Management Fees and Expenses. SECTION 9.1. In consideration of the Manager providing the Services to the Subsidiaries, the Parent shall pay the Manager the following fees (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”): (a) subject to Sections 9.2 and 9.3, a fee of US$956 per day per Vessel during the term of this Agreement payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary owns or charters-in each Vessel during the applicable month), unless a Vessel is chartered-out to a third party on a bareboat charter basis, in which case the fee payable to the Manager for such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, the fees per day payable by such Subsidiary to such Submanager under the relevant direct agreement in respect of such Vessel; (b) a fee equal to 0.15% calculated on the aggregate of the gross freight, demurrage, charter hire, ballast bonus or other income obtained for the employment of each Vessel during the term of this Agreement, payable to the Manager monthly in arrears, only to the extent such freight, demurrage, charter hire, ballast bonus or other income, as the case may be, is received as revenue; and (c) subject to Sections 9.2 and 9.3, a fee of US$787,405 per Newbuild under construction for the services rendered by the Manager under the Supervision Agreement in respect of such Newbuild, payable in accordance with the terms of such Supervision Agreement. SECTION 9.2. The Management Fees will be fixed and shall not be subject to adjustment for Euro/U.S. Dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for the 12-month period starting on January 1, 2016 and for each subsequent 12-month period falling thereafter (each such 12-month period referred to hereinafter as an “Annual Period”), the Management Fee for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c) will be adjusted pursuant to Section 9.3. SECTION 9.3. The Management Fee for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c), for the Annual Period commencing on January 1, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if: (a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from: (i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and (ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or (b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner. SECTION 9.4. The Manager shall, subject to Section 9.5, pay for all usual office expenses incurred by it as the Manager. SECTION 9.5. The Parent hereby acknowledges that any capital expenditure, financial costs, operating expenses for each Vessel and any general and administrative expenses of the Subsidiaries whatsoever are not covered by the Management Fees and any such expenditure, costs and expenses shall be paid fully by the Parent or the applicable Subsidiary, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary the Manager seeks, in its discretion, reimbursement from. The said capital expenditure, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries include, without limiting the generality of the foregoing, items such as: (a) fees, interest, principal and any other costs due to the Subsidiaries’ financiers and their respective advisors; (b) all voyage expenses and vessel operating and maintenance expenses relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.); (c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its name or on behalf and/or in the name of any Subsidiary; (d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including the duties provided in Articles V and VI of this Agreement; (e) applicable deductibles, insurance premiums and/or P&I calls; (f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation and out of pocket expenses of the Manager and/or its personnel, incurred in pursuance of the Services; and (g) any other out of pocket expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any Supervision Agreement or any Shipmanagement Agreement. SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc. SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 3 contracts
Samples: Framework Agreement (Costamare Inc.), Framework Agreement (Costamare Inc.), Framework Agreement (Costamare Inc.)
Management Fees and Expenses. SECTION 9.1. In consideration of the Manager providing the Services to the SubsidiariesGroup, the Parent shall pay the Manager the following fees (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject to Sections 9.2 and 9.3, a fee of US$956 per day per Vessel during the term of this Agreement Vessel, payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary Parent (or any Subsidiary) owns or charters-in each Vessel during the applicable month), unless a Vessel is chartered-out to a third party on a bareboat charter basis, in which case the fee payable to the Manager for such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 2.4 and such Submanager enters into a management agreement directly with the relevant Subsidiary member of the Group (the “direct agreement”), the fees payable by the Parent and/or such Subsidiary member of the Group under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, the fees per day payable by such Subsidiary member of the Group to such Submanager under the relevant direct agreement in respect of such Vessel;
(b) a fee equal to 0.150.75% calculated on the aggregate of the gross freight, demurrage, charter hire, ballast bonus or other income obtained for the employment of each Vessel during the term of this Agreement, payable to the Manager monthly in arrears, only to the extent such freight, demurrage, charter hire, ballast bonus or other income, as the case may be, is received as revenue; and;
(c) subject to Sections 9.2 and 9.3, a fee of US$787,405 per Newbuild under construction for the services rendered by the Manager under the Supervision Agreement in respect of such Newbuild, payable in accordance with the terms of such Supervision Agreement; and
(d) an annual fee payable to the Manager (or its designee) quarterly in arrears of (i) US$2,500,000 payable in cash and (ii) 598,400 validly issued, fully paid and nonassessable shares of the common stock of Parent par value $0.0001 per share (the “Shares”) payable in kind, PROVIDED HOWEVER, that Manager is aware and acknowledges that there are limitations and restrictions on the circumstances under which it may offer to sell, transfer or otherwise dispose of the Shares to be acquired by it including certain restrictions on transfer under the applicable securities laws. The fee payable to the Manager pursuant to clause (d) above will be effective as of January 1, 2015.
SECTION 9.2. The Management Fees will be fixed for the period commencing on the date of this Agreement and ending on December 31, 2015 (the “Fixed Period”) and shall not be subject to adjustment for Euro/U.S. Dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for inflation. For the 12-month period starting on January 1, 2016 and for each subsequent 12-month period falling thereafter (each such 12-month period referred to hereinafter as an “Annual Period”), the Management Fee for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c) will be adjusted pursuant to Section 9.3.
SECTION 9.3. The Management Fee Fees for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c), for the Annual Period commencing on January 1, 2016 the day falling immediately after the end of the Fixed Period and each subsequent Annual Period thereafter, will, in each case, be further adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016the day falling immediately after the end of the Fixed Period, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.5, pay for all usual office expenses incurred by it as the Manager.
SECTION 9.5. The Parent hereby acknowledges that any capital expenditure, financial costs, operating expenses for each Vessel and any general and administrative expenses of the Subsidiaries Group whatsoever are not covered by the Management Fees and any such expenditure, costs and expenses shall be paid fully by the Parent or the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Group the Manager seeks, in its discretion, reimbursement from. The said capital expenditure, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including Directors & Officers’ liability insurance) xxx/xx X&X calls;
(f) compensation expenses for employees who are not provided by the Manager pursuant to Section 8.1;
(g) postage, communication, traveling, lodging, victualling, overtime, out of office compensation and out of pocket expenses of the Manager and/or its personnel, incurred in pursuance of the Services; and
(gh) any other out of pocket expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Shipowning Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary member of the Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
SECTION 9.8. Notwithstanding (a) any contrary provision of Section 9.1 of this Agreement and (b) the m.
Appears in 2 contracts
Samples: Management Agreement (Costamare Inc.), Management Agreement (Costamare Inc.)
Management Fees and Expenses. SECTION 9.1. 9.1 In consideration of the Manager providing the Services to the SubsidiariesGroup, during the current Subsequent Term (which began on May 29, 2015 and ends on May 28, 2016, the Parent shall pay the Manager the following fees (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject Subject to Sections 9.2 and 9.3paragraph (b) below, a fee of US$956 $975 per day per Vessel during the term of this Agreement Vessel, payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary Parent (or any Subsidiary) owns or charters-in each Vessel during the applicable month), unless ;
(b) a fee of $250 per day per Vessel is chartered---out to a third party on a bareboat charter basis, basis payable monthly in which case arrears (pro rated to reflect the fee payable to number of days that the Manager for Parent (or any Subsidiary) owns each such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”applicable month), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, the fees per day payable by such Subsidiary to such Submanager under the relevant direct agreement in respect of such Vessel;
(bc) a fee equal to 0.150.0% calculated on the aggregate of the gross freight, demurrage, charter hire, hire and ballast bonus or other income obtained for the employment of each Vessel during the term of this AgreementTerm, payable to the Manager monthly in arrears, but only to the extent such freight, demurrage, charter hire, hire or ballast bonus or other incomebonus, as the case may be, is received recognized as revenue;
(d) a commission equal to 1% calculated on the price set forth in the memorandum of agreement or other sale and purchase contract of (i) the Newbuilds set forth on Schedule C hereto, payable upon delivery of the Newbuilds to the relevant member of the Group; and (ii) any other Vessel bought or sold by the Parent or any Subsidiary, payable upon final delivery of such vessel to the relevant member of the Group or the relevant purchaser, as applicable; and
(ce) subject to Sections 9.2 and 9.3, a fee of US$787,405 $550,000 per Newbuild under construction for the services rendered by the Manager under the Supervision Agreement in respect of such Newbuild, payable in accordance with the terms of such Supervision Agreement. The Management Fee payable hereunder shall be reduced in the manner provided by Section 8.1 hereof.
SECTION 9.2. 9.2 The Manager shall have the right to demand the Management Fees will be fixed and shall not be Fee payable in relation to each Vessel from either the Parent or the relevant member of the Group owning such Vessel under the terms of the relevant Shipmanagement Agreement or Supervision Agreement, as applicable.
SECTION 9.3 In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Manager or in connection with a Manager Substitution, the Management Fee payable to the Manager under Section 9.1(a) or, as the case may be, Section 9.1(b) for the Vessel subject to adjustment such Shipmanagement Agreement shall be payable in respect of such Vessel for Euro/U.S. Dollar exchange rate fluctuations or inflation a further period of three calendar months from the termination date. In addition (except in the case of a Manager Substitution):
(a) The relevant member of the Group shall continue to pay Crew Support Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel during the said further period of three calendar months; and
(b) the relevant member of the Group shall pay any Severance Costs (as such term of this is defined in the relevant Shipmanagement Agreement, save that ) for the 12-month period starting on January 1, 2016 and for relevant Vessel which may materialize. All amounts payable to the Manager under this Section 9.3 shall be paid promptly by the Parent to the Manager following receipt by the Parent of a final accounting of funds due from the Parent or any other member of the Group in accordance with Section 13.6.
(a) [INTENTIONALLY LEFT BLANK].
(b) For each subsequent 12-month period falling thereafter Subsequent Term (each such 12-month period referred to hereinafter as an “Annual Period”defined below), the Management Fee for each Vessel payable will be set at a mutually agreed-upon rate between the Parent and the Manager no later than 30 days prior to the commencement of the relevant Subsequent Term.
(c) If the Parent and the Manager are unable to agree on the Management Fee for any Subsequent Term pursuant to Section 9.1(a9.4(b) or Section 9.1(c) hereof, the Management Fee for such Subsequent Term will be adjusted determined by arbitration pursuant to Section 9.3the terms of Article XVII hereof.
SECTION 9.3. 9.5 The Management Fee for each Vessel payable pursuant Manager shall, at no additional cost to Section 9.1(a) or Section 9.1(cany member of the Group, provide the Group with office accommodation, office staff (including secretarial, accounting and administrative assistance), for the Annual Period commencing on January 1facilities and stationery, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.59.6 and Section 10.8, pay for all printing, postage, domestic telephone and all other usual office expenses incurred by it as the ManagerManager (it being understood that the services of the Executive Officers shall be provided pursuant to Section 8.1).
SECTION 9.5. 9.6 The Parent hereby acknowledges that any no capital expenditureexpenditures, financial costs, operating expenses for each Vessel and any or general and administrative expenses of the Subsidiaries whatsoever Group are not covered by the Management Fees and any such expenditurecosts, costs expenditure and expenses shall be paid fully by the Parent or or, as the case may be, the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Manager seeksGroup from which the Manager, in its discretion, reimbursement fromseeks reimbursement. The said Such capital expenditureexpenditures, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses directly relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its own name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including including, without limiting the generality of the foregoing, the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including D&O insurance) xxx/xx X&X calls;; and
(f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation victualing and out of other out-of-pocket expenses of the Manager and/or its personnel, incurred in pursuance of providing the Services; and
(g) , save for any other out of pocket such expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any under a Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 2 contracts
Samples: Management Agreement (Safe Bulkers, Inc.), Management Agreement (Safe Bulkers, Inc.)
Management Fees and Expenses. SECTION 9.1. 9.1 In consideration of the Manager providing the Services to the SubsidiariesGroup, during the current Term (which shall begin on May 29, 2018), the Parent shall pay the Manager ship management fees comprised of: (a) variable fees on the following basis of the number of days that the Parent (or any Subsidiary) owns or charters in each such Vessel during the applicable month; (b) variable fees on a per day per Vessel basis for vessels chartered-out to a third party on a bareboat charter; (c) variable fees on the basis of a percentage calculated on the aggregate gross freight, demurrage, charter hire and ballast bonus obtained for the employment of each Vessel; (d) commissions for the purchase or sale of vessels; (e) a supervision fee for the construction of newbuilds; and (f) a flat fee on an annual basis (the “Annual Fee”) (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject to Sections 9.2 and 9.3, a fee of US$956 per day per Vessel during the term of this Agreement payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary owns or charters-in each Vessel during the applicable month), unless a Vessel is chartered-out to a third party on a bareboat charter basis, in which case the fee payable to the Manager for such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, as set forth on Schedule E.
SECTION 9.2 The Manager shall have the fees per day right to demand the Management Fee payable by in relation to each Vessel from either the Parent or the relevant member of the Group owning such Subsidiary to such Submanager Vessel under the relevant direct agreement in respect of such Vessel;
(b) a fee equal to 0.15% calculated on the aggregate terms of the gross freight, demurrage, charter hire, ballast bonus relevant Shipmanagement Agreement or other income obtained for the employment of each Vessel during the term of this Supervision Agreement, as applicable.
SECTION 9.3 In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Manager or in connection with a Manager Substitution, the Management Fee payable to the Manager monthly in arrears, only to the extent such freight, demurrage, charter hire, ballast bonus or other incomeunder subclauses (a) through (c) of Schedule E or, as the case may be, for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three calendar months from the termination date. In addition, in the event that a Shipmanagement Agreement is received terminated (except in the case of a default by the Manager or a Manager Substitution):
(a) The relevant member of the Group shall continue to pay Crew Support Costs (as revenuesuch term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel during the said further period of three calendar months; and
(cb) subject to Sections 9.2 and 9.3, a fee the relevant member of US$787,405 per Newbuild under construction the Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the services rendered by relevant Vessel which may materialize. All amounts payable to the Manager under this Section 9.3 shall be paid promptly by the Supervision Agreement in respect Parent to the Manager following receipt by the Parent of such Newbuild, payable a final accounting of funds due from the Parent or any other member of the Group in accordance with the terms of such Supervision AgreementSection 13.8.
SECTION 9.2. The Management Fees will be fixed and shall not be subject to adjustment for Euro/U.S. Dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for the 12-month period starting on January 1, 2016 and for (a) [INTENTIONALLY LEFT BLANK].
(b) For each subsequent 12-month period falling thereafter Subsequent Term (each such 12-month period referred to hereinafter as an “Annual Period”defined below), the Management Fee for each Vessel payable will be set at a mutually agreed-upon rate between the Parent and the Manager no later than 30 days prior to the commencement of the relevant Subsequent Term.
(c) If the Parent and the Manager are unable to agree on the Management Fee for any Subsequent Term pursuant to Section 9.1(a9.4(b) or Section 9.1(c) hereof, the Management Fee for such Subsequent Term will be adjusted determined by arbitration pursuant to Section 9.3the terms of Article XVII hereof.
SECTION 9.3. 9.5 The Management Fee for each Vessel payable pursuant Manager shall, at no additional cost to Section 9.1(a) or Section 9.1(cany member of the Group, provide the Group with office accommodation, office staff (including secretarial, accounting and administrative assistance), for the Annual Period commencing on January 1facilities and stationery, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.59.6 and Section 10.8, pay for all printing, postage, domestic telephone and all other usual office expenses incurred by it as the ManagerManager (it being understood that the services of the Executive Officers shall be provided pursuant to Section 8.1).
SECTION 9.5. 9.6 The Parent hereby acknowledges that any no capital expenditureexpenditures, financial costs, operating expenses for each Vessel and any or general and administrative expenses of the Subsidiaries whatsoever Group are not covered by the Management Fees and any such expenditurecosts, costs expenditure and expenses shall be paid fully by the Parent or or, as the case may be, the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Manager seeksGroup from which the Manager, in its discretion, reimbursement fromseeks reimbursement. The said Such capital expenditureexpenditures, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses directly relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its own name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including including, without limiting the generality of the foregoing, the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including D&O insurance) xxx/xx X&X calls;; and
(f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation victualing and out of other out-of-pocket expenses of the Manager and/or its personnel, incurred in pursuance of providing the Services; and
(g) , save for any other out of pocket such expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any under a Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 1 contract
Management Fees and Expenses. SECTION 9.1. In consideration of the Manager providing the Services to the SubsidiariesPartnership Group, the Parent Partnership shall pay the Manager the following fees (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject to Sections 9.2 and 9.3, a fee of US$956 per day per Vessel during the term of this Agreement Vessel, payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary Partnership (or any Subsidiary) owns or charters-in each Vessel during the applicable month), unless a Vessel is chartered-out to a third party on a bareboat charter basis, in which case the fee payable to the Manager for such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 2.4 and such Submanager enters into a management agreement directly with the relevant Subsidiary member of the Partnership Group (the “direct agreement”), the fees payable by the Parent Partnership and/or such Subsidiary member of the Partnership Group under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, the fees per day payable by such Subsidiary member of the Partnership Group to such Submanager under the relevant direct agreement in respect of such Vessel;
(b) a fee equal to 0.150.75% calculated on the aggregate of the gross freight, demurrage, charter hire, ballast bonus or other income obtained for the employment of each Vessel during the term of this Agreement, payable to the Manager monthly in arrears, only to the extent such freight, demurrage, charter hire, ballast bonus or other income, as the case may be, is received as revenue; and;
(c) subject to Sections 9.2 and 9.3, a fee of US$787,405 per Newbuild under construction for the services rendered by the Manager under the Supervision Agreement in respect of such Newbuild, payable in accordance with the terms of such Supervision Agreement; and
(d) an annual fee payable to the Manager (or its designee) quarterly in arrears of the number of validly issued, fully paid and nonassessable common units representing limited partnership interests in the Partnership equal to 0.75% of the aggregate number of issued and outstanding common units, subordinated units and general partnership units representing partnership interests in the Partnership as of January 1 of the applicable calendar year (the “Units”) payable in kind, PROVIDED HOWEVER, that the Partnership and the Manager shall renegotiate in good faith, on no more than one occasion in any calendar year, a reduction in the amount of such unit based compensation in the event of a substantial increase in the public trading price of the Partnership’s common units above the trading price of such common units over the prior year. PROVIDED ALWAYS, that the Manager is aware and acknowledges that there are limitations and restrictions on the circumstances under which it may offer to sell, transfer or otherwise dispose of the Units to be acquired by it including certain restrictions on transfer under the applicable securities laws. The fee payable to the Manager pursuant to clause (d) above for the year ending on December 31, 2015, will be reduced pro rata based on the actual number of days this Agreement is in effect in such year and will be based on the issued and outstanding common units, subordinated units and general partnership units of the Partnership as of the date immediately following the Partnership’s initial public offering but after giving effect to any green shoe option in connection therewith (the “IPO Date”) as if such units had been issued and outstanding on January 1 of such year (i.e., such fee shall be 0.75% of the aggregate number of the common units, subordinated units and general partnership units issued and outstanding on the IPO Date times a fraction where the numerator is equal to the number of actual days this Agreement is in effect in 2015 and the denominator is equal to 365).
SECTION 9.2. The Management Fees will be fixed for the period commencing on the date of this Agreement and ending on December 31, 2015 (the “Fixed Period”) and shall not be subject to adjustment for Euro/U.S. Dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for inflation. For the 12-month period starting on January 1, 2016 and for each subsequent 12-month period falling thereafter (each such 12-month period referred to hereinafter as an “Annual Period”), the Management Fee for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c) will be adjusted pursuant to Section 9.3.
SECTION 9.3. The Management Fee Fees for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c), for the Annual Period commencing on January 1, 2016 the day falling immediately after the end of the Fixed Period and each subsequent Annual Period thereafter, will, in each case, be further adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016the day falling immediately after the end of the Fixed Period, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the ParentPartnership, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.5, pay for all usual office expenses incurred by it as the Manager.
SECTION 9.5. The Parent Partnership hereby acknowledges that any capital expenditure, financial costs, operating expenses for each Vessel and any general and administrative expenses of the Subsidiaries Partnership Group whatsoever are not covered by the Management Fees and any such expenditure, costs and expenses shall be paid fully by the Parent Partnership or the applicable Subsidiarymember of the Partnership Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent Partnership and/or any Subsidiary member of the Partnership Group the Manager seeks, in its discretion, reimbursement from. The said capital expenditure, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Partnership Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Partnership Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its name or on behalf and/or in the name of any Subsidiarymember of the Partnership Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including Directors & Officers’ liability insurance) xxx/xx X&X calls;
(f) compensation expenses for employees who are not provided by the Manager pursuant to Section 8.1;
(g) postage, communication, traveling, lodging, victualling, overtime, out of office compensation and out of pocket expenses of the Manager and/or its personnel, incurred in pursuance of the Services; and
(gh) any other out of pocket expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent Partnership or the Shipowning Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the ParentPartnership, the Manager may direct the Parent Partnership to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary member of the Partnership Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 1 contract
Management Fees and Expenses. SECTION 9.1. 9.1 In consideration of the Manager providing the Services to the SubsidiariesGroup, during the current Term (which shall begin on May 29, 2018), the Parent shall pay the Manager ship management fees comprised of: (a) variable fees on the following basis of the number of days that the Parent (or any Subsidiary) owns or charters in each such Vessel during the applicable month; (b) variable fees on a per day per Vessel basis for vessels chartered-out to a third party on a bareboat charter; (c) variable fees on the basis of a percentage calculated on the aggregate gross freight, demurrage, charter hire and ballast bonus obtained for the employment of each Vessel; (d) commissions for the purchase or sale of vessels; and (e) a supervision fee for the construction of newbuilds (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject to Sections 9.2 and 9.3, a fee of US$956 per day per Vessel during the term of this Agreement payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary owns or charters-in each Vessel during the applicable month), unless a Vessel is chartered-out to a third party on a bareboat charter basis, in which case the fee payable to the Manager for such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, as set forth on Schedule E.
SECTION 9.2 The Manager shall have the fees per day right to demand the Management Fee payable by in relation to each Vessel from either the Parent or the relevant member of the Group owning such Subsidiary to such Submanager Vessel under the relevant direct agreement in respect of such Vessel;
(b) a fee equal to 0.15% calculated on the aggregate terms of the gross freight, demurrage, charter hire, ballast bonus relevant Shipmanagement Agreement or other income obtained for the employment of each Vessel during the term of this Supervision Agreement, as applicable.
SECTION 9.3 In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Manager or in connection with a Manager Substitution, the Management Fee payable to the Manager monthly in arrears, only to the extent such freight, demurrage, charter hire, ballast bonus or other incomeunder subclauses (a) through (c) of Schedule E or, as the case may be, for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three calendar months from the termination date. In addition, in the event that a Shipmanagement Agreement is received terminated (except in the case of a default by the Manager or a Manager Substitution):
(a) The relevant member of the Group shall continue to pay Crew Support Costs (as revenuesuch term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel during the said further period of three calendar months; and
(cb) subject to Sections 9.2 and 9.3, a fee the relevant member of US$787,405 per Newbuild under construction the Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the services rendered by relevant Vessel which may materialize. All amounts payable to the Manager under this Section 9.3 shall be paid promptly by the Supervision Agreement in respect Parent to the Manager following receipt by the Parent of such Newbuild, payable a final accounting of funds due from the Parent or any other member of the Group in accordance with the terms of such Supervision AgreementSection 13.8.
SECTION 9.2. The Management Fees will be fixed and shall not be subject to adjustment for Euro/U.S. Dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for the 12-month period starting on January 1, 2016 and for (a) [INTENTIONALLY LEFT BLANK].
(b) For each subsequent 12-month period falling thereafter Subsequent Term (each such 12-month period referred to hereinafter as an “Annual Period”defined below), the Management Fee for each Vessel payable will be set at a mutually agreed-upon rate between the Parent and the Manager no later than 30 days prior to the commencement of the relevant Subsequent Term.
(c) If the Parent and the Manager are unable to agree on the Management Fee for any Subsequent Term pursuant to Section 9.1(a9.4(b) or Section 9.1(c) hereof, the Management Fee for such Subsequent Term will be adjusted determined by arbitration pursuant to Section 9.3the terms of Article XVII hereof.
SECTION 9.3. 9.5 The Management Fee for each Vessel payable pursuant Manager shall, at no additional cost to Section 9.1(a) or Section 9.1(cany member of the Group, provide the Group with office accommodation, office staff (including secretarial, accounting and administrative assistance), for the Annual Period commencing on January 1facilities and stationery, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.59.6 and Section 10.8, pay for all printing, postage, domestic telephone and all other usual office expenses incurred by it as the ManagerManager (it being understood that the services of the Executive Officers shall be provided pursuant to Section 8.1).
SECTION 9.5. 9.6 The Parent hereby acknowledges that any no capital expenditureexpenditures, financial costs, operating expenses for each Vessel and any or general and administrative expenses of the Subsidiaries whatsoever Group are not covered by the Management Fees and any such expenditurecosts, costs expenditure and expenses shall be paid fully by the Parent or or, as the case may be, the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Manager seeksGroup from which the Manager, in its discretion, reimbursement fromseeks reimbursement. The said Such capital expenditureexpenditures, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses directly relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its own name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including including, without limiting the generality of the foregoing, the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including D&O insurance) xxx/xx X&X calls;; and
(f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation victualing and out of other out-of-pocket expenses of the Manager and/or its personnel, incurred in pursuance of providing the Services; and
(g) , save for any other out of pocket such expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any under a Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 1 contract
Management Fees and Expenses. SECTION 9.1. 9.1 In consideration of the Manager providing the Services to the SubsidiariesGroup, during the Initial Term, the Parent shall pay the Manager the following fees (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject Subject to Sections 9.2 and 9.3paragraph (b) below, a fee of US$956 $975 per day per Vessel during the term of this Agreement Vessel, payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary Parent (or any Subsidiary) owns or charters-in each Vessel during the applicable month), unless ;
(b) a fee of $250 per day per Vessel is chartered---out to a third party on a bareboat charter basis, basis payable monthly in which case arrears (pro rated to reflect the fee payable to number of days that the Manager for Parent (or any Subsidiary) owns each such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”applicable month), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, the fees per day payable by such Subsidiary to such Submanager under the relevant direct agreement in respect of such Vessel;
(bc) a fee equal to 0.150.0% calculated on the aggregate of the gross freight, demurrage, charter hire, hire and ballast bonus or other income obtained for the employment of each Vessel during the term of this AgreementTerm, payable to the Manager monthly in arrears, but only to the extent such freight, demurrage, charter hire, hire or ballast bonus or other incomebonus, as the case may be, is received recognized as revenue;
(d) a commission equal to 1% calculated on the price set forth in the memorandum of agreement or other sale and purchase contract of (i) the Newbuilds set forth on Schedule C hereto, payable upon delivery of the Newbuilds to the relevant member of the Group; and (ii) any other Vessel bought or sold by the Parent or any Subsidiary, payable upon final delivery of such vessel to the relevant member of the Group or the relevant purchaser, as applicable; and
(ce) subject to Sections 9.2 and 9.3, a fee of US$787,405 $550,000 per Newbuild under construction for the services rendered by the Manager under the Supervision Agreement in respect of such Newbuild, payable in accordance with the terms of such Supervision Agreement. The Management Fee payable hereunder shall be reduced in the manner provided by Section 8.1 hereof.
SECTION 9.29.2 The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the relevant member of the Group owning such Vessel under the terms of the relevant Shipmanagement Agreement or Supervision Agreement, as applicable.
SECTION 9.3 In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Manager or in connection with a Manager Substitution, the Management Fee payable to the Manager under Section 9.1(a) or, as the case may be, Section 9.1(b) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three calendar months from the termination date. In addition (except in the case of a Manager Substitution):
(a) The relevant member of the Group shall continue to pay Crew Support Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel during the said further period of three calendar months; and
(b) the relevant member of the Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize. All amounts payable to the Manager under this Section 9.3 shall be paid promptly by the Parent to the Manager following receipt by the Parent of a final accounting of funds due from the Parent or any other member of the Group in accordance with Section 13.6.
(a) The Management Fees Fee for each Vessel will be fixed throughout the Initial Term and shall not be subject to adjustment for Euroeuro/U.S. Dollar dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for the 12-month period starting on January 1, 2016 and for during such period.
(b) For each subsequent 12-month period falling thereafter Subsequent Term (each such 12-month period referred to hereinafter as an “Annual Period”defined below), the Management Fee for each Vessel payable will be set at a mutually agreed-upon rate between the Parent and the Manager no later than 30 days prior to the commencement of the relevant Subsequent Term.
(c) If the Parent and the Manager are unable to agree on the Management Fee for any Subsequent Term pursuant to Section 9.1(a9.4(b) or Section 9.1(c) hereof, the Management Fee for such Subsequent Term will be adjusted determined by arbitration pursuant to Section 9.3the terms of Article XVII hereof.
SECTION 9.3. 9.5 The Management Fee for each Vessel payable pursuant Manager shall, at no additional cost to Section 9.1(a) or Section 9.1(cany member of the Group, provide the Group with office accommodation, office staff (including secretarial, accounting and administrative assistance), for the Annual Period commencing on January 1facilities and stationery, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.59.6 and Section 10.8, pay for all printing, postage, domestic telephone and all other usual office expenses incurred by it as the ManagerManager (it being understood that the services of the Executive Officers shall be provided pursuant to Section 8.1).
SECTION 9.5. 9.6 The Parent hereby acknowledges that any no capital expenditureexpenditures, financial costs, operating expenses for each Vessel and any or general and administrative expenses of the Subsidiaries whatsoever Group are not covered by the Management Fees and any such expenditurecosts, costs expenditure and expenses shall be paid fully by the Parent or or, as the case may be, the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Manager seeksGroup from which the Manager, in its discretion, reimbursement fromseeks reimbursement. The said Such capital expenditureexpenditures, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses directly relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its own name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including including, without limiting the generality of the foregoing, the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including D&O insurance) axx/xx X&X calls;; and
(f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation victualing and out of other out-of-pocket expenses of the Manager and/or its personnel, incurred in pursuance of providing the Services; and
(g) , save for any other out of pocket such expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any under a Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 1 contract
Management Fees and Expenses. SECTION 9.1. Section 1.1 In consideration of the Manager providing the Services to the SubsidiariesGroup, during the current Term (which shall begin on May 29, 2018), the Parent shall pay the Manager ship management fees comprised of: (a) variable fees on the following basis of the number of days that the Parent (or any Subsidiary) owns or charters in each such Vessel during the applicable month; (b) variable fees on a per day per Vessel basis for vessels chartered-out to a third party on a bareboat charter; (c) variable fees on the basis of a percentage calculated on the aggregate gross freight, demurrage, charter hire and ballast bonus obtained for the employment of each Vessel; (d) commissions for the purchase or sale of vessels; and (e) a supervision fee for the construction of newbuilds; (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject to Sections 9.2 and 9.3, a fee of US$956 per day per Vessel during the term of this Agreement payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary owns or charters-in each Vessel during the applicable month), unless a Vessel is chartered-out to a third party on a bareboat charter basis, in which case the fee payable to the Manager for such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, as set forth on Schedule E.
Section 1.2 The Manager shall have the fees per day right to demand the Management Fee payable by in relation to each Vessel from either the Parent or the relevant member of the Group owning such Subsidiary to such Submanager Vessel under the relevant direct agreement in respect of such Vessel;
(b) a fee equal to 0.15% calculated on the aggregate terms of the gross freight, demurrage, charter hire, ballast bonus relevant Shipmanagement Agreement or other income obtained for the employment of each Vessel during the term of this Supervision Agreement, as applicable. USActive 42608227.13
Section 1.3 In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Manager or in connection with a Manager Substitution, the Management Fee payable to the Manager monthly in arrears, only to the extent such freight, demurrage, charter hire, ballast bonus or other incomeunder subclauses (a) through (c) of Schedule E or, as the case may be, for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three calendar months from the termination date. In addition, in the event that a Shipmanagement Agreement is received terminated (except in the case of a default by the Manager or a Manager Substitution):
(a) The relevant member of the Group shall continue to pay Crew Support Costs (as revenuesuch term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel during the said further period of three calendar months; and
(cb) subject to Sections 9.2 and 9.3, a fee the relevant member of US$787,405 per Newbuild under construction the Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the services rendered by relevant Vessel which may materialize. All amounts payable to the Manager under this Section 9.3 shall be paid promptly by the Supervision Agreement in respect Parent to the Manager following receipt by the Parent of such Newbuild, payable a final accounting of funds due from the Parent or any other member of the Group in accordance with the terms of such Supervision AgreementSection 13.8.
SECTION 9.2. The Management Fees will be fixed and shall not be subject to adjustment for Euro/U.S. Dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for the 12-month period starting on January 1, 2016 and for (a) [INTENTIONALLY LEFT BLANK].
(b) For each subsequent 12-month period falling thereafter Subsequent Term (each such 12-month period referred to hereinafter as an “Annual Period”defined below), the Management Fee for each Vessel payable will be set at a mutually agreed-upon rate between the Parent and the Manager no later than 30 days prior to the commencement of the relevant Subsequent Term.
(c) If the Parent and the Manager are unable to agree on the Management Fee for any Subsequent Term pursuant to Section 9.1(a9.4(b) or Section 9.1(c) will be adjusted pursuant to Section 9.3.
SECTION 9.3. The hereof, the Management Fee for each Vessel payable such Subsequent Term will be determined by arbitration pursuant to the terms of Article XVII hereof.
Section 9.1(a) or Section 9.1(c1.5 The Manager shall, at no additional cost to any member of the Group, provide the Group with office accommodation, office staff (including secretarial, accounting and administrative assistance), for the Annual Period commencing on January 1facilities and stationery, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.59.6 and Section 10.8, pay for all printing, postage, domestic telephone and all other usual office expenses incurred by it as the ManagerManager (it being understood that the services of the Executive Officers shall be provided pursuant to Section 8.1).
SECTION 9.5. Section 1.6 The Parent hereby acknowledges that any no capital expenditureexpenditures, financial costs, operating expenses for each Vessel and any or general and administrative expenses of the Subsidiaries whatsoever Group are not covered by the Management Fees and any such expenditurecosts, costs expenditure and expenses shall be paid fully by the Parent or or, as the case may be, the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Manager seeksGroup from which the Manager, in its discretion, reimbursement fromseeks reimbursement. The said Such capital expenditureexpenditures, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;; USActive 42608227.13
(b) all voyage expenses and vessel operating and maintenance expenses directly relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its own name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including including, without limiting the generality of the foregoing, the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including D&O insurance) xxx/xx X&X calls;; and
(f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation victualing and out of other out-of-pocket expenses of the Manager and/or its personnel, incurred in pursuance of providing the Services; and
(g) , save for any other out of pocket such expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any under a Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 1 contract
Management Fees and Expenses. SECTION 9.1. In consideration of the Manager providing the Services to the SubsidiariesGroup, during the Initial Term, the Parent shall pay the Manager the following fees (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject Subject to Sections 9.2 and 9.3paragraph (b) below, a fee of US$956 $575 per day per Vessel during the term of this Agreement Vessel, payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary Parent (or any Subsidiary) owns or charters-in each Vessel during the applicable month), unless ;
(b) a fee of $250 per day per Vessel is chartered-out to a third party on a bareboat charter basis, basis payable monthly in which case arrears (pro rated to reflect the fee payable to number of days that the Manager for Parent (or any Subsidiary) owns each such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”applicable month), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, the fees per day payable by such Subsidiary to such Submanager under the relevant direct agreement in respect of such Vessel;
(bc) a fee equal to 0.151% calculated on the aggregate of the gross freight, demurrage, charter hire, hire and ballast bonus or other income obtained for the employment of each Vessel during the term of this AgreementTerm, payable to the Manager monthly in arrears, but only to the extent such freight, demurrage, charter hire, hire or ballast bonus or other incomebonus, as the case may be, is received recognized as revenue;
(d) a commission equal to 1% calculated on the price set forth in the memorandum of agreement or other sale and purchase contract of (i) the Newbuilds set forth on Schedule C hereto (the “Commission Newbuilds”), payable upon delivery of the Newbuilds to the relevant member of the Group; and (ii) any other vessel (including the Vessels), other than the Newbuilds set forth on Schedule D hereto (the “Itochu Newbuilds”), bought or sold by the Parent or any Subsidiary, payable upon final delivery of such vessel to the relevant member of the Group or the relevant purchaser, as applicable; and
(ce) subject to Sections 9.2 and 9.3, a fee of US$787,405 $375,000 per Newbuild under construction for the services rendered by the Manager under the Supervision Agreement in respect of such Newbuild, payable in accordance with the terms of such Supervision Agreement.
SECTION 9.2. The Manager shall have the right to demand the Management Fees Fee payable in relation to each Vessel from either the Parent or the relevant member of the Group owning such Vessel under the terms of the relevant Shipmanagement Agreement or Supervision Agreement, as applicable.
SECTION 9.3. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Manager, the Management Fee payable to the Manager under Section 9.1(a) or, as the case may be, Section 9.1(b) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three calendar months from the termination date. In addition:
(a) The relevant member of the Group shall continue to pay Crew Support Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel during the said further period of three calendar months; and
(b) the relevant member of the Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize. All amounts payable to the Manager under this Section 9.3 shall be paid promptly by the Parent to the Manager following receipt by the Parent of a final accounting of funds due from the Parent or any other member of the Group in accordance with Section 13.6.
(a) The Management Fee for each Vessel will be fixed throughout the Initial Term and shall not be subject to adjustment for Euroeuro/U.S. Dollar dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for the 12-month period starting on January 1, 2016 and for during such period.
(b) For each subsequent 12-month period falling thereafter Subsequent Term (each such 12-month period referred to hereinafter as an “Annual Period”defined below), the Management Fee for each Vessel payable will be set at a mutually agreed-upon rate between the Parent and the Manager no later than 30 days prior to the commencement of the relevant Subsequent Term.
(c) If the Parent and the Manager are unable to agree on the Management Fee for any Subsequent Term pursuant to Section 9.1(a9.4(b) or Section 9.1(c) hereof, the Management Fee for such Subsequent Term will be adjusted determined by arbitration pursuant to Section 9.3the terms of Article XVII hereof.
SECTION 9.3. The Management Fee for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c), for the Annual Period commencing on January 1, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.49.5. The Manager shall, at no additional cost to any member of the Group, provide the Group with office accommodation, office staff (including secretarial, accounting and administrative assistance), facilities and stationery, and shall, subject to Section 9.59.6 and Section 10.8, pay for all printing, postage, domestic telephone and all other usual office expenses incurred by it as the ManagerManager (it being understood that the services of the Executive Officers shall be provided pursuant to Section 8.1.).
SECTION 9.59.6. The Parent hereby acknowledges that any no capital expenditureexpenditures, financial costs, operating expenses for each Vessel and any or general and administrative expenses of the Subsidiaries whatsoever Group are not covered by the Management Fees and any such expenditurecosts, costs expenditure and expenses shall be paid fully by the Parent or or, as the case may be, the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Manager seeksGroup from which the Manager, in its discretion, reimbursement fromseeks reimbursement. The said Such capital expenditureexpenditures, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses directly relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its own name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including including, without limiting the generality of the foregoing, the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including D&O insurance) xxx/xx X&X calls;; and
(f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation victualling and other out of pocket expenses of the Manager and/or its personnel, incurred in pursuance of providing the Services; and
(g) , save for any other out of pocket such expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any under a Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 1 contract
Management Fees and Expenses. SECTION 9.1. 9.1 In consideration of the Manager providing the Services to the SubsidiariesGroup, during the Initial Term, the Parent shall pay the Manager the following fees (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject Subject to Sections 9.2 and 9.3paragraph (b) below, a fee of US$956 $975 per day per Vessel during the term of this Agreement Vessel, payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary Parent (or any Subsidiary) owns or charters-in each Vessel during the applicable month), unless ;
(b) a fee of $250 per day per Vessel is chartered---out to a third party on a bareboat charter basis, basis payable monthly in which case arrears (pro rated to reflect the fee payable to number of days that the Manager for Parent (or any Subsidiary) owns each such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”applicable month), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, the fees per day payable by such Subsidiary to such Submanager under the relevant direct agreement in respect of such Vessel;
(bc) a fee equal to 0.150.0% calculated on the aggregate of the gross freight, demurrage, charter hire, hire and ballast bonus or other income obtained for the employment of each Vessel during the term of this AgreementTerm, payable to the Manager monthly in arrears, but only to the extent such freight, demurrage, charter hire, hire or ballast bonus or other incomebonus, as the case may be, is received recognized as revenue;
(d) a commission equal to 1% calculated on the price set forth in the memorandum of agreement or other sale and purchase contract of (i) the Newbuilds set forth on Schedule C hereto, payable upon delivery of the Newbuilds to the relevant member of the Group; and (ii) any other Vessel bought or sold by the Parent or any Subsidiary, payable upon final delivery of such vessel to the relevant member of the Group or the relevant purchaser, as applicable; and
(ce) subject to Sections 9.2 and 9.3, a fee of US$787,405 $550,000 per Newbuild under construction for the services rendered by the Manager under the Supervision Agreement in respect of such Newbuild, payable in accordance with the terms of such Supervision Agreement. The Management Fee payable hereunder shall be reduced in the manner provided by Section 8.1 hereof.
SECTION 9.29.2 The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the relevant member of the Group owning such Vessel under the terms of the relevant Shipmanagement Agreement or Supervision Agreement, as applicable.
SECTION 9.3 In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Manager or in connection with a Manager Substitution, the Management Fee payable to the Manager under Section 9.1(a) or, as the case may be, Section 9.1(b) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three calendar months from the termination date. In addition (except in the case of a Manager Substitution):
(a) The relevant member of the Group shall continue to pay Crew Support Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel during the said further period of three calendar months; and
(b) the relevant member of the Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize. All amounts payable to the Manager under this Section 9.3 shall be paid promptly by the Parent to the Manager following receipt by the Parent of a final accounting of funds due from the Parent or any other member of the Group in accordance with Section 13.6.
(a) The Management Fees Fee for each Vessel will be fixed throughout the Initial Term and shall not be subject to adjustment for Euroeuro/U.S. Dollar dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for the 12-month period starting on January 1, 2016 and for during such period.
(b) For each subsequent 12-month period falling thereafter Subsequent Term (each such 12-month period referred to hereinafter as an “Annual Period”defined below), the Management Fee for each Vessel payable will be set at a mutually agreed-upon rate between the Parent and the Manager no later than 30 days prior to the commencement of the relevant Subsequent Term.
(c) If the Parent and the Manager are unable to agree on the Management Fee for any Subsequent Term pursuant to Section 9.1(a9.4(b) or Section 9.1(c) hereof, the Management Fee for such Subsequent Term will be adjusted determined by arbitration pursuant to Section 9.3the terms of Article XVII hereof.
SECTION 9.3. 9.5 The Management Fee for each Vessel payable pursuant Manager shall, at no additional cost to Section 9.1(a) or Section 9.1(cany member of the Group, provide the Group with office accommodation, office staff (including secretarial, accounting and administrative assistance), for the Annual Period commencing on January 1facilities and stationery, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.59.6 and Section 10.8, pay for all printing, postage, domestic telephone and all other usual office expenses incurred by it as the ManagerManager (it being understood that the services of the Executive Officers shall be provided pursuant to Section 8.1).
SECTION 9.5. 9.6 The Parent hereby acknowledges that any no capital expenditureexpenditures, financial costs, operating expenses for each Vessel and any or general and administrative expenses of the Subsidiaries whatsoever Group are not covered by the Management Fees and any such expenditurecosts, costs expenditure and expenses shall be paid fully by the Parent or or, as the case may be, the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Manager seeksGroup from which the Manager, in its discretion, reimbursement fromseeks reimbursement. The said Such capital expenditureexpenditures, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses directly relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its own name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including including, without limiting the generality of the foregoing, the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including D&O insurance) xxx/xx X&X calls;; and
(f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation victualing and out of other out-of-pocket expenses of the Manager and/or its personnel, incurred in pursuance of providing the Services; and
(g) , save for any other out of pocket such expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any under a Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 1 contract
Management Fees and Expenses. SECTION 9.1. In consideration of the Manager providing the Services to the Subsidiaries, the Parent shall pay the Manager the following fees (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject to Sections 9.2 and 9.3, a fee of US$956 per day per Vessel during the term of this Agreement payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary owns or charters-in each Vessel during the applicable month), unless a Vessel is chartered-out to a third party on a bareboat charter basis, in which case the fee payable to the Manager for such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, the fees per day payable by such Subsidiary to such Submanager under the relevant direct agreement in respect of such Vessel;
(b) a fee equal to 0.15% calculated on the aggregate of the gross freight, demurrage, charter hire, ballast bonus or other income obtained for the employment of each Vessel during the term of this Agreement, payable to the Manager monthly in arrears, only to the extent such freight, demurrage, charter hire, ballast bonus or other income, as the case may be, is received as revenue; and
(c) subject to Sections 9.2 and 9.3, a fee of US$787,405 per Newbuild under construction for the services rendered by the Manager under the Supervision Agreement in respect of such Newbuild, payable in accordance with the terms of such Supervision Agreement.
SECTION 9.2. The Management Fees will be fixed and shall not be subject to adjustment for Euro/U.S. Dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for the 12-month period starting on January 1, 2016 and for each subsequent 12-month period falling thereafter (each such 12-month period referred to hereinafter as an “Annual Period”), the Management Fee for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c) will be adjusted pursuant to Section 9.3.
SECTION 9.3. The Management Fee for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c), for the Annual Period commencing on January 1, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.5, pay for all usual office expenses incurred by it as the Manager.
SECTION 9.5. The Parent hereby acknowledges that any capital expenditure, financial costs, operating expenses for each Vessel and any general and administrative expenses of the Subsidiaries whatsoever are not covered by the Management Fees and any such expenditure, costs and expenses shall be paid fully by the Parent or the applicable Subsidiary, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary the Manager seeks, in its discretion, reimbursement from. The said capital expenditure, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its name or on behalf and/or in the name of any Subsidiary;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including the duties provided in Articles V and VI of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I calls;
(f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation and out of pocket expenses of the Manager and/or its personnel, incurred in pursuance of the Services; and
(g) any other out of pocket expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 1 contract
Samples: Framework Agreement (Costamare Inc.)
Management Fees and Expenses. SECTION 9.1. Section 1.1 In consideration of the Manager providing the Services to the SubsidiariesGroup, during the current Term (which shall begin on May 29, 2018), the Parent shall pay the Manager ship management fees comprised of: (a) variable fees on the following basis of the number of days that the Parent (or any Subsidiary) owns or charters in each such Vessel during the applicable month; (b) variable fees on a per day per Vessel basis for vessels chartered-out to a third party on a bareboat charter; (c) variable fees on the basis of a percentage calculated on the aggregate gross freight, demurrage, charter hire and ballast bonus obtained for the employment of each Vessel; (d) commissions for the purchase or sale of vessels; and (e) a supervision fee for the construction of newbuilds (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject to Sections 9.2 and 9.3, a fee of US$956 per day per Vessel during the term of this Agreement payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary owns or charters-in each Vessel during the applicable month), unless a Vessel is chartered-out to a third party on a bareboat charter basis, in which case the fee payable to the Manager for such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, as set forth on Schedule E.
Section 1.2 The Manager shall have the fees per day right to demand the Management Fee payable by in relation to each Vessel from either the Parent or the relevant member of the Group owning such Subsidiary to such Submanager Vessel under the relevant direct agreement in respect of such Vessel;
(b) a fee equal to 0.15% calculated on the aggregate terms of the gross freight, demurrage, charter hire, ballast bonus relevant Shipmanagement Agreement or other income obtained for the employment of each Vessel during the term of this Supervision Agreement, as applicable.
Section 1.3 In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Manager or in connection with a Manager Substitution, the Management Fee payable to the Manager monthly in arrears, only to the extent such freight, demurrage, charter hire, ballast bonus or other incomeunder subclauses (a) through (c) of Schedule E or, as the case may be, for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three calendar months from the termination date. In addition, in the event that a Shipmanagement Agreement is received terminated (except in the case of a default by the Manager or a Manager Substitution):
(a) The relevant member of the Group shall continue to pay Crew Support Costs (as revenuesuch term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel during the said further period of three calendar months; and
(cb) subject to Sections 9.2 and 9.3, a fee the relevant member of US$787,405 per Newbuild under construction the Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the services rendered by relevant Vessel which may materialize. All amounts payable to the Manager under this Section 9.3 shall be paid promptly by the Supervision Agreement in respect Parent to the Manager following receipt by the Parent of such Newbuild, payable a final accounting of funds due from the Parent or any other member of the Group in accordance with the terms of such Supervision AgreementSection 13.8.
SECTION 9.2. The Management Fees will be fixed and shall not be subject to adjustment for Euro/U.S. Dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for the 12-month period starting on January 1, 2016 and for (a) [INTENTIONALLY LEFT BLANK].
(b) For each subsequent 12-month period falling thereafter Subsequent Term (each such 12-month period referred to hereinafter as an “Annual Period”defined below), the Management Fee for each Vessel payable will be set at a mutually agreed-upon rate between the Parent and the Manager no later than 30 days prior to the commencement of the relevant Subsequent Term. USActive 37252385.18
(c) If the Parent and the Manager are unable to agree on the Management Fee for any Subsequent Term pursuant to Section 9.1(a9.4(b) or Section 9.1(c) will be adjusted pursuant to Section 9.3.
SECTION 9.3. The hereof, the Management Fee for each Vessel payable such Subsequent Term will be determined by arbitration pursuant to the terms of Article XVII hereof.
Section 9.1(a) or Section 9.1(c1.5 The Manager shall, at no additional cost to any member of the Group, provide the Group with office accommodation, office staff (including secretarial, accounting and administrative assistance), for the Annual Period commencing on January 1facilities and stationery, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.59.6 and Section 10.8, pay for all printing, postage, domestic telephone and all other usual office expenses incurred by it as the ManagerManager (it being understood that the services of the Executive Officers shall be provided pursuant to Section 8.1).
SECTION 9.5. Section 1.6 The Parent hereby acknowledges that any no capital expenditureexpenditures, financial costs, operating expenses for each Vessel and any or general and administrative expenses of the Subsidiaries whatsoever Group are not covered by the Management Fees and any such expenditurecosts, costs expenditure and expenses shall be paid fully by the Parent or or, as the case may be, the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Manager seeksGroup from which the Manager, in its discretion, reimbursement fromseeks reimbursement. The said Such capital expenditureexpenditures, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses directly relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its own name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including including, without limiting the generality of the foregoing, the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including D&O insurance) xxx/xx X&X calls;; and
(f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation victualing and out of other out-of-pocket expenses of the Manager and/or its personnel, incurred in pursuance of providing the Services; and
(g) , save for any other out of pocket such expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any under a Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.USActive 37252385.18
Appears in 1 contract
Management Fees and Expenses. SECTION 9.1. Section 1.1 In consideration of the Manager providing the Services to the SubsidiariesGroup, during the current Term (which shall begin on April 1, 2022), the Parent shall pay the Manager ship management fees comprised of: (a) variable fees on the following basis of the number of days that the Parent (or any Subsidiary) owns or charters in each such Vessel during the applicable month; (b) variable fees on a per day per Vessel basis for vessels chartered-out to a third party on a bareboat charter; (c) variable fees on the basis of a percentage calculated on the aggregate gross freight, demurrage, charter hire and ballast bonus obtained for the employment of each Vessel; (d) commissions for the purchase or sale of vessels; (e) a supervision fee for the construction of newbuilds; and (f) a flat fee on an annual basis (the “Annual Fee”) (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject to Sections 9.2 and 9.3, a fee of US$956 per day per Vessel during the term of this Agreement payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary owns or charters-in each Vessel during the applicable month), unless a Vessel is chartered-out to a third party on a bareboat charter basis, in which case the fee payable to the Manager for such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 and such Submanager enters into a management agreement directly with the relevant Subsidiary (the “direct agreement”), the fees payable by the Parent and/or such Subsidiary under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 per day, or as the case may be, US$478 per day minus, in each case, as set forth on Schedule E.
Section 1.2 The Manager shall have the fees per day right to demand the Management Fee payable by in relation to each Vessel from either the Parent or the relevant member of the Group owning such Subsidiary to such Submanager Vessel under the relevant direct agreement in respect of such Vessel;
(b) a fee equal to 0.15% calculated on the aggregate terms of the gross freight, demurrage, charter hire, ballast bonus relevant Shipmanagement Agreement or other income obtained for the employment of each Vessel during the term of this Supervision Agreement, as applicable.
Section 1.3 In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Manager or in connection with a Manager Substitution, the Management Fee payable to the Manager monthly in arrears, only to the extent such freight, demurrage, charter hire, ballast bonus or other incomeunder subclauses (a) through (c) of Schedule E or, as the case may be, for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three calendar months from the termination date. In addition, in the event that a Shipmanagement Agreement is received terminated (except in the case of a default by the Manager or a Manager Substitution):
(a) The relevant member of the Group shall continue to pay Crew Support Costs (as revenuesuch term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel during the said further period of three calendar months; and
(cb) subject to Sections 9.2 and 9.3, a fee the relevant member of US$787,405 per Newbuild under construction the Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the services rendered by relevant Vessel which may materialize. All amounts payable to the Manager under this Section 9.3 shall be paid promptly by the Supervision Agreement in respect Parent to the Manager following receipt by the Parent of such Newbuild, payable a final accounting of funds due from the Parent or any other member of the Group in accordance with the terms of such Supervision AgreementSection 13.8.
SECTION 9.2. The Management Fees will be fixed and shall not be subject to adjustment for Euro/U.S. Dollar exchange rate fluctuations or inflation for the term of this Agreement, save that for the 12-month period starting on January 1, 2016 and for (a) [INTENTIONALLY LEFT BLANK].
(b) For each subsequent 12-month period falling thereafter Subsequent Term (each such 12-month period referred to hereinafter as an “Annual Period”defined below), the Management Fee for each Vessel payable will be set at a mutually agreed-upon rate between the Parent and the Manager no later than 30 days prior to the commencement of the relevant Subsequent Term.
(c) If the Parent and the Manager are unable to agree on the Management Fee for any Subsequent Term pursuant to Section 9.1(a9.4(b) or Section 9.1(c) will be adjusted pursuant to Section 9.3.
SECTION 9.3. The hereof, the Management Fee for each Vessel payable such Subsequent Term will be determined by arbitration pursuant to the terms of Article XVII hereof.
Section 9.1(a) or Section 9.1(c1.5 The Manager shall, at no additional cost to any member of the Group, provide the Group with office accommodation, office staff (including secretarial, accounting and administrative assistance), for the Annual Period commencing on January 1facilities and stationery, 2016 and each subsequent Annual Period thereafter, will, in each case, be adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.5, 9.6 and Section 10.8 pay for all printing, postage, domestic telephone and all other usual office expenses incurred by it as the ManagerManager (it being understood that the services of the Executive Officers shall be provided pursuant to Section 8.1).
SECTION 9.5. Section 1.6 The Parent hereby acknowledges that any no capital expenditureexpenditures, financial costs, operating expenses for each Vessel and any or general and administrative expenses of the Subsidiaries whatsoever Group are not covered by the Management Fees and any such expenditurecosts, costs expenditure and expenses shall be paid fully by the Parent or or, as the case may be, the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Manager seeksGroup from which the Manager, in its discretion, reimbursement fromseeks reimbursement. The said Such capital expenditureexpenditures, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses directly relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its own name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including including, without limiting the generality of the foregoing, the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including D&O insurance) xxx/xx X&X calls;; and
(f) postage, communication, traveling, lodging, victualling, overtime, out of office compensation victualing and out of other out-of-pocket expenses of the Manager and/or its personnel, incurred in pursuance of providing the Services; and
(g) , save for any other out of pocket such expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any under a Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 1 contract
Management Fees and Expenses. SECTION 9.1. In consideration of the Manager providing the Services to the SubsidiariesGroup, the Parent shall pay the Manager the following fees (together, the “Management Fees” and, on a per Vessel basis, the “Management Fee”):
(a) subject to Sections 9.2 and 9.3, a fee of US$956 850 per day per Vessel during the term of this Agreement Vessel, payable monthly in arrears (pro rated to reflect the actual number of days that the relevant Subsidiary Parent (or any Subsidiary) owns or charters-in each Vessel during the applicable month), unless a Vessel is chartered-out to a third party on a bareboat charter basis, in which case the fee payable to the Manager for such Vessel during the term of this Agreement shall be, subject to Sections 9.2 and 9.3, US$478 425 per day, PROVIDED HOWEVER, that when in respect of certain services to a Vessel the Manager appoints a Submanager in accordance with Section 2.3 2.4 and such Submanager enters into a management agreement directly with the relevant Subsidiary member of the Group (the “direct agreement”), the fees payable by the Parent and/or such Subsidiary member of the Group under this Agreement and/or any relevant Shipmanagement Agreement in respect of such Vessel pursuant to Section 9.1(a) shall be US$956 850 per day, or as the case may be, US$478 425 per day minus, in each case, the fees per day payable by such Subsidiary member of the Group to such Submanager under the relevant direct agreement in respect of such Vessel;
(b) a fee equal to 0.150.75% calculated on the aggregate of the gross freight, demurrage, charter hire, ballast bonus or other income obtained for the employment of each Vessel during the term of this Agreement, payable to the Manager monthly in arrears, only to the extent such freight, demurrage, charter hire, ballast bonus or other income, as the case may be, is received as revenue; and;
(c) subject to Sections 9.2 and 9.3, a fee of US$787,405 700,000 per Newbuild under construction for the services rendered by the Manager under the Supervision Agreement in respect of such Newbuild, payable in accordance with the terms of such Supervision Agreement.
SECTION 9.2. The Management Fees will be fixed for the period commencing on the date of this Agreement and ending on the last day of the calendar year falling two years after the date of this Agreement (the “Fixed Period”) and shall not be subject to adjustment for Euro/U.S. Dollar exchange rate fluctuations or inflation for until the term last day of this Agreement, save that for the Fixed Period. For the 12-month period starting on January 1, 2016 the day falling immediately after the end of the Fixed Period and for each subsequent 12-month period falling thereafter (each such 12-month period referred to hereinafter as an “Annual Period”), the Management Fee for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c) will be adjusted upwards with effect from the beginning of such Annual Period by application, to the relevant per Vessel amount, of a percentage figure equal to four per cent (4%), PROVIDED ALWAYS, that in the event of any of the provisions of Section 9.3 applying, further increases may be applied to such Management Fees as determined pursuant to Section 9.3.
SECTION 9.3. The Management Fee Fees for each Vessel payable pursuant to Section 9.1(a) or Section 9.1(c), for the Annual Period commencing on January 1, 2016 the day falling immediately after the end of the Fixed Period and each subsequent Annual Period thereafter, will, in each case, be further adjusted upwards with effect from the beginning of such Annual Period if:
(a) the average of the Euro/U.S. Dollar exchange rates during the 12-month period ending on the last day of the month of September falling before the commencement date of such Annual Period (such average being the average over the applicable period, as calculated by the Manager from the Euro Foreign Exchange Reference Rate published daily at 15:00 CET by the European Central Bank on xxx.xxx.xxx) evidence that the Euro has strengthened against the U.S. Dollar by more than five per cent (5%) from:
(i) in the case of the first Annual Period starting on January 1, 2016the day falling immediately after the end of the Fixed Period, the rate existing on the business day immediately prior to the date of this Agreement, and
(ii) in the case of each subsequent Annual Period, the previous Euro/U.S. Dollar average calculated for the purposes of this Section 9.3 in respect of the immediately previous Annual Period, by the average percentage amount by which the Euro has in each such case so strengthened against the U.S. Dollar; and/or
(b) the Manager has incurred a material unforeseen increase in the cost of providing the Services, by an amount to be agreed between the Manager and the Parent, each acting in a commercially reasonable manner.
SECTION 9.4. The Manager shall, subject to Section 9.5, pay for all usual office expenses incurred by it as the Manager.
SECTION 9.5. The Parent hereby acknowledges that any capital expenditure, financial costs, operating expenses for each Vessel and any general and administrative expenses of the Subsidiaries Group whatsoever are not covered by the Management Fees and any such expenditure, costs and expenses shall be paid fully by the Parent or the applicable Subsidiarymember of the Group, whether directly to third parties (which for the avoidance of doubt shall include any Submanager) or by payment to such third parties through the Manager and, without prejudice to Section 10.8, to the extent incurred by the Manager, shall be reimbursed to it by the Parent and/or any Subsidiary member of the Group the Manager seeks, in its discretion, reimbursement from. The said capital expenditure, financial costs, operating expenses for each Vessel and general and administrative expenses of the Subsidiaries Group include, without limiting the generality of the foregoing, items such as:
(a) fees, interest, principal and any other costs due to the Subsidiaries’ Group’s financiers and their respective advisors;
(b) all voyage expenses and vessel operating and maintenance expenses relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its name or on behalf and/or in the name of any Subsidiarymember of the Group;
(d) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, insurance advisors or any other third parties (other than, if applicable, a Related Manager) whatsoever sub-contracted to the Manager in the normal and reasonable course of meeting the Manager’s duties and obligations under this Agreement or any Shipmanagement Agreement or any Supervision Agreement including the duties provided in Articles V V, VI and VI VII of this Agreement;
(e) applicable deductibles, insurance premiums and/or P&I (including Directors & Officers’ liability insurance) xxx/xx X&X calls;
(f) compensation expenses for employees who are not provided by the Manager or which are provided by the Manager pursuant to Section 8.1;
(g) postage, communication, traveling, lodging, victualling, overtime, out of office compensation and out of pocket expenses of the Manager and/or its personnel, incurred in pursuance of the Services; and
(gh) any other out of pocket expenses that are incurred by the Manager in the performance of the Services pursuant to this Agreement, any Supervision Agreement or any Shipmanagement Agreement.
SECTION 9.6. The Manager shall have the right to demand the Management Fee payable in relation to each Vessel from either the Parent or the Shipowning Subsidiary owning such Vessel under the terms of the relevant Shipmanagement Agreement. By written notice to the Parent, the Manager may direct the Parent to pay any amounts owing by the Manager to any Submanager pursuant to a subcontract of any provisions of this Agreement or any Shipmanagement Agreement or any Supervision Agreement, directly to the relevant Submanager. Notwithstanding anything to the contrary contained, provided or implied in this Agreement, any Supervision Agreement or any Shipmanagement Agreement, the Manager shall be entitled to receive and retain any address commission, other commission, credit (whether discretionary or not), continuity credit (whether annual, semi-annual or other), dividend, distribution, charge, fee (whether advisory or otherwise), interest, premium refund, return premium, allowance, discount, rebate or other similar amount payable to, declared (including by way of set-off, combination of accounts or otherwise) in favour of or allocated in favour of the Parent, any Subsidiary or any other assured, co-assured, joint assured or member by an Insurer in relation to or in connection with the relevant Insurances, unless the Manager expressly directs otherwise. In addition the Parent shall, and shall procure that each Subsidiary shall, instruct the relevant Insurers and Insurance Brokers to hold on behalf of and/or pass to the Manager any such commissions, credits, fees, allowances, discounts, rebates etc.
SECTION 9.7. In the event that a Shipmanagement Agreement is terminated, other than by reason of default by the Managers, the Management Fee payable to the Manager under Section 9.1(a) for the Vessel subject to such Shipmanagement Agreement shall be payable in respect of such Vessel for a further period of three months from the termination date. The fees payable for the said three months shall be paid in one lump sum in advance on the termination of the relevant Shipmanagement Agreement. In addition the relevant Subsidiary member of the Group shall pay any Severance Costs (as such term is defined in the relevant Shipmanagement Agreement) for the relevant Vessel which may materialize.
Appears in 1 contract
