MEMORANDUM OF AGREEMENT Dated:8th August 2007
Exhibit
10.5
Dated:8th
August 2007
_________________________
hereinafter
called the Sellers, having agreed to sell, and Genco
_____ Limited which to be guaranteed
hereinafter
called the Buyers, having agreed to buy
Name:
Classification
Society/Class: NK
By:
Flag: Place
of Registration:
Call
Sign: Grt/Nrt:
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 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
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 3
(three) working
days from the date this Agreement
is
signed by fax by both parties and all subjects lifted, whichever is
later. This deposit shall be placed with HSBC
Bank Piraeus Branch – Attn Ms Kopsahili Tel.: ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇
and
held
by them in an
interest bearing 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 free of bank charges to HSBC
Bank Piraeus Branch
on
delivery of the Vessel, but not later than 3 New
York 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.
4. Inspections
The
buyers have accepted the vessel whether inspected or not and also accepted
class
records
therefore
the sale is outright and definite in this respect.
5. Notices,
time and place of delivery
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a)
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The
Sellers shall keep
the Buyers well informed of the Vessel’s itinerary and
shall
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provide
the Buyers with 20/15,
7 , and 3 days
approximate
notice of the estimated time of arrival at
the
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intended
place of
delivery and will otherwise keep
Buyers
well
updated of any changes to these notices . 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 final
Notice of Readiness for delivery by
facsimile or email after the Vessel is in all respects ready for delivery in
accordance with the
MOA
including documentation reasonably required for registration, whereupon the
Buyers
shall
pay for and take delivery of the vessel within three (3) New York banking days
after
receipt
of a valid Notice of Readiness.
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b)
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The
Vessel shall be delivered and taken over
cargo free, safely afloat at a safe and accessible
berth or
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anchorage
in Sellers’ option at
one
safe port in the range of worldwide in Sellers’ option, excluding following
countries: Albania, Burma, Cuba, Ivory Coast, Congo, Iran, Iraq, Liberia, North
Korea, Sierra Leone, Sudan, Syria (which port must be suitable to and where
a
class approved diver and surveyor are located).
Expected
time of
delivery: between October 1st, 2007 and December 10th,
2007
Date
of
cancelling (see Clauses 5 c), 6 b) (iii) and 14): 10th
of
December in Buyer’s option
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c)
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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 canceling date stipulated in line
61.
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If
this
Agreement is maintained with the new cancelling date all other terms and
conditions hereof including those contained in Clause 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.
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d)
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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.
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6. Drydocking/Divers
Inspection
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b)**
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(i)
The Vessel is
to be delivered without drydocking. However
the Buyers have the right to carry out an inspection of the vessel’s
underwater parts with class approved
divers
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prior
to the delivery of the vessel. Should the Buyers choose to
exercise this right then the Buyers shall arrange at their expense an
inspection of the underwater parts by a class approved diver in the
presence of a representative of both Buyers/Sellers together with
a
class surveyor who is to be arranged by
Sellers.
The Sellers shall
at their
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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 nearby
at their own expense. Should such movement delay the vessel beyond
her cancelling date, then same
shall
be extended to allow for this inspection. If any damage is found to
the vessel’s
underwater
parts which in the opinion of the class surveyor affects the vessels clean
class
then:
A)
If class requires the immediate drydocking of the vessel, then the drydocking
clause herein shall be fully reinstated into this agreement and the vessel
is to
be docked accordingly at the Sellers expense before delivery. In this case
the
cancelling under this agreement shall automatically be extended by the duration
of the entire repair period (including waiting time/deviation/gas freeing time,
etc.) but not over four weeks. The Buyers shall then have the right to carry
our
their own works at their risk and expense and without causing any delays to
the
Sellers’ works and not interfering with same. The Buyers have the right to
attend the drydocking without interfering with the Sellers or the class
surveyors works. Should the Buyers’ works delay the undocking beyond the time
that the Sellers’ works are completed, then provided that the vessel is in all
other respects ready for delivery in accordance with this agreement, the Sellers
have the right to present the Notice of Readiness whilst the vessel is in the
dock. In any event the Sellers shall remain responsible for the
undocking costs even if the vessel is delivered to the Buyers in the
dock.
B)
in the case of a class recommendation or condition calling for the repair of
such defects at a later state or at the next class scheduled drydocking, then
the Sellers shall pay the Buyers a mutually agreed lumpsum compensation figure
covering the cost of such works but excluding all drydock dues unless the vessel
is required by class to drydock before its next schedule drydocking in which
case estimated drydock costs to be included in lumpsum
settlement. If
this figure cannot be mutually agreed the Buyers and the Sellers are to obtain
a quotation for the repairs from two first class shipyards near to the
delivery port and the compensation is to be the average of these two
quotations.
(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 5 b). Once drydocking
has taken place the 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 for 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 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).
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*
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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.
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**
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6
a) and 6 b) are alternatives; delete whichever is not applicable.
In the
absence of deletions, alternative 6 a) to
apply.
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7.
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Spares/bunkers,
etc.
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The
Sellers shall deliver the Vessel to the Buyers with everything belonging to
her
on board/on
order 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, broached
and unbroached stores, provisions and publications
belonging to the Vessel at the time of inspection used
or
unused,
whether on 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 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): a
maxi
gun water ▇▇▇▇▇▇ for the holds and all oxygen, acetylene, freon
bottles
The
Buyers shall take over [the remaining bunkers at the time of delivery and pay
for them according to the prevailing plats prices at the time of delivery/port
of delivery and] unused/unbroached lubricating oils
remaining on board in the
vessel’s storage tanks and in
unbroached/sealed drums and pay
Sellers last net invoice prices
duly evidenced by
vouchers
Payment
under this Clause shall be made at the same time and place, in the same currency
as the
Purchase
Price.
8. Documentation
The
place of
closing: HSBC Bank Piraeus
Branch
In
exchange for payment
of the Purchase Price the Sellers shall furnish the Buyers with delivery
documents, reasonably required by Buyers. Sellers to
provide Buyers with draft/copy of each of the requested documents at least
ten
(10) New York banking days prior to the intended delivery date, for Buyers
approval. Sellers will deliver such documentation as is required and customary
and may otherwise be required by the flag state where Buyer intends to register
the vessel.
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 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
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, and with all her
classification certificates and national/international
certificates, as well as all other certificates the Vessel had at the time
of
inspection, clean,
valid and
unextended
at the time of delivery of the vessels, with all continuos
survey items completely up to date without extensions and 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.
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*
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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.
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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 ail expenses incurred together with
interest.
14. Sellers’
default
Should
the Sellers fail to give Notice of Readiness in accordance with Clause 5 a)
or
fall 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 fall 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
all
subjects lifted and the deposit has been lodged, the
Buyers
have
the
right to place two representatives on board the Vessel at their sole risk and
expense upon
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
Sellers’ crew or with the operation of the Vessel.
The
Buyers’
representatives shall sign the Sellers’ letter of Indemnity prior to their
embarkation.
16. Arbitration
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a)*
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This
Agreement shall be governed by and construed in accordance with English
law/LMAA
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and
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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, 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.
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Clauses
17 and 18 to form an integral part of this MoA.
Clause
17
Vessel
to be delivered with a minimum of 200 tons of bunkers on board and 30 mtns
mdo.
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 approved
document and this document.