BIMCO Designated Entities Clause for Sale & Purchase Agreements 2013
(a) In this Sale & Purchase Agreement (the “Agreement”), the following provisions shall apply where any sanction, prohibition or restriction is imposed on any specified persons, entities or bodies including the designation of any specified vessels or fleets under United Nations Resolutions or trade or economic sanctions, laws or regulations of the European Union or United States of America.
(b) Buyers and Sellers each warrant that at the date of entering into this Agreement and continuing until the Buyers have paid the purchase price in full and taken possession of the Vessel on delivery by the Sellers:
(i) neither party is subject to any of the sanctions, prohibitions, restrictions or designation referred to in sub-clause (a) which prohibit or render unlawful any performance under this Agreement;
(ii) the Sellers are selling and the Buyers are purchasing the Vessel as principals and not as agent, trustee or nominee of any person with whom transactions are prohibited or restricted under sub-clause (a);
(iii) The Sellers further warrant that the Vessel is not a designated vessel and is not and will not be chartered to any entity or transport any cargo contrary to the restrictions or prohibitions in sub-clause (a).
(c) If at any time during the performance of this Agreement either party becomes aware that the other party is in breach of warranty as aforesaid, the party not in breach shall comply with the laws and regulations of any Government to which that party or the Vessel is subject and follow any orders or directions which may be given by any regulatory or administrative body, acting with powers to compel compliance. In the absence of any such orders, directions, laws or regulations, the party not in breach may terminate this Agreement forthwith.
(d) Notwithstanding anything in this Clause to the contrary, Buyers and Sellers shall not be required to do anything which constitutes a violation of the laws and regulations of any State to which either of them is subject.
(e) Buyers and Sellers shall be liable to indemnify the other party against any and all claims, including return of any deposit or all or any part of the purchase price, losses, damage, costs and fines whatsoever suffered by the other party resulting from any breach of warranty as aforesaid and in accordance with this Agreement.
Explanatory notes to Designated Entities Clause for Sale & Purchase Agreements
The need for a charter party provision to protect parties against dealings with persons or undertakings prohibited from engaging in trade, commerce or financial transactions, has been addressed through the Designated Entities Clause.
The same principles apply to sale and purchase agreements. However, the specialist aspects involved require a modified regime to reflect respective party needs and adequately protect buyers and sellers during the transaction period. BIMCO has, therefore, now developed a parallel Designated Entities Clause for Sale & Purchase Agreements.
Summary of main features
The Clause, which can be used for SALEFORM and other sale and purchase agreements, applies to identified persons or entities (including designated vessels) whose activities are restricted or prohibited by United Nations Resolutions, European Union laws and regulations or the United States of America. Buyers and sellers are each required to warrant that they are not so designated and that they are contracting as principals and not acting on behalf of a designated entity. Sellers’ further warranty that the vessel is not a designated vessel or chartered to or carrying cargo for prohibited interests, is also designed to protect the position of buyers taking on a pre-existing charter or other continuing contractual commitment. The warranty provisions apply from the time of entering the agreement until the purchase price has been paid in full and sellers have taken delivery of the vessel.
Lists of designated persons and entities are liable to be updated and amended at frequent intervals; details are publically available and, as appropriate, can be monitored. If a party is, or becomes, identified as a designated person or entity, or a vessel is designated, the Clause provides flexibility for the innocent party to act as necessary in the circumstances. In most cases, guidance is likely to be requested from the innocent party’s Government or regulatory authorities. However, in contrast to the charter party clause, there is no express reference to “Owners’ flag state” as this might not be easy to determine where a vessel’s registry changes during the sale process, although there is nothing to rule out such an approach in appropriate circumstances. If guidance is not given or available, the agreement can be terminated immediately.
Despite international agreement on designated entities, some states apply their own anti-blocking or similar legislation to counter the effects of a boycott or other targeted action affecting their trading interests. The Clause therefore provides that parties shall not be required to break their own laws. This is a potentially difficult area and legal advice is likely to be required where there is tension between competing legislative obligations.
The Clause contains the customary indemnity provisions. However, while buyers and sellers each undertake to indemnify the other for any loss or damage, this is unlikely to be enforceable against a party that is or becomes a designated entity and, therefore, unable to make or receive any payments. This could have far-reaching financial implications once a deposit or other payment has been made.
Sub-clause (a) sets out the scope, basis and application of the Clause covering restrictions or prohibitions imposed against specified persons, bodies and vessels (“designated entities”) by the United Nations, European Union and United States of America;
Sub-clause (b) establishes a time limit for the respective parties’ obligations which begins on the date of entering the agreement and expires once buyers have paid the full purchase price and taken possession of the vessel on delivery by sellers;
Sub-paragraph (i) the parties each warrant that they are not subject to any of the restrictions or prohibitions in sub-clause (a);
Sub-paragraph (ii) the parties each warrant that they are acting as principals and not for undisclosed prohibited third parties;
Sub-paragraph (iii) the sellers warrant that the vessel is not a designated vessel and is not and will not be chartered to or carrying cargo for a prohibited person or entity. Account is therefore taken of any existing charter or commitments that will continue in place under the buyers;
Sub-clause (c) sets out procedures to be followed where either party becomes aware of the other’s breach. The innocent party is likely to seek guidance from, and follow instructions or advice given by, regulatory or administrative agencies to which that party is subject. If guidance is not available, the agreement can be terminated by the innocent party;
Sub-clause (d) addresses the position where a party’s compliance with regulatory requirements would be a breach of or offence under that party’s national law; and
Sub-clause (e) is the standard indemnity provision modified to meet the particular needs of sale and purchase although in practice recovery is likely to be problematic where loss or damage results from the defaulting party being or becoming a designated entity.
Originally published in BIMCO Special Circular No. 11, 9 December 2013 - Designated Entities Clause for Sale and Purchase Agreements