Memorandum of Agreement for Sale and Purchase of the Vessel 'SEMINOLE PRINCESS' between Fairfax Shipping Corp. and Adirondack Shipping LLC

Contract Categories: Business Finance › Purchase Agreements
Summary

This agreement, dated January 24, 2007, is between Fairfax Shipping Corp. (the seller) and Adirondack Shipping LLC (the buyer), both registered in the Marshall Islands. It sets out the terms for the sale and purchase of the vessel 'SEMINOLE PRINCESS' for $45 million as part of a sale/charter-back arrangement. The contract details inspection rights, payment terms, delivery conditions, and procedures for handling delays or defects. The agreement is binding once inspections are completed and accepted, with specific provisions for cancellation and remedies if delivery is delayed or the vessel is not as agreed.

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EX-10.1 8 ex10-1.htm MOA ON SALE OF THE SEMINOLE PRINCESS MOA on sale of the SEMINOLE PRINCESS
                                                                                   EXHIBIT 10.1
 


Norwegian Shipbrokers' Association's Memo-
random of Agreement for sale and purchase of
ships. Adopted by the Baltic and International
Maritime Council (BIMCO) in 1956.
Code-name
SALEFORM 1993
Revised 1968,1983 and 1986/87.

 
MEMORANDUM OF AGREEMENT
Dated:  as of January 24, 2007
   
Fairfax Shipping Corp., Majuro, Marshall Islands
hereinafter called the Sellers, have agreed to sell, and
1
         
Adirondack Shipping LLC, Majuro, Marshall Islands
hereinafter called the Buyers, have agreed to buy
2
   
Name:
“SEMINOLE PRINCESS”
3
 
Classification Society/Class: Lloyd’s Register
    
4
Built:       1997                   By:       Dalian S.B. Heavy Industry Co., Ltd., China
5
Flag:  Phil/Pan                    Place of Registration:  Manila/Panama
  
6
Call Sign:  DYPA/3EIE6                       Grt/Nrt:          19,354/9,614
7
Register Number:    MNLA000678/35009-PEXT
8
   
hereinafter called the Vessel, on the following terms and conditions:
9
   
Definitions
10
   
“Charter” as defined in Clause 17
11
   
“Banking Days” as defined in the Charter.
12
   
“In writing” or “written” means a letter handed over from the Sellers to the Buyers or vice versa,
13
a registered letter, 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 $45 Million En Bloc for the Vessel and the Laguna Belle as part of sale/charter back Arrangement. See Clause 17.
16
         
2. Deposit
17
       
18
       
21
       
22
       
23
3. Payment
25
   
The said Purchase Price shall be paid in full free of bank charges to Sellers, less: (i) Sellers’ Credit per Clause 32 of the Charter; and (ii) the balance of the 2% fee per clause 49(1)(b) of the Charter
26
         
4. Inspections
30
   
a)* The Buyers have inspected and accepted the Vessel’s classification records. The Buyers
31
have also inspected the Vessel at/in                                                                                                      
32
and have accepted the Vessel following this inspection and the sale is outright and definite,
33
and subject only to the terms and conditions of this Agreement.
34
b)* The Buyers shall have the right to inspect the Vessel’s classification records and declare                  
35
whether same are accepted or not within                                                                                               
36
The Sellers shall provide for the inspection of the Vessel at/in
37
The Buyers shall undertake the inspection without undue delay to the Vessel. Should the
38
Buyers cause undue delay they shall compensate the Sellers for the losses thereby incurred.
39
The Buyers shall inspect the vessel without opening up and without cost to Sellers.
40
During the inspection, the Vessel’s deck and engine logs shall be made available for
41
examination by the Buyers. If the Vessel is accepted after such inspection, the sale shall
42
become outright and definite, subject only to the terms and conditions of this Agreement,
43
provided the Sellers receive written notice of acceptance from the Buyers within 72 hours
44
after completion of such inspection.
45
Should notice of acceptance of the Vessel’s classification records and of the Vessel not be
 
46
received by the Sellers as aforesaid, the deposit together with interest earned shall be
47
released immediately to the Buyers, whereafter this Agreement shall be null and void.
48
         
 
50
5. Notices, time and place of delivery
  
   
a) The Vessel will be delivered on a mutually convenient agreed date as she is at such port or place as the Vessel may be located on the agreed date.
51
   
a) The Sellers shall keep the Buyers well informed of the Vessel’s itinerary and shall
52
provide the Buyers with , , and days notice of the estimated time of arrival at the
53
intended place of underwater inspection/delivery. When the Vessel is at the place                          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 at a safe and accessible berth or anchorage at/in
57
   
 
58
Expected time of delivery:
60
   
Date of cancelling (see Clause 5c) and 14): February 1, 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
66
twenty-four hours 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 twenty-four hours 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
   
 
78
 
79
6. Drydocking/Divers Inspection
80
   
a)** The Sellers shall place the Vessel in drydock at the port of delivery for inspection by the
81
Classification Society of the Vessel’s underwater parts below the deepest load line, the
82
extent of the inspection being in accordance with the Classification Society’s rules. If the
83
rudder, propeller, bottom or other underwater parts below the deepest load line are found
84
broken, damaged or defective so as to affect the Vessel’s class, such defects shall be made
85
good at the Sellers’ expense to the satisfaction of the Classification Society without
86
condition/recommendation.
87
   
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 prior to the delivery of the Vessel. the Sellers shall at their
90
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 the 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 of 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
   
 
153
7. Spares/bunkers, etc.
154
   
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board and on shore.
155
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 unused,
157
whether on board or not shall become the Buyers’ property, but spares on order are to be
158
excluded. Forwarding charges, if any, shall be for the Buyers’ account. The Sellers are not required to
159
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 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 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:
  
                                                                                                                                      & #160;                                             
169
   
   
The Buyers shall take over the remaining bunkers and unused lubricating oils in storage tanks and
170
sealed drums and pay the current net market price (excluding barging expenses) at the port and date
171
of delivery of the Vessel at no extra cost.
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  See Addendum No. 1
175
         
The place of closing: New York.
176
         
In exchange for payment of the Purchase Price the Sellers shall furnish the Buyers at the Closing with the following documents:
178
   
         
a) Legal Bill of Sale in a form recordable in Panama (the country in which the Buyers are to register the Vessel), warranting that the Vessel is free from all encumbrances, mortgages and maritime liens or any other debts or claims whatsoever, duly notarially attested and legalized by the consul of such country or other competent authority.
  
         
b) Current Certificate of Ownership issued by the competent authorities of the flag state of the Vessel.
 
       
184
c) Confirmation of Class issued within 72 hours prior to delivery.
  
         
d) Current Certificate issued by the competent authorities stating that the Vessel is free from registered encumbrances.
  
         
e) 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.
  
 
        
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 make available 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 made available 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.
206
         
         
9. Encumbrances
207
         
The Sellers warrant that the Vessel, at the time of delivery, is free from all mortgages.
  
         
10. Taxes, etc.
212
         
Any taxes, fees and expenses in connection with the purchase and registration under the Buyers’ flag, and in
213
connection with the closing of the Sellers’ register shall be for Buyers’ account.
214
         
11. Condition on delivery
216
         
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 Agreement she shall be delivered and taken over as she was at the time of inspection, fair wear and tear expected. However, the Vessel shall be delivered with her class maintained free of conditions and recommendations (other than those for which the time presented by class for curing the condition of recommendation has not passed), with certificates valid and up to date.
         
12. Name/markings
230
         
Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel markings.
This shall be completed within seven (7) days of delivery.
231
   
         
13. Buyers’ default
232
         
 
        
16. Arbitration
  
         
a)* This Agreement shall be governed by and construed in accordance with English law
263
and any dispute arising our 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
         
b)* This Agreement shall be governed by and construed in accordance with Title 9 of the
271
United States Code and the Law of the State of New York and should any dispute arise out of
272
this Agreement, the matter in dispute shall be referred to three persons at New York, one to be appointed by each of the parties hereto, and the third shall be appointed by the Chair at the time of the Arbitration Committee of the Maritime Law Association of the United States. The third arbitrator shall serve as chair of the panel and shall be a practicing maritime attorney. The decision of the arbitrators or that of any two of them shall be final, and for purpose of enforcing any award, judgment may be entered thereon by any court having jurisdiction. The proceedings shall be conducted in accordance with the rules of the Society of Maritime Arbitrators, Inc. New York.
273
   
   
 
278
c)* Any dispute arising out of this Agreement shall be referred to arbitration at
279
                       , subject to the procedures applicable there.
280
The laws of                              shall govern this Agreement.
281
         
         
17. This MOA is one element of the sale/charter back agreement, which includes a Bareboat Charter Party
dated as of January 24, 2007. Simultaneously upon delivery of the Vessel to the Buyers, the Vessel will be delivered to the Sellers/Charterers under the Bareboat Charter Party dated as of January 24, 2007 (the “Charter”). The Vessel will thus remain in the control and responsibility of the Sellers/Charterers under the Charter, at all times before and after delivery to the Buyers hereunder and the Buyers shall in no way be responsible for any costs, expenses, documents or delays to the Vessel arising out of the delivery hereunder. Any provisions, spares and bunkers shall remain the property and in the possession of the Sellers.
  
 



FOR THE SELLERS:
FOR THE BUYERS:
   
   
Signed:         /s/ Christophil B. Costas                    
Signed:           /s/ Carol Ann Malinowski             
   
Name:               Christophil B. Costas                    
Name:           /s/ Carol Ann Malinowski              
   
Title:                Attorney-In-Fact                            
Title:             Secretary                                        
   
Date:             as of January 24, 2007                     
Date:             as of January 24, 2007                   


 






ADDENDUM NO. 1


To Memorandum of Agreement dated as of January 24, 2007

made by and between Fairfax Shipping Corp., as Sellers, and Adirondack Shipping LLC, as Buyers, of the M/V Seminole Princess.

Following additional documents to be presented by Sellers to Buyers upon delivery of the Vessel:

1. Sellers’ board resolutions

2. Sellers’ Shareholders’ resolutions ratifying board resolutions

3. Sellers’ Power of Attorney

4. Sellers’ Certificate of Goodstanding

5. Secretary’s Certificate stating Sellers’ directors/officers/shareholders

6. Commercial invoice

 
7.
Such other documents, terms and conditions as set forth in the Charter which are applicable to the transaction under this MOA

Buyers shall deliver the following documents to Sellers upon delivery of the Vessel

1. Power of Attorney authorizing individuals to execute and deliver all documents

 
2.
Certificate of Resolutions approving the purchase of the Vessel from Sellers and authorizing and appointing individuals to act and authorizing issuance of Power of Attorney.





  /s/ Christophil B. Costas    
                                
Fairfax Shipping Corp.
  /s/ Carol Ann Malinowski 
                                  
Adirondack Shipping LLC