kl08008_ex10-5.htm


    
      

    


    
      Exhibit
10.5

       

      
         

        
                                                                                               Norwegian Shipbrokers’ Association’s


          MEMORANDUM OF
AGREEMENT                                                                                                                                                                                       
Memorandum of Agreement for sale and 

                                                                                               purchase of ships.  Adopted
by the Baltic 

                                                                                               and
International Maritime Council 

          Dated:
13th
June
2008                                                                       (BIMCO ) in
1956.

                                                                  Code-name

                                                                                     SALEFORM 1993

                                                                                               Revised 1966,
1983 and 1986/7

        

         

      

       

       

    

    ____________
Navigation Ltd, Trust Company Complex, Ajeitake Road, Ajeltake Island Majuro,
The Republic of the Marshall Islands hereinafter
called the Sellers, have agreed to sell, and Genco ______ Ltd,
Marshall Islands, the performance of which to be guaranteed by Genco Shipping
and Trading Limited hereinafter
called the Buyers, have agreed to buy

     

    Name:  =­­­­­­­­­­­­­­­­­­­_______________________=

     

    Classification
Society/Class:  ____

     

    Built:  scheduled
delivery end of _________  By:  ________
Shipbuilding Co Ltd, South Korea

     

    Flag:  Marshall
Islands             
        Place of
Registration:  Marshall
Islands

     

    Call
Sign:                                              
Grt/Nrt:

     

    Register
Number:

     

    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, Germany, Greece,
USA, South Korea 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 line 4.

     

    1.    Purchase
Price U.S.$ _____________ (United States Dollars ___________________) less
liquidated damages if any

     

    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 four (4) banking
days from the date of this Agreement has been signed
by both the Buyers and the Sellers on fax provided the account is
open and
functional.
 This
deposit shall be placed with ____________ AG,
Hamburg and held
by them in a joint, interest bearing
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 full free of bank charges to the Seller’s
account at ____________ AG, Hamburg 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 against Sellers’
presentation of documents required by the Buyers.  Such documents are
to be.mutually agreed
and incorporated into an Addendum to the MOA.  The agreement of such
addendum is not to delay the signing of the MOA.

     

    4.    Inspections

     

    5.    Notices,
time and place of delivery

     

    
      	
              a)  

            	
              The
      Sellers shall keep the Buyers well informed of the Vessel’s itinerary
      in accordance
      with schedule
      from the shipyard and shall

            


    

     

    
      	
               
      

            	
              provide
      the Buyers with 30/21/14,
      10/7, and 5 days approximate notice of the
      delivery
      and 3/1 days definite notice of the 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 safely afloat at a safe and
      accessible berth or safe and
      accessible anchorage at/in ________
      Shipyard, South Korea

            


    

     

    Expected
time of delivery:  between _________
and _________

     

    Date of
cancelling (see Clauses 5 c), 6 b) (Ill) and 14): _________ in the
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.

            


    

     

    7.     Spares/bunkers,
etc.

     

    The
Sellers shall deliver the Vessel 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 Vessel at the time of delivery
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 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 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 stop 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/greases on board
at the time of delivery.

     

    Lubricating oils
to be those in sealed drums and/or designated
storage tanks not having been used or circulated in the vessel’s
machinery and pay the Sellers’ net contract
price (excluding barging expenses) from time of
supply.

     

    Payment
under this Clause shall be made at the same time and place and in the same
currency as the Purchase Price.

     

    8.    Documentation

     

    The place
of closing:  ____________ AG,
Hamburg

     

    In
exchange for payment of the Purchase Price the Sellers shall furnish the Buyers
with delivery documents as per
Addendum.

     

    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 Vessel 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 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, taxes 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
17

     

    The
Vessel with everything belonging to her shall be at the Sellers’ risk and
expense until she is delivered to the Buyers.  However, the Vessel
shall be delivered with her class maintained without condition/recommendation*,
free of average damage affecting the Vessel’s class, and with her classification
certificates and national certificates, as well as all other certificates, valid
and unextended without condition/recommend action* by Class or the relevant
authorities at the time of delivery.  Validity of all above
Certificates to be minimum 5 months after the date of delivery with the
exception of those which are interim due the Vessel being a newbuilding where
final approval of certain documentation by classification society is pending at
the time of delivery.

     

    *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 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 fall 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 See Clause
18

     

    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, falling 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 to 19 are to form an integral part of this Agreement.

     

    Clause
17

     

    The
Vessel is to be delivered to the Buyers in accordance with the terms and
conditions of the Shipbuilding contracts a copy of which is to be appended to
the MOA.  All the rights of the Sellers under the contract and
warranties are to be assigned to the Buyers and the Buyers, Sellers, and
Shipyard shall upon delivery sign to tripartite agreement to cover the
assignment of all guarantees, 3rd party warranties and liquidated damages in
full.  In the event of the Shipyard being unwilling to assign the
warranties for whatsoever reason, then the Sellers undertake to process the
warranty items an behalf of the Buyers.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    Clause
18

     

    The
supervision will be undertaken by the Sellers to the Sellers’ normal standards
once the MOA has been signed and the deposit has been lodged then the Buyers
have the right to place one representative at the yard after keel laying as part
of the Seller’s site team for familiarization purposes only and without
interference.

     

    On
receipt of 30 day notice, the Buyers are to have the right to send their captain
and chief engineer to the yard to be present at seatrials. All these
representatives are to sign Seller’s usual indemnity forms and will remain at
yard until and including the time of delivery.

     

    Clause
19

     

    All
negotiations/terms of sale are to remain strictly private and
confidential.  However as the Buyers are a publicly listed company in
the USA, they are permitted to make disclosures in accordance with USA
securities laws.  Such disclosure shall identify ____________
Navigation
Ltd only as Seller.

     

    This
agreement is drawn up in two originals of even tenor and date one to be retained
by each party.

     

    For
the Sellers                        For the
Buyers

     

    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 approval document and this
document.