An important innovation introduced in the MOA is the express reference to the commission agreement contained in Clause 37 (Brokers), which was not mentioned at all in the previous 2008 version. This clause now provides that upon completion of the sale by the MOA, the Seller will pay to the Broker(s) out of the sale price the Broker’s remuneration in accordance with the terms of a separate and confidential commission agreement to be entered into between the Seller and the Broker(s) at the same time as the MOA.
The new Clause 40 is certainly appropriate to ensure full compliance with due diligence and anti-money laundering regulations, also given the increasingly stringent controls imposed on banks by national and international authorities.
Clause 37 further provides that in the event of any conflict between the terms of the MOA and those of the commission agreement, the latter shall prevail, provided that the Buyer, who is not a party to the commission agreement, shall not be affected and/or prejudiced in any way. This amendment simply implements a consolidated practice, namely the signing of the commission agreement between the seller and the broker. Another important change is the introduction of a brand-new clause, Clause 40 (Due Diligence Documentation), which sets out the terms and deadlines within which each party must provide its due diligence and anti-money laundering (KYC) documents, and within which these documents must be approved.
PARAGRAPH 37 STATES IF THERE IS ANY INCONSISTENCY BETWEEN THE TERMS IN THE MEMORANDUM AND THE COMMISSION CONTRACT, THE COMMISSION CONTRACT SHALL TAKE PRECEDENCE.
The documents to be provided by the seller and the buyer to the interested party are set out in a specific list forming Annex A to the MOA and are, in general, for natural persons, a copy of the passport and a document proving the address of residence, such as a copy of a utility bill or an official certificate of residence; for companies, a copy of a certificate issued by the competent authority of the country in which the company is incorporated, certifying the existence of the company, its registered office, the names of the shareholders and ultimate beneficiaries and of the directors, together with a copy of their passport and a document proving their residential address. These documents must be submitted within two working days of the signing of the MOA and the stakeholder must notify whether or not they have been approved within the following two working days, with the provision that if they have not been approved within eight working days, the MOA will be cancelled. This clause provides that if such documents are not provided or have not been approved, the Stakeholder is not required to provide its bank details, nor is it required to receive the deposit and/or transfer funds. It is also provided that in case it appears that the bank of the Stakeholder refuses to receive the deposit from the Buyer, albeit with the consent of the Stakeholder, the Stakeholder shall notify the Parties, in which case the Stakeholder may use another of its bank accounts or the Parties may appoint a new Stakeholder within four working days of receipt of the aforementioned notification, and that in the absence of such agreement, the MOA shall be terminated without any recourse to the Parties.
The new Clause 40 is certainly appropriate in order to guarantee full compliance with due diligence and anti-money laundering regulations, also in view of the increasingly stringent controls imposed on banks by national and international authorities. A further amendment relates to Clause 29 (Cancellation), which now expressly provides that if the Buyer rejects the yacht pursuant to Clause 26 or Clause 27, the cost of fuel incurred during the sea trial in respect of the condition survey and the transport of the yacht to and from the launching facility will be deducted from the deposit (together with the cost of any special sea trial requests and the cost of the condition survey, unless paid directly by the Buyer) before the deposit is returned to the Buyer. The final change of note is that introduced to Clause 42 (Assignment), which clarifies that any assignee of the MOA, nominated by the Buyer for the purchase of the Yacht, must be in the same beneficial ownership as the original Buyer or, if a natural person, owned by the original Buyer and that the transfer must be notified to the Seller no later than seven days before the Completion Date. It is also clarified that the transfer is in any event subject to the terms and approval of the nominee’s KYC documents referred to in Clause 40 for compliance with due diligence and anti-money laundering requirements.
(The new version of the MYBA Memorandum of Agreement – Barchemagazine.com – March 2024)
