Exhibit 99.1
MEMORANDUM OF AGREEMENT
SALEFORM 1993
Dated 3rd March 2005
Contract No. 2005/01
Gemport Gemlik Liman Ve Depolama Isletmeleri A.S. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇.
hereinafter called the Sellers, have agreed to sell, and
▇▇▇▇▇▇▇ Holdings Inc., of Monrovia, Liberia
hereinafter called the Buyers, have agreed to buy the
Name: M/V "IDC 2"
Classification Society/Class: NKK
Built: 05/1985 By: Mitsui Engineering, Tamano, Japan
Flag: Turkish Place of Registration: Istanbul
Call Sign: TCIX Grt/Nrt: 24,646/13,377
Register Number: IMO: 8307595
hereinafter called the Vessel, on the following terms and conditions:
Definitions
"Banking days" are days on which banks are open both in the country of the
currency stipulated for the Purchase Price in Clause 1 and in the place of
closing stipulated in Clause 8.
"In writing" or "written" means a letter handed over from the Sellers to the
Buyers or vice versa, a registered letter, telex, telefax or other modern form
of written communication.
"Classification Society" or "Class" means the Society referred to in line 4.
1. Purchase Price: (Fifteen Million Five Hundred Thousand United States
Dollars) USD 15,500,000
2. Deposit
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 (three) banking
days after telefaxed MOA signed by both parties.
This deposit shall be placed with Turkiye Is Bankasi A.S., Izmir Branch, Mimar
Kemalettin caddesi No.2 Gumruk, Izmir, account number ▇▇▇▇▇▇▇
Swift code: SBKTRIS - (Tel: (▇▇) ▇▇▇ ▇▇▇-▇▇▇▇; Fax: (▇▇) ▇▇▇ ▇▇▇-▇▇▇▇; Email:
▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇.▇▇ - contact person Ms Ebru Otan)
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. Accrued 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.
3. Payment
The said Purchase Price shall be paid in full free of bank charges to the credit
of USDlrs account ▇▇▇▇▇▇▇ at Turkiye Is Bankasi A.S., Izmir Branch (contact
details as per clause 2 above) in favour of: Gemport Gemlik Liman Ve Depolama
Isletmeleri A.S.
on delivery of the Vessel, but not later than 3 (three) 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 in exchange for clean title and the agreed delivery
documents.
4. Inspections
a) The Buyers have superficially inspected the Vessel in Dubai on/abt 16th -
27th November 2004 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.
5. Notices, time and place of delivery
a) The Sellers shall keep the Buyers well informed of the Vessel's itinerary
and shall provide the Buyers with 20, 15, 10, 7 approximately delivery
notice of the estimated time of arrival and 3 (three) days definite
delivery notices at the intended place of delivery. When the Vessel is at
the place of delivery and in every respect physically ready for delivery in
accordance with this Agreement, the Sellers shall give the Buyers a written
Notice of Readiness for delivery.
b) The Vessel shall be delivered and taken over charter free, safely afloat at
a safe berth or safe and freely accessible anchorage at one safe port on
completion of one laden voyage from South Africa to Ushant-Hamburg range in
Sellers' option.
Expected time of delivery: Between 15th April to 6th May 2005 in Sellers'
option. (dates between 27/04/05 and 02/05/05 to be excluded due to Greek
easter)
Date of cancelling (see Clauses 5c), 6b)(iii) and 14): 6th May 2005 in
Buyer's option.
c) If the Sellers anticipate that, notwithstanding the exercise of due
diligence by them, the Vessel will not be ready for delivery by the
cancelling date they may notify the Buyers in writing stating the date when
they anticipate that the Vessel will be ready for delivery and propose a
new cancelling date. Upon receipt of such notification the Buyers shall
have the option of either cancelling this Agreement in accordance with
Clause 14 within 7 (seven) 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 (seven) running days of receipt of the
Sellers' notification or if the Buyers accept the new date, the date
proposed in the Sellers' notification shall be deemed to be the new
cancelling date and shall be substituted for the cancelling date stipulated
in line 61.
If this Agreement is maintained with the new cancelling date all other
terms and conditions hereof including those contained in Clauses 5 a) and 5
c) shall remain unaltered and in full force and effect. Cancellation or
failure to cancel shall be entirely without prejudice to any claim for
damages the Buyers may have under Clause 14 for the Vessel not being ready
by the original cancelling date.
d) Should the Vessel become an actual, constructive or compromised total loss
before delivery the deposit together with interest earned shall be released
immediately to the Buyers whereafter this Agreement shall be null and void.
6. Drydocking/Divers Inspection
[a) deleted]
b) (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 NKK 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.
(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 clean 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 clean class, such defects shall be
made good by the Sellers at their expense to the satisfaction of the
Classification Society without recommendation*. In such event the Sellers
are to pay also for the cost of the underwater inspection and the
Classification Society's attendance otherwise divers costs to be for Buyers
account.
(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 (fourteen) running days.
c) If the Vessel is drydocked pursuant to Clause 6 b) above
(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 the 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, in which 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 Seller's 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 5b).
In the event that the Underwater inspection reveals any damage or defect
which the class society does not require to be repaired prior to the next
scheduled Drydocking then the purchase price of the vessel shall be reduced
by the amount reflecting the direct cost of repairs.
This amount shall be ascertained as the average of two (2) quotations
obtained by two (2) reputable yards close to the port of delivery, one (1)
quotation obtained by the Sellers' and one (1) quotation obtained by the
Buyers'. The repair method upon which the quotations will be obtained
should be class approved.
* 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.
** 6 a) and 6 b) are alternatives; delete whichever is not applicable. In the
absence of deletions, alternative 6 a) to apply.
7. Spares/bunkers, etc.
The Sellers shall deliver the Vessel to the Buyers with everything belonging to
her on board and on shore without extra costs to the Buyers'. All spare parts
and spare equipment including spare tail-end shaft(s) and/or spare
propeller(s)/propellerblade(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. 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)/propellerblade(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. 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 Seller's 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):
Unitor Gas Bottles.
The Buyers shall take over and pay for remaining Bunkers onboard at the time of
delivery at Sellers' net contract prices as per last supply and for Unused
Lubricating Oils in storage tanks and unbroached drums to pay as per last major
supply on the date of delivery of the Vessel. Prices for Bunkers and Luboils to
be evidenced by relevant invoices.
Payment under this Clause shall be made at the same time and place and in the
same currency as the Purchase Price.
8. Documentation
The place of closing: at Sellers' nominated bank
In exchange for payment of the Purchase Price the Sellers shall furnish the
Buyers with delivery documents, as reasonably required by Buyer's to register
the Vessel under their new flag and Buyers' shall supply Sellers' with a list of
said documents. Listing of documents to be established in an Addendum to the
MOA. Copies of draft documents which are ordinarily available to be received by
the Buyers' at least 7 (seven) days prior to receipt of the Notice of Readiness.
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.
Sellers' to confirm by letter that to the best of their knowledge that the
Vessel is not Blacklisted by any Arab National or Organisation, and that the
Vessel has not traded to Pacific CIS ports (Gypsy Moth Infestation).
Immediately after the time of delivery the Sellers shall hand to the Buyers the
classification certificate(s) as well as plans etc., which are on board the
Vessel. Other certificates are on board the Vessel shall 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 Vessels log books but the
Buyers to have the right to take copies of same.
9. Encumbrances
The Sellers warrant that the Vessel, at the time of delivery, is free from all
charters, encumbrances, mortgages and maritime liens or any other debts or
claims whatsoever. The Sellers hereby undertake to indemnify the Buyers against
all consequences of claims made against the Vessel which have been incurred
prior to the time of delivery.
10. Taxes, etc.
Any taxes, fees and expenses in connection with the purchase and registration
under the Buyers' flag shall be for the Buyers' account, whereas similar charges
in connection with the closing of the Sellers' register shall be for the
Sellers' account.
11. Condition on delivery
The Vessel with everything belonging to her shall be at the Sellers' risk and
expense until she is delivered to the Buyers, but subject to the terms and
conditions of this Agreement she shall be delivered and taken over as she was at
the time of inspection, fair wear and tear excepted. However, the Vessel shall
be delivered with her class fully maintained free of recommendations and average
damage affecting the Vessel's clean class, and with her National/International
class certificates, as well as all other statutory certificates the Vessel had
at the time of inspection, to be clean, valid and unextended without
recommendation* by Class or the relevant authorities at the time of delivery.
The Vessel to be delivered with all her continous survey cycles hull and
machinery up to date on the date 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.
* Notes, if any, in the surveyor's report which are accepted by the
Classification Society without condition/recommendation are not to be taken
into account.
12. Name/markings
Upon delivery the Buyers undertake to change the name of the Vessel and alter
funnel markings. Buyers will not use the prefix "Corn" or anything remotely
similar.
13. Buyers' default
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.
14. Sellers' default
Should the Sellers fail to give Notice of Readiness in accordance with Clause 5
a) or fail to be ready to validly complete a legal transfer by the date
stipulated in line 61 the Buyers shall have the option of cancelling this
Agreement provided always that the Sellers shall be granted a maximum of 3
(three) 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.
15. Buyers' representatives
After this Agreement has been signed by both parties and the deposit has been
lodged, the Buyers have the right to place two representatives on board the
Vessel at their sole risk and expense upon arrival at first convenient until
port of delivery.
These representatives are on board for the purpose of familiarisation with all
Vessels machineries/equipments and in the capacity of observers only, and they
shall not interfere in any respect with crew's works or the operation of the
Vessel.
The Buyers' representatives shall sign the Sellers' letter of indemnity prior to
their embarkation.
Sellers to provide free accomodation/vitualling to their normal standards for
senior officers.
16. Arbitration
a)* 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 (14)
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.
*16 a), 16 b) and 16 c) are alternatives; delete whichever is not applicable.
In the absence of deletions, alternative 16 a) to apply.
The Sales price, terms and conditions of this Agreement are to be kept strictly
private and confidential.
For the Sellers For the Buyers
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Gemport Gemlik Liman Ve Depolama ▇▇▇▇▇▇▇ Holdings Inc.
Isletmeleri A.S.
BOARD MEMBER
TEOMAN RUA
/s/ Teoman Rua /s/ G. Agaaaks
--------------------------- 7/3/2005
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(18:80 Hrs. L.T.)
