ADMINISTRATIVE SERVICES AGREEMENT
Exhibit 99.6
THIS AGREEMENT is entered into on, and effective as of, the
Closing Date (as defined herein), by and between NAVIOS MARITIME
ACQUISITION CORPORATION, a company duly organized and existing
under the laws of the Xxxxxxxx Islands with its registered
office at 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx 185 38
(“Navios Acquisition”) and NAVIOS SHIPMANAGEMENT INC.,
a company duly organized and existing under the laws of the
Xxxxxxxx Islands with its registered office at 00 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxx 185 38 (“NSM”).
WHEREAS:
A. Navios Acquisition, whose common stock is listed and
trades on the New York Stock Exchange, will own vessels and
require certain administrative support services for the
operation of its fleet; and
B. Navios Acquisition wishes to engage NSM to provide such
administrative support services to Navios Acquisition on the
terms set out herein.
NOW THEREFORE, the parties agree that, in consideration for NSM
providing the administrative support services set forth in
Schedule “A” to this Agreement (the
“Services”), and subject to the Terms and
Conditions set forth in Article I attached hereto,
Navios Acquisition shall reimburse NSM including reasonably
allocable overhead for the costs and expenses reasonably
incurred by NSM in the manner provided for in Schedule
“B” to this Agreement (the “Costs and
Expenses”).
IN WITNESS WHEREOF the Parties have executed this Agreement by
their duly authorized signatories with effect on the date first
above written.
| By: |
/s/ Xxxxxxxx
Xxxxxxx
|
Name: Xxxxxxxx Xxxxxxx
| Title: | Chief Executive Officer |
NAVIOS SHIPMANAGEMENT INC.
| By: |
/s/ Xxxxxxxx
Xxxxxxx
|
Name: Xxxxxxxx Xxxxxxx
| Title: | Chief Executive Officer |
1
ARTICLE I
TERMS AND
CONDITIONS
Section 1. Definitions. In
this Agreement, the term:
“Change of Control” means with respect
to any entity, an event in which securities of any class
entitling the holders thereof to elect a majority of the members
of the board of directors or other similar governing body of the
entity are acquired, directly or indirectly, by a
“person” or “group” (within
the meaning of Sections 13(d) or 14(d)(2) of the Exchange
Act), who did not immediately before such acquisition own
securities of the entity entitling such person or group to elect
such majority (and for the purpose of this definition, any such
securities held by another person who is related to such person
shall be deemed to be owned by such person);
“Closing Date” means the closing date of
the acquisition by Navios Acquisition of the stock of Aegean Sea
Maritime Holdings Inc.
“Costs and Expenses” has the meaning set
forth on the signature page to this Agreement;
“Navios Acquisition Group” means Navios
Acquisition and subsidiaries of Navios Acquisition; and
Section 2. General. NSM
shall provide all or such portion of the Services, in a
commercially reasonable manner, as Navios Acquisition may from
time to time direct, all under the supervision of Navios
Acquisition.
Section 3. Covenants. During
the term of this Agreement NSM shall:
(a) diligently provide or sub-contract for the provision of
(in accordance with Section 19 hereof) the Services to
Navios Acquisition as an independent contractor, and be
responsible to Navios Acquisition for the due and proper
performance of same;
(b) retain at all times a qualified staff so as to maintain
a level of expertise sufficient to provide the Services; and
(c) keep full and proper books, records and accounts
showing clearly all transactions relating to its provision of
Services in accordance with established general commercial
practices and in accordance with United States generally
accepted accounting principles, and allow Navios Acquisition and
its representatives and its auditors to audit and examine such
books, records and accounts at any time during customary
business hours.
Section 4. Non-exclusivity. NSM
and its employees may provide services of a nature similar to
the Services to any other person. There is no obligation for NSM
to provide the Services to Navios Acquisition on an exclusive
basis.
Section 5. Confidential
Information. NSM shall be obligated to keep
confidential, both during and after the term of this Agreement,
all information it has acquired or developed in the course of
providing Services under this Agreement, except to the extent
disclosure of such information is required by applicable law,
including without limitation U.S. securities laws. Navios
Acquisition shall be entitled to any equitable remedy available
at law or equity, including specific performance, against a
breach by NSM of this obligation. NSM shall not resist such
application for relief on the basis that Navios Acquisition has
an adequate remedy at law, and NSM shall waive any requirement
for the securing or posting of any bond in connection with such
remedy.
Section 6. Reimbursement
of Costs and Expenses. In consideration for
NSM providing the Services, Navios Acquisition shall reimburse
NSM the Costs and Expenses in the manner provided in Schedule
“B” to this Agreement.
Section 7. General
Relationship Between The Parties. The
relationship between the parties is that of independent
contractor. The parties to this Agreement do not intend, and
nothing herein shall be interpreted so
2
as, to create a partnership, joint venture, employee or agency
relationship between NSM and any one or more of Navios
Acquisition or any member of the Navios Acquisition Group.
Section 8. Indemnity. Navios
Acquisition shall indemnify and hold harmless NSM and its
employees and agents against all actions, proceedings, claims,
demands or liabilities which may be brought against them due to
this Agreement including, without limitation, all actions,
proceedings, claims, demands or liabilities brought under the
environmental laws of any jurisdiction, and against and in
respect of all costs and expenses (including legal costs and
expenses on a full indemnity basis) they may suffer or incur due
to defending or settling same, provided however that such
indemnity shall exclude any or all losses, actions, proceedings,
claims, demands, costs, damages, expenses and liabilities
whatsoever which may be caused by or due to the fraud, gross
negligence or willful misconduct of NSM or its employees or
agents.
Section 9. NO
CONSEQUENTIAL DAMAGES. NEITHER NSM NOR ANY OF
ITS AFFILIATES SHALL BE LIABLE FOR INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES SUFFERED BY NAVIOS ACQUISITION, OR FOR
PUNITIVE DAMAGES, WITH RESPECT TO ANY TERM OR THE SUBJECT MATTER
OF THIS AGREEMENT, EVEN IF INFORMED OF THE POSSIBILITY THEREOF
IN ADVANCE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION,
INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY, FRAUD, MISREPRESENTATION
AND OTHER TORTS.
Section 10. Term
And Termination. This Agreement shall have an
initial term of five (5) years unless terminated by either
party hereto on not less than one hundred and twenty
(120) days notice if:
(a) in the case of Navios Acquisition, there is a Change of
Control of NSM;
(b) in the case of NSM, there is a Change of Control of
Navios Acquisition;
(c) the other party breaches this Agreement;
(d) a receiver is appointed for all or substantially all of
the property of the other party;
(e) an order is made to
wind-up the
other party;
(f) a final judgment, order or decree which materially and
adversely affects the ability of the other party to perform this
Agreement shall have been obtained or entered against that party
and such judgment, order or decree shall not have been vacated,
discharged or stayed; or
(g) the other party makes a general assignment for the
benefit of its creditors, files a petition in bankruptcy or for
liquidation, is adjudged insolvent or bankrupt, commences any
proceeding for a reorganization or arrangement of debts,
dissolution or liquidation under any law or statute or of any
jurisdiction applicable thereto or if any such proceeding shall
be commenced.
This Agreement may be terminated by either party hereto on not
less than three hundred and sixty-five (365) days notice
for any reason other than any of the reasons set forth in the
immediately preceding paragraph. This Agreement shall not become
effective unless and until the Closing Date has occurred.
Section 11. Costs
and Expenses Upon Termination. Upon
termination of this Agreement in accordance with Section 10
hereof, Navios Acquisition shall be obligated to pay NSM any and
all amounts payable pursuant to Section 6 hereof for
Services provided prior to the time of termination.
Section 12. Surrender
Of Books And Records. Upon termination of
this Agreement, NSM shall forthwith surrender to Navios
Acquisition any and all books, records, documents and other
property in the possession or control of NSM relating to this
Agreement and to the business, finance, technology, trademarks
or affairs of Navios Acquisition and any member of the Navios
Acquisition and, except as required by law, including, without
limitation, U.S. securities laws, shall not retain any
copies of same.
Section 13. Force
Majeure. Neither party shall be liable for
any failure to perform this Agreement due to any cause beyond
its reasonable control.
3
Section 14. Entire
Agreement. This Agreement forms the entire
agreement between the parties with respect to the subject matter
hereof and supersedes and replaces all previous agreements,
written or oral, with respect to the subject matter hereof.
Section 15. Severability. If
any provision herein is held to be void or unenforceable, the
validity and enforceability of the remaining provisions herein
shall remain unaffected and enforceable.
Section 16. Currency. Unless
stated otherwise, all currency references herein are to United
States Dollars.
Section 17. Law
And Arbitration. This Agreement shall be
governed by the laws of England. Any dispute under this
Agreement shall be put to arbitration in England, a jurisdiction
to which the parties hereby irrevocably submit.
Section 18. Notice. Notice
under this Agreement shall be given (via hand delivery or
facsimile) as follows:
If to Navios Acquisition:
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 185 38
Attn: Xxxxxxxx Xxxxxxxxxxxxx
Fax: x(00) 000
000-0000
If to NSM:
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 185 38
Attn: Xxxxxxxx Xxxxxxxxxxxxx
Fax: x(00) 000
000-0000
Section 19. Sub-contracting
And Assignment. NSM shall not assign this
Agreement to any party that is not a subsidiary or affiliate of
NSM except upon written consent of Navios Acquisition. NSM may
freely sub-contract or sub-license this Agreement, so long as
NSM remains liable for performance of the Services and its
obligations under this Agreement.
Section 20. Waiver. The
failure of either party to enforce any term of this Agreement
shall not act as a waiver. Any waiver must be specifically
stated as such in writing.
Section 21. Counterparts. This
Agreement may be executed in one or more signed counterparts,
facsimile or otherwise, which shall together form one instrument.
4
SCHEDULE A
SERVICES
NSM shall provide such of the following administrative support
services (the “Services”) to Navios
Acquisition, as Navios Acquisition may from time to time request
and direct NSM to provide pursuant to Section 1.02:
(a) Keep and maintain at all times books, records and
accounts which shall contain particulars of receipts and
disbursements relating to the assets and liabilities of Navios
Acquisition and such books, records and accounts shall be kept
pursuant to normal commercial practices that will permit Navios
Acquisition to prepare or cause to be prepared financial
statements in accordance with U.S. generally accepted
accounting principles and in each case shall also be in
accordance with those required to be kept by Navios Acquisition
under applicable federal securities laws and regulations in the
United States and as Navios Acquisition is required to keep and
file under applicable foreign taxing regulations and the
U.S. Internal Revenue Code of 1986 and the regulations
applicable with respect thereto, all as amended from time to
time;
(b) Prepare all such returns, filings and documents, for
review and approval by Navios Acquisition as may be from time to
time be requested or instructed by Navios Acquisition; and file
such documents, as applicable, as directed by Navios Acquisition
with the relevant authority;
(c) Provide, or arrange for the provision of, advisory
services to Navios Acquisition with respect to Navios
Acquisition’s obligations under applicable securities laws
and regulations in the United States and assist Navios
Acquisition in arranging for compliance with continuous
disclosure obligations under applicable securities laws and
regulations and the rules and regulations of the New York Stock
Exchange and any other securities exchange upon which Navios
Acquisition’s securities are listed, including the
preparation for review, approval and filing by Navios
Acquisition of reports and other documents with all applicable
regulatory authorities, providing that nothing herein shall
permit or authorize NSM to act for or on behalf of Navios
Acquisition in its relationship with regulatory authorities
except to the extent that specific authorization may from time
to time be given by Navios Acquisition;
(d) Provide, or arrange for the provision of, advisory,
clerical and investor relations services to assist and support
Navios Acquisition in its communications with its security
holders, including in connection with disclosures that may be
required for regulatory compliance to its security holders and
the wider financial markets, as Navios Acquisition may from time
to time request or direct, provided that nothing herein shall
permit or authorize NSM to determine the content of any such
communications by Navios Acquisition to its security holders and
the wider financial markets;
(e) At the request and under the direction of Navios
Acquisition, handle, or arrange for the handling of, all
administrative and clerical matters in respect of (i) the
call and arrangement of all meetings of the security holders,
(ii) the preparation of all materials (including notices of
meetings and information circulars) in respect thereof and
(iii) the submission of all such materials to Navios
Acquisition in sufficient time prior to the dates upon which
they must be mailed, filed or otherwise relied upon so that
Navios Acquisition has full opportunity to review them, approve
them, execute them and return them to NSM for filing or mailing
or other disposition as Navios Acquisition may require or direct;
(f) Provide, or arrange for the provision of, or secure
sufficient and necessary office space, equipment and personnel
including all accounting, clerical, secretarial, corporate and
administrative services as may be reasonably necessary for the
performance of Navios Acquisition’s business;
(g) Arrange for the provision of such audit, accounting,
legal, insurance and other professional services as are
reasonably required by Navios Acquisition from time to time in
connection with the discharge of its responsibilities as a
U.S. public company, to the extent such advice and analysis
can be reasonably provided or arranged by NSM, provided that
nothing herein shall permit NSM to select the auditor of Navios
Acquisition, which shall be selected by the audit committee of
Navios Acquisition or to communicate with the auditor other than
in the ordinary course of making such books and records
5
available for review as the auditors may require and to respond
to queries from the auditors with respect to the accounts and
statements prepared by, or arranged by, NSM, and in particular
NSM will not have any of the authorities, rights or
responsibilities of the audit committee of Navios Acquisition,
but shall provide, or arrange for the provision of, information
to such committee as may from time to time be required or
requested; and provided further that nothing herein shall
entitle NSM to retain legal counsel for Navios Acquisition
unless such selection is specifically approved by Navios
Acquisition;
(h) Provide, or arrange for the provision of, such
assistance and support as Navios Acquisition may from time to
time request in connection with any new or existing financing
for Navios Acquisition, such assistance and support to be
provided in accordance with the direction, and under the
supervision of Navios Acquisition;
(i) Provide, or arrange for the provision of, such
administrative and clerical services as may be required by
Navios Acquisition to support and assist Navios Acquisition in
considering any future acquisitions or divestments of assets of
Navios Acquisition, all under the direction and under the
supervision of Navios Acquisition;
(j) Provide, or arrange for the provision of, such support
and assistance to Navios Acquisition as Navios Acquisition may
from time to time request in connection with any future
offerings of securities that Navios Acquisition may at any time
determine is desirable for Navios Acquisition, all under the
direction and supervision of Navios Acquisition;
(k) Provide, or arrange for the provision of, at the
request and under the direction of Navios Acquisition, such
communications to the transfer agent for Navios Acquisition as
may be necessary or desirable;
(l) Prepare and provide, or arrange for the preparation and
provision of, regular cash reports and other accounting
information for review by Navios Acquisition, so as to permit
and enable Navios Acquisition to make all determinations of
financial matters, including the determination of amounts
available for distribution by Navios Acquisition to its security
holders, and to assist Navios Acquisition in making arrangements
with the transfer agent for Navios Acquisition for the payment
of distributions to its security holders;
(m) Provide, or arrange for the provision of, such
assistance to Navios Acquisition N as Navios Acquisition may
request or direct with respect to the performance of the
obligations, and to provide monitoring of various obligations
and rights, under agreements entered into by Navios Acquisition
and provide advance reports on a timely basis to Navios
Acquisition advising of steps, procedures and compliance issues
under such agreements, so as to enable Navios Acquisition to
make all such decisions as would be necessary or desirable
thereunder;
(n) Provide, or arrange for the provision of, such
additional administrative and clerical services pertaining to
Navios Acquisition, the assets and liabilities of Navios
Acquisition and its security holders and matters incidental
thereto as may be reasonably requested by Navios Acquisition
from time to time;
(o) Negotiate and arrange, at the request and under the
direction of Navios Acquisition, for interest rate swap
agreements, foreign currency contracts, forward exchange
contracts and any other hedging arrangements;
(p) Provide, or arrange for the provision of, IT services;
(q) Maintain, or arrange for the maintenance of, Navios
Acquisition’s and Navios Acquisition’s
subsidiaries’
(r) Negotiate, at the request and under the direction of
Navios Acquisition, loan and credit terms with lenders and
monitor and maintain compliance therewith;
(s) Provide, or arrange for the provision of, at the
request and under the direction of Navios Acquisition, cash
management and services, including assistance with preparation
of budgets, overseeing banking services and bank accounts and
arranging for the deposit of funds; and
(t) Monitor the performance of investment managers.
6
SCHEDULE B
COSTS AND
EXPENSES
Within forty-five (45) days after the end of each month,
NSM shall submit to Navios Acquisition for payment an invoice
for reimbursement of all Costs and Expenses in connection with
the provision of the Services listed in Schedule
“A” by NSM to Navios Acquisition for such month.
Each statement will contain such supporting detail as may be
reasonably required to validate such amounts due.
Navios Acquisition shall make payment within fifteen
(15) days of the date of each invoice (any such day on
which a payment is due, the “Due Date”). All
invoices for Services are payable in U.S. dollars. All
amounts not paid within 10 days after the Due Date shall
bear interest at the rate of 1.00% per annum over US$ LIBOR
from such Due Date until the date payment is received in full by
NSM.
7
