MEMORANDUM OF AGREEMENT
FOR AND IN CONSIDERATION of the mutual benefits accruing and expected
to accrue hereunder, New York Sun Shipping Company, Inc., a Delaware
corporation, (hereinafter called the "Seller") hereby agrees to sell, and
Maritrans Inc., a Delaware corporation, or a subsidiary designated by it
(hereinafter called the "Buyer") hereby agrees to purchase, the MT New York Sun
( Official No. 628783 ) as more particularly described herein (hereinafter
referred to as the "Vessel"), subject to the following terms and conditions:
1. Vessels. The Vessel is a U.S. flag tanker built at Sun Shipbuilding
and Drydock Company, Chester, PA in 1980.
2. Price. The Total Purchase Price for the sale of the Vessel shall be
Eleven Million, Five Hundred Fifty Thousand Dollars, United States Currency
($11,550,000).
3. Deposit. As security for the correct fulfilment of this Memorandum
of Agreement ("MOA"), the Buyer shall deposit the amount of Xxx Xxxxxxx, Xxx
Xxxxxxx Xxxxx-Xxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars ($1,155,000) equal to ten
percent (10) of the Total Purchase Price (the "Deposit") within three (3)
Philadelphia business days of Buyer's execution and delivery of this MOA. The
Deposit shall be delivered by wire transfer to CoreStates Bank, to an account
number to be designated by Seller, and held by said bank as a downpayment on the
Vessel. Interest shall accrue to the benefit of the Buyer and any fees charged
for holding the Deposit shall be borne by the Seller.
4. Closing. Closing for the sale of the Vessel from the Seller to the
Buyer shall take place on a normal business day on the date of delivery of the
Vessel as set forth in Paragraphs 7
and 20 hereof. The Closing shall be held at a location to be mutually agreed
between Buyer and Seller.
5. Payment. Buyer agrees to pay Seller the total Purchase Price at the
Closing by:
a. Transfer of the $1,155,000 Deposit plus accrued interest thereon.
b. Wire transfer in immediately-available, same-day funds of an
amount equal to the balance of the Total Purchase Price remaining
after application of the Deposit and accrued interest.
both to CoreStates Bank, Account Name: Sun Transport, Inc., Account No.:
1221A6690, ABA No.: 000000000.
6. Inspections. Buyer has inspected the Vessel's American Bureau of
Shipping and U.S. Coast Guard records and, by execution of this MOA,
acknowledges its acceptance of same. The Seller provided an afloat inspection of
the Vessel. During such inspection, the Vessel's log books for engine and deck
and voyage abstract information were made available for Buyer's examination. At
Buyer's option, an underwater inspection will be completed prior to 31 August
1997. By execution of this MOA, Buyer acknowledges acceptance of the Vessel
subject only to completion of the underwater inspection at Buyer's discretion.
7. Place and Time of Delivery. The Vessel shall be delivered by Seller
and taken over by Buyer at a location safely afloat within the Vessel's normal
operating area as mutually agreed in order to minimize tax impact on both Buyer
and Seller, between September 30, 1997 and October 15, 1997. If Vessel is not
delivered by October 15, 1997, Buyer shall have the option to cancel this MOA,
which option shall be exercised within seventy-two (72) hours thereof.
8. Risk of Loss. Should the Vessel become a total or constructive total
loss or should the Vessel be requisitioned for use by any lawful governmental
authority before delivery, the Deposit and interest thereon shall immediately be
returned to the Buyer and the MOA thereafter considered null and void.
9. No Assumption of Liabilities, The Seller specifically agrees that it
will defend, indemnify and hold the Buyer and the Vessel harmless from any
claims, suits, liens or causes of action of whatsoever nature, the basis of
which arose prior to delivery of the Vessel to Buyer or as a consequence of the
sale including any claims of the crew of the Vessel, regardless of whether such
claims, suits, liens or causes of action are brought prior to or at any time
after delivery of the Vessel to Buyer. The Buyer agrees to defend, indemnify and
hold the Seller harmless from any claims, suits, liens or causes of action which
may arise after delivery of the Vessel to Buyer the basis of which arose after
the delivery of the vessel to Buyer. Except with respect to the specific Charter
referred to in Paragraph 10 which may be assigned to Buyer as of the Closing and
as to which Buyer shall only be responsible for performance subsequent to such
date, Buyer shall not assume or be liable or responsible for any obligations or
liabilities of any kind or character of Seller.
10. Assignment of MSC Charter. The Seller shall use all reasonable
efforts to cause the Charter for the Vessel dated 11 August 1995 as modified 24
January 1997 with the Department of the Navy, Military Sealift Command ("MSC")
to be assigned to the Buyer with the approval of the MSC. The Buyer shall
cooperate with the Seller in connection therewith. In the event that MSC does
not grant novation by 15 October 1997, Buyer shall have the right to cancel this
MOA, such option to be declared within 72 hours thereafter. In the event Buyer
exercises this option, then all deposit monies and interest earned thereon will
be promptly returned by Seller.
11. Spares/Bunkers, Etc. The Seller shall deliver the Vessel to the
Buyer with everything belonging to her onboard. All spare parts and spare
equipment, whether afloat or ashore, broached and unbroached stores and
provisions onboard the Vessel at the time of the inspection, used or unused,
shall become the Buyer's property, except items set forth in the Paragraph below
and in Schedule A hereto shall be excluded. The Seller is not required to
replace spare parts which are taken out of spares belonging to the Vessel and
used as replacement parts on the Vessel prior to delivery, but the replaced
items shall be the property of the Buyer. Buyer further agrees that the self
contained breathing apparatus is accepted "as is, where is", and that the Buyer
will inspect the equipment to verify that it is in proper operating condition
prior to use, and to train their employees in the proper use and maintenance of
the equipment. Schedule B is a current list of inventory items ashore. Sellers
shall conduct a final inventory of items ashore and add any additional items
from this inventory to Schedule B which the parties agree shall constitute the
final Schedule B; possession of all such items on Schedule B shall be delivered
to Buyer upon delivery of the Vessels.
The Seller has the right to take ashore crockery, plates,
cutlery, linen and other articles bearing the Seller's flag or name, provided
Seller replaces same with similar unmarked items. In addition, Seller has the
right to remove all items of property presently onboard the Vessel and listed on
Schedule A attached hereto. Captain's, Officers' and Crew's personal belongings,
including personal computers and slop chest, shall also be excluded from the
sale.
Seller shall provide Buyer with a blank copy of all forms used onboard the
Vessel. Library books specifically related and peculiar to the Vessel shall be
included without additional cost.
The Buyer shall take over all remaining unused pumpable
bunkers, lubricating oils, and diesel fuel, in such quantities as are determined
by representatives of Buyer and Seller on the date of the Closing, and pay for
same at the Closing in an amount to be calculated by using the Seller's last
paid invoice for same. Payment for same shall be made by wire transfer at the
Closing.
12. Documentation. At the Closing the Seller shall furnish the Buyer:
a. Certificate of Ownership for the Vessel (U.S. Coast Guard
Form 1330) showing Seller as the owner of the Vessel free
and clear of liens and encumbrances of record; such
Certificate of Ownership shall be dated no earlier than ten
(10) days prior to Vessel delivery.
b. Valid and sufficient bills of sale duly attested by notary
public, in duplicate transferring title to the Vessel from
Seller to Buyer with warranties of title and freedom from
all liens and encumbrances; the warranties in such bills of
sale shall survive the Closing and Vessel delivery.
c. Copies of the Resolution of the Board of Directors of
Seller, authorizing the sale of the Vessel under the terms
and conditions of this MOA.
d. An ABS certificate or letter, dated no earlier than fifteen
(15) days prior to Vessel delivery, indicating that the
Vessel is in class, and a valid U.S. Coast Guard Certificate
of Inspection.
e. Invoice stating specific assets, purchased fuel and lube
oils, price, date of transaction, and full style of Buyer
and Seller.
On delivery of the Vessel, the Buyer shall provide for the transfer of
Documentation of the Vessel deleting Seller's name as designated Owner of the
Vessel.
At the time of Vessel delivery, the Seller shall deliver to the Buyer
all classification certificates as well as all plans, etc. which are onboard the
Vessel. Other technical documentation including plans, instruction books and
manuals which may be in the Seller's possession shall promptly, upon the Buyer's
instructions, be forwarded to the Buyer. The Seller may keep the log books, but
the Buyer shall have the right to take copies of same for a period of ninety
days.
13. Encumbrances. The Seller warrants that the Vessel, at the time of
delivery, shall be free from all encumbrances and liens, maritime or otherwise,
or any other debts whatsoever. Should any claims which have been incurred prior
to the time of delivery be made against the Vessel, the Seller hereby undertakes
to indemnify the Buyer against all such claims.
14. Taxes, Etc. Any taxes, fees and expenses connected with the
purchase and registration of the Vessel under the Buyer's flag shall be for the
Buyer's account, whereas similar charges connected with the closing of Seller's
register shall be for the Seller's account.
15. Title; Condition on Delivery. The Vessel, with everything belonging
to her, shall be at the Seller's risk and expense until title passes to the
Buyer at the time of the Closing and shall be operated by the Seller in the
ordinary course and shall be maintained in accordance with Seller's normal
maintenance practices. Except as otherwise provided herein, the Vessel shall be
delivered free of all pumpable cargo in all tanks designated as empty, with the
exclusion of current voyage commercial cargoes and slops. The Vessel shall be
taken over "as is, where is" at the time title passes to Buyer, in substantially
the same condition as when inspected, subject to ordinary wear and tear, and
subject to Seller's warranties and guaranties as set forth in this MOA.
Notwithstanding anything to the contrary contained herein, the
Vessel shall be delivered in class and with valid U.S. Coast Guard Certificates
of Inspection with no outstanding Class or USCG requirements or conditions
which, if known to the Classification Society or USCG, would impair Class or the
Certificate of Inspection.
16. Markings. Immediately upon delivery, the Buyer will undertake to
change the Vessel's funnel markings and will assure that the name "Sun" is
deleted from the markings.
17. Buyer's Default. If the Deposit is not paid as aforesaid, the
Seller shall have the right to cancel this MOA, and the Seller shall be entitled
to claim compensation for its losses and for all expenses incurred together with
interest at a rate of 12% per annum. If the Buyer fails to take delivery of the
Vessel in accordance with the terms and conditions of this MOA, for reasons
within Buyer's control which are not excepted elsewhere herein, the Seller shall
have the right to cancel this MOA. and keep the Deposit in full together with
interest earned thereon, and Seller shall be entitled to claim compensation for
its losses and for all expenses incurred together with interest at a rate of 12%
per annum. Seller shall also be paid demurrage at $25,000/day or part thereof,
if Buyer fails to take delivery within 72 hours after the Vessel is tendered for
delivery in accordance with the terms of this MOA.
18. Seller's Default. If the Seller fails to execute a legal transfer
of title or to deliver the Vessel with everything belonging to her in accordance
with the terms and conditions of this
MOA, for reasons within Seller's control which are not excepted elsewhere
herein, the Buyer shall have the right to cancel this MOA, in which case the
Deposit in full shall be returned to the Buyer together with interest earned
thereon and Buyer shall be entitled to claim compensation for its losses and for
all expenses incurred together with interest at a rate of 12% per annum.
19. Arbitration. If any dispute should arise in connection with the
interpretation and fulfilment of this MOA, same shall be decided by arbitration
in the City of New York and shall be referred to a single Arbitrator to be
appointed by the parties hereto. If the parties cannot agree upon the
appointment of the single Arbitrator, the dispute shall be settled by three
Arbitrators, each party appointing one Arbitrator, the third being appointed by
the other two.
If either of the appointed Arbitrators refuses or is incapable
of acting, the party who appointed him shall appoint a new Arbitrator in his
place.
If one of the parties fails to appoint an Arbitrator, either
originally or by way of substitution, within two weeks after the other party
having appointed his Arbitrator has sent the party notice by mail, cable,
facsimile or telex to make its appointment, the party appointing the first
Arbitrator shall also appoint an Arbitrator on behalf of the other party.
The award rendered by the Arbitrator(s) shall be final and
binding upon the parties and may, if necessary, be enforced by said Arbitrators
or any other competent authority in the same manner as a judgement in any court
of competent jurisdiction.
This MOA shall be subject to the law of the State of New York.
20. Conditions. The sale contemplated hereunder is conditioned upon and
is subject to:
a. The results of the underwater inspection referred to in
paragraph 6 being satisfactory to Buyer in the event Buyer
chooses to perform same.
b. The Charter for the Vessel with the MSC having been assigned
to the Buyer as contemplated in paragraph 10.
c. Buyer and Seller having each made appropriate
Xxxx-Xxxxx-Xxxxxx filings, filing fees to be paid by Buyer,
and approval thereunder having been granted or the waiting
period thereunder having expired.
Closing on the sale of the Vessel shall occur on the date
mutually agreed upon by the parties in accordance with paragraph 7 above
promptly after the satisfaction of the last of the conditions required to be
satisfied under this Paragraph 20 (but not earlier than September 30, 1997),
provided, however, that the parties shall use reasonable best efforts to satisfy
such conditions and close on the sale of the Vessel on or prior to October 15,
1997. In the event the parties fail to satisfy all conditions to close prior to
October 15, 1997, Buyer and Seller shall each have the option to declare this
MOA null and void. Upon such a declaration, the Deposit with all accrued
interest thereon shall be returned to Buyer.
21. Notice. All notices and advice hereunder shall be in writing and
shall be delivered in person or given by registered or certified mail, postage
prepaid, telex or facsimile transmission, and if to the Seller, shall be
addressed as follows:
Xx. Xxxxxxx X. Xxxxxxxxx
Sun Transport, Inc.
25th Floor
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Ph.: (215) 977-6815
Fx.: (000) 000-0000
and if to the Buyer, shall be addressed as follows:
Xx. Xxxxxxx X. Xxx Xxxx
Maritrans Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Ph.: 000-000-0000
Fx.: 000-000-0000
22. Citizenship. Seller warrants that it is a citizen of the United
States of America within the meaning of Section 2 of the Shipping Act of 1916,
as amended, and that it has been so as long as it has owned the Vessel. Seller
further warrants that the Vessel is at the time of passage of title documented
under the laws of the United States with coastwise endorsements and qualified to
engage in coastwise trade. Buyer warrants that it is a citizen of the United
States of America within the meaning of Section 2 of the Shipping Act of 1916,
as amended.
23. Gas Free Certificate. Vessel to be delivered without gas free
certificate.
24. Commissions. Any sales commission on the sale hereunder will be
payable by Seller. Buyer warrants that it has not dealt with any broker or agent
in respect of this sale.
25. Survival. All covenants, representations and warranties of the
parties contained in this MOA shall survive the Closing and delivery and
acceptance of the Vessel.
IN WITNESS WHEREOF, Buyer and Seller have entered into the MOA in
accordance with the terms stated.
Maritrans Inc. New York Sun Shipping Company, Inc.
By: /s/ Xxxxxx X. Xxx Xxxx By: /s/ Xxxxx X. Xxxxxx
Date: 25 July 1997 Date: 25 July 1997
SCHEDULE A
The following items are to be excluded from the sale:
1. Master's, Officers' and Crew's personal effects, including personal
entertainment equipment (i.e. televisions, stereos, video players, videos,
cameras, exercise equipment, etc.).
2. All Seller's manuals, letters, training materials and equipment, and all
quality system related manuals and documentation.
3. Registration certificate, radio station and other certificates and licenses
required to be surrendered by Seller, and insurance certificates.
4. Contents of Master's safe.
5. All items on order.
6. The following leased items not the property of the Sellers: Unitor or
others: welding oxygen, acetylene, and freon bottles, test gas cylinders
for analyzers, medical breathing apparatus.
7. Vessel name boards.
8. Extra charges will apply to all fuel on board and to any on shore or on
order which are specifically requested by the Buyer to be included in the
sale.
9. Ship's controlled medicines, medical records and medical manuals.
