Exhibit 10.12
CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF DISCLOSED.
MEMORANDUM OF AGREEMENT | Norwegian Shipbrokers’ Association’s |
Memorandum of Agreement for sale and | |
purchase of ships. Adopted by BIMCO in 1956. | |
Code-name | |
SALEFORM 2012 | |
Revised 1966, 1983 and 1986/87, 1993 and 2012 |
Dated: 17 December 2019 | 1 | ||
Golar Hull M2023 Corp. | 2 | ||
The Marshall Islands with registration number 46820), hereinafter called the “Sellers”, have agreed to sell, and | |||
Oriental Fleet LNG 02 Limited | 3 | ||
Republic of the Marshall Islands with registration number 103074), hereinafter called the “Buyers”, have agreed to buy: | |||
Name of vessel: m.v. “Golar Penguin” | 4 | ||
IMO Number: 9624938 | 5 | ||
Classification Society: DNV GL | 6 | ||
Class Notation: X1A1 Tanker for liquefied gas BIS Clean COAT-PSPC(B) COMF(C-3, V-2) CSA(2) E0 Gas | 7 | ||
fueled NAUT(OC) NAUTICUS(Newbuilding) Recyclable TMON | |||
Year of Build: 2014 Builder/Yard: Samsung Heavy Industries | 8 | ||
Flag: The Republic of The Marshall Islands Place of Registration: Majuro GT/NT: 102100 tons/30631 | 9 | ||
tons | |||
hereinafter called the “Vessel”, on the following terms and conditions: | 10 | ||
Definitions (See also Clause 26 (Further definitions) | 11 | ||
“Banking Days” are days (other than a Saturday or Sunday) on which banks are open both in the country of the currency stipulated for | 12 | ||
the Purchase Price in Clause 1 (Purchase Price) and in the place of closing stipulated in Clause 8 | 13 | ||
( | 14 | ||
“Buyers’ Nominated Flag State” means The Republic of The Marshall Islands | 15 | ||
“Class” means the class notation referred to above. | 16 | ||
“Classification Society” means the Society referred to above. | 17 | ||
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“In writing” or “written” means a letter handed over from the Sellers to the Buyers or vice versa, a | 21 | ||
registered letter, e-mail or telefax. | 22 | ||
“Parties” means the Sellers and the Buyers and “Party” means either one (1) of them. | 23 | ||
“Purchase Price” means the price for the Vessel as stated in Clause 1 (Purchase Price). | 24 | ||
”Sellers’ Account” means such account in the name of the Sellers | 25 | ||
Sellers’ Bank notified by the Sellers to the Buyers in writing at least five (5) Banking Days prior to the | |||
Delivery Date (as defined in Additional Clause 26 (Further definitions)). | |||
“Sellers’ Bank” means such bank (state name of bank, branch and details) or, if left blank, the bank | 27 | ||
notified by the Sellers to the Buyers for receipt of the balance of the Purchase Price. | 27 | ||
1. | Purchase Price | 28 | |
The Purchase Price is the lower of (a) [***] US Dollars | 29 | ||
(US$[***]) and (b) the Fair Market Value (as defined in Additional Clause 26 (Futher | |||
definitions)) | |||
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This document is a computer generated SALEFORM 2012 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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5. | Time and place of delivery and notices | 75 | |
(a) The Vessel shall be delivered and taken over safely afloat at a safe and accessible berth or | 76 | ||
anchorage | 77 | ||
definitions)) | |||
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Cancelling Date (see Clauses 5(c) | 79 | ||
Additional Clause 26 (Further definitions)), or such later date as the Buyers and the Sellers may | |||
agree. | |||
(b) The Sellers shall keep the Buyers well informed of the Vessel’s itinerary and shall | 80 | ||
provide the Buyers with | 81 | ||
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(c) If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the | 85 | ||
Vessel will not be ready for delivery by the Cancelling Date they may notify the Buyers in writing | 86 | ||
stating the date when they anticipate that the Vessel will be ready for delivery and proposing a | 87 | ||
new Cancelling Date. Upon receipt of such notification the Buyers shall have the option of | 88 | ||
either cancelling this Agreement in accordance with Clause 14 (Sellers’ | 89 | ||
Banking Days of receipt of the notice or of accepting the new date as the new Cancelling Date. | 90 | ||
If the Buyers have not declared their option within three (3) Banking Days of receipt of the | 91 | ||
Sellers’ notification or if the Buyers accept the new date, the date proposed in the Sellers’ | 92 | ||
notification shall be deemed to be the new Cancelling Date and shall be substituted for the | 93 | ||
Cancelling Date stipulated in line 79. | 94 |
This document is a computer generated SALEFORM 2012 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
If this Agreement is maintained with the new Cancelling Date all other terms and conditions | 95 | ||
hereof including those contained in Clauses 5(b) and 5(d) shall remain unaltered and in full | 96 | ||
force and effect. | 97 | ||
(d) Cancellation, failure to cancel or acceptance of the new Cancelling Date shall be entirely | 98 | ||
without prejudice to any claim for damages the Buyers may have under Clause 14 (Sellers’ | 99 | ||
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(e) Should the Vessel become an actual, constructive or compromised total loss before delivery | 101 | ||
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This document is a computer generated SALEFORM 2012 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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7. | Spares, bunkers and other items | 201 | |
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board | 202 | ||
and on shore. All spare parts and spare equipment including spare tail-end shaft(s) and/or | 203 | ||
spare propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of | 204 | ||
used or unused, whether on board or not shall become the Buyers’ property without extra payment, | 205 | ||
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are not required to replace spare parts including spare tail-end shaft(s) and spare | 207 | ||
propeller(s)/propeller blade(s) which are taken out of spare and used as replacement prior to | 208 | ||
delivery, but the replaced items shall be the property of the Buyers without extra payment. Unused | 209 | ||
stores and | |||
provisions shall be included in the sale and be taken over by the Buyers without extra payment. | 210 |
This document is a computer generated SALEFORM 2012 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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Any remaining and unused bunkers, lubricating and hydraulic oils and greases in storage tanks | |||
and unopened drums shall remain the property of the Sellers in their capacity as bareboat | |||
charterers under the Bareboat Charter and therefore the Buyers shall not be required to pay for | |||
such items. | |||
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8. | 231 | ||
The place of closing: Hong Kong | 232 | ||
(a) | 233 | ||
following delivery documents and evidence: | 234 | ||
(i) | Two (2) original Legal Bill(s) of Sale in a form recordable in the Buyers’ Nominated Flag State, | 235 | |
transferring title of the Vessel and stating that the Vessel is free from all mortgages, | 236 | ||
encumbrances and maritime liens or any other debts whatsoever, duly notarially attested | 237 | ||
and legalised or apostilled, as required by the Buyers’ Nominated Flag State; | 238 | ||
(ii) | Evidence that all necessary corporate, shareholder and other action has been taken by | 239 | |
the Sellers to authorise the execution, delivery and performance of this Agreement; | 240 | ||
(iii) | Original Power of Attorney of the Sellers appointing one or more representatives to act on | 241 | |
behalf | |||
of the Sellers in the performance of this Agreement, duly notarially attested and legalised | 242 | ||
or apostilled (as appropriate); | 243 | ||
(iv) | A | 244 | |
on the | 245 | ||
the | |||
Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by | 246 | ||
such authority to the closing meeting with the original to be sent to the Buyers as soon as | 247 | ||
possible after delivery of the Vessel; | 248 | ||
(v) | A copy of Declaration of Class or (depending on the Classification Society) a Class | 249 | |
Maintenance | |||
Certificate issued within three (3) Banking Days prior to | 250 | ||
that the | |||
Vessel is in Class free of overdue condition/recommendation; | 251 |
This document is a computer generated SALEFORM 2012 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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(vi | An original Commercial Invoice for the Vessel; | 265 | |
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(vii | Any additional documents as may reasonably be required by the competent authorities of | 270 | |
the Buyers’ Nominated Flag State for the purpose of registering the Vessel, provided the | 271 | ||
Buyers notify the Sellers of any such documents as soon as possible after the date of | 272 | ||
this Agreement | 273 | ||
(viii | An original of | 274 | |
Vessel is not | |||
black listed by any nation or international organisation; | 275 | ||
(ix) | Evidence that the Existing Mortgage (as defined in Additional Clause 26 (Further definitions)) has been irrevocably and unconditionally released and discharged and all records or registration thereof have been removed from the Flag State’s (as defined in Additional Clause 26 (Further definitions)) records; | ||
(x) | Evidence that the Sellers (as charterers) have paid the Handling Fee (as defined in the Bareboat Charter in accordance with the terms of the Bareboat Charter; | ||
(xi) | Copies of two (2) Valuation Reports prepared and issued in accordance with Additional Clause 20 (Determination of Fair Market Value); | ||
(xii) | An original certificate from a director / officer of the Sellers confirming that all copies of documents provided under this Agreement are true copies of such documents; | ||
(xiii) | The duly executed and dated effective date confirmation pursuant to the Related Charter Addendum; | ||
(xiv) | The Buyers being satisfied that, in their opinion, (A) the conditions precedent set out in Clause 36 (Conditions precedent) of the Bareboat Charter have been satisfied on the Delivery Date, (B) no Termination Event (as defined in the Bareboat Charter) or Potential Termination Event (as defined in the Bareboat Charter) is continuing or would result from the proposed pre- positioning of the Purchase Price, and (C) the representations and warranties referred to in Clause 19 (Sellers’ representations) hereof and clause 48 (Charterers’ representations and warranties) of the Bareboat Charter are true and correct on the date of this Agreement and the Delivery Date. | ||
The conditions set out in this Clause 8(a) are for the sole benefit of the Buyers and may be waived or deferred by the Buyers in whole or in part and with or without conditions. The foregoing is without prejudice to the Buyers’ rights to require fulfilment of any such conditions by the Sellers in whole or in part at any time after the date of release of the Purchase Price. | |||
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This document is a computer generated SALEFORM 2012 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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( | 282 | ||
language they shall be accompanied by an English translation by an authorised translator or | 283 | ||
certified by a lawyer qualified to practice in the country of the translated language. | 284 | ||
( | 285 | ||
documents listed in Sub-clause (a) and Sub-clause (b) above for review and comment by the | 286 | ||
other party not later than ______ | 287 | ||
Vessel’s intended date of | 288 | ||
Clause 5(b) of this Agreement. | 289 | ||
( | 290 | ||
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certificate(s) as well as all plans, | |||
drawings and manuals, | 292 | ||
remain on board the Vessel. Other | |||
certificates which are on board the Vessel shall also be handed over to the Buyers unless such | 293 | ||
certificates are required to remain on board, or | |||
the Sellers are required to retain same in their capacity as bareboat charterers, in which case the | 294 | ||
same at their expense. | |||
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(e | 298 | ||
each other a Protocol of Delivery and Acceptance | |||
confirming the date and time of delivery of the Vessel from the Sellers to the Buyers. | 299 | ||
(f) Within one (1) Banking Day after the Delivery Date, the Sellers shall provide the Buyers with a Certificate of Registry and a Certificate of Ownership and Encumbrances, both dated the Delivery Date and issued by the International Registries, Inc. of the Republic of the Marshall Islands (evidencing that the Buyers are the owners of the Vessel and (in case of the certificate of Ownership and Encumbrances) that the Vessel is free from registered encumbrances and mortgages). | |||
9. | Encumbrances | 300 | |
The Sellers warrant that the Vessel, at the time of delivery, is free from all charters (other than the | 301 | ||
Bareboat Charter and/or any other charters disclosed to, and approved by, the Buyers (as | |||
owners under the Bareboat Charter), | |||
encumbrances, mortgages and maritime liens or any other debts whatsoever, and is not subject | 302 | ||
to Port State or other administrative detentions. The Sellers hereby undertake to indemnify the | 303 | ||
Buyers against all consequences of claims made against the Vessel which have been incurred | 304 | ||
prior to the time of delivery. | 305 | ||
10. | Taxes, fees and expenses | 306 | |
Any | 307 | ||
Nominated Flag State shall be for the | 308 | ||
connection | |||
with the closing of the Sellers’ register shall be for the Sellers’ account. | 309 | ||
11. | Condition on delivery | 310 | |
See also Additional Clause 21 (Delivery under Bareboat Charter) | |||
The Vessel with everything belonging to her shall be at the Sellers’ risk and expense until she is | 311 | ||
delivered to the Buyers, but subject to the terms and conditions of this Agreement she shall be | 312 | ||
delivered and taken over “as is where is” | 313 | ||
However, the Vessel shall be delivered free of cargo and free of stowaways with her Class | 314 | ||
maintained without overdue condition/recommendation*, free of average damage affecting the Vessel’s | 315 | ||
class, and with her classification certificates and national certificates, as well as all other | 316 | ||
certificates the Vessel had at the time of | 317 | ||
condition/recommendation* by the Classification Society or the relevant authorities at the time | 318 | ||
of delivery. | 319 | ||
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This document is a computer generated SALEFORM 2012 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
*Notes and memoranda, if any, in the surveyor’s report which are accepted by the Classification | 323 | ||
Society without condition/recommendation are not to be taken into account. | 324 | ||
12. | Name/markings | 325 | |
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13. | Buyers’ default | 328 | |
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Should the Purchase Price not be | 332 | ||
Sellers | |||
have the right to, unless pre-positioning is made within five (5) Banking Days of the original | 333 | ||
Prepositioning Date, cancel this Agreement, | |||
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Sellers shall be entitled to claim | 335 | ||
incurred together with interest. | 336 | ||
14. | Sellers’ default | 337 | |
Should the Sellers fail to | 338 | ||
ready to validly complete a legal transfer by the Cancelling Date the Buyers shall have the | 339 | ||
option of cancelling this Agreement. | 340 | ||
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Should the Sellers fail to | 346 | ||
validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers | 347 | ||
for their loss and for all expenses together with interest if their failure is due to proven | 348 | ||
negligence and whether or not the Buyers cancel this Agreement. | 349 | ||
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16. | Law and | 358 | |
See Additional Clause 25 (Law and arbitration) | |||
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This document is a computer generated SALEFORM 2012 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
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17. | Notices | 395 |
All notices to be provided under this Agreement shall be in writing. | 396 | |
Contact details for recipients of notices are as follows: | 397 | |
For the Buyers: Oriental Fleet LNG 02 Limited | 398 |
Address: c/o Oriental Fleet International Company Limited | |
50/F, COSCO Tower, 183 Queen’s Road Central, Hong Kong | |
Fax no.: +852 2339 1881 | |
Email: lou.can@coscoshipping.com / thomas.xing@ofi.com.hk / asset@coscoshipping.com | |
Attention: Belinda Lou / Thomas Xing / Xu Ying |
For the Sellers: Golar Hull M2023 Corp. | 399 |
Address: | c/o Golar Power Limited | |
6th Floor, The Zig Zag | ||
70 Victoria Street | ||
London SW1E 6SQ | ||
England | ||
Fax No.: | +44 (0)20 7063 7901 | |
Email: | Eduardo.Maranhao@golar.com/ Rodrigo.Fortes@golar.com | |
Attention: | Eduardo Maranhao / Rodrigo Fortes | |
with a copy to: | ||
Golar LNG Limited | ||
Address: | 6th Floor, The Zig Zag | |
70 Victoria Street | ||
London SW1E 6SQ | ||
England | ||
Fax No.: | +44 (0)20 7063 7901 | |
Email: | brian.tienzo@golar.com | |
Attention: | Brian Tienzo |
18. | Entire | 400 |
The written terms of this Agreement comprise the entire agreement between the Buyers and | 401 | |
the Sellers in relation to the sale and purchase of the Vessel and supersede all previous | 402 | |
agreements whether oral or written between the Parties in relation thereto. | 403 | |
Each of the Parties acknowledges that in entering into this Agreement it has not relied on and | 404 | |
shall have no right or remedy in respect of any statement, representation, assurance or | 405 | |
warranty (whether or not made negligently) other than as is expressly set out in this Agreement. | 406 | |
Any terms implied into this Agreement by any applicable statute or law are hereby excluded to | 407 | |
the extent that such exclusion can legally be made. Nothing in this Clause shall limit or exclude | 408 | |
any liability for fraud. | 409 |
This document is a computer generated SALEFORM 2012 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
Additional Clauses 19 to 26 (both inclusive) form an integral part of this Agreement. In the event of any inconsistency between (i) any terms set out in Clauses 1 to 18 of this Agreement and (ii) any terms set out in the Additional Clauses (i.e. Clauses 19 to 26) to this Agreement, the terms of the Additional Clauses shall prevail. | ||
The parties to this Agreement have executed this Agreement the day and year first before written. | ||
SELLERS |
Signed by | ) | /s/ Rodrigo Fortes | |
As | ) | RODRIGO FORTES | |
for and on behalf of | ) | ATTORNEY-IN-FACT | |
GOLAR HULL M2023 CORP. | ) |
BUYERS | |||
Signed By | ) | /s/ Li Bing | |
As | ) | LI BING | |
for and on behalf of | ) | DIRECTOR | |
Oriental Fleet LNG 02 Limited | ) |
This document is a computer generated SALEFORM 2012 form printed by authority of the Norwegian Shipbrokers’ Association. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the pre-printed text of this document which is not clearly visible, the text of the original approved document shall apply. BIMCO and the Norwegian Shipbrokers’ Association assume no responsibility for any loss, damage or expense as a result of discrepancies between the original approved document and this computer generated document.
Execution version
ADDITIONAL CLAUSES
TO MEMORANDUM OF AGREEMENT FOR LNG CARRIER “GOLAR PENGUIN”
19. | Sellers’ representations |
The Sellers represent and warrant as at the date hereof and on the Delivery Date that:
(a) | they are the registered legal owners of the Vessel; |
(b) | they are not a Restricted Party; |
(c) | neither themselves nor any of their directors, officers or employees or any person acting on their behalf has received notice or are aware of any claim, action, suit, proceeding or investigation against any of them or the Vessel with respect to Sanctions by a Sanctions Authority; and |
(d) | the copies of any document provided or to be provided by the Sellers to the Buyers in accordance with Clause 8 (Conditions precedent) are, or will be, true and accurate copies of the originals and represent, or will represent, the full agreement between the parties to those documents in relation to the subject matter of those documents, and there are no commissions, rebates, premiums or other payments due or to become due in connection with the subject matter of those documents. |
20. | Determination of Fair Market Value |
(a) | For the purpose of ascertaining the Purchase Price, the Fair Market Value shall be determined to be the arithmetic mean of (i) the valuation from the Valuation Report issued by an Approved Valuer appointed by the Sellers and (ii) the valuation from the Valuation Report issued by an Approved Valuer appointed by the Buyers. The Sellers shall bear the cost of the issue of such Valuation Reports. |
(b) | Each Valuation Report to be provided for the purpose of paragraph (a) above shall: |
(i) | be issued by an Approved Valuer (A) no more than fifteen (15) days before the Delivery Date and (B) no fewer than five (5) days before the Delivery Date; |
(ii) | be made without physical inspection of the Vessel and on a desktop, charter-free basis; and |
(iii) | on the basis of a sale for prompt delivery for cash at arm’s length on normal commercial terms as between a willing seller and a willing buyer. |
(c) | If an Approved Valuer determines that the Fair Market Value shall fall within a range, the valuation as determined by such Approved Valuer should be the lower value of such range. |
(d) | Each valuation shall be provided by an Approved Valuer in US Dollars. |
21. | Delivery under bareboat charter |
(a) | Without prejudice to paragraph (b) below, the Buyers shall, immediately after the delivery of the Vessel under this Agreement, be obliged to deliver the Vessel to the Sellers (as charterers) pursuant to a bareboat charterparty dated on or about the date of this Agreement in respect of the Vessel (the “Bareboat Charter”) made or to be made (as the case may be) between the Buyers (as owners) and the Sellers (as charterers). |
OFI/Golar Power – MOA Additional Clauses | Page 1 |
(b) | The Sellers shall be fully responsible for the Buyers’ fulfillment of physical delivery as new owners of the Vessel to the Sellers (as charterers) under the Bareboat Charter. The Buyers’ obligation to take delivery of the Vessel under this Agreement is subject to the Sellers (as charterers) taking delivery of the Vessel immediately thereafter under the Bareboat Charter. |
(c) | If the Bareboat Charter is cancelled, terminated or otherwise ceases to be in full force and effect prior to the delivery of the Vessel under this Agreement, then this Agreement shall be null and void, provided however that Clause 14 (Sellers’ default) and Clause 24 (Indemnities) below shall survive. |
22. | Payment |
(a) | The Sellers and the Buyers agree that the Purchase Price shall be paid by the Buyers in the following manner: |
(i) | the Existing Mortgagee’s portion of the Purchase Price (the “Existing Mortgagee’s Portion”) in such amount as the Sellers shall notify the Buyers in writing on or before the Notification Date shall, subject to Clause 23 (Set-off of Upfront Hire against Purchase Price) below (if applicable), be paid in full by the Buyers to the Existing Mortgagee and be subsequently released to the Existing Mortgagee in accordance with paragraph (b)(i) below; and/or |
(ii) | the Sellers’ portion of the Purchase Price (the “Sellers’ Portion”) in an amount equal to the difference between the Purchase Price and the Existing Mortgagee’s Portion shall, subject to Clause 23 (Set-off of Upfront Hire against Purchase Price) below (if applicable), be paid by the Buyers to the Sellers’ Bank and be subsequently released to the Sellers in accordance with paragraph (b)(ii) below. |
(b) | On or before the Prepositioning Date: |
(i) | if the Buyers have received evidence (in the form of confirmation that an MT199 or MT999 message is acceptable to the Existing Mortgagee and the Buyers, acting reasonably) that the Existing Mortgagee’s Portion will be held to the order of the Buyers, and only be released to the Existing Mortgagee upon presentation to the Existing Mortgagee of a copy (transmitted by fax, email or otherwise) of the protocol of delivery and acceptance which is duly signed by an authorised signatory of the Buyers and an authorised signatory of the Sellers, evidencing the delivery by the Sellers and acceptance by the Buyers of the Vessel under this Agreement, then the Buyers shall deposit with the Existing Mortgagee the Existing Mortgagee’s Portion to be so held and so released, provided that the Buyers’ obligation to deposit with the Existing Mortgagee the Existing Mortgagee’s Portion is always subject to the Buyers being satisfied that: |
(1) | all of the conditions precedent required under Clause 8 (Conditions precedent) other than the Delivery Date CPs have been satisfied; and |
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(2) | the Delivery Date CPs will be satisfied on or before the Delivery Date; |
(ii) | if the Buyers have received evidence (in the form of confirmation that an MT199 or MT999 message is acceptable to the Sellers’ Bank and the Buyers, acting reasonably) that the Sellers’ Portion will be held to the order of the Buyers, and only be released to the Sellers upon presentation to the Sellers’ Bank of a copy (transmitted by fax, email or otherwise) of the protocol of delivery and acceptance which is duly signed by an authorised signatory of the Buyers and an authorised signatory of the Sellers, evidencing the delivery by the Sellers and acceptance by the Buyers of the Vessel under this Agreement, then the Buyers shall deposit with the Sellers’ Bank the Sellers’ Portion to be so held and so released, provided that the Buyers’ obligation to deposit with the Sellers’ Bank the Sellers’ Portion is always subject to the Buyers being satisfied that: |
(1) | all of the conditions precedent required under Clause 8 (Conditions precedent) other than the Delivery Date CPs have been satisfied; and |
(2) | the Delivery Date CPs will be satisfied on or before the Delivery Date. |
(c) | For the avoidance of doubt: |
(i) | the amount of the Existing Mortgagee’s Portion may be zero; |
(ii) | if the Sellers fail to notify the Buyers of the amount of the Existing Mortgagee’s Portion in accordance with paragraph (a)(i) of this Clause 22, the amount of the Existing Mortgagee’s Portion will be deemed zero. |
(d) | If (1) as the Sellers notify the Buyers in accordance with paragraph (a)(i) of this Clause 22, the amount of the Existing Mortgagee’s Portion is zero or (2) the amount of the Existing Mortgagee’s Portion is deemed zero pursuant to paragraph (c)(ii) of this Clause 22, then the Sellers’ Portion will equal the Purchase Price (subject to Clause 23 (Set-off of Upfront Hire against Purchase Price)) and paragraph (b)(i) of this Clause 22 shall not apply. |
(e) | The Sellers agree to release, discharge, defend, indemnify, waive and hold harmless the Buyers from and against any liability, obligation or claim which may be asserted, claimed or recovered against the Buyers for any reason directly arising out of the release or the failure to release (as the case may be) of any part of the Purchase Price by the Existing Mortgagee or the Sellers’ Bank except if the same results from or is a direct consequence of the Buyers’ failure to perform their obligations under or in breach of any provisions under this Agreement or the Bareboat Charter (including the Buyers’ failure to take delivery of the Vessel by countersigning and timing the protocol of delivery and acceptance in breach of this Agreement). The Buyers agree to provide reasonable assistance and cooperation to the Sellers in connection with any mistake or failure to release any part of the Purchase Price as contemplated by this Agreement. |
(f) | If for any reason any part of the Purchase Price actually deposited with the Existing Mortgagee or the Sellers’ Bank by the Buyers is not released in accordance with paragraph (b)(i) or (b)(ii) above within five (5) days after the Prepositioning Date, the Sellers shall procure the Existing Mortgagee and/or (as the case may be) the Sellers’ Bank to return such part of the Purchase Price to the Buyers on the Return Due Date. |
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(g) | Without prejudice to any other provisions under this Agreement, the Sellers shall pay to the Buyers: |
(i) | on the date any part of the Purchase Price is released in accordance with paragraph (b)(i) or (b)(ii) above; and |
(ii) | on demand by the Buyers on and after the Return Due Date in relation to any part of the Purchase Price which is or should be returned to the Buyers in accordance with paragraph (f) above (whether or not it is actually returned on the Return Due Date); |
each as applicable, an amount equal to the interest accrued over the relevant Prepositioning Period and calculated at the rate of six point five per cent. (6.5%) per annum over such part of the Purchase Price.
23. | Set-off of Upfront Hire against Purchase Price |
The Sellers hereby consent, agree, acknowledge and confirm that:
(a) | notwithstanding Clause 1 (Purchase Price), the amount due and payable from the Buyers to the Sellers in accordance with Clause 22 (Payment) shall be set-off against the amount of Upfront Hire due from and payable by the Sellers (as charterers) to the Buyers (as owners) pursuant to the Bareboat Charter; and |
(b) | on the date of payment of the Purchase Price, in accordance with Clause 22 (Payment), the Upfront Hire shall be set-off against the Purchase Price, upon which the Buyers shall no longer be obliged to pay the Sellers and the Sellers shall not be entitled to receive from the Buyers an amount which is more than the difference between (i) the Purchase Price, and (ii) the Upfront Hire. |
24. | Indemnities |
(a) | The Sellers shall pay such amounts to the Buyers in respect of all reasonable legal expenses and fees (including but not limited to any vessel registration and tonnage fees) incurred by or imposed on the Buyers arising from this Agreement or in connection with the delivery, registration and purchase of the Vessel by the Buyers whether prior to, during or after termination of this Agreement and whether or not the Vessel is in the possession or the control of the Sellers or otherwise in relation to any non-delivery to or acceptance by the Sellers (as charterers) of the Vessel under the Bareboat Charter. |
(b) | Notwithstanding anything to the contrary herein, the indemnities provided by the Sellers in favour of the Buyers shall continue in full force and effect notwithstanding any breach of the terms of this Agreement or termination of this Agreement pursuant to the terms hereof. |
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25. | Law and arbitration |
(a) | This Agreement and any contractual or non-contractual obligations arising from or connected with this Agreement shall be governed by, and construed in accordance with, the laws of England. |
(b) | Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration in Hong Kong administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. |
(c) | The seat of arbitration shall be Hong Kong. |
(d) | The number of arbitrators shall be three (3). The arbitration proceedings shall be conducted in English. |
(e) | Each Party may appeal on points of law. |
(f) | The law governing this Clause 25 (Law and arbitration) shall be English law. |
26. | Further definitions |
In this Agreement:
“Approved Valuer” means each of (a) Arrow Shipbroking, (b) Braemar ACM Shipbroking, (c) Clarksons Platou, (d) Fearnleys AS, (e) Howe Robinson, (f) Maersk Broker and any other reputable and independent ship brokers proposed by the Sellers and approved by the Buyers.
“Cancelling Date” means 31 December 2019 (or such other date as the Buyers and the Sellers may agree).
“Delivery Date” means the date of delivery of the Vessel by the Sellers to the Buyers pursuant to this Agreement.
“Delivery Date CPs” means the conditions precedent set out in paragraphs (a)(i), (a)(iv), (a)(vii), (a)(ix), (a)(xiv)(A) and (a)(xiv)(C) of Clause 8 (Conditions precedent).
“Existing Liabilities” means all present and future moneys (including a principal amount of up to three hundred and forty five million three hundred and ninety thousand sixty six US Dollars and thirteen cents (US$345,390,066.13)), debts and liabilities due, arising or incurred by (among others) the Sellers to the Existing Mortgagee (and any other relevant creditor parties) and which is secured by (among other things) the Existing Mortgage.
“Existing Mortgage” means the first preferred Marshall Islands ship mortgage dated 18 September 2014 and granted by the Sellers (as owners) in favour of Swedbank AB (publ) as amended and assigned to the Existing Mortgagee pursuant to the assignment and amendment to first preferred Marshall Islands ship mortgage dated 18 October 2018 as security for the Existing Liabilities.
“Existing Mortgagee” means Citibank N.A., London Branch.
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“Fair Market Value” means the fair market value of the Vessel as ascertained in accordance with Clause 20 (Determination of Fair Market Value) above.
“Flag State” means, in relation to the Vessel, the Republic of the Marshall Islands.
“Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China.
“Notification Date” means the date falling seven (7) calendar days before the proposed Delivery Date.
“PRC” means The People’s Republic of China, excluding Hong Kong, the Macau Special Administrative Region and Taiwan.
“Prepositioning Date” means date falling one (1) Banking Day prior to the proposed Delivery Date.
“Prepositioning Period” means:
(a) | if any part of the Purchase Price deposited with the Existing Mortgagee or the Sellers’ Bank by the Buyers is released in accordance with paragraph (b)(i) or (b)(ii) of Clause 22 (Payment), the period commencing from (and inclusive of) the Prepositioning Date and ending on (and inclusive of) the date such part of the Purchase Price is released in accordance with paragraph (b)(i) or (b)(ii) of Clause 22 (Payment); and |
(b) | if any part of the Purchase Price deposited with the Existing Mortgagee or the Sellers’ Bank by the Buyers is or should be returned to the Buyers in accordance with paragraph (f) of Clause 22 (Payment) (whether or not it is actually returned on the Return Due Date, the period commencing from (and inclusive of) the Prepositioning Date and ending on (and inclusive of) the date such part of the Purchase Price is returned to the Buyers in accordance with paragraph (f) of Clause 22 (Payment ) (whether or not it is actually returned on the Return Due Date); |
“Restricted Party” means a person or entity that is (a) listed on, or owned or controlled by a person listed on, any Sanctions List; (b) a national of, located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, a person located in or organised under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or (c) otherwise a target of Sanctions (“target of Sanctions” signifying a person with whom a US person or other national of Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).
“Related Charter Addendum” means the supplemental agreement (to be entered into on or around the date of this Agreement) to (inter alia) the bareboat charter in relation to the 160,000 m3 LNG carrier named “Golar Crystal” with IMO number 9624926 dated 6 March 2017 and entered into between Oriental Fleet LNG 01 Limited 东方富利LNG01有限公司 (as owners) and Golar Hull M2022 Corp. (as charterers).
“Return Due Date” means the date which is the sixth (6th) day (if it is a Banking Day) after the Prepositioning Date or the Banking Day immediately after such six (6th) day (if such sixth (6th) day is not a Banking Day).
“Sanctions” means the economic sanction laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: (a) the United States government; (b) the United Nations; (c) the European Union and its member states; (d) the United Kingdom; or (e) the respective governmental institutions and agencies of any of the foregoing, including, without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State and Her Majesty’s Treasury (“HMT”); (together, the “Sanctions Authorities”).
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“Sanctions List” means the “Specially Designated Nationals and Blocked Persons” list maintained by the OFAC, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by HMT, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities.
“Tax” or “tax” means any present and future tax (including, without limitation, value added tax, consumption tax or any other tax in respect of added value or any income), levy, impost, duty or other charge or withholding of any nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same); and “Taxes”, “taxes”, “Taxation” and “taxation” shall be construed accordingly.
“Trading Limits” means worldwide trading always within Institute Navigation Limits.
“Upfront Hire” means the non-refundable advance hire payment which the Sellers (as charterers thereunder) are obliged to pay to the Buyers (as owners thereunder) upfront under the Bareboat Charter, being an amount equal to thirty per cent. (30%) of the Purchase Price.
“US Dollars”, “Dollars”, “USD”, “US$” and “$” each means available and freely transferable and convertible funds in lawful currency of the United States of America.
“Valuation Report” means, in relation to the Vessel, a valuation report addressed to the Buyers, issued and prepared by an Approved Valuer in accordance with Clause 20 (Determination of Fair Market Value) above.
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The parties to this Agreement have executed this Agreement the day and year first before written.
SELLERS | ||
Signed by | ) | /s/ Rodrigo Fortes |
As | ) | |
for and on behalf of | ) | RODRIGO FORTES |
GOLAR HULL M2023 CORP. | ) | ATTORNEY-IN-FACT |
BUYERS | ||
Signed by | ) | /s/ Li Bing |
as duly authorized director | ) | |
for and on behalf of | ) | LI BING |
ORIENTAL FLEET LNG 02 LIMITED | ) | DIRECTOR |
东方富利LNG02有限公司 |
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