FORM OF COMMERCIAL MANAGEMENT AGREEMENT between a vessel-owning subsidiary of the Copany and SCM
EXHIBIT
10.2
FORM OF
COMMERCIAL MANAGEMENT AGREEMENT
between a vessel-owning subsidiary of the Copany
and SCM
| ORIGINAL | |||
|
1.
|
Date
of Agreement
|
THE
BALTIC AND INTERNATIONAL MARITIME COUNCIL
(BIMCO)
STANDARD
SHIP MANAGEMENT AGREEMENT
CODE
NAME: "XXXXXXX 98"
PART
I
|
|
|
2.
|
Owners
(name, place of registered office and law of registry) (Cl.
1).
|
3.
|
Managers
(name, place of registered office and law of registry) (Cl.
1).
|
|
Name
|
Name
Scorpio
Commercial Management xxx
|
||
|
Place
of registered office
Ajeltake Road,
Ajeltake Island, Majuro, MH96960
Xxxxxxxx Islands |
Place
of registered xxxxxx
0 Xxxx Xxxxxxx
XXX, XX00000
Monaco |
||
|
Law of
Registry
Xxxxxxxx
Islands
|
Law of
Registry
Principality of
Monaco
|
||
| 4. |
Day
and year of commencement of Agreement (Cl.
2).
December 1,
2009
|
||
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5.
|
Crew
Management (state "yes" or "no" as agreed) (Cl. 3.
1).
NO
|
6.
|
Technical
Management (state "yes" or "no" as agreed) (Cl.
3.2).
NO
|
|
7.
|
Commercial
Management (state "yes" or "no" as agreed) (Cl.
3.3).
YES
|
8.
|
Insurance
Arrangements (state "yes" or "no" as agreed) (Cl.
3.4).
NO
|
|
9.
|
Accounting
Services (state "yes" or "no" as agreed) (Cl.
3.5).
YES
|
10.
|
Sale
or purchase of the Vessel (state "yes" or "no" as agreed) (Cl.
3.6).
NO
|
|
11.
|
Provisions
(state "yes" or "no" as agreed) (Cl.
3.7).
NO
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12.
|
Bunkering
(state "yes" or "no" as agreed) (Cl.
3.8).
YES
|
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13.
|
Chartering
Services Period (only to be filled in if "yes" stated in Box 7)
(Cl.
3.3(i)).
YES,
up to twelve (12) months
|
14.
|
Owners'
insurance (state alternative (i),
(ii) or (iii) of (Cl.
6.3)).
Alternative
6.3(ii) to apply
|
|
15.
|
Annual
Management Fee (state annual amount) (Cl.
8.1).
See
clause 8.1
|
16.
|
Severance
costs (state
maximum amount) (Cl.
8.4(ii)).
N/A
|
|
17.
|
Day
and year of termination of Agreement (Cl.
17).
See
Cl. 17
|
18.
|
Law
and Arbitration (state alternative 19.1, 19.2 or 19.3; if 19.3 place
of
arbitration must be stated) (Cl.
19).
19.1
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|
19.
|
Notices
(state postal and cable address, telex and telefax number for
serving notice and communication to
the Owners) (Cl.
20).
x/x Xxxxxxx Xxxx Xxxxxxxxxx xxx 0
xxxx. Xxxxxxx XXX
MC98000
Monaco
Phone:
x000 00000000
Fax:
x000 00000000
email: xxxxxxxxxx@xxxxxxx.xx
|
20.
|
Notices
(state postal and cable address, telex and telefax number for
serving notice and communication to the Managers)(Cl.
20).
9
blvd. Xxxxxxx XXX
MC98000
Monaco
Phone: x000
00000000
Fax: x000
00000000
email:xxxxxxxxxx@xxxxxxxxxxxx.xxx
|
It is
mutually agreed between the party stated in Box 2 and the party
stated in Box 3
that this Agreement consisting of PART I and PART II as well as
Annexes "A"
(Details of Vessel), "B" (Details. of
Crew), "C"
(Budget) and "D" (Associated
vessels) attached hereto, shall be performed subject to the conditions contented
herein. In the event of a conflict of conditions, the provisions of
PART I and
Annexes "A",
"B", "C" and "D" shall prevail
over those of PART
II to the extent of such conflict but no further.
|
Signature(s)
(Owners)
|
Signature(s)
(Managers)
|
This
document is a computer generated XXXXXXX 98 form printed by authority of
BIMCO. Any insertion or deletion to the form must be clearly
visible. In the event of any modification made to the pre-printed
text of this document which is not clearly visible, the text of the original
BIMCO approved document shall apply. BIMCO assumes no responsibility
for any loss, damage or expense as a result of discrepancies between the
original BIMCO approved document and this computer generated
document.
"XXXXXXX
98" STANDARD SHIP MANAGEMENT AGREEMENT
|
1.
Definitions
|
1
|
insurance,
discipline and other requirements;
|
63
|
|
In
this Xxxxxxx 98 form (together with any Additional Clauses
of
|
2
|
(iii)
ensuring that all members of the Crew have passed a
medical
|
64
|
|
even
date herewith and any Schedules thereto (the
|
examination
with a qualified doctor certifying that they are
fit
|
65
|
|
|
"Agreement"))
save where the context otherwise requires,
|
for
the duties for which they are engaged and are in
possession
|
66
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|
|
the
following words and expressions shall have the meanings
|
3
|
of
valid medical certificates issued in accordance
with
|
67
|
|
hereby
assigned to them.
|
4
|
appropriate
flag State requirements, in the absence of
|
68
|
|
applicable
flag State requirements the medical certificate
shall
|
69
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||
|
"Owners"
means the party identified in Box
2.
|
5
|
be
dated not more than three months prior to the
respective
|
70
|
|
"Managers"
means the party identified in Box
3.
|
6
|
Crew
members leaving their country of domicile and
|
71
|
|
"Vessel"
means the vessel or vessels details of which are set
|
7
|
maintained
for the duration of their service on board the
Vessel;
|
72
|
|
out
in Annex
"A" attached hereto.
|
8
|
(iv)
ensuring that the Crew shall have a command of the
English
|
73
|
|
“Crew”
means the Master, officers and ratings of the numbers,
|
9
|
language
of a sufficient standard to enable them to perform
|
74
|
|
rank
and nationality specified in Annex
"B" attached hereto.
|
10
|
their
duties safely;
|
75
|
|
"Crew
Support Costs" means all expenses of a general
nature
|
11
|
(v)
arranging transportation of the Crew, including
repatriation:
|
76
|
|
which
are not particularly referable to any Individual vessel
for
|
12
|
(vi)
training of the Crew and supervising their
efficiency;
|
77
|
|
the
time being managed by the Managers and which are incurred
|
13
|
(vii)
conducting union negotiations;
|
78
|
|
by
the Managers for the purpose of providing an efficient and
|
14
|
(viii)
operating the Managers' drug and alcohol policy
unless
|
79
|
|
economic
management service and, without prejudice to the
|
15
|
otherwise
agreed.
|
80
|
|
generality
of the foregoing, shall include the cost of crew standby
|
16
|
||
|
pay,
training schemes for officers and ratings, cadet training
|
17
|
3.2
Technical Management
|
81
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|
schemes,
sick pay, study pay, recruitment and interviews.
|
18
|
(only
applicable if agreed according to Box
6)
|
82
|
|
"Severance
Costs" means the costs which the employers
are
|
19
|
The
Managers shall provide technical management which
|
83
|
|
legally
obliged to pay to or in respect of the Crew as a result of
|
20
|
Includes,
but is not limited to, the following functions:
|
84
|
|
the
early termination of any employment contract for service
on
|
21
|
(i)
provision of competent personnel to supervise the
|
85
|
|
the
Vessel.
|
22
|
maintenance
and general efficiency of the Vessel;
|
86
|
|
"Crew
insurances" means insurances against crew risks
which
|
23
|
(ii)
arrangement and supervision of dry dockings,
repairs,
|
87
|
|
shall
Include but not be limited to death, sickness,
repatriation,
|
24
|
alterations
and the upkeep of the Vessel to the standards
|
88
|
|
injury,
shipwreck unemployment indemnity and loss of personal
|
25
|
required
by the Owners provided that the Managers shall
|
89
|
|
effects.
|
26
|
be
entitled to incur the necessary expenditure to
ensure
|
90
|
|
"Management
Services" means the services specified in sub-
|
27
|
that
the Vessel will comply with the law of the flag of
the
|
91
|
|
clauses
3.1 to 3.8 as indicated affirmatively in Boxes 5 to 12
|
28
|
Vessel
and of the places where she trades, and all
|
92
|
|
"ISM
Code" means the International Management Code for
the
|
29
|
requirements
and recommendations of the classification
|
93
|
|
Safe
Operation of Ships and for Pollution Prevention as adopted
|
30
|
Society;
|
94
|
|
by
the International Maritime Organization (IMO) by
resolution
|
31
|
(iii)
arrangement of the supply of necessary stores, spares
and
|
95
|
|
A.741(18)
or any subsequent amendment thereto.
|
32
|
lubricating
oil;
|
96
|
|
"STCW
95" moans the International Convention on Standards
|
33
|
(iv)
appointment of surveyors and technical consultants as
the
|
97
|
|
of
Training, Certification and Watchkeeping for Seafarers,
1978,
|
34
|
Managers
may consider from time to time to be necessary;
|
98
|
|
as
amended in 1995 or any subsequent amendment thereto.
|
35
|
(v)
development, implementation and maintenance of a
Safely
|
99
|
|
Management
System (SMS) in accordance with the ISM
|
100
|
||
|
2.
Appointment of Managers
|
36
|
Code
(see sub-clauses
4.2 and
5.3)
|
101
|
|
With
effect from the day and year stated in Box
4 and continuing
|
37
|
||
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unless
and until terminated as provided herein, the Owners
|
38
|
3.3
Commercial Management
|
102
|
|
hereby
appoint the Managers and the Managers hereby agree
|
39
|
(only applicable if agreed according to Box
7)
|
103
|
|
to
act as the Managers of the Vessel in accordance with the
|
40
|
The
Managers shall provide the commercial operation of the
|
104
|
|
provisions
and the recitals of this Agreement.
|
Vessel,
as required by the Owners, which includes, but is not
|
105
|
|
|
limited
to, the following functions:
|
106
|
||
|
3.
Basis of Agreement
|
41
|
(i)
providing chartering services in accordance with the
Owners'
|
107
|
|
Subject
to the terms and conditions herein provided, during the
|
42
|
instructions
which include, but are not limited to, seeking
|
108
|
|
period
of this Agreement, the Managers shall carry out
|
43
|
and
negotiating employment for the Vessel and the conclusion
|
109
|
|
Management
Services in respect of the Vessel as agents for
|
44
|
(including
the execution thereof) of charter parties or other
|
110
|
|
and
on behalf of the Owners. The Managers shall have
authority
|
45
|
contracts
relating to the employment of the Vessel. If such
a
|
111
|
|
to
take such actions as they may from time to time in their
absolute
|
46
|
contract
exceeds the period stated in Box
13, consent thereto
|
112
|
|
discretion
consider to be necessary to enable them to perform
|
47
|
in
writing shall first be obtained from the Owners.
|
113
|
|
this
Agreement In accordance with sound ship management
|
48
|
(ii)
arranging of the proper payment to Owners or their
nominees
|
114
|
|
practice.
|
49
|
of
all hire and/or freight revenues or other moneys of
|
115
|
|
whatsoever
nature to which Owners may be entitled arising
|
116
|
||
| 3.1 Crew Management | 50 |
out
of the employment of or otherwise in connection with the
|
117 |
| (only applicable if agreed according to Box 5) | 51 |
Vessel.
|
118 |
|
The
Managers shall provide suitably qualified Crew for the
Vessel
|
52
|
(iii)
providing voyage estimates and accounts and calculating of
|
119
|
|
as
required by the Owners in accordance with the STCW
95
|
53
|
hire,
freights, demurrage and/or despatch moneys due from
|
120
|
|
requirements,
provision of which includes but is not limited to
|
54
|
or
due to the charterers of the Vessel;
|
121
|
|
the
following functions.
|
55
|
(iv)
issuing of voyage instructions, Including but not limited
to,
|
122
|
|
(i) selecting
and engaging the Vessel's Crew, including payroll
|
56
|
authorizing
the Master to release cargo;
|
|
|
arrangements,
pension administration, and insurances for
|
57
|
(v)
appointing agents;
|
123
|
|
the
Crew other than those mentioned in Clause
6;
|
58
|
(vi)
appointing stevedores;
|
124
|
|
(ii) ensuring
that the applicable requirements of the law of the
|
59
|
(vii)
arranging surveys associated with the commercial operation
|
125
|
|
flag
of the Vessel are satisfied in respect of xxxxxxx
levels.
|
60
|
of
the Vessel.
|
126
|
|
rank,
qualification and certification of the Crew and
|
61
|
||
|
employment
regulations including Crew's tax, social
|
62
|
3.4
Insurance Arrangements'
|
127
|
|
(only
applicable if agreed according to Box
8)
|
128
|
This
document is a computer generated XXXXXXX 98 form printed by authority of BIMCO.
Any insertion or deletion to the form must be clearly visible. In the event of
any modification made to the pre-printed text of this document which Is not
clearly visible, the text of the original BIMCO approved document shall
apply. BIMCO assumes no responsibility for any loss, damage or
expenses as a result of discrepancies between the original BIMCO approved
document and this computer generated document.
PART
II
"XXXXXXX
98" STANDARD SHIP MANAGEMENT AGREEMENT
|
The
Managers shall arrange insurances in accordance
with
|
129
|
responsibilities
imposed by the ISM Code when applicable
|
192
|
|
Clause
6, on such terms and conditions as the Owners shall
|
130
|
||
|
have
instructed or agreed, in particular regarding
conditions,
|
131
|
||
|
insured
values, deductibles and franchises.
|
132
|
6. Insurance
Policies
|
193
|
|
The Owners shall procure, whether
by instructing the Managers
|
194
|
||
|
3.5
Accounting Services
|
133
|
under
sub clause 3.4
or otherwise, that throughout the period
of
|
195
|
|
(only
applicable if agreed according to Box
9)
|
134
|
this
Agreement.
|
196
|
|
The
Managers shall:
|
135
|
6.1
at the Owners' expense, the Vessel is insured for not
less
|
197
|
|
(i) establish an accounting system which meets
the
|
136
|
than
her sound market value or entered for her full gross
tonnage.
|
198
|
|
requirements
of the Owners and will provide for
regular
|
137
|
as
the case may be for:
|
199
|
|
accounting
|
(i)
usual hull and machinery marine risks (including crew
|
200
|
|
|
services,
supply regular
monthly reports and records,
|
138
|
negligence)
and excess liabilities;
|
201
|
|
(ii)
maintain the records of all costs and expenditure incurred
|
139
|
(ii)
protection and indemnity risks (including pollution risks
and
|
202
|
|
as
well as data necessary or proper for the settlement of
|
140
|
Crew
Insurances); and
|
203
|
|
accounts
between the parties.
|
141
|
(iii)
war risks (including protection and indemnity and crew
risks)
|
204
|
|
in
accordance with the best practice of prudent owners of
|
205
|
||
|
3.6
Sale or Purchase of the Vessel
|
142
|
vessels
of a similar type to the Vessel, with first class
insurance
|
206
|
|
(only
applicable if agreed according to Box
10)
|
143
|
companies,
underwriters or associations ("the Owners'
|
207
|
|
The
Managers shall, in accordance with the Owners'
instructions,
|
144
|
Insurances");
|
208
|
|
supervise
the sale or purchase of the Vessel, including the
|
145
|
6.2
all premiums and calls on the owners' insurances are
paid
|
209
|
|
performance
of any sale or purchase agreement, but not
|
146
|
promptly
by their due date;
|
210
|
|
negation
of the same.
|
147
|
6.3
the Owners' Insurances name the Managers and,
subject
|
211
|
|
to
underwriters' agreement, any third party designated by the
|
212
|
||
|
3.7
Provisions
(only applicable if agreed according to Box
11)
|
148
|
Managers
as a joint assured, with full cover, with the Owners
|
213
|
|
The
Managers shall arrange for the supply of
provisions.
|
149
|
obtaining
cover in respect of each of the insurance specified in
|
214
|
|
sub-clause
6.1;
|
215
|
||
|
3.8
Bunkering (only
applicable if agreed according to Box
12)
|
150
|
(i)
on terms whereby the Managers and any such third
party
|
216
|
|
The
Managers shall arrange for the provision of bunker fuel of
the
|
151
|
are
liable in respect of premiums or calls arising in
connection
|
217
|
|
quality
specified by the Owners as required for the Vessel's
trade.
|
152
|
with
the Owners' Insurances; or
|
218
|
|
(ii)
if reasonably obtainable, on terms such that neither the
|
219
|
||
|
4. Managers'
Obligations
|
153
|
Managers
nor any such third party shall be under any
|
220
|
|
4.1
The Managers undertake to use their best endeavours
to
|
154
|
liability
in respect of premiums or calls arising in connection
|
221
|
|
provide
the agreed Management Services as agents for and on
|
155
|
with
the Owners' insurances; or
|
222
|
|
behalf
of the Owners in accordance with sound ship management
|
156
|
(iii)
on such other terms as may be agreed in writing
|
223
|
|
practice
and to protect and promote the interests of the Owners in
|
157
|
Indicate
alternative (i), (ii) or (iii) in Xxx 00, if Box 14 is
left
|
224
|
|
all
matters relating to the provision of services hereunder.
|
158
|
blank
then (i) applies.
|
225
|
|
Provided,
however, that the Managers in the performance of their
|
159
|
6.4
written evidence is provided, to the reasonable
satisfaction
|
226
|
|
management
responsibilities under this Agreement shall be entitled
|
160
|
of
the Managers, of their compliance with their obligations
under
|
227
|
|
to
have regard to their overall responsibility in relation to all
vessels
|
161
|
Clause
6 within a reasonable time of the commencement
of
|
228
|
|
as
may from time to time be entrusted to their management and
|
162
|
the
Agreement, and of each renewal date and, if specifically
|
229
|
|
in
particular, but without prejudice to the generality of the
foregoing,
|
163
|
requested,
of each payment date of the Owners' Insurances.
|
230
|
|
the
Managers shall be entitled to allocate available supplies,
|
164
|
||
|
manpower
and services in such manner as in the prevailing
|
165
|
7. Income
Collected and Expenses Paid on Behalf
of
Owners |
231
|
|
circumstances
the Managers in their absolute discretion consider
|
166
|
7.1
All moneys, if any, collected by the Managers under the terms
of
|
232
|
|
to
be fair and reasonable.
|
167
|
this
Agreement (other than moneys payable by the Owners to
|
233
|
|
4.2
Where the Managers are providing Technical
Management
|
168
|
the
Managers) and any interest thereon shall be held to the
|
234
|
|
in
accordance with sub clause 3.2,
they shall procure that the
|
169
|
credit
of the Owners in a separate bank account.
|
235
|
|
requirements
of the law of the flag of the Vessel are satisfied
and
|
170
|
7.2
All expenses, if any, incurred by the Managers under the
terms
|
236
|
|
rhey
shall in particular be deemed to be the "Company" as
defined
|
171
|
of
this Agreement on behalf of the Owners (including expenses
|
237
|
|
by
the ISM Code, assuming the responsibility for the operation
of
|
172
|
as
provided in Clause
8) may be debited against the Owners
|
238
|
|
the
Vessel and taking over the duties and responsibilities
imposed
|
173
|
in
the account referred to under sub-clause 7.1
but shall in any
|
239
|
|
by
the ISM Code when applicable.
|
174
|
event
remain payable by the Owners to the Managers on
|
240
|
|
demand.
|
241
|
||
|
5. Owners'
Obligations
|
175
|
||
|
5.1
The Owners shall pay all sums due to the Managers
punctually
|
176
|
8. Management
Fee
|
242
|
|
in
accordance with the terms of this Agreement.
|
177
|
8.1
When the Vessel is trading in the Scorpio Panamax
Tanker
|
243
|
|
5.2
Where the Managers are providing Technical
Management
|
178
|
Pool,
the Managers shall be remunerated in accordance with the
|
|
|
in
accordance with sub clause 3.2,
the Owners shall;
|
179
|
provisions
of the governing pool agreement. Otherwise when
|
|
|
(i)
procure that all officers and ratings supplied by them or
on
|
180
|
the
Vessel is not trading in the Pool, The Owners shall pay to
the
|
|
|
their
behalf comply with the requirements of STCW 95;
|
181
|
Managers
for their services.
|
|
|
(ii)
instruct such officers and ratings to obey all reasonable
orders
|
182
|
as
Managers under this Agreement.
|
244
|
|
of
the Managers in connection with the operation of
the
|
183
|
(i)
an
annual flat management
|
|
|
Managers'
safety management system.
|
184
|
fee of US$250 per day pro rata as
stated in Box 15 which shall be
|
245
|
|
5.3 Where
the Managers are not providing Technical
Management
|
185
|
payable
by equal
|
|
|
in
accordance with sub-clause 3.2,
the Owners shall procure that
|
186
|
monthly instalments
in advance; and the
first installment being
|
246
|
|
the
requirements of the law of the flag of the Vessel are
satisfied
|
187
|
payable
on the commencement of this Agreement (see Clause
|
247
|
|
and
that they, or such other entity as may be appointed by
them
|
188
|
2
and Box 4) and subsequent installments being payable
every
|
248
|
|
and
identified to the Managers,
shall be deemed to be the
|
189
|
month.
|
249
|
|
"Company"
as defined by the ISM Code assuming the responsibility
|
190
|
8.2
The management fee shall be subject to an annual
review
|
250
|
|
for
the operation of the Vessel end taking over the duties and
|
191
|
on
the anniversary date of the Agreement and the
proposed
|
251
|
This document is a computer generated XXXXXXX
98 form printed by authority of BIMCO. Any insertion or deletion to the form
must be clearly visible. In the event of any modification made to the
pre-printed text of this document which Is not clearly visible, the text of the
original BIMCO approved document shall apply. BIMCO assumes no
responsibility for any loss, damage or expenses as a result of discrepancies
between the original BIMCO approved document and this computer generated
document.
PART
II
"XXXXXXX
98" STANDARD SHIP MANAGEMENT AGREEMENT
|
fee
shall be presented in the annual budget referred to in sub-clause
|
252
|
Management
Services.
|
317
|
|
9.1
|
|||
|
(ii)
for providing chartering services in accordance clause 3.3(i)
a
|
10.
Managers' Right To Sub-Contract
|
318
|
|
|
commission
of 1.25% on all monies earned by the Owners on each
|
The
managers shall not have the right to sub-contract any of
|
319
|
|
|
Vessel
fixture.
|
253
|
their
obligations hereunder, including those mentioned in sub-
|
320
|
|
clause
3.1,
without the prior written consent of the Owners which
|
321
|
||
|
8.3 The
Managers shall, at no extra cost to the Owners,
provide
|
254
|
shall
not be unreasonably withheld. In the event of such a
sub-
|
322
|
|
their
own office accommodation. Office, staff, facilities and
|
255
|
contract
the Managers shall remain fully liable for the due
|
323
|
|
stationery,
Without limiting the generality of Clause
7 the Owners
|
256
|
performance
of their obligations under this Agreement.
|
324
|
|
shall
reimburse the Managers for postage and communication
|
257
|
||
|
expenses,
travelling expenses, and other out of pocket
|
258
|
11.
Responsibilites
|
325
|
|
expenses
properly incurred by the Managers in pursuance of
|
259
|
11.1 Force
Majeure – Neither the Owners nor the
Managers
|
326
|
|
the
Management Services.
|
260
|
shall
be under any liability for any failure to perform any of
their
|
327
|
|
8.4 In
the event of the appointment of the Managers being
|
261
|
obligations
hereunder by reason of any cause whatsoever of
|
328
|
|
terminated
by the Owners or the Managers in accordance with
|
262
|
any
nature or kind beyond their reasonable control.
|
329
|
|
the
provisions of Clauses 17 and 18
other than by reason of
|
263
|
11.2 Liability
to Owners - (i) Without prejudice to
sub-clause
|
330
|
|
default
by the Managers, or if the Vessel is lost, sold or
otherwise
|
264
|
11.1,
the Managers shall be under no liability whatsoever to the
|
331
|
|
disposed
of, the "management fee" payable to the Managers
|
265
|
Owners
for any loss, damage, delay or expense of whatsoever
|
332
|
|
according
to the provisions of sub-clause 8.1
shall continue to
|
266
|
nature,
whether direct or indirect, (including but not limited
to
|
333
|
|
be
payable for a further period of three calendar months as
|
267
|
loss
of profit arising out of or in connection with detention of
or
|
334
|
|
from the termination date. In
addition, provided that the
|
268
|
delay
to the Vessel) and howsoever arising in the course of
|
335
|
|
Managers
provide Crew for the Vessel in accordance with sub-
|
269
|
performance
of the Management Services UNLESS
same Is
|
336
|
|
Clause
3.1;
|
270
|
proved
to have resulted solely from the negligence, gross
|
337
|
|
(i) the
Owners shall continue to pay Crew Support Costs
during
|
271
|
negligence
or wilful default of the Managers or their employees,
|
338
|
|
the
said further period of three calendar months and
|
272
|
or
agents or sub-contractors employed by them In connection
|
339
|
|
(ii) the
Owners shall pay an equitable proportion of any
|
273
|
with
the Vessel, In which case (save where loss, damage, delay
|
340
|
|
Severance
Costs which may materialize, not exceeding
|
274
|
or
expense has resulted from the Managers' personal act or
|
341
|
|
The
amount stated in Box
16.
|
275
|
omission
committed with the intent to cause same or recklessly
|
342
|
|
8.5 If
the Owners decide to lay up the Vessel whilst
this
|
276
|
and
with knowledge that such loss, damage, delay or expense
|
343
|
|
Agreement
remains in force and such lay up lasts for more
|
277
|
would
probably result) the Managers' liability for each Incident
|
344
|
|
than
three months, an appropriate reduction of the
management
|
278
|
or
series of incidents giving rise to a claim or claims shall
never
|
345
|
|
fee
for the period exceeding three months until one
month
|
279
|
exceed
a total of ten-five times the annual management fee
payable
|
346
|
|
before
the Vessel is again put into service shall be
mutually
|
280
|
hereunder.
|
347
|
|
agreed
between the parties.
|
281
|
(ii)
Notwithstanding anything that may appear to the contrary
in
|
348
|
|
8.6
Unless otherwise agreed in writing all discounts
and
|
282
|
this
Agreement, the Manager shall not be liable for any of the
|
349
|
|
commissions
obtained by the Managers in the course of the
|
283
|
actions
of the Crew, even if such actions are negligent, grossly
|
350
|
|
management
of the Vessel shall be credited to the Owners.
|
284
|
negligent
or wilful, except only to the extent that they are shown
|
351
|
|
to
have resulted from a failure by the Managers to discharge
|
352
|
||
|
9.
Budgets and Management of Funds
|
285
|
their
obligations under sub-clause 3.1, in which case their
liability
|
353
|
|
9.1
The Managers shall present to the Owners annually
a
|
286
|
shall be limited in accordance with the terms of
this Clause
11.
|
354
|
|
budget
for the following twelve months in such form as the
|
287
|
11.3
indemnity - Except to the extent and solely for the
amount
|
355
|
|
Owners
require. The budget for the first year hereof is set
out
|
288
|
therein
set out that the Managers would be liable under sub-
|
356
|
|
in
Annex "C" hereto. Subsequent annual budgets shall
be
|
289
|
clause
11.2,
the Owners hereby undertake to keep the Managers
|
357
|
|
prepared
by the Managers and submitted to the Owners not
|
290
|
and
their employees, agents and sub-contractors indemnified
|
358
|
|
less
than there months before the anniversary date of
the
|
291
|
and
to hold them harmless against all actions, proceedings,
|
359
|
|
commencement of this
Agreement (see Clause
2
and Box
4),
|
292
|
claims,
demands or liabilities whatsoever or howsoever arising
|
360
|
|
9.2
The Owners shall indicate to the Managers their
acceptance
|
293
|
which
may be brought against them or incurred or suffered by
|
361
|
|
and
approval of the annual budget within one month of
|
294
|
them
arising out of or in connection with the performance of
the
|
362
|
|
presentation
and in the absence of any such indication the
|
295
|
Agreement,
and against and in respect of all costs, losses,
|
363
|
|
Managers
shall be entitle to assume that the Owners have
|
296
|
damages
and expenses (including legal costs and expenses on
|
364
|
|
accepted
the proposed budget.
|
297
|
a
full indemnity basis) which the Managers may suffer or
incur
|
365
|
|
9.3
Following the agreement of the budget, the Managers
shall
|
298
|
(either
directly or indirectly) in the course of the performance
of
|
366
|
|
prepare
and present to the Onwers their estimate of the
working
|
299
|
this
Agreement.
|
367
|
|
capital
requirement of the Vessel and the Managers shall
each
|
300
|
11.4
"Himalaya" - It is hereby expressly agreed that
no
|
368
|
|
month
up date this estimate. Based thereon, the Managers
shall
|
301
|
employee
or agent of the Managers (including every sub-
|
369
|
|
each
month request the Owners in writing for the funds
required
|
302
|
contractor
from time to time employed by the Managers) shall in
|
370
|
|
to
run the Vessel for the ensuing month, including the
payment
|
303
|
any
circumstances whatsoever be under any liability whatsoever
|
371
|
|
of
any occasional or extraordinary item of expenditure, such
as
|
304
|
to
the Owners for any loss, damage or delay of whatsoever
kind
|
372
|
|
emergency
repair costs, additional insurance premiums,
bunkers
|
305
|
arising
or resulting directly or indirectly from any act, neglect
or
|
373
|
|
or
provisions. Such funds shall be received by the
Managers
|
306
|
default
on his part while acting In the course of or in connection
|
374
|
|
within
ten running days after the receipt by the Owners of
the
|
307
|
with
his employment and, without prejudice to the generality of
|
375
|
|
Managers'
written request and shall be held to the credit of
the
|
308
|
the
foregoing provisions in this Clause
11, every exemption,
|
376
|
|
Owners
in a separate bank account..
|
309
|
limitation,
condition and liberty herein contained and every right,
|
377
|
|
9.4
The Managers shall produce a comparison
between
|
310
|
exemption
from liability, defense and Immunity of whatsoever
|
378
|
|
budgeted
and actual income and expenditure of the Vessel in
|
311
|
nature
applicable to the Managers or to which the Managers are
|
379
|
|
such
form as required by the Owners monthly or at such
other
|
312
|
entitled
hereunder shall also be available and shall extend to
|
380
|
|
intervals
as mutually agreed.
|
313
|
protect
every such employee or agent of the Managers acting
|
381
|
|
9.5
Notwithstanding anything contained herein to the
contrary,
|
314
|
as
aforesaid and for the purpose of all the foregoing
provisions
|
382
|
|
the
Managers shall in no circumstances be required to use or
|
315
|
of
this Clause
11 the Managers are or shall be deemed to be
|
383
|
|
commit
their own funds to finance the provision of the
|
316
|
This
document is a computer generated XXXXXXX 98 form printed by authority cf BIMCO.
Any insertion or deletion to the form must be clearly visible. In the event of
any modification made to the pre-printed text of this document which Is not
clearly visible, the text of the original BIMCO approved document shall
apply. BIMCO assumes no responsibility for any loss, damage or
expenses as a result of discrepancies between the original BIMCO approved
document and this computer generated document.
PART
II
"XXXXXXX
98" STANDARD SHIP MANAGEMENT AGREEMENT
|
acting
as agent or trustee on behalf of and for the benefit of
all
|
384
|
years
from the
|
|
|
persons
who are or might be their servants or agents from time
|
385
|
date
upon which such notice was given, Clause 18.6 will apply.
|
439
|
|
to
time (Including sub-contractors as aforesaid) and all such
|
386
|
||
|
persons
shall to this extent be or be deemed to be parties to this
|
387
|
18. Termination
|
440
|
|
Agreement.
|
388
|
18.1
Owners' default
|
441
|
|
(i) The
Managers shall be entitled to terminate the Agreement
|
442
|
||
|
12.Documentation
|
389
|
with
Immediate effect by notice in writing if any moneys
|
443
|
|
Where
the Managers are providing Technical Management in
|
390
|
payable
by the Owners under this Agreement and/or the
|
444
|
|
accordance
with sub-clause 3.2
and/or Crew Management in
|
391
|
owners
of any associated vessel, details of which are listed
|
445
|
|
accordance
with sub-clause 3.1,
they shall make available,
|
392
|
in
Annex "D" shall not
have been received In the Managers'
|
446
|
|
upon
Owners' request, all documentation and records
related
|
393
|
nominated
account within ten running days of receipt by
|
447
|
|
to
the Safety Management System (SMS) and/or the Crew
|
394
|
the
Owners of the Managers written request or if the Vessel
|
448
|
|
which
the Owners need in order to demonstrate compliance
|
395
|
is
repossessed by the Mortgagees.
|
449
|
|
with
the ISM Code and STCW 95 or to defend a claim
against
|
396
|
(ii) If
the Owners:
|
450
|
|
a
third party.
|
397
|
(a) fail to meet their obligations under
sub-clauses 5.2
|
451
|
|
and 5.3
of this Agreement for any reason within their
|
452
|
||
|
13. General
Administration
|
398
|
control, of
|
453
|
|
13.1 The
Managers shall handle and settle all claims arising
|
399
|
(b) proceed
with the employment of or continue to employ
|
454
|
|
out
of the Management Services hereunder and keep the Owners
|
400
|
the Vessel In the carriage of contraband,
blockade
|
455
|
|
informed
regarding any incident of which the Managers become
|
401
|
running, or in an unlawful trade, or on a voyage
which
|
456
|
|
aware
which gives or may give rise to claims or disputes
involving
|
402
|
in the reasonable opinion of the Managers is
unduly
|
457
|
|
third
parties and Indlvitually are reasonably estimated to be In
|
403
|
hazardous or improper,
|
458
|
|
excess
of US$15,000.
|
the
Managers may give notice of the default to the Owners,
|
459
|
|
|
13.2 The
Managers shall, as instructed by the Owners, bring
|
404
|
requiring
them to remedy It as soon as practically possible.
|
460
|
|
or
defend-actions, suits or proceedings in connection with
matters
|
405
|
In
the event that the Owners fail to remedy It within a
|
461
|
|
entrusted
to the Managers according to this Agreement and subject
|
406
|
reasonable
time to the satisfaction of the Managers, the
|
462
|
|
to
the provisions of clause 13.1 hereto.
|
Managers
shall be entitled to terminate the Agreement
|
463
|
|
|
13.3 The
Managers shall also have power to obtain legal or
|
407
|
with
Immediate effect by notice In writing,
|
464
|
|
technical
or other outside expert advice in relation to the handling
|
408
|
18.2 Managers'
Default
|
465
|
|
and
settlement of claims and disputes or all other matters
|
409
|
(i) If the Managers fail to meet their
obligations under Clauses
3
|
466
|
|
affecting
the interests of the Owners In respect of the Vessel, save
|
410
|
and
4 of this
Agreement for any reason within the control of the
|
467
|
|
Managers
should obtain Owners approval prior to taking any
|
Managers,
the Owners may give notice to the Managers of the
|
468
|
|
|
action
If time permits.
|
default,
requiring them to remedy It as soon as practically
|
469
|
|
|
13.4 The
Owners shall arrange for the provision of any
|
411
|
possible.
In the event that the Managers fail to remedy it within a
|
470
|
|
necessary
guarantee bond or other security.
|
412
|
reasonable
time to the satisfaction of the Owners, the Owners
|
471
|
|
13.5 Any
costs reasonably incurred by the Managers in
|
413
|
shall
be entitled to terminate the Agreement with immediate
affect
|
472
|
|
carrying
out their obligations according to Clause
13 shall be
|
414
|
by
notice in writing.
|
473
|
|
reimbursed
by the Owners.
|
415
|
(ii) if
the Managers are convicted of, or admits guilt for, a
crime,
|
|
|
then
the Owners shall be entitled to terminate the Agreement
|
|||
|
14. Auditing
|
416
|
with
Immediate effect by notice in writing.
|
|
|
The
Managers shall at all times maintain and keep true and
|
417
|
18.3 Extraordinary
Termination
|
474
|
|
correct
accounts and shall make the same available for inspection
|
418
|
This
Agreement shall be deemed to be terminated in the case of
|
475
|
|
and
auditing by the Owners at such times as may he mutually
|
419
|
the
sale of the Vessel or if the-Vessel becomes a total loss or
is
|
476
|
|
agreed.
On the termination, for whatever reasons, of this
|
420
|
declared
as a constructive or compromised or arranged total
|
477
|
|
Agreement,
the Managers shall release to the Owners, if so
|
421
|
loss
or is requisitioned.
|
478
|
|
requested,
the originals where possible, or otherwise certified
|
422
|
18.4 For
the purpose of sub-clause 18.3
hereof
|
479
|
|
copies,
of all such accounts and all documents specifically
relating
|
423
|
(I) the
date upon which the Vessel is to be treated as having
|
480
|
|
to
the Vessel and her operation.
|
424
|
been sold or otherwise disposed of shall be the
date on
|
481
|
|
which the Owners cease to be registered as Owners
of
|
482
|
||
|
15.
Inspection of Vessel
|
425
|
the Vessel;
|
483
|
|
The
Owners shall have the right at any time after
giving
|
426
|
(ii) The
Vessel shall not be deemed to be lost unless either
|
484
|
|
reasonable
notice to the Managers to inspect the Vessel for
any
|
427
|
she has become an actual total loss or agreement
has
|
485
|
|
reason
they consider necessary.
|
428
|
been reached with her underwriters in respect of
her
|
486
|
|
constructive, compromised or arranged total loss or
if such
|
487
|
||
|
16. Compliance
with Laws and Regulations
|
429
|
agreement with her underwriters is not reached it
is
|
488
|
|
The
Managers will not do or permit to be done anything which
|
430
|
adjudged by a competent tribunal that a
constructive loss
|
489
|
|
might
cause any breach or infringement of the laws and
|
431
|
of the Vessel has occurred.
|
490
|
|
regulations
of the Vessel's flag, or of the places where she trades.
|
432
|
18.5
This Agreement shall terminate forthwith in the event
of
|
491
|
|
an
order being made or resolution passed for the winding up
|
492
|
||
|
17. Duration
of the Agreement
|
433
|
dissolution,
liquidation or bankruptcy of either party (otherwise
|
493
|
|
This
Agreement shall come into effect on the day and year
stated
|
434
|
than
for the purpose of reconstruction or amalgamation) or if a
|
494
|
|
in
Box
4 and shall remain in force and effect (unless
earlier
|
435
|
receiver
is appointed, or if it suspends payment, ceases to carry
|
495
|
|
terminated
in accordance with the terms of clause 18) for a
|
on
business or makes any special arrangement or composition
|
496
|
|
|
minimum
period of three (3) calendar years and thereafter shall
|
with
its creditors,
|
497
|
|
|
continue
indefinitely unless terminated in accordance with the
|
18.6 The
termination of this Agreement egad be without
|
498
|
|
|
provision hereof, continue
until the date stated in Box
17
|
prejudice
to all rights accrued due between the parties prior to
|
499
|
|
|
Thereafter
it shall continue until terminated by Upon the
expiration
|
436
|
the
date of termination.
|
500
|
|
of
the first calendar year either party giving
may give
|
|||
|
to
the other notice of termination in writing. In which event
the
|
437
|
19.
Law and Arbitration
|
501
|
|
Agreement
shall
|
19.1
This Agreement shall be governed by and construed in
|
502
|
|
|
terminate
upon the expiration of a period of two months (2) calendar
|
438
|
This
document is a computer generated XXXXXXX 98 form printed by authority cf BIMCO.
Any insertion or deletion to the form must be clearly visible. In the event of
any modification made to the pre-printed text of this document which Is not
clearly visible, the text of the original BIMCO approved document shall
apply. BIMCO assumes no responsibility for any loss, damage or
expenses as a result of discrepancies between the original BIMCO approved
document and this computer generated document.
PART
II
"XXXXXXX
98" STANDARD SHIP MANAGEMENT AGREEMENT
|
accordance
with English law and any dispute arising out of or
|
503
|
by
each of the parties hereto, and the third by the two
so
|
541
|
|
in
connection with this Agreement shall be referred to
arbitration
|
504
|
chosen;
their decision or that of any two of them shall be
|
542
|
|
in
London in accordance with the Arbitration Xxx 0000 or
|
505
|
final,
and for the purposes of enforcing any award
|
543
|
|
any
statutory modification or re-enactment thereof save to
|
506
|
judgement
may be entered on an award by any court of
|
544
|
|
the
extent necessary to give effect to the provisions of this
|
507
|
competent
jurisdiction. The proceedings shall be
conducted
|
545
|
|
Clause.
|
508
|
in
accordance with the rules of the Society of
Maritime
|
546
|
|
The
arbitration shall be conducted in accordance with the
|
509
|
Arbitrators,
Inc.
|
547
|
|
London
Maritime Arbitrators Association (LMAA) Terms
|
510
|
In
cases where neither the claim nor any counterclaim
|
548
|
|
current
at the time when the arbitration proceedings are
|
511
|
exceeds
the sum of USD60,000 ( or such other sum as the
|
549
|
|
commenced.
|
512
|
parties
may agree) the arbitration shall be conducted in
|
550
|
|
The
reference shall be to three arbitrators. A party wishing
|
513
|
accordance
with the Shortened Arbitration Procedure of the
|
551
|
|
to
refer a dispute to arbitration shall appoint its
arbitrator
|
514
|
Society
of Maritime Arbitrators, Inc. current at the time
when
|
552
|
|
and
send notice of such appointment In writing to the other
|
515
|
the
arbitration proceedings are commenced.
|
553
|
|
party
requiring the other party to appoint its own arbitrator
|
516
|
19.3 This
Agreement shall be governed by and construed
|
554
|
|
within
14 calendar days of that notice and stating that it will
|
517
|
in
accordance with the laws of the place mutually agreed
by
|
555
|
|
appoint
its arbitrator as sole arbitrator unless the other party
|
518
|
the
parties and any dispute arising out of or in
connection
|
556
|
|
Appoints
it own arbitrator and gives notice that it has done
|
519
|
with
this Agreement shall be referred to arbitration at
a
|
557
|
|
so
within the 14 days specified. If the other party does
not
|
520
|
mutually
agreed place, subject to the procedures applicable
|
558
|
|
appoint
Its own arbitrator and give notice that it has done so
|
521
|
there.
|
559
|
|
within
the 14 days specified, the party referring a dispute to
|
522
|
19.4 If
Box
18 in
Part I is not appropriately filled in sub-
|
560
|
|
arbitration
may, without the requirement of any further prior
|
523
|
clause
19.1
of
this Clause shall apply.
|
561
|
|
notice
to the other party, appoint its arbitrator as sole
|
524
|
||
|
arbitrator
and shall advise the other party accordingly. The
|
525
|
Note: 19.1, 19.2 and 19.3
are alternatives; indicate
|
562
|
|
award
of a sole arbitrator shall be binding on both parties
|
526
|
alternative agreed in Box
18.
|
563
|
|
as
If he had been appointed by agreement.
|
527
|
||
|
Nothing
herein shall prevent the parties agreeing in writing
|
528
|
20. Notices
|
564
|
|
to
vary these provisions to provide for the appointment of a
|
529
|
20.1 Any
notice to be given by either party to the other
|
565
|
|
sole
arbitrator.
|
530
|
party
shall be In writing and may be sent by fax, telex,
|
566
|
|
In
cases where neither the claim nor any counterclaim
|
531
|
registered
or recorded ma) or by personal service.
|
567
|
|
exceeds
the sum of USD50,000 (or such other sum as the
|
532
|
20.2 The
address of the Parties for service of such
|
568
|
|
parties
may agree) the arbitration shall be conducted in
|
533
|
communication
shall be as slated In Boxes 19 and
20,
|
569
|
|
accordance
with the LMAA Small Claims Procedure current
|
534
|
respectively.
|
570
|
|
at
the time when the arbitration proceedings are commenced.
|
535
|
||
|
19.2 This
Agreement shall be governed by and construed
|
536
|
Any
Additional Clauses attached hereto together with any
|
|
|
In
accordance with title 9 of the United States Code
and
|
537
|
subsequent
addenda, schedules, appendleles or otherwise, shall
|
|
|
The
Maritime Law of the United States and any dispute
|
538
|
be
construed as an integral part of this Agreement and shall
be
|
|
|
arising
out of or in connection with this Agreement shall
be
|
539
|
interpreted
accordingly.
|
|
|
referred
to three persons at New York, one to be appointed
|
540
|
||
This
document is a computer generated XXXXXXX 98 form printed by authority cf BIMCO.
Any insertion or deletion to the form must be clearly visible. In the event of
any modification made to the pre-printed text of this document which Is not
clearly visible, the text of the original BIMCO approved document shall
apply. BIMCO assumes no responsibility for any loss, damage or
expenses as a result of discrepancies between the original BIMCO approved
document and this computer generated document.
