MASTER COMMERCIAL MARKETING AND SERVICES AGREEMENT
This Master Commercial Marketing and Services Agreement
("Agreement") dated as of February 28, 1997, by and among Navigator Holdings,
PLC on behalf of each shipowning company identified on Schedule 1 hereto (each
an "Owner", collectively the "Owners") and GEBAB Gesellschaft fur Konzeption,
Beratung, Vermittlung und Betreuung privater Investitionen mbH ("Manager").
W I T N E S S E T H:
WHEREAS, Owners are to acquire five newly built 22,000 CBM
LPG/ethylene carriers (the "Vessels") (as more fully described on Schedule 1
hereto) for use in transporting liquified petroleum gas, including without
limitation, propane and butane, ammonia, chemical gases such as propylene,
butadrine, vinyl chloride monomer (VCM) and ethylene (collectively "Cargo"); and
WHEREAS, certain affiliates of the Manager are actively
engaged in the business of soliciting Cargo for transportation from various
transportation services users and the Manager desires to procure for these
affiliates the use of the Vessels, on the terms and conditions set forth herein,
in order to market and promote their use with Manager's customers; and
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged, the parties hereto agree
as follows:
Article 1. DEFINED TERMS.
"Agreement" shall mean this Master Commercial Marketing and
Services Agreement.
"Cargo" shall have the meaning assigned to it in the first
Recital.
"Gross Freight Income" shall mean all income derived by the
Owner from clients in relation to the employment of the Vessel(s) including but
not limited to freight, time charterhire, demurrage, dead freight (demurrage
and/or dead freight only to be included on the basis of the amounts actually
received), less any third party brokers' commissions.
Article 2. COMMERCIAL MANAGEMENT PRINCIPLES
2.1. The Manager is entrusted with the commercial management
of the vessel(s) covered by this Agreement as set out hereafter for the sole and
utmost commercial benefit of the owner(s) of the vessel(s).
2.2 The following services are to be performed by the
Manager with his name as agent and on behalf of and for account of the Owners:
(i) Advertise and promote the Vessel(s);
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(ii) Engage the Vessel(s) in the transportation of
petroleum and chemical gases in the worldwide trade,
but always within IWL, with the Manager's liberty to
breach such trading limits subject to his compliance
with Article 3, Clause 3.4 hereof;
(iii) Conclude all agreements of affreightment and/or
charter parties for the Vessel(s) as well as all
services necessary for the performance of such
agreements;
(iv) Operation of all agreements entered into including
but not limited to invoicing and follow-up,accounting
and handling of employment related expenses in port
and at sea, demurrage and laytime calculations,
bunkering;
(v) Claims handling, if needed, in conjunction with
Owners' P and I club;
(vi) Duly advise Owners and/or their Technical Managers of
all employment related matters enabling same to
fulfill the Vessels duties under the employment
agreements entered into; and
(vii) Perform such other acts and services as are
reasonably incident to any of the foregoing.
Article 3. RIGHTS, AUTHORITY, LIABILITY AND REMUNERATION OF THE MANAGER
3.1. The Manager is entitled to engage or participate directly
or indirectly in any business of size and type similar to the Vessels covered by
this agreement provided such business does not negatively influence the earnings
of said Vessel(s). In addition, Manager (or any member of the GEBAB group) shall
not enter into a commercial marketing and services agreement (excluding
technical management of similar Vessels) with respect to any vessel having a
capacity in excess of 12,000 cbm up to 30,000 cbm (semi-refrigerated) which
could be used in the transport of cargo similar to Cargo (as such term is
defined herein) without Navigator Holdings PLC's prior consent which shall not
be unreasonably withheld. The provisions of this paragraph shall in no way limit
the right of the Manager or its Affiliated Companies to initiate and hold as
trustee investments in vessels having substantially similar characteristics of
the Vessels for third parties and to make non-controlling investments in vessels
(either directly or indirectly) having substantially similar characteristics of
the Vessels.
3.2. FEE. For providing marketing ("Marketing") and
other services pursuant to this Agreement, Manager shall be entitled to receive
a services fee (the "Manager Fee") equal to 2.0% gross freight income as defined
under Article 1.
3.3. INVOICING. Manager shall timely invoice all customers for
the transportation of Cargo in the Vessels, including backhauls, and instruct
such customers that all payments be remitted directly to the United States Trust
Company of New York as Collateral Trustee into the account designated by the
Collateral Trustee ("Lockbox Account"). Each such invoice shall be at the rates
negotiated between Manager and such customers.
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3.4. In order to attain the purpose of this Agreement as
defined in Article 2 above, the Manager is entitled to negotiate and enter into
agreements and to sign same as agent on behalf of the Owners as it deems fit
subject, however, to the following restrictions:
without the prior written approval of the Owners and or
Technical Manager, whichever applies, which, however, shall not be unreasonably
withheld, the Manager is not entitled to:
(a) send the Vessel to a port outside the trading area defined
in Article 2.2, Clause (ii). (Any cost for trading the Vessel outside
the trading limits, as well as in areas where extra insurance is
required shall be borne by the Owners);
(b) send the Vessel to a port known to him or his servants to
be unsafe, it being understood, however, that the Manager otherwise is
not responsible for the safety of the port to which it has contracted
the Vessel, provided due diligence has been observed by the Manager;
(c) order the Vessel to a berth where she cannot always lie
safely afloat;
(d) order the Vessel to load cargo which does not comply with
list of products in the Certificate of Fitness for the Carriage of
Liquefied Gases in Bulk;
(e) commit the Vessel to any agreement exceeding 6 months; or
(f) enter into agreements on warranted terms which exceed the
warranted particulars of the Vessel.
3.5. The Manager undertakes to perform its duties hereunder
with due diligence and shall not be liable for the consequences of any decisions
which it has made in good faith while exercising its powers covered by this
Agreement. The Manager is to provide the Owner with written proof of an adequate
insurance cover for errors and omissions on the part of Manager's personnel.
3.6. The Manager shall deliver a quarterly statement (a
"Quarterly Statement") reflecting Gross Income of the Vessels actually received
in the Collateral Trustee's account, all actual employment related expenses
incurred duly supported by the relevant documents and vouchers provided same are
already available, resulting net time charter earnings during the elapsed
period, days employed as well as idle days and reason(s) for same. Each
Quarterly Statement shall be due within 15 days after the end of each calendar
quarter which shall end on the last day of March, June, September and December
(each a "Calendar Quarter").
3.7. PAYMENT OF MANAGER FEE. (a) Manager Fee earned by the
Manager hereunder shall be paid by Navigator Gas Management Limited
("Navigator") on behalf of the Owner from amounts on deposit with the Collateral
Trustee. Manager shall prepare and present an invoice setting forth the Manager
Fee earned on each Customer Invoice actually paid to the Collateral Trustee
during a Calendar Quarter. The Manager Fee shall be paid by Navigator on the
sixteenth day of the month immediately following the end of each Calendar
Quarter.
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(b) While this Agreement remains in existence, if an
Owner decides to lay-up a Vessel and such lay-up lasts for more than three
months, the Management Fee for the period exceeding three months until one month
before the Vessel is again put into service shall be * . * equal to one half the
average Management Fee paid quarterly to the Manager by the Owner during the
prior 12 month period.
(c) In case a Vessel is lost, sold, bareboat
chartered or otherwise disposed of, Managers shall to be paid the Management Fee
(which shall be the average Management Fee paid during the prior 12 months) for
6 months and thereafter at 50% of the average Management Fee until all matters
relating to such Vessel are settled.
3.8 PAYMENT OF EXPENSES. Managers will provide Owners with
invoices as to employment related expenses including, but not limited to,
bunkers, port charges, canal transit fees and cleaning and/or conditioning
expenses for the cargo tanks. Actual expenses will be paid directly by the
Owners after their approval by Navigator.
3.9. The Manager is entitled to avail itself of the services
of a third party for the fulfillment of its obligations under this Agreement as
it deems fit for its own account, it being understood, however, that any person
employed or engaged by the Manager is to be regarded as its servant.
3.10. If the Manager decides that a third party vessel has to
be chartered in or if a cargo is to be relet to a third party shipowner the
corresponding charter parties are to be arranged by the Manager in the name of
the Owner. Any income of such third party a vessel earned or any loss incurred
under such charter is deemed Owner's revenue or loss.
3.11. The Manager for chartered tonnage has to arrange for an
adequate insurance cover for charterer's liability if required so by the Manager
in agreement with the Owners as well as for errors and omissions, or ensure that
these risks are covered under the insurance policies to be taken out for the
Vessel by Owner. Cost of such insurance cover to be borne by Owner.
Article 4. LIABILITY, WARRANTIES, UNDERTAKINGS OF THE OWNERS, INSURANCE
4.1. LIABILITY. Each Owner shall be liable for any and all
obligations arising from agreements entered into as a result of this Agreement
as to its Vessel and the Manager shall be held harmless and kept indemnified by
the Owner from any liability as a result of the aforementioned other then
liabilities resulting from the gross negligence or willful misconduct of the
Manager.
4.2. WARRANTIES. Each Owner warrants with respect to its
Vessel(s)
(a) that it is unrestricted and unconditionally entitled to
enter into and remain party to this Agreement;
(b) that it will maintain its right to the Vessel in order to
permit the Manager to use the Vessels during the duration of this Agreement in
the manner described herein;
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(c) that its related Vessel, for the time during which the Manager is
entitled to exploit the Vessel has the guaranteed particulars attached to this
Agreement.
(d) that the Vessel has entered into a P and I Club of the
International Group.
4.3. UNDERTAKINGS. Each Owner covenants to the Manager with
respect to its related Vessel:
(a) to exercise due diligence in maintaining the highest
fitness of the Vessel. This shall include compliance with the legal rules and
requirements requested by the customers of the Manager;
(b) to have at all times any certificates required for
trading and to ensure a level of maintenance and performance acceptable to all
clients of the Manager subject to the Vessel's technical capabilities;
(c) to keep the Vessel crewed with personnel experienced and
trained in the operation of petroleum gas tankers and conversant in English;
(d) to ensure that the master of the Vessel complies with any
lawful instruction of the Manager and/or his servants with utmost dispatch;
(e) to ensure that the crew cleans the cargo tanks and
performs purging and change grade operations where/when permissible carefully
and without undue delay in order to present the Vessel for reloading on arrival
at the following port and/or berth; and
(f) that it will for the duration of this agreement obtain,
and if obtained maintain, ISO 9002 and CDI accreditation or a similar recognized
standard.
4.4. INSURANCES. (a) Each Owner shall arrange for its own
account all necessary marine insurances such as but not limited to P & I, oil
pollution, hull and machinery, war risk cover etc.
(b) Each Owner shall include in all their marine insurance
policies related to its Vessel the Manager as being fully coinsured. However, it
is understood among the parties hereto that any amount or amounts not
recoverable under such policies due to deductibles and/or limitations contained
therein shall be borne by the Owner.
(c) If required by the trade of the vessel the Owner shall
arrange for Certificates of Financial Responsibility (COFR) and other necessary
contracts for supervisor and clean up in the event of oil spills in U.S. waters
under the U.S. Oil Pollution Xxx 0000.
(d) Each Owner will handle and settle all claims relating to
its Vessel itself and is fully responsible and fully liable for all types of
claims related to its Vessel. The Manager will handle cargo claims for the
Vessel, if so requested by the Owner.
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4.5. Any failure of Owner to comply with a warranty or
undertaking as contained in Article 4 hereabove shall render him responsible to
the Manager for all actual damages Manager or his clients has/have suffered
solely and directly from such failure.
Article 5. TERM, DURATION AND TERMINATION
5.1 This Agreement shall commence on the date this Agreement
is executed and delivered by the parties hereto.
5.2. The term of this Agreement shall commence as to any
particular Vessel on the date such Vessel is delivered to the Owner and shall
run for three consecutive calendar years. Thereafter it shall continue as to
such Vessel for an indefinite period of time with the related Owner or the
Manager having the right to terminate same at any time by giving 6 months
written notice to the Manager or the Owner, respectively.
5.3. If an Owner wishes (i) to sell its Vessels or (ii)
otherwise to terminate this Agreement by withdrawing its Vessel in accordance
with Article 5, Clause 5.1. above and if at that time the Manager is obligated
under a commitment ("Commitment") for Vessel for the fulfillment of which the
Vessel intended to be withdrawn is essential and the Commitment exceeds the
period of 6 months, the Manager may decide that withdrawal contrary to 5.1.
hereof will only become effective upon the Commitment being terminated. In case
the Vessel is declared a total loss the agreement ceases the day the Vessel was
last heard of.
5.4. The Manager has the right to terminate the agreement with
respect to a specific Vessel (or specific Vessels), if such Vessel has (or such
Vessels have) been sold, the shares of the owing company have been sold or for
other reasons the party controlling the relevant Vessel (or Vessels) has changed
and as determined-in the sole discretion of the Manager - the continuation of
the Agreement with the new controlling party may be detrimental to his business.
Any of the aforementioned changes are to be advised by the Owner to the Manager
without undue delay. In this case the termination of the Agreement shall become
effective at the time determined by the Manager irrespective of any commitment
with regard to the Vessel (or Vessels) in question.
5.5. If an order be made or resolution be passed for the
winding up of an Owner or if a receiver be appointed of the enterprise or
property of an Owner or if an Owner shall suspend payment or cease business or
make any special arrangement or composition with its creditors the Manager by
notice in writing to the Owner may forthwith terminate Agreement with immediate
effect irrespective of any commitment with regard to the Vessel (or Vessels) in
question.
5.6. Unless otherwise specifically provided in this
Agreement the Manager has the right to terminate this Agreement for one or more
Vessels only
(i) if the Owner is in breach of the terms of the
Agreement; and
(ii) after having been notified in writing by the Manager
to comply with the terms of this Agreement does not
do so to the detriment of the Manager and/or his
business.
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Article 6. SECURITY INTERESTS, ACCOUNTING.
6.1. EFFECTIVE ASSIGNS. Manager acknowledges that Owners may
obtain financing from one or more third party lenders in connection with the
purchase of the Vessels. In such event, each Owner will assign as the security
interests its rights under this Agreement to the Collateral Trustee. Upon
receipt of a written notice from Owner to the effect that Owner has so assigned
such collateral to Collateral Trustee, and unless and until Manager is otherwise
notified by a Collateral Trustee, this Agreement and any related agreements
shall not be amended or modified and no consent or waiver hereunder shall be
effective without the prior written consent of the Collateral Trustee. The
Collateral Trustee shall have the right to exercise (in its own name) all
rights, privileges and remedies of Owner provided herein. Manager agrees to
execute, and the Collateral Trustee may record, any instruments and documents
relating to such assignments. In case any Owner exercises its right of
assignment as described hereabove they are, however, to remain fully responsible
for the due fulfillment of this Agreement.
6.2. LOCKBOX ACCOUNT. The Manager hereby acknowledges for the
benefit of the Collateral Trustee that all moneys due, including freight, dead
freight, demurrage, time charterhire and/or any income receivable in accordance
with a charter party are to be paid directly into the Lockbox Account by wire
transfer of funds until such time as Manager has received a written notice
signed by the Collateral Trustee directing that all or a part of such payments
should be made other than into the Lockbox Account.
6.3. The Manager will keep proper books in accordance with
international practice for the accounting of shipping companies. The accounting
period shall be the calendar year.
6.4. The Manager will be audited by a certified independent
third party public accountant on an annual basis at the Owner's expense, if so
desired by the Owner.
6.5. The Owner has the right to scrutinize at any time during
the Manager's office hours the accounts provided a reasonable notice time has
been received and the items to be scrutinized have been identified in advance.
The Owner may be assisted by a certified accountant.
6.6. The Manager will deliver to the Owner reports and
comply with any reasonable request by any of them for more relevant information
forthwith.
6.7. The Manager shall not subcontract any of its obligations
hereunder to a third party other than an Affiliated Company without consent of
the Owner. GEBAB as contracting party has the right to assign this agreement to
any Affiliated Company through a novation agreement replacing GEBAB as
contracting partner by such other company .
6.8 Affiliated Companies means any of the following
organizations:
MarLink Schiffahrtskontor GmbH
Martime Asia Limited
Martime-Gesellschaft fur maritime Dienstleistungen mbH
GasChem Services GmbH & Co. KG
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Article 7. REPRESENTATIONS AND WARRANTIES.
7.1. By Manager. Manager hereby represents and warrants to
each Owner as follows:
(a) Manager is a corporation duly incorporated and validly
existing in good standing under the Laws of Germany (or such other jurisdiction
as may be specifically identified in any novation agreement) and has the
corporate power to own its assets and carry on its business as it is being
conducted and is the holder of all necessary licenses required in connection
therewith.
(b) Manager has the corporate power to enter into and perform,
and has taken all necessary corporate action to authorize the entry into,
performance and delivery of, this Agreement and the transactions contemplated by
this Agreement;
(c) this Agreement has been duly entered into and delivered by
Manager, and this Agreement executed and delivered by Manager will, constitute
legal, valid and binding obligations of Manager, enforceable in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting the enforcement of
creditors' rights generally, and, to the extent that certain remedies require or
may require enforcement by a court of equity, by such principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as a court having jurisdiction may impose and by Laws which
may affect some of such remedies by which do not make the available remedies
inadequate for the substantial realization of the benefits provided herein;
(d) the entry into and performance by Manager of, and the
transactions contemplated by, this Agreement do not and will not:
(i) conflict with any Laws binding on Manager; or
(ii) conflict with the constitutional documents of
Manager; or
(iii) conflict with or result in default under any
indenture, mortgage,chattel mortgage, deed of trust,
conditional sales agreement, lease,bank loan or
credit agreement or other agreement which is binding
upon Manager or any of its assets nor result in the
creation of any security interest over any of its
assets (other than the security interests created
hereunder); and
(e) all authorizations, consents, registrations and
notifications required in connection with the entry into, performance, validity
and enforceability of this Agreement and the transactions contemplated by this
Agreement, have been (or will on or before each Delivery Date have been)
obtained or effected (as appropriate) and are (or will on their being obtained
or effected be) in full force and effect;
Article 8. DEFAULTS.
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The occurrence of proven gross negligence of any one or more
of the following events shall constitute a "Default" hereunder: (i) Manager's
failure to instruct any user of the Vessel to make payments in accordance with
the provisions of this Agreement to the Lockbox Account, (ii) failure by the
Manager to submit Quarterly Statement for 30 days beyond the due date for such
statement, (iii) the filing by Manager or the filing against Manager of any
petition under any bankruptcy or insolvency law or for the appointment of a
trustee or other officer with similar powers, the adjudication of Manager as
insolvent, the liquidation of Manager or the taking of any action for the
purpose of the foregoing, (iv) any attachment against substantially all of
Manager's properties, and (v) Manager's failure to perform any other term or
condition hereunder.
Article 9. REMEDIES.
In the event of any Default under Article 8 with respect to
this Agreement, Owner, in its sole discretion, may exercise any one or more of
the following remedies: (i) demand that Manager pays all reasonable legal fees
and expenses incurred in exercise of its remedies, (ii) xxx Manager for damages
for breach of this Agreement and (iii) terminate this Agreement.
In any case such claim shall never exceed three times the annual
management fee due under this Agreement unless same is covered by the errors and
omissions insurance of the Manager.
Article 10. MISCELLANEOUS.
10.1. SEVERABILITY AND CONSTRUCTION. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement. For purposes of
this Agreement except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the other
gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
provision; and
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(f) the term "include" or "including" shall mean without
limitation by reason of renumeration.
10.2. GOVERNING LAW AND JURISDICTION. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York.
10.3. NOTICES. All notices required to be given under any of
the provisions of this Agreement shall be deemed properly given if made in
writing and deposited in a United States Post office by both registered and
first class mail, postage prepaid, bearing the address of the respective parties
as hereinafter set forth or if delivered by hand to an officer of the respective
party.
10.4. COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
10.5. BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon the successors and assigns of the respective parties hereto.
10.6 ARBITRATION. Should any dispute arise out of this
Agreement, the matter in dispute shall be referred to three persons at New York,
one to be appointed by each of the parties hereto, and the third by the two so
chosen; their decision or that of any two of them shall be final, and for
purpose of enforcing any award, this agreement may be made a rule of the Court.
The arbitrators shall be members of the Society of Maritime Arbitrators, Inc. of
New York and the proceedings shall be conducted in accordance with the rules of
the Society.
IN WITNESS WHEREOF, the parties have hereto caused this Master
Commercial Vessel Marketing and Services Agreement to be executed as of the 28th
day of February , 1997.
GEBAB Gesellschaft fur Konzeption,
Beratung, Vermittlung und Betreuung privater
Investitionen mbH
By: /s/ Xxxxxxx Xxxx
---------------------------
Name: Xxxxxxx Xxxx
---------------------------
Title: Director of Shipping
---------------------------
Navigator Holdings, PLC on behalf of each
individual shipowning company
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
---------------------------
Title: Director
---------------------------
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SCHEDULE 1
Name of Ship Owner Hull No. For Vessel
------------------ -------------------
Navigator Gas (IOM I-A) Limited Hull No. 2245
Navigator Gas (IOM I-B) Limited Hull No. 2246
Navigator Gas (IOM I-C) Limited Hull No. 2247
Navigator Gas (IOM I-D) Limited Hull No. 2248
Navigator Gas (IOM I-E) Limited Hull No. 2249
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TABLE OF CONTENTS
Article 1. DEFINED TERMS................................................................................. 1
Article 2. COMMERCIAL MANAGEMENT PRINCIPLES.............................................................. 2
Article 3. RIGHTS, AUTHORITY, LIABILITY AND REMUNERATION OF THE MANAGER.................................. 2
Article 4. LIABILITY, WARRANTIES, UNDERTAKINGS OF THE OWNERS, INSURANCE.................................. 5
Article 5. TERM, DURATION AND TERMINATION................................................................ 6
Article 6. SECURITY INTERESTS, ACCOUNTING................................................................ 7
Article 7. REPRESENTATIONS AND WARRANTIES................................................................ 8
Article 8. DEFAULTS...................................................................................... 9
Article 9. REMEDIES...................................................................................... 9
Article 10. MISCELLANEOUS................................................................................. 9
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MASTER COMMERCIAL MARKETING AND SERVICES AGREEMENT
among
Navigator Holdings, PLC on behalf of each of
the Shipowning Companies identified on
Schedule 1 hereto, each an Owner
and
GEBAB Gesellschaft fur Konzeption, Beratung, Vermittlung und
Betreuung privater Investitionen mbH, as Manager
Dated as of
February 28, 1997
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