ADDITIONAL CLAUSES TO M/V “CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023
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32.
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Downpayment
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33. |
Mortgage and Assignment
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34. |
Insurance
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ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023
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35. |
Optional Periods
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36. |
Purchase of the Vessel by the Charterers
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(a) |
The Charterers (or their guaranteed nominee) may exercise their Purchase Option to purchase the Vessel from the Owners at the end of the Charter Period, for US$20,210,000.- (United States Dollars Twenty Million Twenty One Hundred
Thousand only) (the “Purchase Option Price”) to the Owners on a strictly “as is where is” basis. The Charterers shall pay such Purchase Option Price in cash to the Owners upon transfer of title to
the Vessel pursuant to the Sale Contract under clause (b) below.
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(b) |
A separate sale and purchase contract (the “Sale Contract”) shall be executed between the Charterers (or the buyer nominated by the Charterers) and the Owners as seller on standard Norwegian
Saleform 2012 terms, the form of which is appended as Exhibit A.
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(c) |
Notwithstanding the provisions of Clause 36(b) any Sale Contract shall include the following provisions:
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(i) |
the Owners guarantee that the Vessel, at the time of delivery, is free from all charters, encumbrances, mortgages, maritime liens or other debts or liabilities whatsoever. Should any claims which have been incurred prior to the time
of delivery be made against the Vessel, the Owners shall indemnify the buyer against all consequences of such claims;
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(ii) |
the Owners shall furnish the buyer with documentation requested by the buyer including but not limited to:
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ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023
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a. |
evidence of the authorisation and capacity for the Owners to sell the Vessel and enter into all documentation in connection with such sale including but not limited to resolutions of the shareholders of the Owners, resolutions of the
board of directors of the Owners and any power of attorney under which the Owners’ representatives sign any of the delivery documents (in each case notarised and apostilled or legalised), original certificates of good standing in respect
of the Owners and certified true copies of the certificate of incorporation and articles of association (or equivalent) of the Owner;
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b. |
documentation validly transferring title to the Vessel to the buyer;
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c. |
any documentation required for the registration of the Vessel on the buyer’s chosen flag under the name of the buyer;
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d. |
evidence that the Vessel is free from all registered encumbrances and has been (or will be shortly after delivery) deleted from its current Flag State registry;
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e. |
evidence that the Vessel has class maintained status with the Classification Society;
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f. |
documentation usually provided by a seller to a buyer in a second hand vessel sale and purchase transaction including but not limited to letters undertaking the vessel is not boycotted or blacklisted by any nation or organisation,
undertakings to deliver deletion certificates and closed CSR forms within four (4) weeks of the delivery if not provided at delivery and commercial invoices for the Vessel and all other items purchased by the buyer at delivery; and
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g. |
all classification, technical and other documents in the possession of the Owners in relation to the Vessel;
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(iii) |
any taxes, notarial, consular and other charges and expenses connected with the purchase and registration under buyer's flag shall be for buyer's account. Any taxes, consular and other charges and expenses connected with closing of the
Vessels current flag, shall be for sellers' account; and
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(iv) |
all spares on board and on order shall be included in the sale.
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(d) |
If following the expiry of the Charter Period, the Owners from its act or omission fails to transfer title to the Vessel to the Charterers, the Owners shall within 10 days of the Charterers’ written demand:
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ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023
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(i) |
pay to the Charterers the amount by which the fair market value of the Vessel (as determined by a broker appointed by the Charterers) exceeds the Purchase Option Price; and
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(ii) |
keep the Charterers indemnified for all documented losses and expenses incurred by the Charterers due to the failure to transfer title.
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37. |
Improvements and Additions
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38. |
Quiet Enjoyment
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(a) |
The Owners agree and undertake that during the period of the Charter they will not (and will procure that the Mortgagee will not) interfere in any way whatsoever with the quiet use, possession and enjoyment of the Vessel by the
Charterers provided that (i) the Charterers perform their obligation under this Charter, (ii) there are no grounds entitling the Owners to terminate the chartering of the Vessel to the Charterers under this Charter and (iii) notice of the
Owners intention to terminate the Charter has not been served on the Charterers.
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(b) |
The Owners shall ensure that on entering into any Financial Instrument, the prospective Mortgagee of the Vessel provides the Charterers with a Letter of Quiet Enjoyment in accordance with the terms of Clause 33 and Clause 38(a) above.
In addition to the provisions of Clause 36, the Written Consent will confirm that to the extent that the Charterers have paid to the Owners or the Mortgagee the any loan outstanding balance or, if applicable the relevant purchase option
price (as the same is set out in Clause 39), payable on such date, the Mortgagee will immediately release the Financial Instrument.
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39. |
Total Loss Proceeds
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ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023
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(a) |
Firstly, in payment of all the Owners’ and Charterers’ reasonable, properly incurred and documented costs incidental to the collection of the total loss proceeds;
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(b) |
Secondly, in retention by the Owners of all amounts of outstanding hire and interest due and owing to the Owners by the Charterers under this Charter at such time;
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(c) |
Thirdly, in retention by the Owners of an amount equal to the Outstanding BBC Principal Balance of the Owners at the relevant time of receipt of the total loss proceeds; and
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(d) |
Fourthly, any balance shall be promptly paid by the Owners to the Charterers.
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40. |
Familiarization
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41. |
Extra Payments
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(a) |
Any fees and expenses for flag registration of the Vessel in Charterers nominated flag state and deletion of the flag registration of the Vessel in Charterers nominated flag state. The flag of Panama will be maintained during the
charter period. The Owners and the Charterers shall settle the flag annual tax for the year 2023 per Pro Rata Calculation.
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(b) |
Annual flag maintenance fees including tonnage tax of Panama are the Charterers account.
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ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023
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(c) |
All other documentation and works required due to flag and ownership change, including change of DOC/SMC/ISSC/MLC/CLC, class certificates, change of country name on hull, change of radio and navigational aids registration, Annual
Tonnage Tax of the flag country throughout the Charter period shall be for the Charterers’ time and cost including agent fees. In case of a change of Ownership after delivery under this Charter for Owners matter or reason, these costs to
be for Owners’ account.
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42. |
Representations and Warranties
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(a) |
it is duly incorporated and validly existing and in good standing under the laws of its place of incorporation;
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(b) |
it has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it, to execute and to comply with this Charter;
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(c) |
all the consents referred to in paragraph (b) above remain in force and nothing has occurred which makes any of them liable to revocation;
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(d) |
this Charter constitutes legal, valid and binding obligations enforceable against it in accordance with its terms;
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(e) |
The execution by it of this Charter and its compliance with this Charter will not involve or lead to a contravention of:
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(i)
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any law or regulation;
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(ii)
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its constitutional documents; or
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(iii)
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any material contractual or other material obligation or material restriction which is binding on it or any of its assets.
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43. |
General
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(a) |
The terms and conditions of this Charter shall not be varied otherwise than by an instrument in writing executed by or on behalf of the Owners and the Charterers.
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(b) |
If, at any time, any provision of this Charter is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions under the law
of that jurisdiction nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
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(c) |
This Charter may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Charter.
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(d) |
This Charter constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral,
relating to its subject matter.
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(e) |
A person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Charter.
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44. |
Charterers’ representatives
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ADDITIONAL CLAUSES TO M/V "CAPE ETERNITY " BAREBOAT CHARTER PARTY DATED 9TH May, 2023
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