Exhibit 2.12
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Norwegian Shipbrokers' Association's Memo-
randum 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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MEMORANDUM OF AGREEMENT
Dated: April 26, 2001
Blystad Shipholding Inc., Liberia hereinafter called the Sellers, have agreed to
sell, and
General Maritime Ship Holdings Ltd. a Xxxxxxxx Islands Corporation (to be
renamed General Maritime Corporation hereinafter called the Buyers, have agreed
to buy
Name: MT Anella
Classification Society/Class: Det Norske Veritas
Built: 1991 By: Koyo, Japan
Flag: Liberia Place of Registration: Monrovia
Call Sign: XXXX0 Xxx/Xxx: 00, 000 XXX
Register Number: 17363
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" mean the Society referred to in Line 4.
"Shares" to mean shares of common stock of the Buyers.
1. Purchase Price Repayment of indebtedness of the Vessel of USD18,000,000
("Debt") and a number of shares as determined under Section 2.02 of the Master
Vessel Contribution Agreement between Buyers and Sellers to which this
Memorandum of Agreement is attached (the "Master Vessel Contribution
Agreement"), using USD27,500,000 as the appraised value of the vessel (the
"Appraised Value").
2. Deposit
As security for the correct fulfilment of this Agreement the Buyers shall pay a
deposit of 10% (ten per cent) of the Appraised Value in cash within 3 (three)
banking days from the date of this Agreement being signed by fax and all
subjects lifted, whichever is 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, if any, 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 full in cash free of bank charges in
the amount of the Debt to Sellers account at Christiania Bank New York and the
balance to be paid in shares in exchange for the delivery documents required by
Buyers. Payment method is described in the Master Vessel Contribution Agreement.
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
This contract is a computer generated copy of the SALEFORM 1993 form, printed
under license from the Norwegian Shipbrokers' Association, using the BIMCO
Charter Party Editor. Any addition or deletion to the form must be clearly
visible. In event of any modification being made to the preprinted text of this
document, which is not clearly visible, the original document recommended by
BIMCO shall apply. The Norwegian Shipbrokers' Association and BIMCO assume no
responsibility for any loss or damage caused as a result of discrepancies
between the Original document and this document.
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 San Francisco on
May 1, 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.
* 4a) 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 20, 10, 7, and 5 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 physically ready for delivery in accordance with this Agreement, the
Sellers shall give the Buyers a written Notice of Readiness for delivery.
b) The Vessel shall be delivered and taken over charterfree safely afloat at a
safe and accessible berth or anchorage in the range of Med not east of Greece,
UK/Cont, USG, Caribs, USAC, EC Canada, WC Canada, USWC including Hawaii,
Singapore-Japan range excluding North Korea and Vietnam.
in the Sellers option.
Expected time of delivery: June 1 to July 31 2001. Intention is to deliver the
vessel at the first discharge port after the Buyers IPO is completed.
Date of cancelling (see Clauses 5 c), 6 b) (iii) and 14): July 31, 2001
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.
This contract is a computer generated copy of the SALEFORM 1993 form, printed
under license from the Norwegian Shipbrokers' Association, using the BIMCO
Charter Party Editor. Any addition or deletion to the form must be clearly
visible. In event of any modification being made to the preprinted text of this
document, which is not clearly visible, the original document recommended by
BIMCO shall apply. The Norwegian Shipbrokers' Association and BIMCO assume no
responsibility for any loss or damage caused as a result of discrepancies
between the original document and this document.
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
b)** (i) The Vessel is to be delivered without drydocking. However the Buyers
shall have the right at their expense to arrange for an underwater
inspection by a diver approved by the Classification Society prior to the
delivery of the Vessel. The Sellers shall at their cost make the Vessel
available for such inspection. The extent of the inspection and the
conditions under which it is performed shall be to the satisfaction of the
Classification Society. If the conditions at the port of delivery are
unsuitable for such inspection, the Sellers shall make the Vessel
available at a suitable alternative place near to the delivery port.
(ii) If the rudder, propeller, bottom or other underwater parts below the
deepest load line are found broken, damaged or defective so as to affect
the Vessel's class, then unless repairs can be carried out afloat to the
satisfaction of the Classification Society, the Sellers shall arrange for
the Vessel to be drydocked at their expense for inspection by the
Classification Society of the Vessel's underwater parts below the deepest
load line, the extent of the inspection being in accordance with the
Classification Society's rules. If the rudder, propeller, bottom or other
underwater parts below the deepest load line are found broken, damaged or
defective so as to affect the Vessel's class, such defects shall be made
good by the Sellers at their expense to the satisfaction of the
Classification Society without condition/recommendation*. In such event
the Sellers are to pay also for the cost of the underwater inspection and
the Classification Society's attendance.
(iii) If the Vessel is to be drydocked pursuant to Clause 6 b) (ii) and no
suitable drydocking facilities are available at the port of delivery, the
Sellers shall take the Vessel to a port where suitable drydocking
facilities are available, whether within or outside the delivery range as
per Clause 5b). Once drydocking has taken place Sellers shall deliver the
Vessel at a port within the delivery range as per Clause 5 b) which shall,
for the purpose of this Clause, become the new port of delivery. In such
event the cancelling date provided or in Clause 5 b) shall be extended by
the additional time required for the drydocking and extra steaming, but
limited to a maximum of 14 running days.
c) If the Vessel is drydocked pursuant to Clause 6 a) or 6 b) above
(i) the Classification Society may require survey of the tailshaft system,
the extent of the survey being to the satisfaction of the Classification
surveyor. If such survey is not required by the Classification Society,
the Buyers shall have the right to require the tailshaft to be drawn and
surveyed by the Classification Society, the extent of the survey being in
accordance with the Classification Society's rules for tailshaft survey
and consistent with the current stage of the Vessel's survey cycle. The
Buyers shall declare whether they require the tailshaft to be drawn and
surveyed not later than by the completion of the inspection by the
Classification Society. The drawing and refitting of the tailshaft shall
be arranged by the Sellers. Should any parts of the tailshaft system be
condemned or found
This contract is a computer generated copy of the SALEFORM 1993 form, printed
under license from the Norwegian Shipbrokers' Association, using the BIMCO
Charter Party Editor. Any addition or deletion to the form must be clearly
visible. In event of any modification being made to the preprinted text of this
document, which is not clearly visible, the original document recommended by
BIMCO shall apply. The Norwegian Shipbrokers' Association and BIMCO assume no
responsibility for any loss or damage caused as a result of discrepancies
between the original document and this document.
defective so as to affect the Vessel's class, those parts shall be renewed
or made good at the Sellers' expense to the satisfaction of the
Classification Society without condition/recommendation*.
(ii) the expenses relating to the survey of the tailshaft system shall be
borne by the Buyers unless the Classification Society requires such survey
to be carried out, in which case the Sellers shall pay these expenses. The
Sellers shall also pay the expenses if the Buyers require the survey and
parts of the system are condemned or found defective or broken so as to
affect the Vessel's class*.
(iii) the expenses in connection with putting the Vessel in and taking her
out of drydock, including the drydock dues and the Classification
Society's fees shall be paid by the Sellers if the Classification Society
issues any condition/recommendation* as a result of the survey or if it
requires survey of the tailshaft system. In all other cases the Buyers
shall pay the aforesaid expenses, dues and fees.
(iv) the Buyers' representative shall have the right to be present in the
drydock, but without interfering with the work or decisions of the
Classification surveyor.
(v) the Buyers shall have the right to have the underwater parts of the
Vessel cleaned and painted at their risk and expense without interfering
with the Sellers' or the Classification surveyor's work, if any, and
without affecting the Vessel's timely delivery. If, however, the Buyers'
work in drydock is still in progress when the Sellers have completed the
work which the Sellers are required to do, the additional docking time
needed to complete the Buyers' work shall be for the Buyers' risk and
expense. In the event that the Buyers' work requires such additional time,
the Sellers may upon completion of the Sellers' work tender Notice of
Readiness for delivery whilst the Vessel is still in drydock and the
Buyers shall be obliged to take delivery in accordance with Clause 3,
whether the Vessel is in drydock or not and irrespective of Clause 5 b).
* Notes, if any, in the surveyor's report which are accepted by the
Classification Society without condition / recommendation are not to be
taken into account.
** 6 a) and 6 b) are alternatives; delete whichever is not applicable. In the
absence of deletions, alternative 6 a) to apply.
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 or 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, plate, 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):
The Buyers shall take over remaining bunkers and unused lubricating oils in
storage tanks and unbroached sealed drums and pay the sellers net purchase price
including discounts
This contract is a computer generated copy of the SALEFORM 1993 form, printed
under license from the Norwegian Shipbrokers' Association, using the BIMCO
Charter Party Editor. Any addition or deletion to the form must be clearly
visible. In event of any modification being made to the preprinted text of this
document, which is not clearly visible, the original document recommended by
BIMCO shall apply. The Norwegian Shipbrokers' Association and BIMCO assume no
responsibility for any loss or damage caused as a result of discrepancies
between the original document and this document.
(excluding barging expenses). Payment under this Clause shall be made at the
same time and place and in cash 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 above.
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 19
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.
This contract is a computer generated copy of the SALEFORM 1993 form, printed
under license from the Norwegian Shipbrokers' Association, using the BIMCO
Charter Party Editor. Any addition or deletion to the form must be clearly
visible. In event of any modification being made to the preprinted text of this
document, which is not clearly visible, the original document recommended by
BIMCO shall apply. The Norwegian Shipbrokers' Association and BIMCO assume no
responsibility for any loss or damage caused as a result of discrepancies
between the original document and this document.
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 17.
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.
However, the Vessel shall be delivered with her class maintained without
condition/recommendation*, free of average damage affecting the Vessel's class,
(continued in clause 17)
* Notes, if any, in the surveyor's report which are accepted by the
Classification Society without condition/recommendation are not to be
taken into account.
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 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 and subject lifted, the
This contract is a computer generated copy of the SALEFORM 1993 form, printed
under license from the Norwegian Shipbrokers' Association, using the BIMCO
Charter Party Editor. Any addition or deletion to the form must be clearly
visible. In event of any modification being made to the preprinted text of this
document, which is not clearly visible, the original document recommended by
BIMCO shall apply. The Norwegian Shipbrokers' Association and BIMCO assume no
responsibility for any loss or damage caused as a result of discrepancies
between the original document and this document.
Buyers have the right to place two representatives on board the Vessel at their
sole risk and expense upon arrival at a port to be agreed on or about a time 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)*
b)* This Agreement shall be governed by and construed in accordance with Title
9 of the United States Code and Law of the State of New York and should
any dispute arise out of 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 by the two so chosen; their decision or that
of any two of them shall be final, and for purpose of enforcing any award,
this Agreement may be made a rule of the Court.
The proceedings shall be conducted in accordance with the rules of the
Society of Maritime Arbitrators, Inc. New York.
c)*
* 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 to 19 attached hereto are to form an integral part of this
agreement.
17. 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.
The Vessel will be in such 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.
18. This Memorandum of Agreement is subject to the buyer completing an initial
public offering of its Common Stock, par value USD.01 per share not later than
June 15, 2001.
19. Attached is Schedule of Closing Documents (two pages).
This contract is a computer generated copy of the SALEFORM 1993 form, printed
under license from the Norwegian Shipbrokers' Association, using the BIMCO
Charter Party Editor. Any addition or deletion to the form must be clearly
visible. In event of any modification being made to the preprinted text of this
document, which is not clearly visible, the original document recommended by
BIMCO shall apply. The Norwegian Shipbrokers' Association and BIMCO assume no
responsibility for any loss or damage caused as a result of discrepancies
between the original document and this document.
SCHEDULE OF CLOSING DOCUMENTS
DOCUMENTS TO BE DELIVERED BY THE SELLER:
1) Xxxx of Sale (two 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 Xxxxxxxx Islands law.
2) Commercial Invoice describing the Vessel, the date of the MOA and the
price, excluding bunkers and lubricants
3) Bunker Invoice with copies of supports.
4) Resolutions of each of the Board of Directors and of the Shareholders
certified by the corporate Secretary. The Secretary's certificate
attaching the Board of Directors resolutions will be authenticated by a
notary public
(i) approving and/or ratifying the execution of the Memorandum of
Agreement to sell the Vessel to the Buyer, and
(ii) authorizing the Seller's officers or attorneys-in-fact to execute and
deliver the (a) Xxxx 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 the sale.
5) Power of Attorney acknowledged before 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
three (3) banking days prior to the expected date of delivery, confirming
the vessel is in Class without outstanding recommendations, exceptions or
notations affecting Class.
8) Certificate of Corporate Good Standing of the Seller.
9) Permission for Sale of Liberian Vessel from the Liberian Deputy
Commissioner of Maritime Affairs in New York dated within the statutory
validity date.
10) Certificate of Ownership and Encumbrance from the Liberian Deputy
Commissioner of Maritime Affairs in New York dated on the closing date
confirming the vessel is free of recorded mortgages, liens or other
encumbrances.
11) Seller's confirmation that, to the best of its 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 government,
state, country or political sub-division thereof.
12) Protocol of Delivery and Acceptance.
13) Letter of undertaking to furnish Deletion Certificate to the Buyers within
30 days after the vessels delivery in the name of Seller.
DOCUMENTS TO BE DELIVERED BY THE BUYER:
1) Resolutions of the Board of Directors certified by the corporate Secretary
and duly acknowledged by a Notary Public.
(i) Approving and/ or 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 Xxxx of
Sale and execute the (a) Protocol of Delivery, (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) Authorizing an Officer or any attorney-in-fact to document the
Vessel under the laws of the Republic of the Xxxxxxxx Islands.
2) Power of Attorney duly acknowledged before a Notary Public.
3) Instructions to the Seller's bank authorizing 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.
For the Buyers: For the Sellers:
General Maritime Ship Holding Ltd. Blystad Shipholding Inc., Liberia
By: /s/ Xxxxx X. Xxxxxxxxxxxxx By: /s/ Xxxx Xxxxxx
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VP, FINANCE/SECRETARY
