Code-name SALEFORM 1993
EX-10.1 2 cortesmoa12212006.htm CORTES VESSEL PARTNERSHIP MOA DATED 12-21-2006 cortes Vessel Partnership MOA dated 12-21-2006
Exhibit 10.1
MEMORANDUM OF AGREEMENT Dated: 21 December 2006 | Norwegian Shipbrokers Association s Memorandum of Agreement for sale and purchase of ships. Adopted by The Baltic and International Maritime Council (BIMCO) in 1956 Code-name SALEFORM 1993 Revised 1966, 1983 and 1986/87. |
Cortes Vessel Limited Partnership, California, USA, (The General Partner of which is the Cortes | 1 | |||
Vessel Inc., California.) hereinafter called the Sellers, have agreed to sell, and Champion Shipping, | ||||
Bergen, Norway or Nominee with Messrs. Champion Shipping always to guarantee their nominated | ||||
company's performance. | ||||
hereinafter called the Buyers, have agreed to buy | 2 | |||
Name: Mt Lion | 3 | |||
Classification Society/Class: DNV | 4 | |||
Built: May 1985 | By: Boelwerf Temse, Belgium | 5 | ||
Flag: Liberia | Place of Registration: Monrovia | 6 | ||
Call Sign: | Grt/Nrt: | 7 | ||
Register Number: IMO NR: 8308650 | 8 | |||
hereinafter called the Vessel, on the following terms and conditions: | 9 | |||
Definitions | 10 | |||
"Banking days" are days on which banks are open both in the country of the currency | 11 | |||
stipulated for the Purchase Price in Clause 1 and in the place of closing stipulated in Clause 8. | 12 | |||
"In writing" or "written" means a letter handed over from the Sellers to the Buyers or vice versa, | 13 | |||
a registered letter, telex, telefax or other modern form of written communication. | 14 | |||
"Classification Society" or "Class" means the Society referred to in line 4. | 15 | |||
1. | Purchase Price USD 10.354.000 Mio (US dollars ten million and three hundred and fifty four | 16 | ||
thousand). | ||||
2. | Deposit | 17 | ||
As security for the correct fulfilment of this Agreement the Buyers shall pay a deposit of 10 % | 18 | |||
(ten per cent) of the Purchase Price within 3 (Three) London banking days from the date of both | 19 | |||
parties signing this | ||||
Agreement on fax or E-Mail . This deposit shall be placed | 20 | |||
Burke & Parsons, New York, and held by them in their attorney invested trust account pursuant to | ||||
an escrow agreement among Burke & Parsons, the Sellers and the Buyers, which shall provide for | ||||
release, | ||||
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with joint written instructions of the Sellers and the Buyers. Interest, if any, to be credited to the | 22 | |||
Buyers. Any fee charged for holding the said deposit shall be borne equally by the Sellers and the | 23 | |||
Buyers. | 24 | |||
3. | Payment | 25 | ||
The said Purchase Price shall be paid in full free of bank charges to The Sellers' nominated Bank | 26 | |||
on delivery of the Vessel, but not later than 3 banking days after the Vessel is in every respect | 27 | |||
physically ready for delivery in accordance with the terms and conditions of this Agreement and | 28 | |||
Notice of Readiness has been given in accordance with Clause 5. | 29 | |||
4. | Inspections | 30 | ||
a)* | The Buyers have inspected and accepted the Vessel's classification records. The Buyers | 31 | ||
have also Physically inspected the Vessel at/in New Orleans, USA on 16-17th December 2006 | 32 | |||
and have accepted the Vessel following this inspection and the sale is outright and definite, | 33 | |||
subject only to the terms and conditions of this Agreement | 34 | |||
good working condition in accordance to the Vessel s technical specification. (See clauses | ||||
11 and 19). | ||||
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5. | Notices, time and place of delivery | 51 | ||
a) | The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall | 52 | ||
provide the Buyers with 15, 7, | 53 | |||
intended place of | 54 | |||
of delivery and in every respect physically ready for delivery in accordance with this | 55 | |||
Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery. | 56 | |||
b) | The Vessel shall be delivered and taken over safely afloat free of charter at a safe and | 57 | ||
accessible berth or | ||||
anchorage | 58 | |||
berth or anchorage in a safe port in China Range intention Tianjan or Singapore during 15 | ||||
February - 10 March 2007 | ||||
in the Sellers' option. | 59 | |||
Expected time of delivery: 15 Feb - 10 March 2007 | 60 | |||
Date of cancelling (see Clauses 5 c), 6 b) (iii)and 14): 10 March 2007 | 61 | |||
c) | If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the | 62 | ||
Vessel will not be ready for delivery by the cancelling date they may notify the Buyers in | 63 | |||
writing stating the date when they anticipate that the Vessel will be ready for delivery and | 64 | |||
propose a new cancelling date. Upon receipt of such notification the Buyers shall have the | 65 | |||
option of either cancelling this Agreement in accordance with Clause 14 within 7 running | 66 | |||
days of receipt of the notice or of accepting the new date as the new cancelling date. If the | 67 | |||
Buyers have not declared their option within 7 running days of receipt of the Sellers' | 68 | |||
notification or if the Buyers accept the new date, the date proposed in the Sellers' notification | 69 | |||
shall be deemed to be the new cancelling date and shall be substituted for the cancelling | 70 | |||
date stipulated in line 61. | 71 | |||
If this Agreement is maintained with the new cancelling date all other terms and conditions | 72 | |||
hereof including those contained in Clauses 5 a) and 5 c) shall remain unaltered and in full | 73 | |||
force and effect. Cancellation or failure to cancel shall be entirely without prejudice to any | 74 | |||
claim for damages the Buyers may have under Clause 14 for the Vessel not being ready by | 75 | |||
the original cancelling date. | 76 | |||
d) | Should the Vessel become an actual, constructive or compromised total loss before delivery | 77 | ||
the deposit together with interest earned shall be released immediately to the Buyers | 78 | |||
whereafter this Agreement shall be null and void. | 79 | |||
6. | | 80 | ||
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b)** | (i) The Vessel is to be delivered without drydocking. However, the Buyers shall | 88 | ||
have the right at their expense to arrange for an underwater inspection by a diver approved | 89 | |||
by the Classification Society of the underwater parts of the Vessel prior to the delivery of the | 90 | |||
Vessel.Alternatively such Divers Inspection if at all possible to take place upon passing | ||||
Panama Outbound . | ||||
Actual cost for the Buyers account but the Sellers to allow the Buyers up to max. 6 hours of | ||||
daylight time to perform such inspection. Inspection if at all possible to take place at | ||||
Christobal where P.T. 1-2 days waiting time for Transit i.e there should be no lost time. | ||||
If such option is delared the Sellers to confirm in writing that the Vessel has not touched | ||||
bottom or caused any damage to underwater parts after such diver s inspection carried out | ||||
until place of delivery. | ||||
If any damage is found to Rudder, Propeller, Bottom or other Underwater Parts which | ||||
affects the Vessel s clean certificate of class, but which in the opinion of the Class | ||||
Surveyour present, does not affect the Vessel s ability to trade until at least next scheduled | ||||
Drydocking, then the Buyers and the Sellers shall agree an amount of compensation to be | ||||
deducted from the Purchase Price, and the Buyers shall accept delivery of the Vessel | ||||
including recommendations. | ||||
The Buyers have agreed to accept the Vessel with the conditions referred to in the DNV | ||||
Memo dated 18th July 2006, and such conditions shall therefore not be deemed grounds for | ||||
the Buyers to reject the Vessel or require remediation by the Sellers. | ||||
If the Sellers and the Buyers cannot agree a compensation figure within 1 (one) working | ||||
day, then the figure to apply is to be the average of quotes for estimated costs of Repairs | ||||
obtained from two (2) Reputable Shipyards at the port of delivery or nearby, one (1) to be | ||||
selected by the Buyers and one (1) to be selected by the Sellers. | ||||
If any damage is found to Rudder, Propeller, Bottom or other Underwater Parts which | ||||
affects the Vessel s Clean Certificate of Class and cannot be postponed until the next | ||||
Docking as decided by the Vessel s Classification Society, then usual Drydocking clause to | ||||
apply as per NSF 93. | ||||
The Sellers shall at their | ||||
cost make the Vessel available for such inspection. The extent of the inspection and the | 91 | |||
conditions under which it is performed shall be to the satisfaction of the Classification | 92 | |||
Society. If the conditions at the port of delivery are unsuitable for such inspection, the | 93 | |||
Sellers shall make the Vessel available at a suitable alternative place near to the delivery | 94 | |||
port. | 95 | |||
(ii) If the rudder, propeller, bottom or other underwater parts below the deepest load line | 96 | |||
are found broken, damaged or defective so as to affect the Vessel's class, then unless | 97 | |||
repairs can be carried out afloat to the satisfaction of the Classification Society, the Sellers | 98 | |||
shall arrange for the Vessel to be drydocked at their expense for inspection by the | 99 | |||
Classification Society of the Vessel's underwater parts below the deepest load line, the | 100 | |||
extent of the inspection being in accordance with the Classification Society's rules. If the | 101 | |||
rudder, propeller, bottom or other underwater parts below the deepest load line are found | 102 | |||
broken, damaged or defective so as to affect the Vessel's class, such defects shall be made | 103 | |||
good by the Sellers at their expense to the satisfaction of the Classification Society | 104 | |||
without condition/recommendation*. In such event the Sellers are to pay also for the cost of | 105 | |||
the underwater inspection and the Classification Society's attendance. | 106 | |||
(iii) If the Vessel is to be drydocked pursuant to Clause 6 b) (ii) and no suitable dry- | 107 | |||
docking facilities are available at the port of delivery, the Sellers shall take the Vessel | 108 | |||
to a port where suitable drydocking facilities are available, whether within or outside the | 109 | |||
delivery range as per Clause 5 b). Once drydocking has taken place the Sellers shall deliver | 110 | |||
the Vessel at a port within the delivery range as per Clause 5 b) which shall, for the | 111 |
purpose of this Clause, become the new port of delivery. In such event the cancelling date | 112 | |
provided for in Clause 5 b)) shall be extended by the additional time required for the | 113 | |
drydocking and extra steaming, but limited to a maximum of 14 running days. | 114 | |
c) | If the Vessel is drydocked pursuant to Clause 6 a) or 6 b) above | 115 |
(i) the Classification Society may require survey of the tailshaft system, the extent of | 116 | |
the survey being to the satisfaction of the Classification surveyor. If such survey is not | 117 | |
required by the Classification Society, the Buyers shall have the right to require the tailshaft | 118 | |
to be drawn and surveyed by the Classification Society, the extent of the survey being in | 119 | |
accordance with the Classification Society's rules for tailshaft survey and consistent with | 120 | |
the current stage of the Vessel's survey cycle. The Buyers shall declare whether they | 121 | |
require the tailshaft to be drawn and surveyed not later than by the completion of the | 122 | |
inspection by the Classification Society. The drawing and refitting of the tailshaft shall be | 123 | |
arranged by the Sellers. Should any parts of the tailshaft system be condemned or found | 124 | |
defective so as to affect the Vessel's class, those parts shall be renewed or made good at | 125 | |
the Sellers' expense to the satisfaction of the Classification Society without | 126 | |
condition/recommendation*. | 127 | |
(ii) the expenses relating to the survey of the tailshaft system shall be borne | 128 | |
by the Buyers unless the Classification Society requires such survey to be carried out, in | 129 | |
which case the Sellers shall pay these expenses. The Sellers shall also pay the expenses | 130 | |
if the Buyers require the survey and parts of the system are condemned or found defective | 131 | |
or broken so as to affect the Vessel's class*. | 132 | |
(iii) the expenses in connection with putting the Vessel in and taking her out of | 133 | |
drydock, including the drydock dues and the Classification Society's fees shall be paid by | 134 | |
the Sellers if the Classification Society issues any condition/recommendation* as a result | 135 | |
of the survey or if it requires survey of the tailshaft system. In all other cases the Buyers | 136 | |
shall pay the aforesaid expenses, dues and fees. | 137 | |
(iv) the Buyers' representative shall have the right to be present in the drydock, but | 138 | |
without interfering with the work or decisions of the Classification surveyor. | 139 | |
(v) the Buyers shall have the right to have the underwater parts of the Vessel | 140 | |
cleaned and painted at their risk and expense without interfering with the Sellers' or the | 141 | |
Classification surveyor's work, if any, and without affecting the Vessel's timely delivery. If, | 142 | |
however, the Buyers' work in drydock is still in progress when the Sellers have | 143 | |
completed the work which the Sellers are required to do, the additional docking time | 144 | |
needed to complete the Buyers' work shall be for the Buyers' risk and expense. In the event | 145 | |
that the Buyers' work requires such additional time, the Sellers may upon completion of the | 146 | |
Sellers' work tender Notice of Readiness for delivery whilst the Vessel is still in drydock | 147 | |
and the Buyers shall be obliged to take delivery in accordance with Clause 3, whether | 148 | |
the Vessel is in drydock or not and irrespective of Clause 5 b). | 149 | |
* | Notes, if any, in the surveyor's report which are accepted by the Classification Society | 150 |
without condition/recommendation are not to be taken into account. | 151 | |
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7. | Spares/bunkers, etc. | 154 |
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board and on | 155 | |
Shore and on order. All spare parts and spare equipment including spare tail-end shaft(s) | ||
and/or spare | 156 | |
propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of inspection used or | 157 | |
unused, whether on board or not shall become the Buyers' property, | 158 | |
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replace spare parts including spare tail - end shaft(s) and spare propeller(s)/propeller blade(s) which | 160 | |
are taken out of spare and used as replacement prior to delivery, but the replaced items shall be the | 161 | |
property of the Buyers. The radio installation and all safety wireless navigational equipment shall be | ||
included in the sale | 162 | |
without extra payment if they are the property of the Sellers. Unused stores and provisions shall be | 163 | |
included in the sale and be taken over by the Buyers without extra payment. | 164 | |
The Sellers have the right to take ashore crockery, plates, cutlery, linen and other articles bearing the | 165 | |
Sellers' flag or name, provided they replace same with similar unmarked items. Library, forms, etc., | 166 | |
exclusively for use in the Sellers' vessel(s), shall be excluded without compensation. Captain's, | 167 | |
Officers' and Crew's personal belongings including the slop chest are to be excluded from the sale, | 168 |
as well as the following additional items (including items on hire): - Gas Bottles and Videos. | 169 | |
The Buyers shall take over the remaining bunkers and unused lubricating oils in storage tanks and | 170 | |
sealed and unbroached drums and pay for same based on the Sellers current net invoice cost | ||
market price (excluding barging expenses) at the port and date | 171 | |
of delivery of the Vessel. | 172 | |
Payment under this Clause shall be made at the same time and place and in the same currency as | 173 | |
the Purchase Price. | 174 | |
8. | Documentation | 175 |
The place of closing: Oslo, Norway. | 176 | |
In exchange for payment of the Purchase Price the Sellers shall furnish the Buyers with delivery | 177 | |
documents, namely: | 178 | |
a) | Legal Bill of Sale in a form recordable in Norway to NIS Flag (the country in which the Buyers are | 179 |
to register the Vessel), warranting that the Vessel is free from all encumbrances, mortgages | 180 | |
and maritime liens or any other debts or claims whatsoever, duly notarially attested and | 181 | |
legalized by the consul of such country or other competent authority. | 182 | |
b) | Current Certificate of Ownership issued by the competent authorities of the flag state of | 183 |
the Vessel. | 184 | |
c) | Confirmation of Class issued within 72 hours prior to delivery. | 185 |
d) | Current Certificate issued by the competent authorities stating that the Vessel is free from | 186 |
registered encumbrances. | 187 | |
e) | Certificate of Deletion of the Vessel from the Vessel's registry or other official evidence of | 188 |
deletion appropriate to the Vessel's registry at the time of delivery, or, in the event that the | 189 | |
registry does not as a matter of practice issue such documentation immediately, a written | 190 | |
undertaking by the Sellers to effect deletion from the Vessel's registry forthwith and furnish a | 191 | |
Certificate or other official evidence of deletion to the Buyers promptly and latest within 4 | 192 | |
(four) weeks after the Purchase Price has been paid and the Vessel has been delivered. | 193 | |
f) | Any such additional documents as may reasonably be required by the competent authorities | 194 |
for the purpose of registering the Vessel, provided the Buyers notify the Sellers of any such | 195 | |
documents as soon as possible after the date of this Agreement. | 196 | |
At the time of delivery the Buyers and Sellers shall sign and deliver to each other a Protocol of | 197 | |
Delivery and Acceptance confirming the date and time of delivery of the Vessel from the Sellers to the | 198 | |
Buyers. | 199 | |
At the time of delivery the Sellers shall hand to the Buyers the classification certificate(s) as well as all | 200 | |
plans etc., which are on board the Vessel. Other certificates which are on board the Vessel shall also | 201 | |
be handed over to the Buyers unless the Sellers are required to retain same, in which case the | 202 | |
Buyers to have the right to take copies. Other technical documentation which may | 203 | |
be in the Sellers' possession shall be promptly forwarded to the Buyers at their expense, if they so | 204 | |
request. The Sellers may keep the Vessel's log books but the Buyers to have the right to take | 205 | |
copies of same. The Sellers will hand over at time of Delivery all Manuals/Plans and Drawings | 206 | |
onboard and ashore. Prior to delivery if required by the Buyers the Sellers are to provide Buyers | ||
with copies of Main Plan/Manuals/Drawings. As well as copy of all Safety Certificates including | ||
attachments (Form B, etc ) with cost of Copying/Forwarding for the Sellers account | ||
9. | Encumbrances | 207 |
The Sellers warrant that the Vessel, at the time of delivery, is free from all charters, encumbrances, | 208 | |
mortgages and maritime liens or any other debts whatsoever. The Sellers hereby undertake | 209 | |
to indemnify the Buyers against all consequences of claims made against the Vessel which have | 210 | |
been incurred prior to the time of delivery. | 211 | |
10. | Taxes, etc. | 212 |
Any taxes, fees and expenses in connection with the purchase and registration under the Buyers' flag | 213 | |
shall be for the Buyers' account, whereas similar charges in connection with the closing of the Sellers' | 214 |
register shall be for the Sellers' account. | 215 | ||
11. | Condition on delivery (See Clauses 19 and 20) | 216 | |
The Vessel with everything belonging to her shall be at the Sellers' risk and expense until she is | 217 | ||
delivered to the Buyers, but subject to the terms and conditions of this Agreement she shall be | 218 | ||
delivered and taken over as she was at the time of inspection, fair wear and tear excepted. | 219 | ||
However, the Vessel shall be delivered with her class maintained without condition/recommendation*, | |||
Other than the recommendation as per DNV memo of July 18th 2006. | 220 | ||
free of average damage affecting the Vessel's class, and with her classification certificates and | 221 | ||
national certificates, as well as all other certificates the Vessel had at the time of inspection, valid and | 222 | ||
unextended without condition/recommendation* by Class or the relevant authorities at the time of | 223 | ||
delivery. | 224 | ||
"Inspection" in this Clause 11, shall mean the Buyers' inspection according to Clause 4 a) or 4 b), if | 225 | ||
applicable, or the Buyers' inspection prior to the signing of this Agreement. If the Vessel is taken over | 226 | ||
without inspection, the date of this Agreement shall be the relevant date. | 227 | ||
* | Notes, if any, in the surveyor's report which are accepted by the Classification Society | 228 | |
without condition/recommendation are not to be taken into account. | 229 | ||
12. | Name/markings | 230 | |
Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel markings. | 231 | ||
13. | Buyers' default | 232 | |
Should the deposit not be paid in accordance with Clause 2, the Sellers have the right to cancel this | 233 | ||
Agreement, and they shall be entitled to claim compensation for their losses and for all expenses | 234 | ||
incurred together with interest. | 235 | ||
Should the Purchase Price not be paid in accordance with Clause 3, the Sellers have the right to | 236 | ||
cancel the Agreement, in which case the deposit together with interest earned shall be released to the | 237 | ||
Sellers. If the deposit does not cover their loss, the Sellers shall be entitled to claim further | 238 | ||
compensation for their losses and for all expenses incurred together with interest. | 239 | ||
14. | Sellers' default | 240 | |
Should the Sellers fail to give Notice of Readiness in accordance with Clause 5 a)or fail to be ready | 241 | ||
to validly complete a legal transfer by the date stipulated in line 61 the Buyers shall have | 242 | ||
the option of cancelling this Agreement provided always that the Sellers shall be granted a | 243 | ||
maximum of 3 banking days after Notice of Readiness has been given to make arrangements | 244 | ||
for the documentation set out in Clause 8. If after Notice of Readiness has been given but before | 245 | ||
the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and is not | 246 | ||
made physically ready again in every respect by the date stipulated in line 61 and new Notice of | 247 | ||
Readiness given, the Buyers shall retain their option to cancel. In the event that the Buyers elect | 248 | ||
to cancel this Agreement the deposit together with interest earned shall be released to them | 249 | ||
immediately. | 250 | ||
Should the Sellers fail to give Notice of Readiness by the date stipulated in line 61 or fail to be ready | 251 | ||
to validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers for | 252 | ||
their loss and for all expenses together with interest if their failure is due to proven | 253 | ||
negligence and whether or not the Buyers cancel this Agreement. | 254 | ||
15. | Buyers' representatives | 255 | |
After this Agreement has been signed by both parties and the deposit has been lodged, the Buyers | 256 | ||
have the right to place two representatives on board the Vessel at their sole risk and expense | 257 | ||
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These representatives are on board for the purpose of familiarisation and in the capacity of | 259 | ||
observers only, and they shall not interfere in any respect with the operation of the Vessel. The | 260 | ||
Buyers' representatives shall sign the Sellers' letter of indemnity prior to their embarkation. | 261 | ||
16. | Arbitration | 262 | |
a)* | This Agreement shall be governed by and construed in accordance with English law and | 263 | |
any dispute arising out of this Agreement shall be referred to arbitration in London in | 264 | ||
accordance with the Arbitration Acts 1950 and 1979 or any statutory modification or | 265 | ||
re-enactment thereof for the time being in force, one arbitrator being appointed by each | 266 | ||
party. On the receipt by one party of the nomination in writing of the other party's arbitrator, | 267 | ||
that party shall appoint their arbitrator within fourteen days, failing which the decision of the | 268 | ||
single arbitrator appointed shall apply. If two arbitrators properly appointed shall not agree | 269 | ||
they shall appoint an umpire whose decision shall be final. | 270 | ||
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17. | To the best of the Sellers knowledge, the Vessel is not boycotted by the Arab Boycott League, | ||
Damascus. | |||
18. | This Sale/Negotiation shall be kept strictly private and confidential by all parties concerned. | ||
19. | The Vessel to be delivered with next special survey due not earlier than 1 May, 2007. | ||
20. | The Vessel to be delivered with all Cargo Tanks Cleaned and free for Man entry. The Vessel to be | ||
delivered free of slops. | |||
21. | Cortes Vessel Limited Partnership by its general partner Cortes Vessel, Inc. |
The Sellers: | The Buyers: |
____________ | ___________ |
Name: | Name: |
Title: | Title: |
This document is a computer generated SALEFORM 1993 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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