Exhibit 10.40
FIRST ORIGINAL
MEMORANDUM OF AGREEMENT
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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.
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Dated 7th May 2001
Scanobo Spirit Shipping Corp., Monrovia
hereinafter called the Sellers, have agreed to sell, and
General Maritime Corporation, a ▇▇▇▇▇▇▇▇ Islands Corporation
hereinafter called the Buyers, have agreed to buy
Name SCF Spirit
Classification Society/Class: DNV BC HC/E or Tanker for oil ESP PP3 EO
Built: 1992 By: Hyundai Heavy Industries, Ulsan, South Korea
Flag: Liberian Place of Registration: Monrovia, Liberia
Call Sign: EL0C5 Grt/Nrt: 57082/25449
Register Number: 9516
hereinafter called the Vessel, on the following terms and conditions:
Definitions
"Banking days" are days on which banks are open both in the country of the
currency stipulated for the Purchase Price in Clause 1 and in the place of
closing stipulated in Clause 8.
"In writing" or "written" means a letter handed over from the Sellers to the
Buyers or vice versa, a telefax and other modern form of written communication.
"Classification Society" or "Class" means the Society referred to in line 4.
1. Purchase Price USD 31,210,000 (United States Dollars thirty one million ,two
hundred and ten thousand)
2. Deposit
As security for the correct fulfilment of this Agreement the Buyers shall pay a
deposit of 10 % (ten per cent) of the Purchase Price within 3 (Three) banking
days from the date of this Agreement being signed on the fax and all subjects
lifted, whichever the later. This deposit shall be placed with Sellers New York
Bank
and held by them in a joint account for the Sellers and the Buyers, to be
released in accordance with joint written instructions of the Sellers and the
Buyers. Interest, to be credited to the Buyers. Any fee charged for holding the
said deposit shall be borne equally by the Sellers and the Buyers.
3. Payment
The said Purchase Price shall be paid in exchange for the delivery documents
reasonably required by the buyers in full free of bank charges to Sellers New
York Bank
on delivery of the Vessel, but not later than 3 banking days after the Vessel is
in every respect physically ready for delivery in accordance with the terms and
conditions of this Agreement and Notice of Readiness has been given in
accordance with Clause 5. The day on which the notice of readiness is given
shall not be included for the purpose of counting the number of days in the
preceeding sentence.
4. Inspections
a)* The Buyers have inspected and accepted the Vessel's classification
records. The Buyers have also inspected the Vessel at/in Baltimore in
March 2001 and have accepted the Vessel following this inspection and the
sale is outright and definite, subject only to the terms and conditions of
this Agreement.
* 4 a) and 4b) are alternatives; delete whichever is not applicable. In the
absence of deletions, alternative 4a) to apply.
5. Notices, time and place of delivery
a) The Sellers shall keep the Buyers well informed of the Vessel's itinerary
and shall provide the Buyers with 15, 7, 5, and 3 days approximate notice
of the estimated time of arrival at the intended place of underwater
inspection/delivery. When the Vessel is at the place of delivery and in
every respect ready for delivery in accordance with this Agreement,
including documentation usually required for registration the Sellers
shall give the Buyers a written Notice of Readiness for delivery by
facsimile and e-mail.
b) The Vessel shall be delivered and taken over charter and cargo free safely
afloat at one accessible berth at/in one safe port in the United States
East Coast / United States Gulf / Uk or Cont/Med not east of Greece range
(which port must be suitable for and where a class approved diver and
surveyor are located. It is expected that such port will be the next
discharge port (or other mutually agreed place) after the Buyers IPO is
completed in the Sellers' option.
Expected time of delivery:
Date of cancelling (see Clauses 5 c), 6 b) (iii) and 14): 45 Days after
the Buyers IPO completed as per clause 21 herein, in Buyers option
c) If the Sellers anticipate that, notwithstanding the exercise of due
diligence by them, the Vessel will not be ready for delivery by the
cancelling date they may notify the Buyers in writing stating the date
when they anticipate that the Vessel will be ready for delivery and
propose a new cancelling date. Upon receipt of such notification the
Buyers shall have the option of either cancelling this Agreement in
accordance with Clause 14 within 7 running days of receipt of the notice
or of accepting the new date as the new cancelling date. If the Buyers
have not declared their option within 7 running days of receipt of the
Sellers' notification or if the Buyers accept the new date, the date
proposed in the Sellers' notification shall be deemed to be the new
cancelling date and shall be substituted for the cancelling date
stipulated in line 61.
If this Agreement is maintained with the new cancelling date all other
terms and conditions
hereof including those contained in Clauses 5 a) and 5 c) shall remain
unaltered and in full force and effect. Cancellation or failure to cancel
shall be entirely without prejudice to any claim for damages the Buyers
may have under Clause 14 for the Vessel not being ready by the original
cancelling date.
d) Should the Vessel become an actual, constructive or compromised total loss
before delivery the deposit together with interest earned shall be
released immediately to the Buyers whereafter this Agreement shall be null
and void.
6. Drydocking/Divers Inspection See Clause 17
7. Spares/bunkers, etc.
The Sellers shall deliver the Vessel to the Buyers with everything belonging to
her on board and on shore and on order. All spare parts and spare equipment
including spare tail-end shaft(s) and/or spare propeller(s)/propeller blade(s),
if any, belonging to the Vessel at the time of inspection used or unused,
whether on board or not shall become the Buyers' property. Forwarding charges,
if any, shall be for the Buyers' account. The Sellers are not required to
replace spare parts including spare tail-end shaft(s) and spare
propeller(s)/propeller blade(s) which are taken out of spare and used as
replacement prior to delivery, but the replaced items shall be the property of
the Buyers. The radio installation and navigational equipment shall be included
in the sale without extra payment. Unused stores and provisions and publications
shall be included in the sale and be taken over by the Buyers without extra
payment.
The Sellers have the right to take ashore crockery, plates, cutlery, linen and
other articles bearing the Sellers' flag or name, provided they replace same
with similar unmarked items. Library, forms, etc., exclusively for use in the
Sellers' vessel(s), shall be excluded without compensation. Captain's, Officers'
and Crew's personal belongings including the slop chest are to be excluded from
the sale, as well as the following additional items (including items on hire):
Unitor Gas Bottles
Videotol Library
The Buyers shall take over the remaining bunkers and unused lubricating oils in
storage tanks and unbroached sealed drums or storage tanks and pay the sellers
net purchase price including discounts (excluding barging expenses).
Payment under this Clause shall be made at the same time and place and in the
same currency as the Purchase Price. The Sellers shall provide copies of such
invoices together with the proposed documents as provided in clause 3
8. Documentation
The place of closing: New York
In exchange for payment of the Purchase Price the Sellers shall furnish the
Buyers with delivery documents, namely: See clause 22
At the time of delivery the Sellers shall hand to the Buyers the classification
certificate(s) as well as all plans etc., which are on board the Vessel. Other
certificates which are on board the Vessel shall also be handed over to the
Buyers unless the Sellers are required to retain same, in which case the Buyers
to have the right to take copies. Other technical documentation which may be in
the Sellers' possession shall be promptly forwarded to the Buyers at their
expense, if they so request. The Sellers may keep the Vessel's log books but the
Buyers to have the right to take Copies of same.
9. Encumbrances
The Sellers warrant that the Vessel, at the time of delivery, is free from all
charters, encumbrances, mortgages and maritime liens or any other debts
whatsoever. The Sellers hereby undertake to indemnify the Buyers against all
consequences of claims made against the Vessel which have been incurred prior to
the time of delivery.
10. Taxes, etc.
Any taxes, fees and expenses in connection with the purchase and registration
under the Buyers' flag shall be for the Buyers' account, whereas similar charges
in connection with the closing of the Sellers' register shall be for the
Sellers' account.
11. Condition on delivery See clause 18
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 excepted
12. Name/markings
Upon delivery the Buyers undertake to change the name of the Vessel and alter
funnel markings.
13. Buyers' default
Should the deposit not be paid in accordance with Clause 2, the Sellers have the
right to cancel this Agreement, and they shall be entitled to claim compensation
for their losses and for all expenses incurred together with interest. Should
the Purchase Price not be paid in accordance with Clause 3, the Sellers have the
right to cancel the Agreement, in which case the deposit together with interest
earned shall be released to the Sellers. If the deposit does not cover their
loss, the Sellers shall be entitled to claim further compensation for their
losses and for all expenses incurred together with interest.
14. Sellers' default
Should the Sellers fail to give Notice of Readiness in accordance with Clause 5
a) or fail to be ready to validly complete a legal transfer by the date
stipulated in line 61 the Buyers shall have the option of cancelling this
Agreement provided always that the Sellers shall be granted a maximum of 3
banking days after Notice of Readiness has been given to make arrangements for
the documentation set out in Clause 8. If after Notice of Readiness has been
given but before the Buyers have taken delivery, the Vessel ceases to be
physically ready for delivery and is not made physically ready again in every
respect by the date stipulated in line 61 and new Notice of Readiness given, the
Buyers shall retain their option to cancel. In the event that the Buyers elect
to cancel this Agreement the deposit together with interest earned shall be
released to them immediately. Should the Sellers fail to give Notice of
Readiness by the date stipulated in line 61 or fail to be ready to validly
complete a legal transfer as aforesaid they shall make due compensation to the
Buyers for their loss and for all expenses together with interest if their
failure is due to proven negligence and whether or not the Buyers cancel this
Agreement.
15. Buyers' representatives
After this Agreement has been signed by both parties and the deposit has been
lodged, the Buyers have the right to place two representatives on board the
Vessel at their sole risk and expense upon arrival at to be agreed on or about
to be agreed These representatives are on board for the purpose of
familiarisation and in the capacity of observers only, and they shall not
interfere in any respect with the operation of the Vessel. The Buyers'
representatives shall sign the Sellers' letter of indemnity prior to their
embarkation.
16. Arbitration
a)* This Agreement shall be governed by and construed in accordance with
English law and any dispute arising out of this Agreement shall be
referred to arbitration in London in accordance with the Arbitration Acts
1950 and 1979 or any statutory modification or re-enactment thereof for
the time being in force, one arbitrator being appointed by each party. On
the receipt by one party of the nomination in writing of the other party's
arbitrator, that party shall appoint their arbitrator within fourteen
days, failing which the decision of the single arbitrator appointed shall
apply. If two arbitrators properly appointed shall not agree
they shall appoint an umpire whose decision shall be final.
* 16 a), 16 b) and 16 c) are alternatives; delete whichever is not
applicable. In the absence of deletions, alternative 16 a) to apply.
Clauses 17-22 inclusive attached hereto are to form an integral part of
this agreement
This document is a computer generated copy of "SALEFORM 1993", printed by
authority of the Norwegian Shipbrokers' Association, using software which is the
copyright of Strategic Software Ltd. Any insertion or deletion to the form must
be clearly visible. In the event of any modification made to the preprinted text
of this document, the original document shall apply. The Norwegian Shipbrokers'
Association and Strategic Software Ltd. assume no responsibility for any loss or
damage caused as a result of discrepancies between the original approved
document and this document.
ADDITIONAL CLAUSES TO M/V "SCF SPIRIT"
MOA DATED 7TH MAY 2001
Clause 17
a) No Drydocking. Prior to delivery and at the port of delivery, the Buyers have
the right to arrange at their expense for the relevant class approved diver(s)
to inspect the vessels bottom and other underwater parts below the summer load
line, using video equipment with a class surveyor and Sellers and Buyers
representatives in attendance on board the Vessel. If the conditions at the port
of delivery are unsuitable to the class surveyor for such inspection the Sellers
shall make the Vessel available at a suitable alternative place near to delivery
port to the satisfaction of the divers and class surveyor. Cancelling date to be
extended by the amount in days of any delay caused thereby and repositioning,
including a laden voyage.
b) In the event that the divers locate damage or defects which affects the
Vessels clean condition of class and requires her to be drydocked promptly for
repair, or in the event that the class survey finds that the vessel must be
drydocked for further examination, then the Sellers shall arrange for the Vessel
to be drydocked in accordance with clause 6 of NSF 93 and the Vessel shall
proceed to a drydock, in ballast within the delivery range. Cancelling date to
be extended by the amount in days of any delay caused thereby and repositioning,
including a laden voyage, Owners to be permitted to drydock UK Cont Med in their
option and are not obliged to drydock in the USA
c) In the event that the Vessel is drydocked under clause 6 b) and c) (which
will be reinstated) of NSF 93, then the buyers shall have the right to attend at
their own risk and expense and without interference to the Sellers works and to
be permitted to paint the Vessel and to carry out other minor works whilst ship
is drydocked irrespective of who pays for the drydocking costs. Such painting or
any works ordered by the Buyer shall always be for the Buyers costs but shall be
coordinated not to interfere with the Sellers works and never to delay Sellers
schedule or the delivery of the Vessel. Any Buyers work is subject to the
written permission of sellers, which not to be unreasonably withheld.
d) In the event that the Sellers works are completed prior to the Buyers
completing their painting/other works, then the Sellers shall have the right to
tender notice of readiness for delivery whilst the Vessel is in drydock provided
that the Vessel is in all other respects ready for delivery or would be but for
the Buyers works. In the event that Buyers take delivery of the Vessel in the
drydock then the cost of docking and undocking the vessel are to remain for
Sellers account and the buyers would be responsible for any drydock dues from
the time of the delivery until the vessel is undocked. If Sellers works are
completed prior to Buyers works, if any but the Buyers works are completed prior
to the expiration of the 3 days Notice of Readiness, then it shall be the
Sellers responsibility to shift the Vessel from the drydock to the place of the
delivery but only provided this can be completed prior to the expiry of the 3
day period.
e) If the divers inspection reveals any breakdown, damage or defect to the
rudder, propeller, bottom or other underwater parts of the vessel below the
deepest loadline which would impose a Class condition or recommendation, but is
deferred by Class until
ADDITIONAL CLAUSES TO M/V "SCF SPIRIT"
MOA DATED 7TH MAY 2001
the next scheduled dry docking, the purchase price of the Vessel will be reduced
by an amount equal to the estimated cost to repair such a breakdown, damage or
defect to the satisfaction of Class. The seller and the Buyer will each obtain a
cost estimate from a reputable ship repair yard and from a mutually agreed third
yard within the delivery range and the average cost of the three yards for the
direct cost of repair shall be chosen.
f)
1) If such repairs are deferred by Class until after delivery of the vessel
under the MOA but prior to the Vessels next scheduled drydocking the buyers will
have the option to:-
2) Accept the vessel with such defects together with a reduction of the purchase
price predicated on an estimation to be obtained in accordance with the
preceding paragraph, provided however that if the Vessel is required to be
drydocked the estimate will include the cost of such drydocking; or defer
acceptance of the vessel until repairs are completed by the seller to the
satisfaction of class.
Class shall be the final and sole arbiter of whether underwater damage, if any
affects the vessel's class or indeed necessitates prompt drydocking/repair.
3) If the buyers accept delivery of the vessel in drydock, the sellers shall
deliver to the buyers at the time of closing evidence that the drydock, shipyard
or other similar facility has waived any right to detain, arrest of attach the
Vessel for any financial obligation of the sellers to such drydock, shipyard or
other similar facility.
Clause 18
The class and national and international trading certificates including Solas,
IMS, and IMO are to be clean, valid and unextended for at least 6 months from
the date of delivery of the Vessel, and any continuous survey cycles are to be
up to date without extensions, recommendations or exceptions by Class at the
time of delivery.
At the time of delivery, the vessel will be in Class without any recommendation
or notation affecting class.
The vessel will be in such a condition that neither the port state nor flag
state authorities at the port where the vessel shall be delivered to the Buyers
shall detain the Vessel from departing by reason of any physical deficiencies.
Clause 19
Buyers are to employ crew and officers including Master, First Mate, and Chief
Engineer for a minimum of two years from delivery on such terms and conditions
mutually agreed by Buyers and Unicom Cyprus based on separate crew management
agreement. Unicom are to have the option to terminate the crew management
agreement, ship by ship on giving three months notice for each ship, which may
be given not less than 12 months
ADDITIONAL CLAUSES TO M/V "SCF SPIRIT"
MOA DATED 7TH MAY 2001
from delivery.
Clause 20
Vessel is not obliged to deliver free of slops.
Clause 21
This Memorandum of Agreement is subject to the buyer completing an initial
public offering of its Common Stock, par value US$.01 per share not later than
15th June, 2001
Clause 22
SCHEDULE OF CLOSING DOCUMENTS
DOCUMENTS TO BE DELIVERED BY THE SELLER:
(ii) ▇▇▇▇ of Sale (four executed original counterparts) transferring title
of the Vessel to the Buyers free from all encumbrances, maritime liens, or any
other debts and claims, duly acknowledged and authenticated as required by
______________law.
2) Commercial Invoice describing the Vessel, the date of the MOA and
the price, excluding bunkers and lubricants.
3) Bunkers Invoice with copies of supports.
4) Resolutions of each of the Board of Directors and of the
shareholders certified by the corporate Secretary and authenticated
by a Notary Public:
(i) approving and ratifying the execution of the Memorandum of
Agreement to sell the Vessel to the Buyer, and
(ii) authorizing the Seller's offices or attorneys-in-fact to
execute and deliver the (a) ▇▇▇▇ of Sale, (b) the Protocol of
Delivery and (c) any other delivery documents required under
the Memorandum of Agreement or described in this schedule, or
otherwise necessary or convenient for the purpose of
concluding this sale.
5) Power of Attorney duly authenticated by a Notary Public
6) Copies certified by the corporate Secretary of Articles of
Incorporation and By-laws.
7) Certificate from the Vessel's classification society dated not more
than two (2) banking days prior to the expected date of delivery,
confirming the vessel is in Class without outstanding
recommendations, exceptions or notations as to Class.
12) Certificate of Corporate Good Standing of the Seller.
ADDITIONAL CLAUSES TO M/V "SCF SPIRIT"
MOA DATED 7TH MAY 2001
13) Permission for Sale of Liberian Vessel from the Liberian Deputy
Commissioner of Maritime Affairs in New York dated within the
statutory validity date.
14) Certificate of Ownership and Encumbrance from the Liberian Deputy
Commissioner of Maritime Affairs in New York dated on the delivery
date confirming that the vessel is free of recorded mortgages, liens
or other encumbrances.
15) Seller's confirmation that, to the best of their knowledge the
Vessel:
(i) Has not sustained grounding damage to her underwater parts
since her most recent drydocking.
(ii) Is not blacklisted by the United States of America or any
other government, state, country or political sub-division
thereof.
16) Protocol of Delivery and Acceptance.
17) If the vessel is not re-registered in Liberia, Letter of undertaking
to furnish Deletion Certificate to the Buyers within 30 days after
the vessels delivery from the Seller.
DOCUMENTS TO BE DELIVERED BY THE BUYER:
1) Resolutions of the Board of Directors certified by the corporate
Secretary and authenticated by a Notary Public:
(i) Approving and ratifying the execution of the Memorandum of
Agreement to purchase the Vessel from the Seller, and
(ii) Authorizing an Officer or any attorney-in-fact to accept the
▇▇▇▇ of Sale and execute the (a) Protocol of Delivery and
Acceptance, (b) instructions to the Seller's bank to pay the
ten percent contract deposit to the order of the Seller and
(c) any other delivery documents required pursuant to the MOA
or described in this schedule or otherwise necessary or
convenient to conclude the purchase of the Vessel.; and
(iii) Authorising an Officer or any attorney-in-fact to documents
the Vessel under the laws of the Republic
of_____________________.
2) Powers of Attorney duly authenticated by a Notary Public.
ADDITIONAL CLAUSES TO M/V "SCF SPIRIT"
MOA DATED 7TH MAY 2001
3) Instructions to the Seller's bank authorising the release of the ten
percent deposit to the order of the Seller's and any accrued
interest to the order of the Buyer.
4) Payment confirmation of balance of (i) 90% purchase price and (ii)
bunkers and lubricants, in a manner to be mutually agreed.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
AS AGENTS
FIONA MARITIME AGENCIES LTD.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
For the Buyers For the Sellers
General Maritime Corporation Scanobo Spirit Shipping Corp.,
A ▇▇▇▇▇▇▇▇ Islands Corporation Monrovia