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EXHIBIT 10.1
Private & Confidential
DATED 30 MARCH 19
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ROYAL BANK OF SCOTLAND
(INDUSTRIAL LEASING) LIMITED (1)
AND
BRITISH LINEN SHIPPING LIMITED (2)
AND
HORIZON EXPLORATION LIMITED (3)
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AGREEMENT
FOR SALE AND PURCHASE OF
M.V. "LABRADOR HORIZON"
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XXXXXX XXXX
London
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CONTENTS
CLAUSE HEADING PAGE
1 Definitions...................................................................................1
2 Sale and purchase of the Vessel...............................................................3
3 Documentation.................................................................................3
4 Payment.......................................................................................4
5 Encumbrances and taxes........................................................................5
6 Spares and bunkers............................................................................5
7 Condition of Vessel on delivery...............................................................6
8 Delivery......................................................................................6
9 Extent of liability of Seller................................................................6
10 Liability for Charterparty and Sub-Charter....................................................7
11 Counterparts..................................................................................7
12 Law and submission to jurisdiction............................................................7
13 Notices.......................................................................................7
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THIS AGREEMENT is dated 30 March 1998 and made BETWEEN:
(1) ROYAL BANK OF SCOTLAND (INDUSTRIAL LEASING) LIMITED a company
incorporated in England whose registered office is situate at 00, Xx
Xxxxxx Xxxxxx, Xxxxxxxxx, XX0 0XX (the "SELLER");
(2) BRITISH LINEN SHIPPING LIMITED a company incorporated in Scotland whose
registered office is situate at 0 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX0 0XX
(the "PURCHASER");
(3) HORIZON EXPLORATION LIMITED a company incorporated in England whose
registered office is situate at Xxxxxxx Xxxxx, 0 Xxxxxxx Xxx, Xxxx XX00
0XX (the "Horizon").
WHEREAS:
(A) the Seller is the registered owner of the m.v. "LABRADOR HORIZON" (the
"Vessel"), registered under Bahamian flag in the Bahamian Register of
Ships under Official Number 715224;
(B) pursuant to a charterparty by demise dated 20 December 1990 between the
Seller and Simon-Horizon Limited ("SHL") the Seller charters the Vessel
to SHL by way of demise, on the terms and conditions therein set forth
(the "Charterparty"); and
(C) pursuant to a time charter dated 15 July 1994 between SHL and Horizon,
SHL charters the Vessel to Horizon on the terms and conditions therein
set forth (the "Sub-Charter");
(D) SHL and the Seller have agreed to terminate the chartering of the
Vessel pursuant to the Charterparty and SHL and Horizon have agreed to
terminate the chartering of the Vessel pursuant to the Sub-Charter
upon, and for purposes of, the sale of the Vessel to the Purchaser; and
(E) the Seller has agreed to sell to the Purchaser and the Purchaser has
agreed to purchase sixty-four shares of one sixty-fourth each in the
Vessel on and subject to the terms and conditions contained in this
Agreement.
BY WHICH IT IS AGREED as follows:
1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"BUSINESS DAY" means a day on which banks are open for the transaction
of business of the nature concerned in London;
"CANCELLING DATE" means 7 April 1998 or such later date as may be
agreed in writing between the parties in accordance with clause 2.2
hereof;
"COMPULSORY ACQUISITION" means requisition for title or other
compulsory acquisition, requisition, appropriation, expropriation,
deprivation, forfeiture or
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confiscation for any reason of the Vessel by any Government Entity or
other competent authority, whether de jure or de facto, but shall
exclude requisition for use or hire not involving requisition of title;
"DELIVERY" means delivery of the Vessel to the Purchaser in accordance
with clause 8.1 on completion of its purchase under this Agreement;
"ENCUMBRANCE" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, security interest, title
retention or other encumbrance securing or any right conferring a
priority of payment in respect of, any obligation of any person;
"GOVERNMENT ENTITY" means and includes (whether having a distinct legal
personality or not) any national or local government authority, board,
commission, department, division, organ, instrumentality, court or
agency and any association, organisation or institution of which any of
the foregoing is a member or to whose jurisdiction any of the foregoing
is subject or in whose activities any of the foregoing is a
participant;
"TOTAL LOSS" means:
1.1 actual or constructive or compromised or arranged total loss of
the Vessel; or
1.2 the Compulsory Acquisition of the Vessel; or
1.3 the hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation of the Vessel (other than where the
same amounts to Compulsory Acquisition of the Vessel) by any
Government Entity, or by persons acting or purporting to act on
behalf of any Government Entity, unless the Vessel be released
and restored to the relevant operator from such hijacking, theft,
condemnation, capture, seizure, arrest, detention prior to the
Cancelling Date.
For the purpose of this Agreement, a Total Loss shall be deemed to have
occurred:
1.1 in the case of an actual loss of the Vessel on the actual date
and at the time the Vessel was lost or, if such date is not
known, on the date on which the Vessel was last reported;
1.2 in the case of a constructive total loss of the Vessel, upon the
date and at the time of the notice of abandonment of the Vessel,
is given to the insurers of the Vessel for the time being
(provided a claim for total loss is admitted by such insurers)
or, if such insurers do not forthwith admit such a claim, at the
date and at the time at which either a total loss is subsequently
admitted by the insurers or a total loss is subsequently adjudged
by a competent court of law or arbitration to have occurred;
1.3 in the case of a compromised or arranged total loss, on the date
upon which a binding agreement as to such comprised or arranged
total loss has been entered into by the insurers of the Vessel;
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1.4 in the case of Compulsory Acquisition, on the date upon which the
relevant requisition of title or other compulsory acquisition
occurs.
2 SALE AND PURCHASE OF THE VESSEL
2.1 The Seller shall sell sixty-four shares of one sixty-fourth each in the
Vessel to the Purchaser and the Purchaser shall purchase sixty-four
shares of one sixty-fourth each in the Vessel together with such of the
outfit and spare gear belonging to the Vessel both on board and on
shore as may belong to the Seller subject to the terms hereinafter
appearing provided however that the Purchaser shall not be obliged to
complete the purchase of the Vessel if Delivery of the Vessel by the
Seller and Horizon to the Purchaser does not occur on or before the
Cancelling Date.
2.2 If the Vessel is not ready to be delivered by the Cancelling Date then
the Purchaser has the right, on or prior to the Cancelling Date, either
to cancel this Agreement or to extend the Cancelling Date and if the
Purchaser elects to extend the Cancelling Date then it shall send a
written notice to this effect to the Seller, and Horizon and, provided
that prior to the original Cancelling Date the parties mutually agree a
new Cancelling Date, this Agreement shall remain in full force and
effect on the same terms and conditions herein appearing save in
respect of the revised Cancelling Date.
2.3 The Seller shall sell to the Purchaser its sixty-four shares of one
sixty-fourth each in the Vessel for an amount of sixteen million United
States Dollars (US$16,000,000) or its equivalent in Pounds Sterling
exclusive of Value Added Tax (hereinafter referred to as the "Purchase
Price").
2.4 If prior to Delivery of the Vessel by the Seller and Horizon to, and
acceptance by the Purchaser hereunder, the Vessel should become a Total
Loss this Agreement shall be null and void.
3 DOCUMENTATION
3.1 On Delivery, and in exchange for the Purchase Price paid in accordance
with clause 4, the Seller shall deliver to the Purchaser a duly
executed Xxxx of Sale in the form set out in Schedule 1 (the "Xxxx of
Sale") in respect of all the shares in the Vessel to be transferred to
the Purchaser free from all Encumbrances created by the Seller by its
own acts.
3.2 In addition to the document referred to in clause 3.1, the Seller
and/or Horizon as the case may be, shall provide the Purchaser with the
following documents in a form and substance satisfactory to the
Purchaser before or on Delivery of the Vessel to the Purchaser:
(a) copies of minutes of a board meeting of the Seller approving the
termination of the Charterparty, the sale of the Vessel to the
Purchaser, authorising the execution of a Xxxx of Sale in respect
of the Vessel and where relevant, any powers of attorney issued
pursuant to such meeting and letters from Horizon to the insurers
of the Vessel notifying them of the sale of the Vessel to the
Purchaser;
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(b) copies of minutes of a board meeting of Horizon approving the
termination of the Sub-Charter, and where relevant any powers of
attorney issued pursuant to such meeting;
(c) an original letter procured by Horizon from the owner of the
Cammell Laird Shipyard in Birkenhead (the "Shipyard") confirming
the release of any lien the Shipyard may have on the Vessel and
confirming that any spare parts in the Shipyard belonging to the
Vessel and the Seller have been clearly identified.;
(d) a certified copy of the Deed of Termination and Novation dated
1998, between inter alia the Seller, SHL and
Horizon for, inter alia the termination of the Charterparty and
the Sub-Charter (the "TERMINATION AGREEMENT").
3.3 The Purchaser shall also deliver to the Seller on or before Delivery of
the Vessel to the Purchaser in terms hereof copies of extracts of
minutes of a board meeting of the Purchaser approving the purchase of
the Vessel and where relevant, any powers of attorney issued pursuant
to such meeting.
3.4 The Purchaser shall not be obliged to complete the purchase of the
Vessel in terms of this Agreement unless and until Horizon has become
obliged to accept the Vessel as hirer in terms of the Hire Purchase
Agreement entered into in respect of the Vessel between the Purchaser
as Owner, Horizon as Hirer and Eagle Geophysical Offshore Inc as Surety
dated 1998 (the "HIRE PURCHASE AGREEMENT") and unless all of the
conditions precedent to the obligations of the Purchaser to deliver the
Vessel under the Hire Purchase Agreement have been fulfilled.
4 PAYMENT
4.1 The Purchase Price shall be paid to the Seller on Delivery, [but not
later than three Business Days] after the Vessel is ready for Delivery
and written notice thereof has been given to the Purchaser by Horizon
(unless the Purchaser agrees that such notice need not be given), in
Sterling in immediately available cleared Sterling funds and free of
bank charges, set off or other deduction to the bank account of the
Seller at The Royal Bank of Scotland plc, Xxx Xxxxxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxxxx, XX00 0XX, Sort Code: 16-16-13, Account No: 00000000.
For the avoidance of doubt, it is agreed that the Vessel shall not be
ready for Delivery if the Charterparty and the Sub-Charter have not
been terminated in accordance with the Termination Agreement.
4.2 All payments to be made to the Seller hereunder shall be made in full
without any set-off or counterclaim whatsoever and free and clear of
all deductions or withholdings whatsoever.
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5 ENCUMBRANCES AND TAXES
5.1 The Seller hereby warrants to the Purchaser in respect of the shares in
the Vessel to be sold to the Purchaser, that such shares will, at
Delivery, be free from all Encumbrances created by the Seller by its
own acts. It is hereby agreed that the words "free from encumbrances
appearing in the Registry of the said Ship" appearing in the Xxxx of
Sale in respect of the Vessel shall be deemed to refer to the Vessel
being free from Encumbrances created by the Seller by its own acts.
5.2 The Seller and Horizon hereby confirm to the Purchaser that immediately
prior to Delivery and the acceptance by the Purchaser of the Vessel
pursuant to this Agreement the Charterparty and the Sub-Charter will
have been terminated and that Horizon will remain in possession of the
Vessel as bailee of the Seller. The Seller will instruct Horizon as its
bailee to deliver the Vessel to the Purchaser in accordance with this
Agreement or to deliver the Vessel as may be required by the Purchaser.
5.3 Horizon represents and warrants to the Purchaser that on Delivery to
the Purchaser hereunder, the Vessel will be free from all Encumbrances
and maritime liens and any other debts whatsoever. Should any claims
which have been incurred by SHL or Horizon prior to the time of
Delivery of the Vessel be made against the Vessel Horizon hereby
undertakes to indemnify the Purchaser on demand against all
consequences of such claims.
5.4 The Seller shall not be liable for any costs or expenses whatsoever and
howsoever incurred in relation to the sale of the Vessel and the
Seller's shares in the Vessel. Any taxes, fees and expenses connected
with the purchase and the registration of the Xxxx of Sale and/or the
Vessel shall be paid by Horizon.
6 SPARES AND BUNKERS
6.1 It is acknowledged by the parties hereto, that no additional payment is
required to be made by the Purchaser to the Seller in respect of any
remaining unused stores and unbroached lubricating oils and bunkers on
board the Vessel at the time of Delivery thereof to the Purchaser.
6.2 All spare parts and spare equipment including the spare tail-end
shaft(s) and/or the spare propeller(s), propeller blade(s), if any,
belonging to the Vessel at the time of Delivery, used or unused,
whether on board the Vessel or not which belong to the Seller shall
become the property of the Purchaser. Forwarding charges, if any, shall
be for the account of Horizon. It is hereby agreed that the Seller and
Horizon are not required to replace any spare parts which are taken out
of spare and used as replacements prior to Delivery, but the replaced
items shall after Delivery become the property of the Purchaser.
6.3 Personal belongings of the master, officers and crew including master's
slop chest shall be excluded from the sale, as shall personal effects
belonging to the master, officers and crew. Title to all equipment on
the Vessel which belong to the Seller shall pass from the Seller to the
Purchaser at the same time as the transfer of the shares in the Vessel
by the Seller to the Purchaser pursuant to clause 8.
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7 CONDITION OF VESSEL ON DELIVERY
7.1 As between the Seller and the Purchaser the Vessel, with everything
belonging to the Vessel, shall be at the Seller`s risk and expense up
to Delivery. Subject to the other provisions of this Agreement, and in
particular clause 9.2, the Vessel shall be sold and purchased "as is",
without inspection and in its then physical condition.
8 DELIVERY
8.1 The Seller shall deliver or cause Horizon as bailee of the Vessel to
deliver the Vessel wherever the Vessel may be at the time of Delivery
(whether in port or at sea). Delivery of the Vessel shall take place on
or before the Cancelling Date and shall be conclusively evidenced by
the execution of a protocol of delivery and acceptance signed by the
Seller, Horizon and the Purchaser.
8.2 Horizon shall procure that the Vessel is tendered for Delivery and the
Purchaser shall take over the Vessel, as is at the time of Delivery.
8.3 The obligation of the Seller to deliver the Vessel to the Purchaser is
subject to the condition that on or before Delivery the following
conditions have been fulfilled to the reasonable satisfaction of the
Seller:
(a) the Purchaser shall have paid the Purchase Price to the Seller in
accordance with clause 4.1;
(b) Horizon and SHL shall have performed all of their obligations
under the Charterparty, and the Sub-Charter and the Termination
Agreement arising on or prior to the time of Delivery;
(c) the Seller shall have received the documents referred to in
clause 3.3 of this Agreement.
9 EXTENT OF LIABILITY OF SELLER
9.1 The Seller hereby represents and warrants to the Purchaser in respect
of the shares in the Vessel to be sold to the Purchaser, that it has
and shall convey to the Purchaser such title as it may hold to such
shares in the Vessel as are registered in its name in the Bahamian
Register of Ships immediately prior to Delivery.
9.2 Subject to clauses 5.1 and 9.1 hereof, the Seller makes no other
warranty or representation to the Purchaser in relation to the Vessel
or the Seller's shares in the Vessel, and the Purchaser expressly
agrees and acknowledges that no other warranty or representation of any
kind is, or has been, given by or on behalf of the Seller in respect of
the Vessel or the Seller's shares in the Vessel and, accordingly, the
Purchaser confirms that it has not, in entering into this Agreement,
and with the exception of the warranties referred to in clauses 5.1 and
9.1 hereof, relied on any warranty or representation by the Seller,
express or implied, whether arising by law or otherwise, in relation to
the Vessel or the Seller's shares in the Vessel, including, without
limitation, warranties or representations as to the description,
merchantable quality, fitness for purpose,
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the state or quality of the Vessel and the benefit of any such warranty
or representation by the Seller is hereby irrevocably and
unconditionally waived.
10 LIABILITY FOR CHARTERPARTY AND SUB-CHARTER
10.1 The Purchaser shall not be liable for any liabilities, obligations,
claims and demands whatsoever arising or concerning the Charterparty
and the Sub-Charter and in respect of anything done or omitted to be
done under or in connection therewith, whether arising before or after
the Delivery of the Vessel and Horizon indemnifies and holds the
Purchaser harmless on demand against any such liabilities, obligations,
claims and demands, and any losses, damages, costs or expenses incurred
by the Purchaser in connection therewith.
11 COUNTERPARTS
11.1 This Agreement may be entered into in the form of three counterparts,
each executed by one of the parties, and, provided each party shall so
execute this Agreement, each of the executed counterparts, when duly
exchanged, shall be deemed to be an original but, taken together, they
shall constitute one instrument.
12 LAW AND SUBMISSION TO JURISDICTION
12.1 This Agreement shall be governed by and construed and performance
hereof shall be determined in accordance with the laws of England.
13 NOTICES
13.1 Except as otherwise provided herein, each notice, request, demand or
other communication or document to be given or made hereunder shall be
given in writing but unless otherwise stated, may be made by
telefax/facsimile transmission.
13.2 Any notice, demand or other communication to be made or delivered by
any party to this Agreement pursuant to this Agreement shall be sent
to:
(i) to the Seller at:
Royal Bank of Scotland (Industrial Leasing) Limited
00, Xx. Xxxxxx Xxxxxx
Xxxxxxxxx XX0 0XX
Xxxxxxxx
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: 01242 222 743
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(ii) to the Purchaser at:
British Linen Shipping Limited
0 Xxxxxxxx Xxxxxx
Xxxxxxxxx XX0 0XX
Xxxxxxxx
Attention: Managing Director/The Company Secretary
Facsimile: 0131 243 8423
(iii) to the Sub-Charterer at:
Horizon Exploration Limited
Horizon House
0 Xxxxxxx Xxx
Xxxx XX00 0XX
Xxxxxxx
Attention: Xxxx Xxxxxxxx
Facsimile: 01732 742 977
13.3 Each such notice, demand, request or other communication shall be
deemed to have been made or delivered when:
(a) (in the case of telefax/facsimile) when a materially complete and
legible copy of the communication has been received by the
addressee (unless the date of despatch is outside normal business
hours in the country of the addressee, in which case such
telefax/facsimile transmission shall be deemed to have been
received at the opening of business on the next such business
day); or
(b) (in the case of any letter) when delivered to the addressee's
address as specified in or notified pursuant to clause 13.2 or,
if sent by post, five (5) days after being deposited in the post
first class postage prepaid in an envelope addressed to the
addressee at that address.
13.4 Any process with respect to this Agreement may be commenced in
accordance with the foregoing provisions of this clause or by any other
means permitted by law.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first above written.
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SIGNED by Xxxxxxx Cheesemann the duly )
authorised Attorney of ROYAL BANK OF )
SCOTLAND (INDUSTRIAL LEASING) )
LIMITED pursuant to a power of attorney ) /s/ P. CHEESEMANN
dated 30 March 1998 in the presence )
of: ) Attorney-in-Fact
/s/ X. XXXXXXX
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Witness
Name: X. Xxxxxxx
Address: Xxxxxxx XxXxxxx EC1A
Occupation: Solicitor
Signed by Xxxx X. Xxxxxxx the duly )
authorised Attorney of BRITISH LINEN )
SHIPPING LIMITED pursuant to a power ) /s/ XXXX XXXXXXX
of attorney dated 30 March 1998 in the )
presence of: ) Attorney-in-Fact
/s/ X. XXXX
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Witness
Name: X. Xxxx
Address: Xxxxxx Xxxx, London
Occupation: Solicitor
SIGNED by )
HORIZON EXPLORATION LIMITED ) /s/ XXXX A.M. XXXXXXXX
by Xxxx A.M. Xxxxxxxx ) ----------------------
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