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Millenium Management, Inc., as Manager
Millenium Seacarriers, Inc,.as Company
and
The Subsidiaries of the Company From Time to Time Listed on Schedule A Hereto
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MANAGEMENT AGREEMENT
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This Management Agreement, dated as of July 1, 1998 (the
"Agreement"), among Millenium Management, Inc. (the "Manager"), Millenium
Seacarriers, Inc. (the "Company") and each of the subsidiaries of the Company
from time to time listed on Schedule A attached hereto (each, a "Restricted
Subsidiary").
PRELIMINARY STATEMENT
Each Restricted Subsidiary owns a drybulk carrier (each, a
"Restricted Subsidiary Vessel" and, collectively, the "Restricted Subsidiary
Vessels") and is a wholly-owned or majority-owned subsidiary of the Company. The
Manager is the sole shareholder of the Company. Certain of the Restricted
Subsidiaries (the "Subsidiary Guarantors") have guaranteed the obligations of
the Company under and pursuant to the Indenture (the "Indenture"), dated as of
the date hereof, among the Company, such Subsidiary Guarantors and The First
National Bank of Maryland, as trustee (the "Trustee"). The Company and the
Restricted Subsidiaries desire to engage the Manager to provide certain
management services for the Company, the Restricted Subsidiaries and for the
Restricted Subsidiary Vessels. The Manager is willing to provide such services
to the Company, the Restricted Subsidiaries and the Restricted Subsidiary
Vessels pursuant to this Agreement upon the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and of other good and valuable consideration, the
receipt of which is hereby acknowledged, the Company, the Restricted
Subsidiaries and the Manager hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms shall have the meanings assigned to such
terms in the Indenture.
ARTICLE II
ADMINISTRATIVE MANAGEMENT
Section 2.01 APPOINTMENT OF MANAGER AS MANAGER OF
ADMINISTRATIVE OBLIGATIONS. The Company and the Restricted Subsidiaries hereby
appoint the Manager and the Manager hereby accepts its appointment as
administrative manager of the Company and the Restricted Subsidiaries.
Section 2.02 ADMINISTRATIVE RESPONSIBILITIES OF MANAGER. The
Manager hereby covenants and agrees with the Company and the Restricted
Subsidiaries that the Manager shall or shall cause its designee to do the
following:
(i) maintain the respective books and records of the Company
and the Restricted Subsidiaries;
(ii) prepare and file the respective annual financial
statements and annual tax returns of the Company and the Restricted
Subsidiaries, if required;
(iii) provide all office staff and accommodations for the
Company and the Restricted Subsidiaries;
(iv) prepare and submit invoices to each Restricted Subsidiary
for the cost and expense of (A) the annual corporate and tax exemption fees of
such Restricted Subsidiary, (B) the annual fees of the officers and directors of
such Restricted Subsidiary, (C) the annual premiums for directors and officers
liability insurance for the directors and officers of such Restricted
Subsidiary, if any, and (D) any other expenses properly incurred on behalf of
such Restricted Subsidiary;
(v) prepare and submit invoices to the Company for the cost
and expense of (A) the annual corporate and tax exemption fees of the Company,
(B) the annual fees of the officers and directors of the Company, (C) the annual
premiums for directors and officers liability insurance for the directors and
officers of the Company, if any, and (D) any other expenses properly incurred on
behalf of the Company;
(vi) prepare and file any and all information, documents and
reports required in order to comply with Section 13 or 15(d) of the Exchange Act
or the provisions of the Indenture;
(vii) file with the Trustee the information, documents and
reports described in the Indenture relating to the Subsidiary Guarantors;
ARTICLE III
VESSEL MANAGEMENT
Section 3.01 APPOINTMENT OF MANAGER AS VESSEL MANAGER OF THE
RESTRICTED SUBSIDIARY VESSELS. Each Restricted Subsidiary hereby appoints the
Manager and the Manager hereby accepts its appointment to act as the sole and
exclusive vessel manager of such Restricted Subsidiary 's Restricted Subsidiary
Vessel from and after the date hereof to the date the Restricted Subsidiary
Vessel is disposed of by the Restricted Subsidiary or the Manager is removed
pursuant to Section 4.02.
Section 3.02 RESPONSIBILITIES OF THE MANAGER. From the date
hereof, the Manager hereby covenants and agrees with each Restricted Subsidiary
that:
(a) it shall (i) maintain and preserve each Restricted
Subsidiary Vessel and her equipment in good condition, running order and repair,
so that such Restricted Subsidiary Vessel shall be, insofar as due diligence can
make her so, tight, staunch, strong and well and sufficiently tackled,
appareled, furnished, equipped and in every respect seaworthy and in good
operating condition and (ii) keep each Restricted Subsidiary Vessel in such
conditions as will entitle her to be in class as certificated by the related
classification society.
(b) The Manager shall for the account of each Restricted
Subsidiary attend to, supervise and perform all matters and details involving
the operation and vessel management of such Restricted Subsidiary's Restricted
Subsidiary Vessel including but not limited to:
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(i) unless instructed to the contrary, in case of general or
particular average, the appointment of an adjuster and
assistance in preparing the average account, the taking of
proper security for the cargo's and freight's proportion of
average, and in all ways reasonably possible the protection of
the interest of such Restricted Subsidiary Vessel;
(ii) in case of particular average, the settlement of claims
in conjunction with such Restricted Subsidiary 's protection
and indemnity insurance and the making of disbursements
accordingly for such Restricted Subsidiary's account, and the
doing of such other acts and the execution and delivery of
such other documents as in the Manager's judgment may be
necessary or appropriate for the conduct of the agency and
operation of such Restricted Subsidiary Vessel;
(iii) the attendance to all matters involving such Restricted
Subsidiary Vessel's crew, including, but not limited to, the
following:
(A) the procuring and enlisting for such
Restricted Subsidiary Vessel, as required by
applicable law, competent, reliable and duly
licensed personnel (hereinafter referred to
as "crew members"), and all replacements
therefor as from time to time may be
required in compliance with applicable law;
(B) the arranging for and procuring of all
transportation, board and lodging for the
crew members as and when required;
(C) the keeping and maintaining of full and
complete records of any labor agreements
which may be entered into between the
Manager and the crew members, in accordance
with existing or future collective
bargaining agreements between employer
organizations and unions;
(D) the settlement of all wages with the crew
members during the course of and upon
termination of their employment;
(E) the handling of all details and settlement
of any and all claims of the crew members
including, but not limited to, those arising
out of accidents, sickness, or death, loss
of personal effects, disputes under articles
or contracts of enlistment, policies of
insurance, pension plans and fines;
(F) the keeping and maintaining of all
administrative and financial records
relating to the crew members as required by
law, labor agreements or such Restricted
Subsidiary, and rendering to such Restricted
Subsidiary any and all reports when, as and
in such form as requested by such Restricted
Subsidiary; and
(G) the performance of any other function in
connection with the crew members as may be
required by such Restricted Subsidiary.
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(iv) the approval, settlement and payment for such Restricted
Subsidiary's account of all charges incurred in connection
with the operation of the Restricted Subsidiary Vessel, but
limited to, the cost of the items listed in sub-paragraphs (A)
through (G) of paragraph (iii) hereof, repair charges, any
amounts due to any government agency with respect to the crew,
and all contributions to welfare or similar plans required by
the collective bargaining agreements relating to or covering
the Restricted Subsidiary Vessel's crew and to which Manager
is a party;
(v) the prompt reporting to such Restricted Subsidiary of its
Restricted Subsidiary Vessel's movement, position at sea,
arrival and departure dates, casualties and damages received
or caused by such Restricted Subsidiary Vessel in such form
and on such terms as may be requested by such Restricted
Subsidiary;
(vi) keeping such Restricted Subsidiary informed about the
planned drydocking and/or repairs effecting its Restricted
Subsidiary Vessel's trading, supplying such Restricted
Subsidiary current copies of the repair lists, damage reports
and reports of inspection of such Restricted Subsidiary
Vessel;
(vii) arranging for the supply of all necessary bunkers,
lubricants, water, victuals and stores for each Restricted
Subsidiary Vessel and placing all necessary contracts relative
thereto;
(viii) arranging for the procurement and maintenance of a
reasonable supply of usual and necessary spare parts for each
Restricted Subsidiary Vessel, its tackle and equipment; and
(ix) arranging for the supervising drydocking, surveys,
repairs, renewals, alterations, betterments and upkeep of the
Restricted Subsidiary Vessel, obtaining details,
specifications and estimates of costs of repairs and renewals,
at any time carrying out running or emergency repairs
necessary for the seaworthiness or economical operation of the
Restricted Subsidiary Vessel.
(c) The Manager, for the account of each Restricted
Subsidiary, shall procure and retain in full force and effect all customary
insurance pertaining to such Restricted Subsidiary's Restricted Subsidiary
Vessel as instructed by the Restricted Subsidiary and as required by the related
Mortgage, if any, and all such policies and indemnity, hull and machinery, war
risk and pollution covering the Restricted Subsidiary Vessel, shall (i) include
the Manager and any sub-manager as an insured as their respective interests may
appear, (ii) contain provisions waiving the insurer's right of subrogation
against the Manager and any sub-manager, (iii) cover the full liability of the
Manager and any sub-manager to the extent of the cover, (iv) provide there shall
be no liability for the Manager or any sub-manager for the payment of premiums,
commissions, club calls, assessments, deductibles or advances and (v) contain a
provision requiring the insurer to provide thirty (30) days prior notice before
any material change in or cancellation of the insurance becomes effective.
(d) the Manager shall review and approve all charters and
contacts of affreightment for the Restricted Subsidiary Vessels.
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(e) The Manager shall provide the services of such officers
and other staff of suitable skills and experience from among the members of the
staff of the Manager as the Manager may determine to be necessary in order
properly to perform the services referred to herein.
(f) The Manager shall provide office equipment and the use of
accounting or computing equipment when and to the extent required and the
necessary executive, clerical and secretarial personnel for the performance of
the services herein set out.
(g) The Manager shall keep all books and records of things
done and transactions performed on behalf of each Restricted Subsidiary.
Section 3.03 MANAGER TO ACT AS ATTORNEY-IN-FACT OF RESTRICTED
SUBSIDIARIES. Each Restricted Subsidiary hereby constitutes the Manager, and its
successors and assigns, its true and lawful attorney, irrevocably, with full
power of substitution, with full power in its own name, in the name of its
agents or nominees or in the name of such Restricted Subsidiary or otherwise, to
execute any and all documents, instruments, agreements and applications for and
on behalf of such Restricted Subsidiary relating to or in connection with (i)
the registration of such Restricted Subsidiary's Restricted Subsidiary Vessel
under the laws of the jurisdiction under which such Restricted Subsidiary Vessel
is registered and (ii) the monitoring and enforcement of the terms and
conditions of all sub- management agreements.
Section 3.04 MANAGER TO ACT AS RESTRICTED SUBSIDIARIES'
REMARKETING AGENT. Each Restricted Subsidiary hereby appoints and the Manager
accepts appointment as such Restricted Subsidiary's exclusive marketing agent
for and on behalf of such Restricted Subsidiary with respect to the sale and/or
charter of such Restricted Subsidiary's Restricted Subsidiary Vessel on the
terms and conditions set forth in this Agreement. Any such sale and/or charter
shall be approved by the Company and the related Restricted Subsidiary.
Section 3.05 MANAGER TO ACT AS PURCHASING AGENT. The Company
hereby appoints the Manager as its exclusive purchasing agent with respect to
the purchase of vessels by subsidiaries of the Company. Each purchase shall be
approved by the Company and the related subsidiary of the Company.
Section 3.06 LIMITATION ON MANAGER'S AUTHORITY.
Notwithstanding anything herein to the contrary, so long as the Advisory
Agreement, between the Company and Millenium Advisors L.L.C. remains in effect,
the Manager will not perform any financial advisory services for the Company or
any Restricted Subsidiary.
Section 3.07 OPERATING ADVANCES; CONTINGENCY FUNDS. Each
Restricted Subsidiary agrees to deposit in advance into an account (the
"Operating Account") in accordance with the Manager's instructions an amount
equal to the estimated aggregate operating expenses for all of the Managed
Vessel for the first quarter of service under the terms of this Agreement. If
the balance of the Operating Account is less than an amount equal to one month's
estimated aggregate operating expenses, the Manager shall have the right to
demand that the related Restricted Subsidiary to deposit an amount equal to
three months' estimated aggregate operating expenses for the related Restricted
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Subsidiary Vessel. Each Restricted Subsidiary agrees to deposit with the Manager
such amount within seven days of the receipt of the Manager's instructions.
(b) Each Restricted Subsidiary, if so requested by the
Manager, agrees to deposit into an account (the "Contingency Fund") in
accordance with the Manager's instructions an amount equal to $200,000 per
Restricted Subsidiary Vessel (the "Contingency Amount"). At any such time as the
balance of the Contingency Fund is less than the Contingency Amount, the Manager
shall have the right to demand that the related Restricted Subsidiary Vessel
deposit an amount equal to such deficiency. The Related Restricted Subsidiary
Vessel shall deposit with the Manager such amount within seven days of receipt
of the Manager's instructions. Upon the incurrence of an extraordinary or
unanticipated cost or expense, the Manager shall have the right to withdraw the
amount of such cost or expense from such Contingency Fund. If the amount in the
Contingency Fund is insufficient to cover such cost or expense, the Manager
shall so notify the related Restricted Subsidiary and such Restricted Subsidiary
shall forward the amount of any insufficiency to the Contingency Account upon
demand.
ARTICLE IV
GENERAL PROVISIONS REGARDING
THE MANAGER
Section 4.01 NO DUTIES EXCEPT AS SPECIFIED IN AGREEMENT OR
INSTRUCTIONS. (a) The duties and obligations of the Manager shall be determined
solely by the express provisions of this Agreement and the Manager shall not be
liable except for the performance of its duties and obligations as specifically
set forth in this Agreement. Without limiting the foregoing, the Manager shall
have no duty or obligation to manage, make any payment in respect of, register,
record, sell, repair, advance any amounts in connection with the repair of,
dispose of or otherwise deal with the Restricted Subsidiary Vessels or any part
thereof, or otherwise take or refrain from taking any action under, or in
connection with, any document contemplated hereby to which the Manager is a
party, except as expressly provided by the terms of this Agreement. No implied
duties or obligations shall be read into this Agreement against the Manager.
(b) Under no circumstances shall the Manager be liable for (i)
the Company's or the Subsidiary Guarantors' obligations under the Indenture, the
other Security Agreements or the indebtedness evidenced by the Notes or (ii) the
validity or sufficiency of the Indenture or any of the other Security
Agreements. The Manager shall not assume any liability, duty or obligation to
any Person, other than as expressly provided for herein.
(c) No provision of this Agreement shall be construed to
relieve the Manager from liability unless same is found in a final judgment to
have resulted from the Manager's own grossly negligent action, its own grossly
negligent failure to act or its own willful misconduct. The Manager may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Manager and conforming to the requirements of this Agreement.
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(d) The Manager may consult with counsel and any advice or
opinion of counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or opinion of counsel.
(e) The right of the Manager to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Manager
shall not be answerable therefor unless same is found in a final judgment to
have resulted from the Manager's gross negligence or willful misconduct in the
performance of such act, and the delivery hereunder to the Manager of any
notice, document or report shall not give rise to an affirmative obligation on
the part of the Manager to take any action with respect thereto, except as
otherwise expressly provided herein.
(f) The Manager has the right to appoint sub-managers,
attorneys, accountants, agents, contractors, sub-agents, sub-contractors,
brokers, superintendents, surveyors, consultants and other experts and agents in
connection with the Manager's obligations under the Agreement as it may see fit
and each Restricted Subsidiary hereby ratifies and confirms the appointment
thereof.
Section 4.02 TERM OF AGREEMENT; RESIGNATION BY OR REMOVAL OF
MANAGER. This Agreement shall be effective commencing on the Issue Date and with
respect to a particular Restricted Subsidiary Vessel as of the date such
Restricted Subsidiary Vessel is acquired by a Restricted Subsidiary and shall
terminate with respect to a particular Restricted Subsidiary Vessel on the date
such Restricted Subsidiary Vessel is sold or an Event of Loss occurs with
respect thereto (the "Restricted Subsidiary Termination Date"). No later than
120 days after the Restricted Subsidiary Termination Date of a Restricted
Subsidiary Vessel, the Manager shall (a) present to the related Restricted
Subsidiary a final accounting with respect to such Restricted Subsidiary Vessel
and (b) pay to such Restricted Subsidiary any balance due to such Restricted
Subsidiary. No later than 15 days after such Restricted Subsidiary has received
such accounting, it shall pay to the Manager any amounts owing to the Manager
with respect to such Restricted Subsidiary Vessel. Any dispute regarding the
final accounting not resolved within five business days shall be decided
pursuant to Section 5.05(b).
(b) The Manager may be removed by the Company or with respect
to a particular Restricted Subsidiary by a Restricted Subsidiary, in either case
with cause in the event of a material breach of a material obligation of the
Manager. The Manager may be removed by the Company without cause only upon the
payment by the Company of a termination fee in an amount equal to, with respect
to any Restricted Subsidiary (or in the case of removal by the Company, with
respect to all Restricted Subsidiaries), an amount equal to twelve months of
compensation that would otherwise be payable by such Restricted Subsidiary to
the Manager pursuant to Section 4.04(i) hereof, which shall in no event be less
than the sum of the amounts included in the Operating Account and Contingency
Fund in place with respect to such Restricted Subsidiary.
(c) The Manager may resign as Manager hereunder upon 90 days
prior written notice.
(d) In the event of the resignation or removal of the Manager,
a successor manager shall be appointed by the Restricted Subsidiaries. The
Restricted Subsidiaries shall cause such
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successor manager to execute any and all documents requested by the Company to
evidence such successor's acceptance of all of the obligations of the Manager
pursuant to this Agreement.
Section 4.03 INDEMNIFICATION. The Company and each Restricted
Subsidiary hereby, jointly and severally, indemnify the Manager, any sub-manager
and its officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents, together with such parties
successors and assigns (each of such Persons being referred to as an
"Indemnified Party"), and hold each of them harmless against and from, any and
all liabilities, obligations, losses, damages, taxes, penalties, claims,
actions, suits, costs, expenses (including legal fees and expenses) of any kind
and nature whatsoever (collectively, "Expenses") which may be imposed on,
incurred by or asserted at any time against such Indemnified Person (whether or
not indemnified against by other parties and whether or not initiated or
conducted by such Indemnified Party) in any way relating to or arising out of
this Agreement, PROVIDED, HOWEVER, that the Company and the Restricted
Subsidiary shall not be required to indemnify an Indemnified Person for Expenses
arising or resulting from such Indemnified Person's own willful misconduct or
gross negligence.
Section 4.04 COMPENSATION. The Company and each Restricted
Subsidiary, jointly and severally, agree to pay to the Manager as compensation
for its services hereunder for each Restricted Subsidiary Vessel it manages on
behalf of a Restricted Subsidiary as follows: (i) the Manager shall receive a
fixed daily management fee payable monthly in advance for each Restricted
Subsidiary Vessel in an amount ranging from $350 to $600 per day (the "Fixed
Daily Management Fee"), (ii) (A) with respect to the first five days each year
of visits by a superintendent of the Manager to evaluate or supervise any
repairs, drydocking or other activities of a Restricted Subsidiary Vessel, the
manager shall receive reimbursement of expenses incurred with respect to such
visit and (B) with respect to each day in excess of such five days per annum for
such Restricted Subsidiary Vessel, the Manager shall receive an amount equal to
the reimbursement of its expenses and $550 for each additional day, (iii) the
Manager shall receive commissions of (A) 1.25% on all gross revenue relating to
time charter earned by each Restricted Subsidiary Vessel, (B) 1.75% on all gross
revenue relating to charters arranged on the spot market earned by each
Restricted Subsidiary Vessel, (C) 1% on the gross sale or purchase price of a
Restricted Subsidiary Vessel (including vessels that become Restricted
Subsidiary Vessels upon their purchase by the Company or a subsidiary of the
Company) and (D) 2% of insurance premiums for insurance placed, in each case as
adjusted to reflect fluctuations in market rates and practices.
Section 4.05 ADDITIONAL RESTRICTED SUBSIDIARIES. In the event
a Restricted Subsidiary (whether or not in existence on the Issue Date) acquires
a Restricted Subsidiary Vessel after the Issue Date, the Company shall cause
such Restricted Subsidiary to agree in writing to be bound by the terms and
conditions of this Agreement and to be included as a "Restricted Subsidiary"
pursuant to the terms hereof.
Section 4.06 MANAGER MAY ACT FOR OTHER VESSEL OWNERS. The
parties hereto agree that the Manager shall in no way be prohibited or limited
from providing vessel management services to other entities, including
Affiliates of the Company and other third parties.
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ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 AMENDMENT. This Agreement may be amended from
time to time by written agreement signed by the Manager, on the one hand, and
with respect to a Restricted Subsidiary or such Restricted Subsidiary's
Restricted Subsidiary Vessel, such Restricted Subsidiary.
Section 5.02 SEVERABILITY. If any provision of this Agreement
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections contained in this Agreement shall not affect the remaining
portions of this Agreement, or any part thereof.
Section 5.03 NOTICES. All demands, notices and communications
hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Manager, at the following address: x/x Xxxxxx xxx
Xxxxxx, X.X. Xxx 000, Xxxxx Xxxxxx Street, Xxxxxx Town, Grand Cayman, Cayman
Islands, British West Indies, (b) in the case of each of the Restricted
Subsidiaries, at the address indicated on the signature page hereto, (c) in the
case of the Company, at the following address: x/x Xxxxxx xxx Xxxxxx, X.X. Xxx
000, Xxxxx Xxxxxx Street, Xxxxxx Town, Grand Cayman, Cayman Islands, British
West Indies, or at other such address as shall be designated by such party in a
written notice to the other parties.
Section 5.04 THIRD PARTY BENEFICIARIES. The parties hereto
acknowledge that each Indemnified Party, and each of Kylco Maritime Limited and
Kylco Maritime (USA), Inc. pursuant to the Sub-Management Agreement between such
parties and the Manager of even date herewith are third-party beneficiaries to
this Agreement. No other Person should be deemed a third party beneficiary to
this Agreement.
Section 5.05 GOVERNING; ARBITRATION. (a) This Agreement shall
be governed by and interpreted in accordance with the laws of the State of New
York, without giving effect to the principles of conflicts of law.
(b) If any dispute should arise in connection with the
interpretation and fulfillment of this Agreement, the same shall be decided by
arbitration in the City and State of New York, with laws of the State of New
York to apply. Any dispute shall be referred to a single arbitrator to be
appointed by the parties hereto. If the parties cannot agree upon the selection
of the single arbitrator, the dispute shall be settled by three arbitrators,
with the Manager, on the one hand, selecting one arbitrator and the Company, on
the other hand, selecting one arbitrator and the third being selected by the
president of The Society of Maritime Arbitration (New York). If either the
Manager or the Company fails to select an arbitrator, either originally or by
way of substitution, for two weeks after the other party having selected its
arbitrator has sent the party making default notice by mail, cable or telex to
make the selection, the party selecting the third arbitrator shall, after
application from the
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party having selected its arbitrator, also select an Arbitrator on behalf of the
party making default. The award rendered by the arbitration court shall be final
and binding upon the parties and may if necessary be enforced by the court or
any other competent authority in the same manner as a judgement in the court of
State of New York and the federal courts of the United States. The proceedings
shall be conducted in accordance with the rules of The Society of Maritime
Arbitration (New York).
Section 5.06 NO DEMISE. Nothing herein contained shall be
construed as creating a demise of any Restricted Subsidiary Vessel to the
Manager.
Section 5.07 NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto, and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 5.08 COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement.
Section 5.09 SURVIVAL. The representations, covenants and
agreements contained in or made pursuant to this Agreement in respect of either
party hereto shall survive the execution and delivery of this Agreement and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
Section 5.10 INTEGRATION. This Agreement and the Schedule and
Exhibits hereto constitute the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, understandings or representations pertaining to the subject
matter hereof, whether oral or written. There are no warranties, representations
or other agreements between the parties in connection with the subject matter
hereof except as specifically set forth or incorporated herein.
Section 5.11 REPRODUCTION OF DOCUMENTS. This Agreement and all
documents relating thereto, including, without limitation, (a) consents, waivers
and modifications which may hereafter be executed, (b) documents received by any
party at the closing, and (c) financial statements, certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 5.12 GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Agreement except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Agreement shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
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(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 Indenture as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration; and
(g) The captions or headings in this Agreement are for
convenience only and in no way define, limit or describe the scope or intent of
any provisions or sections of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized, all as of the day and year first above written.
Millenium Management, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Millenium Seacarriers, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Conifer Shipping Company Limited
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x Xxxxxxx X. Xxxxxxxxxxx & Xxxxxxxxxx
X.X. Xxx 0000
Xxxxxxx Xxxxxx
Topscale Shipping Company, Limited
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x Xxxxxxx X. Xxxxxxxxxxx & Xxxxxxxxxx
X.X. Xxx 0000
Xxxxxxx Xxxxxx
Rapid Ocean Carriers
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x 00 Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx
Ivy Navigation, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x 00 Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx
Oakmont Shipping and Trading, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x 00 Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx
- 12 -
Millenium Majestic, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x X.X. Xxx 000
Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx
Grand Cayman
Cayman Islands
British West Indies
Millenium Yama, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x X.X. Xxx 000
Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx
Grand Cayman
Cayman Islands
British West Indies
Millenium Amethyst, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x X.X. Xxx 000
Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx
Grand Cayman
Cayman Islands
British West Indies
Millenium Elmar, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x X.X. Xxx 000
Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx
Grand Cayman
Cayman Islands
British West Indies
Millenium Xxxxxxxxxx, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x X.X. Xxx 000
Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx
Grand Cayman
Cayman Islands
British West Indies
Millenium II, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x X.X. Xxx 000
Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx
Grand Cayman
Cayman Islands
British West Indies
Millenium III, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x X.X. Xxx 000
Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx
Grand Cayman
Cayman Islands
British West Indies
Millenium IV, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address: x/x X.X. Xxx 000
Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx
Grand Cayman
Cayman Islands
British West Indies
- 13 -
Millenium V, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Millenium VI, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Millenium VII, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
- 14 -
Schedule of Restricted Subsidiaries
Conifer Shipping Company Limited
Topscale Shipping Company, Limted
Rapid Ocean Carriers
Ivy Navigation, Inc.
Oakmont Shipping and Trading, Inc.
Millenium Majestic, Inc.
Millenium Yama, Inc.
Millenium Amethyst, Inc.
Millenium Elmar, Inc.
Millenium Xxxxxxxxxx, Inc.
Millenium II, Inc.
Millenium III, Inc.
Millenium IV, Inc.
Millenium V, Inc.
Millenium VI, Inc.
Millenium VII, Inc.
- 15 -
