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MEMORANDUM OF AGREEMENT blerivesina Sbipteaken'
Assoeissioaos Memorandum el
Agreement For sale and
purchase of
Aaspr1 by The Bakie end
1nsenesosiel /arid= ComWI
(BRAM im 1936.
Cede-harm SALEFORM 1993
Revised 1966. 1993..d
191161117.
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Dated: August 27, 2007
Voyageur Marine Transport Limited, 171 Metler Rd. RR1, Ridgeville, Ontario,
Canada, L0S 1M0 and Voyageur Pioneer Marine Inc., 171 Metler Rd. RR1,
Ridgeville, Ontario, Canada, L0S 1M0
hereinafter called the Sellers, have agreed to sell, and
Lower Lakes Towing Ltd, P.O Box 1149, 517 Main Street, Port Dover, Ontario,
Canada, N0A 1N0
hereinafter called the Buyers, have agreed to buy the ships described in
Schedule 1.
each of them referred to as a "Vessel" or and collectively as "Vessels", 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 registered letter, telex, telefax or other modern form
of written communication.
"Classification Society" or "Class" means the Society referred to in Schedule 1.
1. Purchase Price : Canadian Twenty-Five Million Dollars (C$25,000.000.00)
allocated between the ships described in Schedule 1 as per said schedule.
2. Payment
The said Purchase Price less the sum of C$70,543.00 to be used for the
adjustment referred to in Rider Clause 17 shall be paid in full free of bank
charges to Sellers at closing as per Sellers' Fund Directions.
3. Inspections
a) The Buyers have inspected and accepted the Vessels classification records.
The Buyers have also Inspected the Vessels in Duluth Mn.. on July 18, 2007
in the case of the Voyageur Pioneer and in Milwaukee, Ws., on July 21,
2007 in the case of the Voyageur Independent and have accepted the Vessels
following this inspection and the sale is outright and definite, subject
only to the terms and conditions of this Agreement.
4. Notices, time and place of delivery
a) The Vessels shall be delivered and taken over safely afloat at closing
subject to Rider Clause 17. Closing is to take place on the date hereof.
5. Spares/bunkers, etc.
The Sellers shall deliver each of the Vessels to the Buyers with everything
belonging to her on board and on shore. 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 Vessels at the time of inspection used or unused,
whether on board or not shall become the Buyers' property, but spares on order
are to be excluded. Forwarding charges, if any, shall be for the Buyers'
account. The Sellers are not required to replace spare parts including spare
tall-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 if they are the property of
the Sellers. Unused stores and provisions 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):
The Buyers shall take over the remaining bunkers and unused lubricating oils in
storage tanks and sealed drums the quantity of which is to be ascertained after
each of the Vessels has completed the voyage she was undergoing at the time of
closing. Said bunkers and unused lubricating oils shall be assessed at the
current net market price (excluding barging expenses) at the port and date of
completion of the said voyage. Payment under this Clause, net of any amount due
by Sellers pursuant to Rider Clause 17, shall be made within one (1) days of the
completion of the said voyage.
6. Documentation
The place of closing: Offices of Ogilvy Renault, Bureau 3800, Royal Bank Plaza,
South Tower, 200 Bay Street, Toronto, Ontario.
In exchange for payment of the Purchase Price the Sellers shall furnish the
Buyers with delivery documents, namely:
a) Legal Bill of Sale in a form recordable in Canada (the country in which
the Buyers are to register the Vessels), warranting that each of the
Vessels 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 Vessels.
c) Confirmation of Class issued within 72 hours prior to closing in the case
of the Voyageur Pioneer.
d) Current Certificate issued by the competent authorities stating that each
of the Vessels is free from registered encumbrances.
e) Any such additional documents as may reasonably be required by the
competent authorities for the purpose of registering the Vessel, provided
the Buyers notify the Sellers of any such 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 Delivery and Acceptance confirming the date and time of
delivery of the Vessels from the Sellers to the Buyers.
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 Vessels. Other
certificates which are on board the Vessels 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 Vessels' log books but the
Buyers to have the right to take copies of same.
7. Encumbrances
The Sellers warrant that each of the Vessels, at the time of closing, 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.
8. 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.
9. Condition on delivery
Each of the Vessels 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 Vessels
shall be delivered with her class maintained without condition/recommendationo,
free of average damage affecting the Vessel's class, and with her classification
certificates and national certificates, as well as all other certificates the
Vessel had at the time of inspection, valid and unextended without
condition/recommendation* by Class or the relevant authorities at the time of
delivery. "inspection" in this Clause 11, shall mean the Buyers' inspection
according to Clause 4 a) or 4 b), if applicable, or the Buyers' inspection prior
to the signing of this Agreement. If the Vessel is taken over without
inspection, the date of this Agreement shall be the relevant date.
* Notes, if any, In the surveyors report which are accepted by the
Classification Society without condition/recommendation are not to be
taken into account.
10. Arbitration
a) This Agreement shall be governed by and construed in accordance with
Canadian Maritime law and any dispute arising out of this Agreement shall
be referred to arbitration in Toronto in accordance with the AMAC Rules
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.
Sellers Buyers
Voyageur Marine Transport Limited Lower Lakes Towing Ltd.
/s/ Fred Huneault /s/ Scott Bravener
- ------------------------------------ -----------------------------------
By: Fred Huneault, President By: Scott Bravener, President
Sellers (Cont'd)
Voyageur Pioneer Marine Inc., as
registered owner of the Voyageur
Pioneer
/s/ Fred Huneault
- ------------------------------------
By: Fred Huneault, President
RIDER TO THE MEMORANDUM OF AGREEMENT
DATED AUGUST 27, 2007
BETWEEN VOYAGEUR MARINE TRADING LTD AND LOWER LAKES TOWING LTD.
11. Adjustment
Should the Vessel be engaged in a voyage at the time of closing, the parties
agree to the following:
a) The Vessel shall be allowed to continue her voyage and discharge her cargo
at destination.
b) All costs to complete the voyage, including but not restricting to,
stevedoring, port charges, pilotage fees and seaway tolls, if any, that
shall be paid by the Buyers as owners are to be assumed by the Sellers.
c) Wages of crew and cost of victualling the ship until discharge of the
cargo, and other like expenses, are to be assumed by the Sellers as well.
d) All such costs and expenses shall be deducted from the balance of the
Purchase Price and any amount left shall be remitted to the Sellers, once
the said adjustment has been completed.
e) Any cargo claim arising from the said voyage shall be handled and
ultimately settled by the Sellers at no cost to the Buyers. Should the
Sellers fail to handle such a claim or fail to settle same, the Buyers
shall have the right, but not be obliged, to handle, defend, compromise or
settle the claim, in which case, the Sellers shall be responsible to
reimburse the Buyers for the expenses incurred in so doing, including, all
reasonable legal fees.
12. Assignment
Buyers may assign this Memorandum of Agreement, or any rights hereunder,to
its lenders, in its sole discretion at any time, without the consent of
Voyageur.
SCHEDULE 1 TO THE MEMORANDUM OF AGREEMENT
DATED AUGUST 27, 2007
BETWEEN VOYAGEUR MARINE TRADING LTD AND LOWER LAKES TOWING LTD.
SHIP #1
Name: Voyageur Independent
Classification Society/Class: N/A /
Built: 1952 By: Defoe Shipbuilding Co., Bay City, MI. USA
Flag: Canadian Place of Registration: Hamilton
Call Sign: Grt/Nrt: 12,296.00 t / 5,581.00 t
Register Number: 827118
Allocated value: 11,500,000.00
SHIP #2
Name: Voyageur Pioneer
Classification Society/Class: Lloyd's/100A1 Bulk Carrier
Built: 1983 By: Govan Shipbuilders Ltd, Glasgow, Scotland
Flag: Canadian Place of Registration: Hamilton
Call Sign: Grt/Nrt: 22,388.00 t / 11,648.00 t
Register Number: 395510
Allocated value: 13,500,000.00