FORM 6-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934
For the month of March 2005
EXCEL MARITIME CARRIERS LTD.
(Translation of registrant's name into English)
67 Akti Miaouli Street
18537 Piraeus
Greece
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual
reports under cover Form 20-F or Form 40-F.
Form 20-F [X] Form 40-F [_]
Indicate by check mark whether the registrant by furnishing the information
contained in this Form is also thereby furnishing the information to the
commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes [_] No [X]
INFORMATION CONTAINED IN THIS FORM 6-K REPORT
Attached hereto as Exhibit 1 are Memoranda of Agreement for the purchase of
vessels by Excel Maritime Carriers Ltd. (the "Company"). These Memoranda of
Agreement were previously filed on Form 6-K on December 13, 2004 in redacted
form pursuant to a Application for an Order Declaring Confidential Treatment by
the Company filed with the Securities and Exchange Commission concurrently
therewith. The Company will file the third Memorandum of Agreement filed on
December 13, 2004 when the vessel that is the subject of the Memorandum of
Agreement is delivered by the seller of the vessel to the Company.
ADDITIONAL INFORMATION
None.
SALEFORM 1993
ORIGINAL MEMORANDUM OF AGREEMENT
Dated 1st December, 2004
Luxor Naviation Corp. of Majuro, Marshall Islands
hereinafter called the Sellers, have agreed to sell, and
Fianna Naviation S.A. of Liberia
hereinafter called the Buyers, have agreed to buy
Name: m/v United Seas ex United Sage
Built: 1998 By: Sasebo Heavy Inudstries Co. Ltd., Japan
Flag: Marshall Islands Place of Registration: Majuro, Marshall Islands
Call Sign: V7FUS Grt/Nrt: 38,864/24,517
Official No. 2024
hereinafter called the Vessel, on the following terms and conditions:
Definition
"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
USD 39,750,000
2. Deposit
As security for the correct fulfilment of this Agreement the Buyers shall pay a
deposit of 15% (fifteen per cent) of the Purchase Price within 3 (three) banking
days after the date of this Agreement signed/exchanged by both parties by fax.
This deposit shall be placed with [Bank]
and held by them in a joint interest bearing account for the Sellers and the
Buyers, to be released (subject to Clause 22) 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.
3. Payment
Balance 85% (eighty five per cent) of the said Purchase price along with extra
payment for bunkers, luboils, etc. shall be paid in full free of bank charges to
Sellers account with [Bank] on closing, in exchange for the usual/normal sale
document enabling Buyers to register vessel under their new flag 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.
4. Inspections
Buyers waived their rights to inspect the vessel. Buyers also waived their
rights to inspect vessel's records therefore the sale is outright and definite,
subject only to the terms and conditions of this Agreement.
5. Notice, time and place of delivery (see also clause 17)
a) The Sellers shall keep the buyers well informed of the Vessel's itinerary
and shall provide the Buyers with 20/10/7/5 days approximate notice and 3/1
days definite notice of Vessel's expected readiness for 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. Notices to be sent by
e-mail or fax via brokers. The Buyers shall take delivery of the vessel
within three (3) banking days (Saturday/Sunday/Holidays excepted) after the
Sellers have tendered to the Buyers a valid notice of readiness for
delivery and after the vessel is in every respect physically ready for
delivery in accordance with the terms and conditions of this MOA.
b) The Vessel shall be delivered and taken over free of cargo free of dunnage,
free of stowaways, safely afloat at a safe and freely accessible berth/port
anchorage in the Sellers' option.
Place of delivery: Sellers to notify Buyers the anticipated last voyage at
least 30 days before vessel's delivery so Buyers can make their
arrangements for taking delivery of the vessel. Delivery port to be
convenient for crew changes and suitable for divers inspection and vessel
to have onboard sufficient quantities of bunkers in order to reach the next
bunkering port.
Expected time of delivery: 1st February, 2005 and 31st March, 2005 in
Sellers option
c) Date of cancelling (see clauses 5 c), 6 b) (iii) and 14): 31st March, 2005
Buyers option
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. (see also clause
17)
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 (see clause 18)
7. Spares/bunkers, etc.
The Sellers shall deliver the Vessel to the Buyers with everything belonging to
her on board on shore and on order. All spare parts and spare equipment
belonging to the Vessel at the time of inspection used or unused, whether or
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 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, loading instrument (loadcator) and GMSS
shall be included in the sale without extra payment. Unused/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 bottles (oxygen, acetylene, freon) and all software and files excluding
the ANKO(R) loading programme.
The Buyers shall pay extra only for unused/unbroached lubricating oils in
designated storage tanks and sealed drums. Sellers net contract prices (less
Sellers discounts/rebates) at vessel's last supply which to be evidenced by
relevant invoices/vouchers. Buyers shall pay extra for remaining bunkers on
board, as per last charter party price or delivery price supported by documents,
vouchers etc.
Payment under this Clause shall be made at the same time and place and in the
same currency as the Purchase Price.
8. Documentation. (see also clause 19)
The place of closing/payment: Piraeus, Greece
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 representatives on
board or at office the classification certificate(s) as well as all plans, a set
of manuals/drawings related to main engine/auxiliaries etc., 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 existing
manuals/instruction books plans and technical records, which may be in the
Sellers' possession shall be promptly forwarded to the Buyers at Buyers 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.
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
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, where as similar charges
in connection with the closing of the Sellers' register shall be for the
Sellers' account.
11. Condition on delivery (see clause 21)
12. Name/markings
Upon delivery the buyers undertake to change the name of the Vessel and alter
funnel markings.
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 entitle 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
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 immediately after 15th January, 2005 who will remain with vessel till
time of delivery 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
manning/operation of the Vessel. The Buyers' representatives shall sign the
Sellers' usual letter of indemnity prior to their embarkation.
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 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. Arbitrators to be members of L.M.A.A.
BIMCO/L.M.A.A. arbitration clause to apply.
CLAUSES 17 TO 24 AFFIXED HERE TO FORM AN INTEGRAL PART OF THIS CONTRACT
Appendix to Memorandum of Agreement code-name SALEFORM 1993-dated 1st December,
2004 - m/v United States
CLAUSE 17
IF FOR ANY REASON WHATSOEVER THE SELLERS CANNOT DELIVER THE VESSEL WITHIN THE
AGREED LAYCAN THE PARTIES AGREE THAT THE CANCELLING DATE CAN BE EXTENDED IN
BUYERS OPTION FOR A MAXIMUM OF 30 DAYS BUT WITH BUYERS DEDUCTIONS USD 35,000 PER
DAY (COMMENCING THE NEXT DAY OF CANCELLING DATE AND UP TO THE DATE OF ACTUAL
DELIVERY) FROM THE AGREED PRICE.
CLAUSE 18
NO PRE DELIVERY DRY DOCKING CLAUSE TO APPLY.
HOWEVER BUYERS HAVE THE OPTION TO INSPECT THE VESSEL'S UNDERWATER PARTS BY A
DIVER APPROVED BY CLASS, WHICH SHALL BE ARRANGED BY BUYERS AT BUYERS EXPENSE
PRIOR DELIVERY. IF THE CONDITIONS ON THE PLACE OF UNDERWATER SURVEY ARE
UNSUITABLE FOR SUCH INSPECTION DUE TO TIDES/WEATHER/UNDERWATER VISIBILITY/NOT
CLEAR-SUFFICIENT WATERS DUE TO WATER DEPTH, THEN THE SELLERS SHALL IMMEDIATELY
MAKE THE VSL AVAILABLE AT A SUITABLE ALTERNATIVE PLACE NEAR TO THE DELIVERY
PORT.
IN THE EVENT THE BUYERS CHOOSE SUCH DIVER'S INSPECTION, SAME SHALL BE CARRIED
OUT IN THE PRESENCE OF THE VESSEL'S CLASS SURVEYOR (WHOM TO BE FOR SELLERS
EXPENSE) AND IN THE PRESENCE OF THE sELLERS/bUYERS REPRESENTATIVES WITHOUT
INTERFERRING WITH THE VESSEL'S OPERATION.
SHOULD ANY DAMAGE IS FOUND DURING SUCH INSPECTION THAT WILL IMPOSE A
RECOMMENDATION AND/OR CONDITION OF CLASS, THEN:
A) IN CASE THE CLASS IMPOSES A RECOMMENDATION AND/OR CONDITION OF CLASS BUT THE
VESSEL IS NOT REQUIRED TO BE DRYDOCKED BEFORE HER NEXT SCHEDULED DRYDOCK, THEN
THE SELLERS SHALL PAY THE BUYERS THE DIRECT COST ONLY (EXCLUDING DRYDOCKING
COSTS) TO REPAIR SUCH DAMAGE IN A WAY WHICH IS ACCEPTABLE BY THE CLASS AND WHICH
TO BE BASED ON THE AVERAGE OF TWO (2) QUOTATIONS GIVEN BY TWO REPUTABLE
INDEPENDENT REPAIR YARDS AT PORT OF DELIVERY OR NEARBY WHICH CAN ACCOMMODATE
SHIPS OF THIS SIZE, ONE AT SELLERS CHOICE AND ONE AT BUYERS CHOICE. THE ABOVE
AMOUNT AGREED SHALL BE DEDUCTED FROM THE BALANCE OF THE PURCHASE MONEY AT THE
TIME OF DELIVERY.
B) IN CASE THE CLASS REQUIRES THE VESSEL TO BE DRYDOCKED BEFORE NEXT SCHEDULED
DRYDOCKING SURVEY, THE SELLERS SHALL DRYDOCK THE VESSEL AS PER CLAUSE 6 (C) OF
nsf 1993, WHICH SUCH CLAUSE SHALL APPLY IN FULL FORCE, AT THEIR EXPENSE PRIOR TO
DELIVERY OF THE VESSEL, AND REPAIR SAME TO CLASS SATISFACTION. DELIVERY DATE
SHALL BE EXTENDED ACCORDINGLY AND BUYERS TO HAVE THE RIGHT TO ATTEND SUCH
REPAIRS WITHOUT INTERFERING TO SELLERS REPAIRS.
WHILST THE VESSEL IS IN DRYDOCK THE BUYERS SHALL HAVE THE RIGHT TO ATTEND THE
VESSEL AND THE RIGHT TO CLEAN, PAINT AND CARRY OUT ALL USUAL DRYDOCKING
WORKS/REPAIRS, WHILST SHE IS IN DRYDOCK AT BUYERS RISK AND EXPENSE PROVIDED SAME
DOES NOT INTERFERE WITH SELLERS WORK AND BUYERS WORK TO BE LIAISED WITH SELLERS
ATTENDING SUPERINTENDENTS.
IN THE EVENT THAT BUYERS WORKS ARE NOT COMPLETED PRIOR TO THE TIME SELLERS HAVE
COMPLETED THEIR WORK, THEN SELLERS HAVE THE RIGHT TO TENDER NOTICE OF READINESS
WHILST THE VESSEL IS STILL IN DRYDOCK PROVIDED, OF COURSE, SHE IS IN ALL
RESPECTS READY FOR DELIVERY IN ACCORDANCE WITH THE TERMS OF THE M.O.A.
SHOULD THE BUYERS WORK STILL NOT BE COMPLETED AND THE VESSEL IS UNABLE TO LEAVE
DRYDOCK BECAUSE OF THIS WORK WITHIN THREE BANKING DAYS AFTER SELLERS HAVE
TENDERED THE NOTICE OF READINESS, THE BUYERS SHALL TAKE DELIVERY OF THE VESSEL
IN DRYDOCK AND PAY FOR THE VESSEL EVEN THOUGH SHE REMAINS IN DRYDOCK. THE COST
FOR DOCKING AND UNDOCKING SHALL BE FOR THE SELLERS' ACCOUNT BUT COST FOR ANY
EXTRA TIME SPENT IN THE DRYDOCK AFTER THE NOTICE OF READINESS TENDERED BY
SELLERS SHALL BE FOR THE BUYERS' ACCOUNT.
IN ANY CASE OF THE ABOVE, WHETHER DAMAGE IS FOUND OR NOT, THE COST OF THE DIVERS
SHALL BE FOR THE BUYERS ACCOUNT.
THE CLASS SHALL AT ALL TIMES BE THE SOLE ARBITRATOR AS TO WHETHER UNDERWATER
DAMAGE, IF ANY, IMPOSES CONDITION/RECOMMENDATION OF CLASS. THE DECISION OF CLASS
AS TO WHETHER UNDERWATER DAMAGE, IF ANY, IMPOSES A CONDITION/RECOMMENDATION OF
CLASS SHALL BE FINAL AND BINDING FOR BOTH PARTIES.
CLAUSE 19
IN EXCHANGE OF PAYMENT AND DELIVERY OF THE VESSEL, THE BUYERS AND SELLERS ARE TO
PROVIDE EACH OTHER WITH THEIR RESPECTIVE DELIVERY DOCUMENTATION. BUYERS AND
SELLERS SHALL MUTUALLY ADVISE THEIR REASONABLE REQUIREMENTS AND THE SAME TO BE
INCORPORATED AS AN ADDENDUM TO THE MOA. SIGNING OF SUCH ADDENDUM SHALL BY NO
MEANS DELAY SIGNATURE OF THE RELEVANT MOA BY BOTH PARTIES.
CLAUSE 20
SELLERS TO CONFIRM IN WRITING TO THE BEST OF THEIR KNOWLEDGE, THAT THE VESSEL IS
NOT BLACKLISTED BY ANY STATE OR ORGANISATION SUCH AS THE ARAB BOYCOTT LEAGUE.
CLAUSE 21
THE VESSEL SHALL BE DELIVERED TO THE BUYERS IN THE SAME CONDITION AS SHE WAS AT
THE TIME OF SIGNING THIS AGREEMENT, FAIR WEAR AND TEAR ALWAYS EXCEPTED. VESSEL
SHALL BE DELIVERED TO THE BUYERS WITH HER PRESENT CLASS MAINTAINED, WITH ALL
CONTINUOUS SURVEYS VALID AND FULLY UP TO DATE, FREE FROM ANY RECOMMENDATIONS
AND/OR CONDITION OF CLASS EXCEPT THE TWO CONDITIONS MENTIONED IN THE SURVEY
STATUS. IN ANY CASE THE CLASS OF THE SHIP NOT TO BE AFFECTED BY THESE TWO
RECOMMENDATIONS AT THE TIME OF DELIVERY WHICH BUYERS ACCEPT THE VESSEL TO BE
DELIVERED WITH THE TWO RECOMMENDATIONS/CONDITIONS MENTIONED IN THE CLASS STATUS
PROVIDED THAT NEW ANCHOR TO BE PLACED ON BOARD PRIOR TO DELIVERY. VESSEL TO BE
DELIVERED FREE OF AVERAGE DAMAGE AFFECTING HER CLASS. ALL VESSEL'S CLASS AND
NATIONAL/INTERNATIONAL TRADING CERTIFICATES TO BE CLEAN, VALID AND UNEXTENDED
FOR A MINIMUM PERIOD OF THREE (3) MONTHS FROM THE DATE OF DELIVERY.
CLAUSE 22
THE SALE IS SUBJECT TO BUYERS BOD (BOARD OF dIRECTORS) APPROVAL WHICH TO BE
LIFTED LATEST BY 13:00 BEFORE CLOSING OF THE FIFTH BUSINESS DAY FROM THE DATE
15% DEPOSIT HAS BEEN LODGED.
THE BUYERS UNDERTAKE TO NOTIFY SELLERS PROMPTLY UPON THEIR B.O.D. APPROVING OR
NOT APPROVING THE SALE AND IN ANY EVENT NOT LATER THAN 13:00 BEFORE CLOSING
OF THE FIFTH BUSINESS DAY FROM THE DATE THAT 15% DEPOSIT HAS BEEN LODGED,
FAILING WHICH THIS SUBJECT IS AUTOMATICALLY LIFTED AND THE SALE IS DEFINITE.
NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, IT IS SPECIFICALLY AGREED THAT
THE FUNDS REPRESENTING 15% OF THE DEPOSIT UNDER CLAUSE 2 OF THIS AGREEMENT SHALL
BE: a) REFUNDED TO BUYERS THROUGH SWIFT MESSAGE TO BUYERS' REMITTING BANK I.E.
[BANK], SHIPPING BRANCH ______________________________, GREECE, CONTACT PERSON:
__________________ PHONE NO: _____________, CORRESPONDING BANK:
___________________________, WITHOUT ANY FURTHER INSTRUCTIONS TO
___________________________ BY CLOSING OF THE FIFTH BUSINESS DAY OF THE DATE 15%
DEPOSIT HAS BEEN LODGED WITH [BANK] UNLESS [BANK] HAS RECEIVED UNTIL 13:00 HOURS
BEFORE CLOSING OF THE SAID DATE, A TESTED MESSAGE FROM BUYERS' REMITTING BANK
STATING THAT THEY HOLD BUYERS' CONFIRMATION THAT THE SUBJECT UNDER CLAUSE 22 OF
THE MOA, I.E. THE APPROVAL OF THE TERMS OF THE MOA BY BUYERS' BOARD OF
DIRECTORS, HAS BEEN LIFTED, OR b) IN CASE THAT [BANK] HAS RECEIVED THE SAID
TESTED MESSAGE WITHIN THE PERIOD SPECIFIED ABOVE, THE RELEVANT FUNDS SHALL BE
RELEASED EITHER BY THE JOINT INSTRUCTIONS OF THE SELLERS AND THE BUYERS OR
PURSUANT TO THE TERMS OF A FINAL ARBITRATION AWARD UNDER THE MOA.
CLAUSE 23
VESSEL TO BE DELIVERED WITH HOLDS CLEAN, SWEPT AND DRY. IT IS SELLERS OPTION TO
DELIVER THE VESSEL WITH CARGO RESIDUES ONBOARD, UNCLEAN, UNSWEPT HOLDS, AGAINST
PAYMENT OF USD 750PER HOLD.
CLAUSE 24
THE PRICE, TERMS AND CONDITIONS OF THE SALE TO BE KEPT STRICTLY PRIVATE AND
CONFIDENTIAL BY ALL PARTIES CONCERNED. HOWEVER, SHOULD THE DETAILS OF THE SALE
BECOME KNOWN OR REPORTED IN THE MARKET, NEITHER THE BUYERS NOR THE SELLERS SHALL
HAVE THE RIGHT TO CANCEL THIS CONTRACT.
This Memorandum of Agreement is drawn up in two originals with even tenor and
date. One original shall be retained by the Sellers and one original shall be
retained by the Buyers.
For the Sellers (1) For the Buyers (2)
(SIGNED 12/2/04)
02545.0001 #531764
-----------------------------
Norwegian Shipbroker'
MEMORANDUM OF AGREEMENT Association's Memo-
randum of Agreement for
sale and purchase of
Dated: 4th November, 2004 ships. Adopted by The
Baltic and International
Maritime Council (BIMCO)
in 1956.
Code-name
SALEFORM 1993
Revised 1966, 1983 and
1986/87.
-----------------------------
Agile Holdings Corp of Liberia
hereinafter called the Sellers, have agreed to sell and
Pisces Shipholding Ltd of Liberia
hereinafter called the Buyers, have agreed to buy
Name: M/V Marie ex Jin Feng
Classification Society/Class: N.K.K.
Built: 1984 By: Imaburi Marugame, Japan
Flag: Greek Place of Registration: Piraeus
Call Sign: SVWF Crt/Nrt: 23671/13563
Register Number: 11020, IMO Number 8402955
hereinafter called the Vessel, on the following terms and conditions:
Definition
"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
USD 11,920,000 United States Dollars Eleven Million Nine Hundred and Twenty
Thousand Only).
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 three (3) banking
days from the date of this Agreement signed/exchanged by both parties by fax.
This deposit shall be placed with [BANK] and held by them into a joint interest
bearing 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. Bank charges for the remitting said deposit to be
for the Buyers account while any fee charged for holding the said deposit shall
be borne equally by the Sellers and the Buyers.
3. Payment
The 90 percent of the Purchase Price plus any other extras shall be paid in full
free of bank charges to Sellers account with [BANK] on delivery of 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.
4. Inspections
Buyers waive their right to inspect vessel's classification records.
a)* The Buyers have inspected the Vessel in Subic Bay on 31st October,
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. Notice, 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 20/15/10/7/5 days approximate notice of
expected readiness for delivery and 3/1 days definite notice of expected
readiness delivery. When the Vessel is at the place of delivery and in
every respect physically deemed ready for delivery in accordance with this
Agreement, the Sellers shall give the Buyers a written Notice of Readiness
for delivery. Buyers shall take over the vessel within 3 banking days after
such notice tendered.
b) The Vessel shall be delivered and taken over charter free, free of cargo,
free of stowaways safely afloat at a safe berth or anchorage at one safe
port within Singapore/Japan range including China, S. Korea, Philippines in
the Sellers' option.
Expected time of delivery:Between 15th November, 2004 and 28th December,
2004 in Sellers' opption. Date of cancelling (see clauses 5 c),6 b)
(iii)and 14): 28th December, 2004 in Buyers' 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 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.
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 (See Clause 18)
7. Spares/bunkers, etc.
The Sellers shall deliver the Vessel to the Buyers with everything belonging to
her on board and on shore and on order. 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. 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, GMDSS, wireless
(not in operation), loading instrument including software 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. All items
required by the classification or flag administration will remain onboard.
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 bottles, Oxygen, Acetylene, Freon bottles
(See Clause 19)
8. Documentation. (See also Clause 20)
The place of closing : [Bank], Shipping Division, Piraeus, Greece
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., 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 Buyers
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.
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
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, where as similar charges
in connection with the closing of the Sellers' register shall be for the
Sellers' account.
11. Condition on delivery (See also Clause 21)
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 Agreements she shall be delivered and taken over as she was
at the time of inspection, fair wear and tear excepted. 12. Name/markings
Upon delivery the Buyers undertake to change the name of the Vessel and alter
funnel markings.
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
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 who will remain onboard till time of
delivery.
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
manning/operation of the Vessel. The Buyers' representatives shall sign the
Sellers' letter of indemnity prior to their embarkation.
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 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.
CLAUSES 17 TO 26 APPENDIX HERETO FORM AN INTEGRAL PART OF THIS CONTRACT
Appendix to Memorandum of Agreement code-name SALEFORM 1993- dated
4th November, 2004 - M/V Maria
CLAUSE 17
BALANCE 90 PER CENT TO BE PAID ALONG WITH EXTRA PAYMENT FOR BUNKERS, LUBRICATING
OILS ETC IN CASH TO SELLERS BANK [BANK] AT PIRAEUS ON CLOSING, IN EXCHANGE FOR
THE USUAL / NORMAL SALE DOCUMENTS , ENABLING BUYERS TO REGISTER VESSEL UNDER
THEIR NEW FLAG.
CLAUSE 18
NO DRYDOCKING CLAUSE WILL APPLY.
BUYERS HAVE THE RIGHT TO ARRANGE AT THEIR RISK AND EXPENSE AN INSPECTION OF THE
VESSEL'S UNDERWATER PARTS BY A DIVER APPROVED BY THE VESSEL'S CLASSIFICATION
WITH CLASS SURVEYOR AND BUYERS/SELLERS REPRESENTATIVES IN ATTENDANCE. THE NOTICE
OF READINESS TO BE TENDERED AS PER RELATIVE CLAUSE OF NSF 93. SELLERS UNDERTAKE
TO PRESENT THE VESSEL FOR UNDERWATER INSPECTION, IN THE PORT OF DELIVERY AND
PRIOR TO THE DELIVERY, IN A LOCATION WHERE CONDITIONS OF VISIBILITY, CURRENTS
ETC WILL ALLOW SUCH INSPECTION TO THE SATISFACTION OF NKK CLASSIFICATION,
OTHERWISE THE VESSEL HAS TO BE SHIFTED AS REQUIRED IN ORDER THAT SUCH UNDERWATER
INSPECTION CAN BE PERFORMED TO THE SATISFACTION OF THE CLASSIFICATION SOCIETY,
AT SELLERS' EXPENSE.
SHOULD SUCH DIVERS INSPECTION REVEAL ANY DAMAGE TO VESSEL'S UNDERWATER PARTS
WHICH WOULD IMPOSE A RECOMMENDATION AGAINST THE VESSEL'S PRESENT CLASS THEN:
a. IN THE EVENT THE PRESENT CLASS IMPOSES A RECOMMENDATION, BUT THE VESSEL IS
NOT REQUIRED TO DRYDOCK BEFORE HER NEXT SCHEDULED DRYDOCK, THEN SELLERS SHALL
PAY TO THE BUYERS THE ESTIMATED COST TO REPAIR SUCH DAMAGE IN A WAY WHICH IS
ACCEPTABLE TO THE CLASS AND WHICH SHALL BE THE DIRECT COST OF THE REPAIR FOR
SUCH DAMAGE ONLY AND TO BE BASED ON A QUOTATION GIVEN BY TWO REPUTABLE
INDEPENDENT REPAIR YARDS IN THE AREA AS CHOSEN ONE BY THE BUYERS AND ONE BY THE
SELLERS. THE AMOUNT AS AGREED SHALL BE DEDUCTED FROM THE BALANCE OF THE PURCHASE
MONEY AT THE TIME OF DELIVERY.
b. IN THE EVENT THAT CLASS IMPOSES A RECOMMENDATION THAT WOULD REQUIRE THE
VESSEL TO BE REPAIRED PROMPTLY / BEFORE HER NEXT SCHEDULED DRYDOCKING, THEN THE
SELLERS SHALL ARRANGE AT THEIR EXPENSE FOR THE VESSEL TO BE REPAIRED BY THEM
ALWAYS TO CLASS SATISFACTION PRIOR TO DELIVERY OF THE VESSEL TO THE BUYERS.
THE PRESENT CLASSIFICATION SOCIETY SHALL AT ALL TIMES BE THE SOLE ARBITRATOR AS
TO WHETHER UNDERWATER DAMAGE, IF ANY, IMPOSES RECOMMENDATION OF CLASS. IN THE
EVENT THE VESSEL IS REQUIRED TO BE DRYDOCKED AS PER (b) ABOVE, THE SELLERS SHALL
HAVE THE RIGHT TO TAKE THE VESSEL AND PROCEED DIRECTLY IN BALLAST TO A PORT IN
SELLER'S OPTION WHERE SUCH DRYDOCKING / REPAIRS / DELIVERY WILL TAKE PLACE.
IT IS AGREED THAT THE CANCELING DATE SHALL BE EXTENDED ACCORDINGLY FOR THE EXTRA
TIME TAKEN TO DELIVER THE VESSEL CAUSED BY THE BALLASTING / DRYDOCKING / REPAIRS
AS REQUIRED TO BE CARRIED OUT TO CLASS SATISFACTION AS ABOVE.
WHILST THE VESSEL IS IN DRYDOCK THE BUYERS SHALL HAVE THE RIGHT TO ATTEND THE
VESSEL AND THE RIGHT TO CLEAN, PAINT AND CARRY OUT ALL USUAL DRYDOCKING WORKS /
REPAIRS, WHILST SHE IS IN DRYDOCK AT BUYERS RISK AND EXPENSE PROVIDED SAME DOES
NOT INTERFERE WITH SELLERS WORK AND BUYERS WORK TO BE LIAISED WITH SELLERS
ATTENDING SUPERINTENDENTS. IN THE EVENT THAT BUYERS WORKS ARE NOT COMPLETED
PRIOR TO THE TIME SELLERS HAVE COMPLETED THEIR WORK, THEN SELLERS HAVE THE RIGHT
TO TENDER NOTICE OF READINESS WHILST THE VESSEL IS STILL IN DRYDOCK PROVIDED, OF
COURSE, SHE IS IN ALL RESPECTS READY FOR DELIVERY IN ACCORDANCE WITH THE TERMS
OF THE M.O.A.
SHOULD THE BUYERS WORK STILL NOT BE COMPLETED AND THE VESSEL IS UNABLE TO LEAVE
DRYDOCK BECAUSE OF THIS WORK WITHIN THREE BANKING DAYS AFTER SELLERS HAVE
TENDERED THE NOTICE OF READINESS, THE BUYERS SHALL TAKE DELIVERY OF THE VESSEL
IN DRYDOCK AND PAY FOR THE VESSEL EVEN THOUGH SHE REMAINS IN DRYDOCK. THE COST
FOR DOCKING AND UNDOCKING SHALL BE FOR THE SELLERS' ACCOUNT BUT COST FOR ANY
EXTRA TIME SPENT IN THE DRYDOCK AFTER THE NOTICE OF READINESS TENDERED BY
SELLERS SHALL BE FOR THE BUYERS' ACCOUNT.
CLAUSE 19
BUYERS SHALL PAY EXTRA FOR BUNKERS REMAINING ONBOARD (F.O. AND D.O.) AT
FOLLOWING PRICES:
F.O.: USD 245 M/T
D.O.: USD 410 M/T
BUYERS SHALL ALSO PAY EXTRA FOR UNUSED LUBRICATING OILS IN DESIGNATED STORAGE
TANKS AND UNBROACHED / SEALED DRUMS AT SELLERS NET PURCHASED PRICE (EXCLUDING
COST OF BARGING) AT VESSEL'S LAST SUPPLY WHICH HAS TO BE EVIDENCED BY RELEVANT
INVOICES.
CLAUSE 20
IN EXCHANGE OF PAYMENT AND DELIVERY OF THE VESSEL, THE BUYERS AND SELLERS ARE TO
PROVIDE EACH OTHER WITH THEIR RESPECTIVE REASONABLE DELIVERY DOCUMENTATION.
BUYERS AND SELLERS SHALL MUTUALLY ADVISE THEIR REQUIREMENTS AND THE SAME TO BE
INCORPORATED AS AN ADDENDUM TO THE MOA.
CLAUSE 21
THE VESSEL TO BE DELIVERED TO THE BUYERS WITH HER PRESENT CLASS MAINTAINED, FREE
OF RECOMMENDATIONS AFFECTING CLASS AND / OR ANY CONDITION OF CLASS AND FREE OF
AVERAGE DAMAGE AFFECTING HER CLASS. ALL VESSEL'S CLASS AND NATIONAL /
INTERNATIONAL TRADING CERTIFICATES, TO BE CLEAN, VALID AND UNEXTENDED AT THE
TIME OF DELIVERY. SAME TO APPLY FOR ALL CONTINUOUS SURVEY ITEMS. CERTIFICATES OF
LIFERAFTS, CO2, FIRE EXTINGUISHERS, TO BE VALID AT THE TIME OF DELIVERY AS FOLL:
LIFE RAFTS DUE DATE 2/05
CO2 DUE DATE 5/05
FIRE EXTINGUISHERS DUE DATE 5/05
CLAUSE 22
SELLERS TO CONFIRM THAT THE VESSEL IS NOT BLACKLISTED BY ANY STATE OR
ORGANISATION.
CLAUSE 23
SELLERS TO CONFIRM THAT VESSEL HAS NOT TRADED DURING THE LAST TWO (2) YEARS IN
CIS PACIFIC COUNTRIES, BUT IF TRADED, THEN A VALID PHYTOSANITARY CERTIFICATE TO
BE PRESENTED.
CLAUSE 24
AT THE TIME OF DELIVERY THE SELLERS' CREW TO REASONABLY DEMONSTRATE TO THE
BUYERS' CREW THE OPERATION OF THE VESSEL'S DECK / ENGINE ROOM MACHINERY AND
NAVAIDS.
CLAUSE 25
THE VESSEL TO BE DELIVERED WITH HOLDS SWEPT AND DRY ON THE LAST VOYAGE PRIOR
DELIVERY.
CLAUSE 26
THE PRICE, TERMS AND CONDITIONS OF THE SALE TO BE KEPT STRICTLY PRIVATE AND
CONFIDENTIAL BY ALL PARTIES CONCERNED.
This Memorandum of Agreement is drawn up in two originals with even tenor and
date. One original shall be retained by the Sellers and one original shall be
retained by the Buyers.
For the Sellers For the Buyers
----------------------------- ------------------------
(Signed 11/4/04)
02545.0001 #533164
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
EXCEL MARITIME CARRIERS LTD.
(registrant)
Dated: March 4, 2005 By: /s/ Christopher J. Georgakis
----------------------------
Christopher J. Georgakis
President and
Chief Executive Officer
02545.0001 #533000d