TECHNICAL MANAGEMENT AGREEMENT
THIS AGREEMENT is made as of this 5th day of September, 2008
BETWEEN:
(1) Oceanaut Inc., a company duly incorporated in
the Republic of the Xxxxxxxx Islands having its registered
office at Trust Company Complex , Ajeltake Island,
X.X. Xxx 0000, Xxxxxx, Xxxxxxxx Xxxxxxx, XX 00000
(hereinafter called the “Company”);
and
(2) Maryville Maritime Inc., a company duly
incorporated in Liberia having its registered address at 00,
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, with a branch in Greece
pursuant to Law
89/1967
as replaced and currently in force, at 00xx xx Xxxxxxxx
Xxxx Xxxxxx-Xxxxx & Finikos Str., 14564, Nea Kifisia,
Athens (hereinafter called “the Manager”)
WHEREAS
The Company wishes to appoint the Manager to manage the business
of the Company and its various Subsidiaries from time to time
(as defined below) and their respective operations and the
Manager is willing to accept such appointment on the terms and
conditions herein set forth.
Each of the contracting parties represents and warrants that it
has been incorporated and duly organised and validly existing
and in good standing under the laws of its respective country of
incorporation and that the legal representative signing for the
respective party has been duly authorised by the proper
corporate body for the execution of this Agreement.
AND IT IS HEREBY AGREED as follows:
| 1. | (Definitions) |
In this agreement the following terms shall have the following
meanings:
“Subsidiary” means any company the share
capital of which is from time to time directly or indirectly
owned by more than 51% by the Company; and
“Vessel” means any vessel owned from time to
time by any Subsidiary.
“Commercial Manager” means “Excel Maritime
Carriers Ltd.” and its successors and lawful assigns.
| 2. | (Appointment — Acceptance) |
The Company hereby appoints and undertakes to ensure that the
Subsidiaries will appoint
and/or renew
the appointment of the Manager as manager of the Vessels and the
Manager hereby accepts such appointment and agrees to act as the
manager of the Vessels pursuant to the terms of this Agreement
and shall provide the services described in Clause 3 of
this Agreement (the “Management Services”) in
accordance with sound ship management practices and any specific
terms and conditions set out in the specific management
agreements to be made between each Subsidiary and the Manager
(the “Management Agreements”), the terms of each of
which will be substantially in the form of the management
agreement attached hereto as Annex A. The Management
Agreements with the subsidiaries will be executed immediately
after the Shareholder Approval.
In case that the Company becomes the parent company of other
Subsidiaries, whether such Subsidiaries have Vessels in
operation or under construction, the Company shall appoint the
Manager and it shall procure and ensure that these Subsidiaries
will appoint the Manager, as manager of such new Vessels and
Subsidiaries under the same terms set forth herein and pursuant
to the Management Agreement to be entered into by each such
other Subsidiary.
The Manager may, subject to the Company’s loan covenants
being met, appoint any person or corporate entity (the
“Sub-Manager”), at any time throughout the duration of
this Agreement, to discharge any of the Manager’s duties
and in particular to perform as agents
and/or
sub-contractors such parts of the Management Services, and in
relation to such of the Vessels, as the Manager may deem
convenient or appropriate. While the Manager may from time to
time engage one or more Sub-Managers to assume some or all of
the rights and perform some or all of the
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duties assigned to the Manager hereunder, such engagement shall
not relieve the Manager of any responsibility or liability which
it would otherwise have under this Agreement.
| 3. | (Management Services) |
3.1 (General obligations of the Manager)
The Manager shall, on behalf of the Company and the
Subsidiaries, attend to the day-to-day technical management of
the Vessels in accordance with sound technical shipping industry
standards. In the exercise of its duties hereunder the Manager
shall act fully in accordance with the reasonable policies,
guidelines and instructions from time to time communicated to it
by the Company and serve the Company faithfully and diligently
in the performance of this Agreement, according to sound
technical shipping industry standards. In the performance of
this Agreement, the Manager shall protect the interests of the
Company and the Subsidiaries in all matters directly or
indirectly relating to the Vessels.
The Manager shall ensure that the Manager employs adequate
manpower to perform its obligations under this Agreement.
Insofar as practicable, it shall use its best efforts to ensure
fair distribution of available manpower, supplies and services
as between the Vessels and any/all other vessels under its
management. Subject to any limitation which may be provided
elsewhere in this Agreement, the Manager shall enter into, make
and perform all acts, contracts, agreements and other
undertakings as may be, in the opinion of the Manager, necessary
or advisable or incidental to the carrying out of the objectives
of this Agreement.
3.3 (Services to be performed in respect of the
Vessels)
The Manager shall provide or contract for
and/or carry
out as agent on behalf of the Company and the Subsidiaries all
general administrative and support services necessary for the
operation and employment of each Vessel including but not
limited to crewing and other technical management, insurance,
freight management, accounting related to the vessels’
provisions, bunkering, operation and, subject to the
Company’s instructions, sale and purchase of the Vessels .
The Manager shall arrange so that an accounting system be
established so as to meet the requirements of the Company and
the Subsidiaries and provide regular accounting services. The
Manager shall present on an annual basis for approval by the
Company and the Subsidiaries, as the case may be, a budget for
the following twelve (12) months and quarterly budget
comparisons thereafter and shall arrange for the supply of
provisions, bunker fuel and lubricants and generally will
provide all such management services which will be included in
the Management Agreements, always subject to the Company’s
loan covenants being met.
The Company and the Subsidiaries as the case may be shall
indicate to the Manager their acceptance and approval of the
annual budget within one month of presentation and in the
absence of any such indication the Manager shall be entitled to
assume that the Company and the Subsidiaries have accepted the
said budget.
It is specifically agreed that the Manager will arrange and
supervise, in accordance with the Subsidiaries’
instructions, the sale or purchase of the Vessels, and shall
provide the commercial operation of the Vessels, other than the
functions performed by the Commercial Manager, as required by
the Subsidiaries, including but not limited to arranging for the
proper payment to Subsidiaries of the hire
and/or other
moneys to which Subsidiaries may be entitled out of the
employment of the Vessels.
The Manager in the context of the management services in
relation to the Vessels will act vis-à-vis third parties as
agent acting in the name and on behalf of the Subsidiaries. The
Manager shall have the power to carry out such services
incidental to the management services as the Manager, at its
sole discretion, shall consider necessary to enable the Manager
to perform the management services. The responsibility of the
Manager vis-à-vis the respective Subsidiary is set out in
the specific terms and conditions of the respective Management
Agreement.
3.4 (Additional Services)
The Company may entrust to the Manager any other services
against a fee to be mutually agreed.
| 4. | (Incorporation of terms) |
The terms of the standard Management Agreement approved by BIMCO
under code name XXXXXXX, which is attached hereto as
Annex A are incorporated herein and are deemed to be an
integral part of this Agreement in
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respect of all the functions provided therein, excluding
Chartering services. In case of conflict between the terms of
this Agreement and any printed terms of XXXXXXX (Annex A),
the terms of this Agreement shall prevail. Any amendments to be
made to this standard form in any individual Management
Agreement signed by any Subsidiary shall be deemed to be
incorporated in this Agreement in respect of such Subsidiary and
its Vessel.
| 5. | (Obligations of the contracting parties) |
The Manager undertakes to comply with all the terms of the
Management Agreement and to provide such Management Services and
to manage the Vessels in compliance with the rules and
regulations applicable to the Company and the Subsidiaries.
In compliance with the above, the Manager undertakes to keep
books and information, to draw the financial statements
required, make reports and provide the internal and independent
auditors of the Subsidiaries
and/or of
the Company with such information and documents as may
reasonably be required by them in relation to the Management
Agreements and in particular with the accounting services
referred to in Clauses 7 and 20 of the Management
Agreements and services relating to the establishment of the
budgets and the management of funds in accordance with
Clause 16 of the Management Agreements, i.e. the income of
the Vessels to be collected and the expenses to be paid on
behalf of the Subsidiaries. Unless the parties agree otherwise,
the Manager will take out insurance in respect of its liability
towards the Company and its Subsidiaries at the cost of the
Company and its Subsidiaries.
Notwithstanding anything in this Agreement or any Management
Agreement to the contrary, and in the absence of the
Manager’s gross negligence or wilful misconduct, the
Company will remain liable vis-à-vis the AMEX, the US
Securities & Exchange Commission and other regulatory
bodies as well as vis-à-vis the shareholders and investors
in respect of the compliance of its obligations in accordance
with any applicable act and regulation, including but not
limited to, any act relating to the listing of shares of
companies on the AMEX and will notify the Manager of any
announcement, publication or any other action required to be
made or prepared by the Manager under law.
| 6. | (Term) |
This Agreement shall become effective upon its signing by the
parties and shall continue for an initial period of three
(3) years commencing from such date and shall be
automatically extended for successive one (1) year periods,
unless written notice is given by the Company (acting for itself
and its Subsidiaries) or the Manager at least three
(3) months prior to the commencement of the next period.
| 7. | (Remuneration) |
The Remuneration of the Manager for the management of the
Vessels shall be US$18,000 (Eighteen Thousand United States
Dollars) per vessel per month payable monthly in advance, which
is to be increased annually by an amount equal to the percentage
change in The Consumer Price Index for All Urban Consumers
(CPI-U) for the U.S. City Average for All Items,
published by the US Department of Labor from time to time.
The Company shall also pay to the Manager any and all expenses
as provided in the Management Agreements.
| 8. | (Termination) |
8.1 (Termination due to default)
(i). The Company shall be entitled to terminate this Agreement
by notice in writing if the Manager is in breach of his
obligation and the following notice by the Company does not
remedy the breach within fourteen (14) days or such shorter
period as the circumstances may require.
(ii). The Manager shall be entitled to terminate this Agreement
with immediate effect by notice in writing, if any monies
payable by the Company or any Subsidiary in respect of any
Vessel, shall not have been received in the Manager’s
nominated account, within fourteen (14) running days from
the written request of payment given by the Manager.
8.2 (Extraordinary termination)
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This Agreement shall be deemed to be terminated in respect of
any Vessel, and only for such Vessel, in the case of the sale of
such Vessel, or if the Vessel becomes a total loss, or is
declared as a constructive or compromised or arranged total
loss, or is requisitioned for title.
The date upon which the said Vessel is to be treated as having
been sold or otherwise disposed of shall be the date on which
the respective Subsidiary ceases to be registered as owner of
such Vessel, always subject to clause 15 of the printed
terms of BIMCO XXXXXXX (Annex A)
The said Vessel shall not be deemed to be lost unless either it
has become an actual total loss or agreement has been reached
with its underwriters in respect of its constructive,
compromised or arranged total loss or, if such agreement with
its underwriters is not reached, it is adjudged by a competent
tribunal that a constructive loss of the Vessel has occurred.
| 9. | (Effect of Termination) |
9.1 Notwithstanding anything in the Management Agreements
to the contrary, each Management Agreement shall terminate
automatically upon the termination of this Agreement.
Termination of this Agreement shall be without prejudice to the
accrued rights and obligations of the parties hereunder or any
Management Agreement at the date of the termination including;
but not limited to, the obligation of the Company and any
Subsidiary, as applicable, to pay and the Manager’s right
to be paid and reimbursed for all costs, liabilities and
expenses payable or reimbursable under this Agreement.
9.2 In the event of termination: (i) the Company and
the Manager shall consult with each other for the purpose of
ensuring an orderly and efficient transfer of the management of
each Vessel at a convenient and mutually agreed port and, to
that end, the Manager will endeavour to co-operate with any new
manager of a Vessel appointed by the Company or any Subsidiary
and (ii) the Manager shall terminate any agreement with a
Sub-Manager. The Company and any Subsidiary, as applicable,
shall be obligated to continue to pay to the Manager the monthly
fixed fee specified in Clause 7 above and Clause 15 of
BIMCO XXXXXXX and any addenda made or to be made thereto of the
Management Agreements in respect of each Vessel accrued to the
effective date of the transfer of management of such Vessel and
shall, in addition, pay to the Manager a termination fee in an
amount equal to three months of such monthly fixed fee, capped
at a maximum of ten (10) vessels.
9.3 The Manager shall, within ninety (90) days after
the effective date of transfer of the management of any Vessel
(or as soon as practicable thereafter in the circumstances),
shall prepare and submit to the Company and the applicable
Subsidiary a final account giving details of the outstanding
balance between the Manager, the Company and such Subsidiary
with respect to such Vessel. Within thirty (30) days after
the delivery of such account to the Company and such Subsidiary,
the Company and such Subsidiary shall pay to the Manager any
undisputed or adjudicated sums found to be due to the Manager,
or the Manager shall pay to the Company any such Subsidiary any
undisputed or adjudicated sums for the balance standing to the
credit of such account.
| 10. | (Responsibilities) |
10.1 (Force Majeure) Neither the Company nor the
Manager shall be under any liability for any failure to perform
any of their obligations hereunder by reason of any cause
whatsoever of any nature or kind beyond their reasonable control.
10.2 (Liability to Company) Without prejudice to the
above sub-clause 10.1, the Manager shall be under no
liability whatsoever to the Company for any loss, damage, delay
or expense of whatsoever nature whether direct or indirect,
including but not limited to loss of profit arising out of or in
connection with detention or delay of any Vessel and howsoever
arising in the course of performance of the Management Services,
unless same is proved to have resulted from the gross negligence
or wilful default of the Manager, or their employees or agents
in which case (save where loss, damage, delay or expense has
resulted from the Manager’s act or omission committed with
the intent to cause same or recklessly and with knowledge that
such loss, damage, delay or expense would probably result) the
Manager’s liability for each incident giving rise to a
claim or claims shall never exceed (i) in respect of the
Company, a total of ten times the annual fees payable to the
Manager hereunder, and (ii) in respect of each Vessel and
the respective Subsidiary, a total of ten times the annual
management fee payable in respect of such Vessel.
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10.3 Indemnity. Except to the extent and solely for the
amount therein set out that the Managers would be liable under
sub-clause 10.2, the Company hereby undertakes to keep the
Manager and its employees, agents and sub-contractors
indemnified and to hold them harmless against all actions,
proceedings, claims, demands or liabilities whatsoever or
howsoever, which may be brought against them or incurred or
suffered by them, arising out of or in connection with the
performance of this Agreement or any Management Agreement, and
against and in respect of all costs, loss, damages and expenses,
including reasonable legal costs and expenses on a full
indemnity basis, which the Manager may suffer or incur directly
or indirectly in the course of the performance of this Agreement
or any Management Agreement.
10.4 (Himalaya). It is hereby expressly agreed that
no employee or agent of the Manager, including every
sub-contractor from time to time employed by the Manager, shall
in any circumstances whatsoever be under any liability
whatsoever to the Company for any loss, damage, or delay of
whatsoever kind arising or resulting directly or indirectly from
any act, neglect or default on his part while acting in the
course or in connection with his employment and, unless due to
the gross negligence or wilful misconduct, without prejudice to
the generality of the foregoing, every exemption, limitation,
condition and liberty herein contained and every right,
exemption from liability, defence and immunity of whatsoever
nature applicable to the Manager or to which the Manager is
entitled hereunder, shall also be available and shall extend to
protect every such employee or agent of the Manager acting as
aforesaid and for the purpose of all the foregoing provisions of
this Clause 10 the Manager is or shall be deemed to be
acting as agent or trustee on behalf and for the benefit of all
persons who are his servants of agents from time to time,
including sub-contractors, and all such persons shall be or be
deemed to be parties to this Agreement.
| 11. | (Assignability of Agreement) |
This Agreement is not assignable by either the Company or the
Manager without the prior written consent of the other.
| 12. | (Confidentiality) |
Except as may be required by applicable law, any non-public or
confidential information relating to the business or affairs of
the Company and its Subsidiaries or the Company’s and its
Subsidiaries’ principals obtained by the Manager in the
performance of this Agreement or any Management Agreement shall
be kept strictly confidential.
Except as may be required by applicable law or regulations,
including without limitation, those applicable to companies with
securities registered under the 1934 Act, this Agreement
including all terms, details conditions and period is to be kept
private and confidential and beyond the reach of any third party.
Except as may be required by applicable law or regulations,
including without limitation, those applicable to companies with
securities registered under the 1934 Act,, any non-public
or confidential information relating to the business or affairs
of the Manager
and/or the
Manager’s principals obtained by the Company and its
Subsidiaries or the Company’s and its Subsidiaries’
principals in the performance of this Agreement shall be kept
strictly confidential.
| 13. | (Notices) |
All notices, requests, consents and other communications under
this Agreement shall be in writing and shall be deemed delivered
(i) upon delivery when delivered personally, (ii) upon
receipt if by facsimile transmission (with confirmation of
receipt thereof), or (iii) one business day after being
sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, in each case to the
intended recipient as set forth below:
If to Oceanaut Inc.:
Oceanaut Inc
00xx Xx Xxxxxxxx Xxxx Xxxxxx — Lamia & Xxxxxxx xxxxxx
000 00 Xxx Xxxxxxx
Xxxxxx, Xxxxxx
Facsimile: x00 000 00 00 000
Attention: Chief Executive Officer
00xx Xx Xxxxxxxx Xxxx Xxxxxx — Lamia & Xxxxxxx xxxxxx
000 00 Xxx Xxxxxxx
Xxxxxx, Xxxxxx
Facsimile: x00 000 00 00 000
Attention: Chief Executive Officer
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If to Maryville Maritime Inc.:
Maryville Maritime Inc
00xx Xx Xxxxxxxx Xxxx Xxxxxx — Lamia & Xxxxxxx xxxxxx
000 00 Xxx Xxxxxxx
Xxxxxx, Xxxxxx
Facsimile: x00 000 00 00 000
Attention: General Manager
00xx Xx Xxxxxxxx Xxxx Xxxxxx — Lamia & Xxxxxxx xxxxxx
000 00 Xxx Xxxxxxx
Xxxxxx, Xxxxxx
Facsimile: x00 000 00 00 000
Attention: General Manager
Any party may change the address to which notices, requests,
consents or other communications hereunder are to be delivered
by giving the other parties notice in the manner set forth in
this Section.
| 14. | (Governing Law and Arbitration) |
This Agreement shall be governed by and construed in accordance
with English law and any dispute arising out of or in connection
with this Agreement shall be referred to arbitration in London
in accordance with the Arbitration Xxx 0000, or any statutory
modification or re-enactment thereof save to the extent
necessary to give effect to the provisions of this Clause. The
Arbitration shall be conducted in accordance with the London
Maritime Arbitrators Association (LMAA) terms current at the
time when the arbitration proceedings are commenced. The
reference shall be to three arbitrators. Each party to appoint
one arbitrator and the two so appointed to appoint the third who
shall act as chairman of the Tribunal. On the receipt by one
party of the nomination in writing of the other party’s
arbitrator, that party shall appoint their arbitrator within
fourteen days, failing which the single arbitrator shall act as
sole arbitrator and any decision of the sole arbitrator shall be
binding in both parties. The two arbitrators so appointed shall
appoint the third arbitrator within fourteen days.
| 15. | (Entire Agreement) |
This Agreement and the Management Agreement contains the entire
agreement of the Company and the Manager with respect to the
subject matter hereof and supersedes all prior agreements and
understandings, either verbal or written, between the parties
with respect to such subject matter and no amendment of any
provision hereof will be binding upon any party unless in
writing and signed by the party agreeing to such amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed in duplicate by their respective
and duly authorized representatives as of the day and year
written hereinabove.
OCEANAUT INC.
| By: | /s/ Xxxxxxx Panayotides |
Name: Xxxxxxx Panayotides
| Title: | President, Chief Executive Officer and Director. |
MARYVILLE MARITIME INC.
| By: | /s/ Xxxxxxxx Xxxxxxxxxxx |
Name: Xxxxxxxx Xxxxxxxxxxx
| Title: | Sole Director, President, Secretary and Treasurer. |
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