have
the
right to require the tailshaft to be drawn and surveyed by the Classification
Society, the extent of the survey being in accordance with the Classification
Society's rules for tailshaft survey and consistent with the current stage
of
the Vessel's survey cycle. The Buyers shall declare whether they require
the
tailshaft to be drawn and surveyed not later than by the completion of the
inspection by the Classification Society. The drawing and refitting of the
tailshaft shall be arranged by the Sellers. Should any parts of the tailshaft
system be condemned or found defective so as to affect the Vessel's class,
those
parts shall be renewed or made good at the Sellers' expense to the satisfaction
of the Classification Society without condition/recommendation*.
(ii)
the
expenses relating to the survey of the tailshaft system shall be borne by
the
Buyers unless the Classification Society requires such survey to be carried
out,
inwhich case the Sellers shall pay these expenses. The Sellers shall also
pay
the expenses if the Buyers require the survey and parts of the system are
condemned or found defective or broken so as to affect the Vessel's class*.
(iii)
the
expenses in connection with putting the Vessel in and taking her out of drydock,
including the drydock dues and the Classification Society's fees shall be
paid
by the Sellers if the Classification Society issues any
condition/recommendation* as a result of the survey or if it requires survey
of
the tailshaft system. In all other cases the Buyers shall pay the aforesaid
expenses, dues and fees.
(iv)
the
Buyers' representative shall have the right to be present in the drydock,
but
without interfering with the work or decisions of the Classification
surveyor.
(v)
the
Buyers shall have the right to have the underwater parts of the Vessel cleaned
and painted at their risk and expense without interfering with the Sellers'
or
the Classification surveyor's work, if any, and without affecting the Vessel's
timely delivery. If, however, the Buyers' work in drydock is still in progress
when the Sellers have completed the work which the Sellers are required to
do,
the additional docking time needed to complete the Buyers' work shall be
for the
Buyers' risk and expense. In the event that the Buyers' work requires such
additional time, the Sellers may upon completion of the Sellers' work tender
Notice of Readiness for delivery whilst the Vessel is still in drydock and
the
Buyers shall be obliged to take delivery in accordance with Clause
3,
whether
the Vessel is in drydock or not and irrespective of Clause
5 b).
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*
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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.
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**
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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.
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7.
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Spares/bunkers,
etc.
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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 out 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.
Unused stores and provisions shall be included in the sale and be taken over
by
the Buyers without extra payment.
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):
The
Sellers will remove all software systems, except for cargo loading system.
All
computers and printers to remain on board or be replaced by
Sellers.
All
oxygen, acetylen, nitrogen, argon and Freon bottles from UNITOR, Cylinders
for
span gas and medical medical oxygen.
Leased
V-Sat. fixed line system terminal with antenna.
A
trial unit Fleet Master 33 from Nera.
Leased
freestanding computer and software for CBT training.
Leased
calibration instruments Unitech (suitcase).
The
Buyers shall take over the remaining bunkers
and
unused
lubricating oils in storage tanks and sealed drums and pay the current net
market price (excluding barging expenses) at the port and date of delivery
of
the Vessel based
on the FAMM price list delivered Rotterdam three days prior to the delivery
date
less a discount of 60%
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.
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Documentation
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The
place
of closing: London
In
exchange for payment of the Purchase Price the Sellers shall furnish the
Buyers
with delivery Documents as
per Addendum No. 1 which to be mutually agreed. Draft sales documents required
by the Buyers will be supplied by Sellers minimum 15 says prior to expected
delivery ,
namely:
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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., as
well as speed and consumption details for loaded and ballast conditions and
port
consumption, list of main and auxillary engine running hours, indicative
inventory of minimum spare parts always on board (list not guaranteed), copies
of annual condition survey of safety equipment by Unitor or other company.
Sellers to leave on board a part of planned maintenance system which includes
equipment register and job descriptions in excel format. 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
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. All
the above documentation will be supplied to the Buyers in the English language
and if required any items not available in English language will be translated
into English language at Sellers expense prior to presentation to the
Buyers.
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9.
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Encumbrances
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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.
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.
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10.
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Taxes,
etc.
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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.
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11.
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Condition
on delivery
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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 with
cargo tanks under vapours or with cargo on board, in substantially the same
conditions 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, clean,
valid
and
Unextended
for
a minimum period of 6 - six - month from the time of delivery
without
condition/recommendation* by Class or the relevant authorities at the time
of
delivery. Hull
and Machinery continuous cycles are to be clean and up to date with no
outstandings or extensions 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
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12.
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Name/markings
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13.
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Buyers'
default
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Should
the deposit not be paid in accordance with Clause
2,
the
Sellers have the right to cancel this Agreement, and they shall be entitled
to
claim compensation for their losses and for all expenses incurred together
with
interest.
Should
the Purchase Price not be paid in accordance with Clause
3,
the
Sellers have the right to cancel the Agreement, in which case the deposit
together with interest earned 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 losses and for all expenses incurred together with
interest.
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14.
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Sellers'
default
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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.
In
the event that the Buyers elect to cancel this Agreement the deposit together
with interest earned shall be released to them immediately.
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 expenses together
with
interest if their failure is due to proven negligence and whether or not
the
Buyers cancel this Agreement.
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15.
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Buyers'
representatives
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After
this Agreement has been signed by both parties and the deposit has been
lodged
and all subjects have been lifted,
the
Buyers have the right to place two representatives on board the Vessel at
their
sole risk and expense upon arrival
at on or about
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' representatives shall sign the Sellers'
letter of indemnity prior to their embarkation.
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16.
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Arbitration
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a)*
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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.
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*
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16
a), 16 b) and 16 c) are alternatives; delete whichever is not applicable.
In the absence of deletions, alternative 16 a) to apply.
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Clause
17
This
Agreement is subject to Buyers and Sellers entering into the attached Time
Charter of even date for the Vessel.
Clause
18
Sellers
are to continue their blasting and painting programme which is being undertaken
for Vessel’s CAP1 rating until delivery of the Vessel.
Clause
19
Sellers
to confirm in writing that the Vessel is not blacklisted by Arab Boycott
League
or any other organization. Sellers are also to confirm in writing that the
Vessel is not subject to any restrictions and/or recommendations placed upon
it
by U.S. Coastguard / Australian / Canadian or any other port authority, or
any
other trading restriction other than what follows from Vessel’s
certificates.
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For
the Sellers
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For
the Buyers
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Xxxxxxxx
x.x. Shipping AS
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MC
Ibis Shipping Limited
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