MANAGEMENT AGREEMENT
Exhibit 99.5
THIS AGREEMENT is entered into on, and effective as of, the
Closing Date (as defined herein) by and between NAVIOS MARITIME
ACQUISITION CORPORATION, a corporation 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 (the “Manager”).
WHEREAS:
A. Navios Acquisition, a corporation whose common stock is
listed and trades on the New York Stock Exchange, will own
vessels and require certain commercial and technical management
services for the operation of its fleet; and
B. Navios Acquisition wishes to engage the Manager to
provide such commercial and technical management services to
Navios Acquisition on the terms set out herein.
NOW THEREFORE, the parties agree that, in consideration for the
Manager providing the commercial and technical management
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 (i) during the first two
(2) years of the initial term of this Agreement, pay to the
Manager the fees set forth in Schedule “B” to
this Agreement (the “Fees”) and, if applicable,
the Extraordinary Fees and Costs and (ii) during the
remaining three (3) years of the initial term of this
Agreement, reimburse the Manager for the actual costs and
expenses incurred by the Manager 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 |
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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.
“Extraordinary Fees and Costs” means the
fees and costs listed in Schedule “C” to this
Agreement;
“Navios Acquisition Group” means Navios
Acquisition and subsidiaries of Navios Acquisition
“Vessels” means all vessels that are
owned, from time to time by Navios Acquisition Group.
Section 2. General. The
Manager shall provide the Services, in a commercially reasonable
manner, as Navios Acquisition, may from time to time direct, all
under the supervision of Navios Acquisition. The Manager shall
perform the Services to be provided hereunder in accordance with
customary ship management practice and with the care, diligence
and skill that a prudent manager of vessels such as the Vessels
would possess and exercise.
Section 3. Covenants. During
the term of this Agreement the Manager shall:
(a) diligently provide or subcontract for the provision of
(in accordance with Section 18 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.
Section 4. Non-exclusivity. The
Manager and its employees may provide services of a nature
similar to the Services to any other person. There is no
obligation for the Manager to provide the Services to Navios
Acquisition on an exclusive basis.
Section 5. Confidential
Information. The Manager 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 applicable securities laws.
Navios Acquisition shall be entitled to any equitable remedy
available at law or equity, including specific performance,
against a breach by the Manager of this obligation. The Manager
shall not resist such application for relief on the basis that
Navios Acquisition has an adequate remedy at law, and the
Manager shall waive any requirement for the securing or posting
of any bond in connection with such remedy.
Section 6. Service
Fee/Reimbursement of Costs and Expenses. In
consideration for the Manager providing the Services,
(i) during the first two (2) years of the initial term
of this Agreement, Navios Acquisition shall pay the Manager the
Fees as set out in Schedule “B” to this
Agreement and the Extraordinary Fees and Costs, if applicable,
and (ii) during the remaining three (3) years of the
initial term of
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this Agreement, Navios Acquisition shall reimburse the Manager
for the actual costs and expenses incurred by the Manager in the
manner provided for in Schedule “B”.
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 as, to create a
partnership, joint venture, employee or agency relationship
between the Manager and any one or more of Navios Acquisition or
any member of the Navios Acquisition Group.
Section 8. Force
Majeure and Indemnity.
(i) Neither Navios Acquisition 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.
(ii) The Manager shall be under no liability whatsoever to
Navios Acquisition 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 of or delay to the Vessels) and howsoever arising
in the course of performance of the Services, unless and to the
extent that such loss, damage, delay or expense is proved to
have resulted solely from the fraud, gross negligence or willful
misconduct of the Manager or their employees in connection with
the Vessels, in which case (save where such loss, damage, delay
or expense has resulted from the Manager’s personal 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 or series of incidents giving rise to a claim or claims
shall never exceed a total of US$3,000,000.
(iii) Notwithstanding anything that may appear to the
contrary in this Agreement, the Manager shall not be responsible
for any of the actions of the crew of the Vessels even if such
actions are negligent, grossly negligent or willful.
(iv) Navios Acquisition shall indemnify and hold harmless
the Manager and its employees and agents against all actions,
proceedings, claims, demands or liabilities which may be brought
against them arising out of, relating to or based upon this
Agreement including, without limitation, all actions,
proceedings, claims, demands or liabilities brought under or
relating to the environmental laws, regulations or conventions
of any jurisdiction (“Environmental Laws”), or
otherwise relating to pollution or the environment, 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 (A) the fraud,
gross negligence or willful misconduct of the Manager or its
employees or agents, or (B) any breach of this Agreement by
the Manager.
(v) Without prejudice to the general indemnity set out in
this Section, Navios Acquisition hereby undertakes to indemnify
the Manager, their employees, agents and sub-contractors against
all taxes, imposts and duties levied by any government as a
result of the operations of Navios Acquisition or the Vessels,
whether or not such taxes, imposts and duties are levied on
Navios Acquisition or the Manager. For the avoidance of doubt,
such indemnity shall not apply to taxes imposed on amounts paid
to the Manager as consideration for the performance of Services
for Navios Acquisition. Navios Acquisition shall pay all taxes,
dues or fines imposed on the Vessels or the Manager as a result
of the operation of the Vessels.
(vi) It is hereby expressly agreed that no employee or
agent of the Manager (including any sub-contractor from time to
time employed by the Manager and the employees of such
sub-contractors) shall in any circumstances whatsoever be under
any liability whatsoever to Navios Acquisition 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 of or in connection with his employment
and, without prejudice to the generality of the foregoing
provisions in this Section, every exemption, limitation,
condition and liberty herein contained and every right,
exemption from liability, defense and immunity of whatsoever
nature applicable to the Manager or to which the Manager are
entitled hereunder shall also be available and shall extend to
protect every such employee or agent of the Manager acting as
aforesaid.
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(vii) Navios Acquisition acknowledges that it is aware that
the Manager is unable to confirm that the Vessels, their
systems, equipment and machinery are free from defects, and
agrees that the Manager shall not under any circumstances be
liable for any losses, costs, claims, liabilities and expenses
which Navios Acquisition may suffer or incur resulting from
pre-existing or latent deficiencies in the Vessels, their
systems, equipment and machinery.
The provisions of this Section 8 shall remain in force
notwithstanding termination of this Agreement.
Section 9. Term
And Termination. With respect to each of the
Vessels, this Agreement shall commence on the Closing Date and
shall continue for five (5) years (as more specifically
described on Schedule “D” to this Agreement),
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 the Manager;
(b) in the case of the Manager, there is a Change of
Control of Navios Acquisition;
(c) the other party breaches a material provision of 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.
This Agreement shall be deemed to be terminated with respect to
a particular Vessel in the case of the sale of such Vessel or if
such Vessel becomes a total loss or is declared as a
constructive or compromised or arranged total loss or is
requisitioned. Notwithstanding such deemed termination, any Fees
outstanding at the time of the sale or loss shall be paid in
accordance with the provisions of this Agreement.
For the purpose of this clause:
(i) the date upon which a Vessel is to be treated as having
been sold or otherwise disposed of shall be the date on which
Navios Acquisition ceases to be the legal owner of the Vessel;
(ii) a Vessel shall not be deemed to be lost until either
she has become an actual total loss or agreement has been
reached with her underwriters in respect of her constructive,
compromised or arranged total loss or if such agreement with her
underwriters is not reached it is adjudged by a competent
tribunal that a constructive loss of the Vessel has occurred or
the Vessel’s owners issue a notice of abandonment to the
underwriters.
The termination of this Agreement shall be without prejudice to
all rights accrued due between the parties prior to the date of
termination.
Section 10. Fees
Upon Termination with respect to a
Vessel. Upon termination of this Agreement,
the Fee or Costs and Expenses, as may be the case, shall be
adjusted with respect to a Vessel as at the effective date of
termination of this Agreement, based on the amounts set forth in
Schedule “B”. Any overpayment shall
forthwith be refunded to Navios Acquisition and any underpayment
shall forthwith be paid to the Manager.
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Section 11. Surrender
Of Books And Records. Upon termination of
this Agreement, the Manager shall forthwith surrender to Navios
Acquisition any and all books, records, documents and other
property in the possession or control of the Manager relating to
this Agreement and to the business, finance, technology,
trademarks or affairs of Navios Acquisition and any member of
the Navios Acquisition Group and, except as required by law,
including federal securities laws, shall not retain any copies
of same.
Section 12. Entire
Agreement. This Agreement constitutes the
entire agreement and understanding between the parties with
respect to the subject matter of this Agreement and (in relation
to such subject matter) supersedes and replaces all prior
understandings and agreements, written or oral, between the
parties.
Section 13. Amendments
to Agreement. The Manager reserves the right
to make such changes to this Agreement as it shall consider
necessary to take account of regulatory changes which come into
force after the date hereof and which affect the operation of
the Vessels. Such changes will be conveyed in writing to Navios
Acquisition and will come into force on intimation or on the
date on which such regulatory or other changes come into effect
(whichever shall be the later).
Section 14. 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 15. Currency. Unless
stated otherwise, all currency references herein are to United
States Dollars.
Section 16. Law
And Arbitration. This Agreement shall be
governed by the laws of England. Any dispute under this
Agreement shall be referred to arbitration in London in
accordance with the Arbitration Act 1996 or any statutory
modification or re-enactment then in force. The arbitration
shall be conducted in accordance with the London Maritime
Arbitrators’ (LMAA) Terms current at the time when the
arbitration is commenced.
Save as after mentioned, the reference shall be to three
arbitrators, one to be appointed by each party and the third by
the two arbitrators so appointed. A party wishing to refer a
dispute to arbitration shall appoint its arbitrator and send
notice of such appointment to the other party requiring the
other party to appoint its arbitrator within fourteen
(14) calendar days of that notice and stating that it will
appoint its arbitrator as sole arbitrator unless the other party
appoints its own arbitrator and gives notice that it has done so
within the fourteen (14) calendar days specified. If the
other party does not appoint its own arbitrator and give notice
that it has done so within the fourteen (14) calendar days
specified, the party referring the dispute to arbitration may,
without the requirement of any further prior notice to the other
party, appoint its arbitrator as sole arbitrator and shall
advise the other party accordingly. The award of a sole
arbitrator shall be as binding as if he had been appointed by
agreement.
In cases where neither the claim nor any counterclaim exceeds
the sum of US$50,000 (or such other sum as the parties may
agree) the arbitration shall be conducted in accordance with the
LMAA Small Claims Procedure current at the time when the
arbitration proceedings are commenced.
Section 17. 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
Xxxxxxx, Xxxxxx 185 38
Attn: Xxxxxxxx Xxxxxxxxxxxxx
Fax: x(00) 000 000-0000
If to the Manager:
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 185 38
Attn: Xxxxxxxx Xxxxxxxxxxxxx
Fax: x(00) 000 000-0000
Xxxxxxx, Xxxxxx 185 38
Attn: Xxxxxxxx Xxxxxxxxxxxxx
Fax: x(00) 000 000-0000
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Section 18. Subcontracting
And Assignment. The Manager shall not assign
this Agreement to any party that is not a subsidiary or
affiliate of the Manager except upon written consent of Navios
Acquisition. The Manager may freely sub-contract and sub-license
this Agreement to any party, so long as the Manager remains
liable for performance of the Services and its other obligations
under this Agreement.
Section 19. 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 20. Counterparts. This
Agreement may be executed in one or more signed counterparts,
facsimile or otherwise, which shall together form one instrument.
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SCHEDULE A
SERVICES
The Manager shall provide such of the following commercial and
technical management services (the “Services”)
to Navios Acquisition, as Navios Acquisition may from time to
time request and direct the Manager to provide:
(1) Negotiating on behalf of Navios Acquisition time
charters, bareboat charters and other employment contracts with
respect to the Vessels and monitor payments thereunder;
(2) Exercising of due diligence to:
(i) maintain and preserve each Vessel and her equipment in
full compliance with applicable rules and regulations, including
Environmental Laws, good condition, running order and repair, so
that each Vessel shall be, insofar as due diligence can make her
in every respect seaworthy and in good operating condition;
(ii) keep each Vessel in such condition as will entitle her
to the highest classification and rating from the classification
society chosen by her owner or charter for vessels of the class,
age and type;
(iii) prepare and obtain all necessary approvals for a
shipboard oil pollution emergency plan
(“SOPEP”) in a form approved by the Marine
Environment Protection Committee of the International Maritime
Organization pursuant to the requirements of Regulation 26
of Annex I of the International Convention for the
Prevention of Pollution from Ships, 1973, as modified by the
Protocol of 1978 relating thereto, as amended (“MARPOL
73/78”), and provide assistance with respect to such
other documentation and record-keeping requirements pursuant to
applicable Environmental Laws;
(iv) arrange for the preparation, filing and updating of a
contingency Vessel Response Plan in accordance with the
requirements of the U.S. Oil Pollution Act of 1990 as
amended (“OPA”), and instruct the crew in all
aspects of the operation of such plan;
(v) inform Navios Acquisition promptly of any major release
or discharge of oil or other hazardous material in compliance
with law and identify and ensure the availability by contract or
otherwise of a Qualified Individual, a Spill Management Team, an
Oil Spill Removal Organization (as such terms are defined by
applicable Environmental Laws), and any other individual or
entity required by Environmental Laws, resources having salvage,
firefighting, lightering and, if applicable, dispersant
capabilities, and public relations/media personnel to assist
Navios Acquisition to deal with the media in the event of
discharges of oil;
(vi) arrange and procure for the vetting of the Vessels and
Navios Acquisition or the Manager by major charterers and
arranging and attending relevant inspections of the Vessels,
including pre-vetting inspections, or visits at the premises of
the Manager up to a maximum number of five inspection visits per
Vessel per year to be attended by the Manager, with additional
visits to be for the account of Navios Acquisition; and
(vii) provide copies of any vessel inspection reports,
valuations, surveys or similar reports upon request.
The Manager is expressly authorized as agents for Navios
Acquisition to enter into such arrangements by contract or
otherwise as are required to ensure the availability of the
Services outlined above. The Manager is further expressly
authorized as agents for Navios Acquisition to enter into such
other arrangements as may from time to time be necessary to
satisfy the requirements of OPA or other Federal or State laws.
(3) Storing, victualing and supplying of each Vessel and
the arranging for the purchase of certain day to day stores,
supplies and parts;
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(4) Procuring and arrangement for port entrance and
clearance, pilots, vessel agents, consular approvals, and other
services necessary or desirable for the management and safe
operation of each Vessel;
(5) Preparing, issuing or causing to be issued to shippers
the customary freight contract, cargo receipts
and/or bills
of lading;
(6) Performance of all usual and customary duties concerned
with the loading and discharging of cargoes at all ports;
(7) Naming of vessel agents for the transaction of each
Vessel’s business;
(8) Arrangement and retention in full force and effect of
all customary insurance pertaining to each Vessel as instructed
by the owner or charterer and all such policies of insurance,
including but not limited to protection and indemnity, hull and
machinery, war risk and oil pollution covering each Vessel; if
requested by the owner or charterer, making application for
certificates of financial responsibility on behalf of the
Vessels covered hereunder;
(9) Adjustment and the negotiating of settlements, with or
on behalf of claimants or underwriters, of any claim, damages
for which are recoverable under policies of insurance;
(10) If requested, provide Navios Acquisition with
technical assistance in connection with any sale of any Vessel.
The Manager will, if requested in writing by Navios Acquisition,
comment on the terms of any proposed Memorandum of Agreement,
but Navios Acquisition will remain solely responsible for
agreeing the terms of any Memorandum of Agreement regulating any
sale;
(11) Arrangement or the prompt dispatch of each Vessel from
loading and discharging ports and for transit through canals;
(12) Arrangement for employment of counsel, and the
investigation,
follow-up
and negotiating of the settlement of all claims arising in
connection with the operation of each Vessel; it being
understood that Navios Acquisition will be responsible for the
payment of such counsel’s fees and expenses;
(13) Arrangement for the appointment of an adjuster and
assistance in preparing the average account, taking proper
security for the cargo’s and freight’s proportion of
average, and in all ways reasonably possible protecting the
interest of each Vessel and her owner; it being understood that
Navios Acquisition will be responsible for the payment of such
adjuster’s fees and expenses;
(14) Arrangement for the appointment of surveyors and
technical consultants as necessary; it being understood that
Navios Acquisition will be responsible for the payment of such
surveyor’s or technical consultant’s fees and expenses
outside the ordinary course of business;
(15) Negotiating of the settlement of insurance claims of
Vessel owner’s or charterer’s protection and indemnity
insurance and the arranging for the making of disbursements
accordingly for owner’s or charterer’s account; Navios
Acquisition shall arrange for the provision of any necessary
guarantee bond or other security;
(16) Attendance to all matters involving each Vessel’s
crew, including, but not limited to, the following:
(i) arranging for the procurement and enlistment for each
Vessel, as required by applicable law, of competent, reliable
and duly licensed personnel (hereinafter referred to as
“crew members”) in accordance with the
requirements of International Maritime Organization Convention
on Standards of Training Certification and Watchkeeping for
Seafarers 1978 and as subsequently amended, and all replacements
therefore as from time to time may be required;
(ii) arranging for all transportation, board and lodging
for the crew members as and when required at rates and types of
accommodations as customary in the industry;
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(iii) keeping and maintaining full and complete records of
any labour agreements which may be entered into between owner or
disponent owner and the crew members and the prompt reporting to
owner or disponent owner as soon as notice or knowledge thereof
is received of any change or proposed change in labour
agreements or other regulations relating to the master and the
crew members;
(iv) negotiating the settlement and payment of all wages
with the crew members during the course of and upon termination
of their employment;
(v) the handling of all details and negotiating the
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 and fines;
(vi) keeping and maintaining all administrative and
financial records relating to the crew members as required by
law, labour agreements, owner or charterer, and rendering to
owner or charterer any and all reports when, as and in such form
as requested by owner or charterer;
(vii) the performance of any other function in connection
with crew members as may be requested by owner or charterer; and
(viii) negotiating with unions, if required.
(17) Payment of all charges incurred in connection with the
management of each Vessel, including, but not limited to, the
cost of the items listed in (2) to (16) above, canal
tolls, repair charges and port charges, and any amounts due to
any governmental agency with respect to the Vessel crews;
(18) In such form and on such terms as may be requested by
Navios Acquisition, the prompt reporting to Navios Acquisition
of each Vessel’s movement, position at sea, arrival and
departure dates, casualties and damages received or caused by
each Vessel;
(19) In case any of the Vessels is employed under a voyage
charter, Navios Acquisition shall pay for all voyage related
expenses (including bunkers, canal tolls and port dues) and the
Manager shall arrange for the provision of bunker fuel of the
quality agreed with Navios Acquisition as required for any
Vessel’s trade. The Manager shall be entitled to order
bunker fuel through such brokers or suppliers as Navios
Acquisition deem appropriate unless Navios Acquisition instruct
the Manager to utilize a particular supplier which the Manager
will be obliged to do provided that the Navios Acquisition have
made prior credit arrangements with such supplier. Navios
Acquisition shall comply with the terms of any credit
arrangements made by the Manager on their behalf with Navios
Acquisition’s consent;
(20) The Manager shall not in any circumstances have any
liability for any bunkers which do not meet the required
specification. the Manager will, however, take such action, on
behalf of Navios Acquisition, against the supplier of the
bunkers, as is agreed with Navios Acquisition.
(21) The Manager shall make arrangements as instructed by
the Classification Society of each Vessel for the intermediate
and special survey of each Vessel and all costs in connection
with passing such surveys (including dry-docking) and
satisfactory compliance with class requirements will be borne by
the Manager.
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SCHEDULE B
FEES AND
COSTS AND EXPENSES
In consideration for the provision of the Services listed in
Schedule “A” by the Manager to Navios
Acquisition, Navios Acquisition shall, during the first two
(2) years of the initial term of this Agreement, pay the
Manager a fixed daily fee of US$7,000 per owned LR 1 product
tanker vessel and $6,000 per owned MR2 product tanker
vessel and chemical tanker vessel, payable on the last day of
each month, as set forth in the table below. Navios Acquisition’s
payments to the Manager For dry-docking
expenses shall be limited to $300,000 per vessel during the first
two (2) years of the initial term of this Agreement.
During the remaining three (3) years of the initial term of
this Agreement, within forty-five (45 days after the end of
each month), the Manager shall submit to Navios Acquisition for
payment an invoice for reimbursement of the Costs and Expenses
in connection with the provision of the Services listed in
Schedule “A” by the Manager to Navios
Acquisition for such month. Costs and Expenses shall be
determined in a manner consistent with how the fixed daily fee
payable during the first two (2) years of the initial term
of this Agreement was calculated and 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. All invoices
for Services are payable in U.S. dollars.
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SCHEDULE C
EXTRAORDINARY
FEES AND COSTS
Notwithstanding anything to the contrary in this Agreement, the
Manager will not be responsible for paying any costs liabilities
and expenses in respect of a Vessel, to the extent that such
costs, liabilities and expenses are “extraordinary”,
which shall consist of the following:
(1) repairs, refurbishment or modifications, including
those not covered by the guarantee of the shipbuilder or by the
insurance covering the Vessels, resulting from maritime
accidents, collisions, other accidental damage or unforeseen
events (except to the extent that such accidents, collisions,
damage or events are due to the fraud, gross negligence or
willful misconduct of the Manager, its employees or its agents,
unless and to the extent otherwise covered by insurance).
(2) any improvement, upgrade or modification to, structural
changes with respect to the installation of new equipment aboard
any Vessel that results from a change in, an introduction of
new, or a change in the interpretation of, applicable laws, at
the recommendation of the classification society for that Vessel
or otherwise.
(3) any increase in administrative costs and expenses or
crew employment expenses resulting from an introduction of new,
or a change in the interpretation of, applicable laws or
resulting from the early termination of the charter of any
Vessel.
(4) the Manager shall be entitled to receive additional
remuneration for time spent on the insurance, average and
salvage claims (charged at the rate of US$800 per man per
day of eight (8) hours) in respect of the preparation and
prosecution of claims, the supervision of repairs and the
provision of documentation relating to adjustments).
(5) the Manager shall be entitled to receive additional
remuneration for time (charged at the rate of US$750 per
man per day of 8 hours) for any time of over 10 days
per year that the personnel of the Manager will spend during
vetting inspections and attendance on the Vessels in connection
with the pre-vetting and vetting of the Vessels by any
charterers. In addition Navios Acquisition will pay any
reasonable travel and accommodation expenses of the Manager
personnel incurred in connection with such additional time spent.
(6) Navios Acquisition shall pay the deductible of any
insurance claims relating to the Vessels or for any claims that
are within such deductible range.
(7) Navios Acquisition shall pay any significant increase
in insurance premiums which are due to factors such as
“acts of God” outside of the control of the Manager.
(8) Navios Acquisition shall pay any tax, dues or fines
imposed on the Vessels or the Manager due to the operation of
the Vessels.
(9) Navios Acquisition shall pay for any expenses incurred
in connection with the sale or acquisition of a Vessel, such as
in connection with inspections and technical assistance.
(10) Navios Acquisition shall pay for any costs,
liabilities and expenses similar to those set forth in
clauses (1) through (9) above that were not reasonably
contemplated by Navios Acquisition and the Manager as being
encompassed by or a component of the Fees at the time the Fees
were determined.
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