Contract
Exhibit 10.2
| 1. Date of Agreement
December 21, 2012 |
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT CODE NAME: “XXXXXXX 98”
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Part 1 | ||||
| 2. Owners (name, place of registered office and law of registry) (Cl. 1)
Pegasus Shipholding S.A. Name
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH96960 Place of registered office
Xxxxxxxx Islands Law of registry |
3. Managers (name, place of registered office and law of registry) (Cl. 1)
Dynagas Ltd. Name
Poseidonos Ave. & 2 Foivis Xxxxxx 000-00 Xxxxxxx, Xxxxxx, Xxxxxx Place of registered office
Liberia Law of Registry | |||||
| 4. Day and year of commencement of Agreement (Cl. 2)
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| 1st January, 2013
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| 5. Crew Management (state “yes” or “no” as agreed) (Cl. 3.1) |
6. Technical Management (state “yes” or “no” as agreed) (Cl. 3.2)
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| YES
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YES
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| 7. Commercial Management (state “yes’’ or “no” as agreed) (Cl. 3.3)
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8. Insurance Arrangements (state “yes” or “no” as agreed) (Cl. 3.4)
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| YES
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YES
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| 9. Accounting Services (state “yes” or “no” as agreed) (Cl. 3.5)
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10. Sale or purchase of the Vessel (state “yes” or “no” as agreed) Cl. 3.6)
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| YES
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NO
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| 11. Provisions (state “yes” or “no” as agreed) (Cl. 3.7) |
12. Bunkering (state “yes” or “no” as agreed) (Cl. 3.8)
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| YES
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YES
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| 13. Chartering Services Period (only to be filled in if “yes” stated in Box 7) (Cl. 3.3(i))
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14. Owners’ Insurance (state alternative (i), (ii) or (iii) of Cl. 6.3) | |||||
| Eight Years
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6.3 (ii)
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| 15. Annual Management Fee (state annual amount) (Cl. 8.1)
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16. Severance Costs (state maximum amount) (Cl. 8.4 (ii))
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| See Clause 23 | As per applicable Agreement
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| 17. Day and year of termination of Agreement (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)
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| 31st December, 2020
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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)
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20. Notices (state postal and cable address, telex and telefax number for serving notice and communication to the Managers) (Cl. 20)
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Pegasus Shipholding S.A. Xxxxxxxxxx 00 & Xxxxx 0 Xxxxxx 00000 Xxxxxxx Xxxxxx Xxxxxx Fax: x00-0000000000 |
Dynagas Ltd. Poseidonos Ave. & 2 Foivis Xxxxxx 000-00 Xxxxxxx, Xxxxxx, Xxxxxx Email: xxxxxxxxxxxxxxx@xxxxxxx.xxx Fax: x00-0000000000
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It is mutually agreed between the party stated in Box 2 and the party stated in Box 3 that this Agreement consisting of PART 1 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 contained 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.
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| Signature(s) (Owners) | Signature(s) (Managers) | |||||
| For and on behalf of the Owners: | For and behalf of the Manager: | |||||
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/s/ Illegible |
/s/ Illegible |
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| Authorized Signatory | ||||||
“XXXXXXX 98” Standard Ship Management Agreement
| 1. | Definitions |
In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them.
“Owners” means the party identified in Box 2.
“Managers” means the party identified in Box 3.
“Vessel” means the vessel or vessels details of which are set out in Annex “A” attached hereto.
“Crew” means the Master, officers and ratings employed on the Vessel from time to time of the numbers, rank and
nationality specified in Annex “B” attached hereto.
“Crew Support Costs” means all expenses of a general nature which are not particularly referable to any individual vessel for the time being managed by the Managers and which are incurred by the Managers for the purpose of providing an efficient and economic management service and, without prejudice to the generality of the foregoing, shall include the cost of crew standby pay, training schemes for officers and ratings, cadet training schemes, sick pay, study pay, recruitment and interviews.
“Severance Costs” means the costs which the employers are legally obliged to pay to or in respect of the Crew as a result of the early termination of any employment contract for service on the Vessel.
“Crew Insurances” means insurances against crew risks which shall include but not be limited to death, sickness, repatriation, injury, shipwreck unemployment indemnity and loss of personal effects.
“Management Services” means the services specified in sub-clauses 3.1 to 3.8 as indicated affirmatively in Boxes 5 to 12.
“ISM Code” means the International Management Code for the Safe Operation of Ships and for Pollution Prevention as adopted by the International Maritime Organization (IMO) by resolution A.741(18) or any subsequent amendment thereto.
“STCW 95” means the international Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended in 1995 or any subsequent amendment thereto.
| 2. | Appointment of Managers |
With effect from the day and year stated in Box 4 and continuing unless and until terminated provided herein, the Owners hereby appoint the Managers and the Managers hereby agree to act as the managers of the Vessel in accordance with the Management Services.
| 3. | Basis of Agreement |
Subject to the terms and conditions herein provided, during the period of this Agreement, the Managers shall carry out Management Services in respect of the Vessel as agents for and on behalf of the Owners. The Managers shall have authority to take such actions as they may from time to time in their absolute discretion consider to be necessary to enable them to perform this Agreement in accordance with sound ship management practice.
| 3.1 | Crew Management |
(only applicable if agreed according to Box 5)
The Managers shall provide suitably qualified Crew for the Vessel as required by the Owners in accordance with the STCW 95 requirements, provision of which includes but is not limited to the following functions:
| (i) | selecting and engaging the Vessel’s Crew, including payroll arrangements, pension administration when required, and insurances for the Crew other than those mentioned in Clause 6; |
| (ii) | ensuring that the applicable requirements of the law of the flag of the Vessel are satisfied in respect of xxxxxxx levels, rank, qualification and certification of the Crew and employment regulations including Crew’s tax, social insurance, discipline and other requirements; |
| (iii) | ensuring that all members of the Crew have passed a medical examination with a qualified doctor certifying that they are fit for the duties for which they are engaged and are in possession of valid medical certificates issued in accordance with appropriate flag State requirements. In the |
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| absence of applicable flag State requirements the medical certificate shall be dated not more than three months prior to the respective Crew members leaving their country of domicile and maintained for the duration of their service on board the Vessel; |
| (iv) | ensuring that the Crew shall have a command of the English language of a sufficient standard to enable them to perform their duties safely; |
| (v) | arranging transportation of the Crew, including repatriation, board and lodging as and when required at rates and types of accommodations as customary in the industry; |
| (vi) | training of the Crew and supervising their efficiency; |
| (vii) | keeping and maintaining full and complete records of any labor agreements which may be entered into with the Crew and, if applicable conducting union negotiations; |
| (viii) | operating the Managers’ drug and alcohol policy unless otherwise agreed. |
| 3.2 | Technical Management |
(only applicable if agreed according to Box 6)
The Managers shall provide technical management which includes, but is not limited to, the following functions:
| (i) | provision of competent personnel to supervise the maintenance and general efficiency of the Vessel; |
| (ii) | arrangement and supervision of dry dockings, repairs, alterations and the upkeep of the Vessel to the standards required by the Owners provided that the Managers shall be entitled to incur the necessary expenditure to ensure that the Vessel will comply with the law of the flag of the Vessel and of the places where she trades, and all requirements and recommendations of the classification society; |
| (iii) | arrangement of the supply of necessary stores, spares and lubricating oil; |
| (iv) | appointment of surveyors, service engineers, and technical consultants as the Managers may consider from time to time to be necessary; |
| (v) | development, implementation and maintenance of a Safety Management System (SMS) in accordance with the ISM Code (see sub-clauses 4.2 and 5.3) and a Planned Maintenance System; |
| (vi) | Handling any claims against the builder of the Vessel arising out of the relevant shipbuilding contract, if applicable; and |
| (vii) | On request by the Owners, obtaining and / or providing the Owners with a copy of any inspection report, survey, valuation or any other similar report prepared by any shipbrokers, surveyors, the Class etc. |
| 3.3 | Commercial Management |
(only applicable if agreed according to Box 7)
The Managers shall provide the commercial operation of the Vessel, as required by the Owners, which includes, but is not limited to, the following functions:
| (i) | providing chartering services in accordance with the Owners’ instructions which include, but are not limited to, developing and seeking and negotiating employment for the Vessel and the conclusion (including the execution thereof) of charter parties or other contracts relating to the employment of the Vessel. If such a contract exceeds the period stated in Box 13, consent thereto in writing shall first be obtained from the Owners. |
| (ii) | arranging of the proper payment to Owners or their nominees of all hire and/or freight revenues or other moneys of whatsoever nature to which Owners may be entitled arising out of the employment of or otherwise in connection with the Vessel;. |
| (iii) | providing voyage estimates and accounts and calculating of hire, freights, demurrage and/or despatch moneys due from or due to the charterers of the Vessel; |
| (iv) | issuing of voyage instructions and monitoring voyage performance; |
| (v) | appointing agents; |
| (vi) | appointing stevedores; |
| (vii) | arranging surveys associated with the commercial operation of the Vessel; |
| (viii) | carrying out the necessary communications with the shippers, charterers and others involved with the receiving and handling of the Vessel at the relevant loading and discharging ports, including sending any notices required under the terms of the Vessel’s employment at the time; |
| (ix) | invoicing on behalf of the Owners all freights, hires, demurrages, outgoing claims, refund of taxes, balances of disbursements, statements of account and other sums due to the Owners and account receivables arising from the operation of the Vessel and, upon the request of the Owners, issuing releases on behalf of the Owners upon receipt of payment or settlement of any such amounts; |
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| (x) | preparing off-hire statements and/or hire statements; |
| (xi) | conducting Ship Shore Compatibility studies and procuring and arranging for port/terminal entrance and clearance, pilots, consular approvals and other services necessary for the management and safe operation of the Vessel; and |
| (xii) | reporting to the Owners of any major casualties, damages received or caused by the Vessel or any major release or discharge of oil or other hazardous material not in compliance with any laws. |
| 3.4 | Insurance Arrangements’ |
(only applicable if agreed according to Box 8)
The Managers shall arrange insurances in accordance with Clause 6, on such terms and conditions as the Owners shall have instructed or agreed, in particular regarding, conditions, insured values, deductibles and franchises.
| 3.5 | Accounting Services |
(only applicable if agreed according to Box 9)
The Managers shall:
| (i) | establish an accounting system which meets the reasonable requirements of the Owners and provide regular accounting services, supply regular reports and records, |
| (ii) | maintain the records of all costs and expenditure incurred as well as data necessary or proper for the settlement of accounts between the parties. |
| 3.6 | Sale or Purchase of the Vessel |
(only applicable if agreed according to Box 10)
The Managers shall, in accordance with the Owners’ instructions, supervise the sale or purchase of the Vessel, including the performance of any sale or purchase agreement, but not including negotiation of the same.
| 3.7 | Provisions |
(only applicable if agreed according to Box 11)
The Managers shall arrange for the supply of provisions.
| 3.8 | Bunkering |
(only applicable if agreed according to Box 12)
The Managers shall arrange for the provision of bunker fuel of the quality specified by the Owners as required for the Vessel’s trade.
| 4. | Managers’ Obligations |
| 4.1 | The Managers undertake to use their best endeavours to provide the agreed Management Services as agents for and on behalf of the Owners in accordance with sound ship management practice and to protect and promote the interests of the Owners in all matters relating to the provision of services hereunder. Provided, however, that the Managers in the performance of their management responsibilities under this Agreement shall be entitled to have regard to their overall responsibility in relation to all vessels as may from time to time be entrusted to their management and in particular, but without prejudice to the generality of the foregoing, the Managers shall be entitled to allocate available supplies, manpower and services in such manner as in the prevailing circumstances the Managers in their absolute discretion consider to be fair and reasonable. |
| 4.2 | Where the Managers are providing Technical Management in accordance with sub-clause 3.2, they shall procure that the requirements of the law of the flag and Charterers -of the Vessel are satisfied and they, or such other entity as may be appointed by them which shall be acceptable to Owners, shall in particular be deemed to be the “Company” as defined by the ISM Code, assuming the responsibility for the operation of the Vessel and taking over the duties and responsibilities imposed by the ISM Code when applicable. |
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| 5. | Owners’ Obligations |
| 5.1 | The Owners shall pay all sums due to the Managers punctually in accordance with the terms of this Agreement. |
| 5.2 | Where the Managers are providing Technical Management in accordance with sub-clause 3.2, the Owners shall: |
| (i) | procure that all officers and ratings supplied by them or on their behalf comply with the requirements of STCW 95; |
| (ii) | instruct such officers and ratings to obey all reasonable orders of the Managers in connection with the operation of the Managers’ safety management system. |
| 6. | Insurance Policies |
The Owners shall procure, whether by instructing the Managers under sub-clause 3.4 or otherwise, that throughout the period of this Agreement:
| 6.1 | at the Owners’ expense, the Vessel is insured for not less than her sound market value or entered for her full gross tonnage, as the case may be for: |
| (i) | usual hull and machinery marine risks (including crew negligence) and excess liabilities; |
| (ii) | protection and indemnity risks (including pollution risks and Crew Insurances); and |
| (iii) | war risks (including protection and indemnity and crew risks); and |
| (iv) | any other insurance that the Owners determine or the Managers advise them in writing that, in either case, it is prudent or, as the case may be, appropriate on the basis of prevailing market practices to be obtained in respect of the Vessel, its freight/hire or any third party liabilities, in each case in accordance with the best practice of prudent owners of vessels of a similar type to the Vessel, with first class insurance companies, underwriters or associations (“the Owners’ Insurances”); |
| 6.2 | all premiums and calls on the Owners’ Insurances are paid promptly by their due date, |
| 6.3 | the Owners’ Insurances name the Managers and, subject to underwriters’ agreement, any third party designated by the Managers as a joint assured, with full cover, with the Owners obtaining cover in respect of each of the insurances specified in sub-clause 6.1: |
| (i) |
| (ii) | if reasonably obtainable, on terms such that neither the Managers nor any such third party shall be under any liability in respect of premiums or calls arising in connection with the Owners’ Insurances; or |
| (iii) |
Indicate alternative (i), (ii) or (iii) in Xxx 00. If Box 14 is left blank then (i) applies.
| 6.4 | written evidence is provided, to the reasonable satisfaction of the Managers, of their compliance with their obligations under Clause 6 within a reasonable time of the commencement of the Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owners’ insurances. |
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| 7. | Income Collected and Expenses Paid on Behalf of Owners |
| 7.1 | All moneys collected by the Managers under the terms of this Agreement (other than moneys payable by the Owners to the Managers) and any interest thereon shall be held to the credit of the Owners in a separate bank account. |
| 7.2 | All expenses incurred by the Managers under the terms of this Agreement on behalf of the Owners (including expenses as provided in Clause 8) may be debited against the Owners in the account referred to under sub-clause 7.1 but shall in any event remain payable by the Owners to the Managers on demand. Furthermore and without prejudice to the generality of the provisions of this Clause 7, the Managers shall, subject to being placed in funds by the Owners, arrange for the payment of all ordinary charges incurred in connection with the Management Services, including, but not limited to, all canal tolls, port charges, amounts due to any governmental authority with respect to the Crew and all duties and taxes in respect of the Vessel, the cargo, hire or freight (whether levied against the Owners), insurance premiums, advances of balances of disbursements, invoices for bunkers, stores, spares, provisions, repairs and any other material and/or service in respect of the Vessel. |
| 8. | Management Fee |
| 8.1 | The Owners shall pay to the Managers for their services as Managers under this Agreement an annual management fee as stated in Box 15 which shall be payable by equal quarterly |
| 8.2 | The management fee shall be subject |
| 8.3 | The Managers shall, at no extra cost to the Owners, provide their own office accommodation, office staff, facilities and stationery. Without limiting the generality of Clause 7 the Owners shall reimburse the Managers for postage and communication expenses, travelling expenses, and other out of pocket expenses properly incurred by the Managers in pursuance of the Management Services. |
| 8.4 | In the event of the appointment of the Managers being terminated by the Owners or the Managers in accordance with the provisions of Clauses 17 and 18 other than by reason of default by the Managers, or if the Vessel is lost, sold or otherwise disposed of, the “management fee” payable to the Managers according to the provisions of sub-clause 8.1, shall continue to be payable for a further period of three calendar months as from the termination date. In addition, provided that the Managers provide Crew for the Vessel in accordance with sub- clause- 3.1: |
| (i) | the Owners shall continue to pay Crew Support Costs during the said further period of three calendar months and |
| (ii) | the Owners shall pay an equitable proportion of any Severance Costs which may materialize, not exceeding the amount stated in Box 16. |
| 8.5 | If the Owners decide to lay up the Vessel whilst this Agreement remains in force and such lay up lasts for more than three months, an appropriate reduction of the management fee for the period exceeding three months until one month before the Vessel is again put into service shall be mutually agreed between the parties. |
| 8.6 | Unless otherwise agreed in writing all discounts and commissions obtained by the Managers in the course of the management of the Vessel shall be credited to the Owners. |
| 9. | Budgets and Management of Funds |
| 9.1 |
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| 9.2 |
| 9.3 | Following the agreement of the budget, the Managers shall prepare and present to the Owners their estimate of the working capital requirement of the Vessel and the Managers shall each month update this estimate. Based thereon, the Managers shall each month request the Owners in writing for the funds required to run the Vessel for the ensuing month, including the payment of any occasional or extraordinary item of expenditure, such as emergency repair costs, additional insurance premiums, bunkers or provisions. Such funds shall be received by the Managers within ten running days after the receipt by the Owners of the Managers’ written request and shall be held to the credit of the Owners in a separate bank account in the name of the Managers or, if requested by the Managers, in the name of the Owners. |
| 9.4 | The Managers shall produce a comparison between budgeted and actual income and expenditure of the Vessel in such form as required by the Owners monthly or at such other intervals as mutually agreed. |
| 9.5 | Notwithstanding anything contained herein to the contrary, the Managers shall in no circumstances be required to use or commit their own funds to finance the provision of the Management Services. |
| 10. | Managers’ Right to Sub-Contract |
The Managers shall not have the right to sub-contract any of their obligations hereunder, including those mentioned in sub-clause 3.1, without the prior written consent of the Owners which shall not be unreasonably withheld. In the event of such a sub- contract the Managers shall remain fully liable for the due performance of their obligations under this Agreement.
| 11. | Responsibilities |
| 11.1 | Force Majeure - Neither the Owners nor the Managers 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. |
| 11.2 | Liability to Owners - (i) Without prejudice to sub-clause 11.1, the Managers shall be under no liability whatsoever to the Owners 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 Vessel) and howsoever arising in the course of performance of the Management Services UNLESS same is proved to have resulted solely from the negligence, gross negligence or wilful default of the Managers or their employees, or agents or sub-contractors employed by them in connection with the Vessel, in which case (save where loss, damage, delay or expense has resulted from the Managers’ 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 Managers’ liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of ten times the annual management fee payable hereunder. (ii) Notwithstanding anything that may appear to the contrary in this Agreement, the Managers shall not be liable for any of the actions of the Crew, even if such actions are negligent, grossly negligent or wilful, except only to the extent that they are shown to have resulted from a failure by the Managers to discharge their obligations under sub-clause 3.1, in which case their liability shall be limited in accordance with the terms of this Clause 11. |
| 11.3 | Indemnity - Except to the extent and solely for the amount therein set out that the Managers would be liable under sub-clause 11.2, the Owners hereby undertake to keep the Managers and their employees, agents and sub-contractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them arising out of or in connection with the performance of the Agreement, and against and in respect of all costs, losses, damages and expenses (including legal costs and expenses on a full indemnity basis) which the Managers may suffer or incur (either directly or indirectly) in the course of the performance of this Agreement. |
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| 11.4 | “Himalaya” It is hereby expressly agreed that no employee or agent of the Managers (including every sub-contractor from time to time employed by the Managers) shall in any circumstances whatsoever be under any liability whatsoever to the Owners 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 Clause 11, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Managers or to which the Managers are entitled hereunder shall also be available and shall extend to protect every such employee or agent of the Managers acting as aforesaid and for the purpose of all the foregoing provisions of this Clause 11 the Managers are or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be their servants or agents from time to time (including sub-contractors as aforesaid) and ail such persons shall to this extent be or be deemed to be parties to this Agreement. |
| 12. | Documentation |
Where the Managers are providing Technical Management in accordance with sub-clause 3.2 and/or Crew Management in accordance with sub-clause 3.1, they shall make available, upon Owners’ request, all documentation and records related to the Safety Management System (SMS) and/or the Crew which the Owners need in order to demonstrate compliance with the ISM Code, and STCW 95 or to defend a claim against a third party.
| 13. | General Administration |
| 13.1 | The Managers shall handle and settle all claims arising out of the Management Services hereunder and keep the Owners informed regarding any incident of which the Managers become aware which gives or may give rise to claims or disputes involving third parties. |
| 13.2 | The Managers shall, as instructed by the Owners, bring or defend actions, suits or proceedings in connection with matters entrusted to the Managers according to this Agreement. |
| 13.3 | The Managers shall also have power to obtain legal or technical or other outside expert advice in relation to the handling and settlement of claims and disputes or all other matters affecting the interests of the Owners in respect of the Vessel. |
| 13.4 | The Owners shall arrange for the provision of any necessary guarantee bond or other security. |
| 13.5 | Any costs reasonably incurred by the Managers in carrying out their obligations according to Clause 13 shall be reimbursed by the Owners. |
| 14. | Auditing |
The Managers shall at all times maintain and keep true and correct accounts and shall make the same available for inspection and auditing by the Owners at such times as may be mutually agreed. On the termination, for whatever reasons, of this Agreement, the Managers shall release to the Owners, if so requested, the originals where possible, or otherwise certified copies, of all such accounts and all documents specifically relating to the Vessel and her operation.
| 15. | Inspection of Vessel |
The Owners shall have the right at any time after giving reasonable notice to the Managers to inspect the Vessel for any reason they consider necessary.
| 16. | Compliance with Laws and Regulations |
The Managers will not do or permit to be done anything which might cause any breach or infringement of the laws and regulations of the Vessel’s flag, or of the places where she trades.
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| 17. | Duration of the Agreement |
This Agreement shall come into effect on the day and year stated in Box 4 and
shall continue until the date stated in Box 17. Thereafter it shall automatically renew for an eight-year period and shall thereafter be extended in additional eight-year increments if notice of termination is not provided by the Owners in the
fourth quarter of the year immediately preceding the end of the respective term. Thereafter it shall continue until terminated by either party giving to the other notice in writing, in which event the Agreement shall terminate upon
the expiration of a period of two months from the date upon which such notice was given.
| 18. | Termination |
| 18.1 | Owners’ default |
| (i) | The Managers shall be entitled to terminate the Agreement with immediate effect by notice in writing if any moneys payable by the Owners under this Agreement and/or the owners of any associated vessel, |
| (ii) | If the Owners: |
| (a) | fail to meet their obligations under sub-clauses 5.2 and 5.3 of this Agreement for any reason within their control, or |
| (b) | proceed with the employment of or continue to employ the Vessel in the carriage of contraband, blockade running, or in an unlawful trade, or on a voyage which in the reasonable opinion of the Managers is unduly hazardous or improper, the Managers may give notice of the default to the Owners, requiring them to remedy it as soon as practically possible. In the event that the Owners fail to remedy it within a reasonable time to the satisfaction of the Managers, the Managers shall be entitled to terminate the Agreement with immediate effect by notice in writing. |
| 18.2 | Managers’ Default |
If the Managers fail to meet their obligations under Clauses 3 and 4 of this Agreement for any reason within the control of the Managers, the Owners may give notice to the Managers of the default, requiring them to remedy it within as soon as practically possible. In the event that the Managers fail to remedy it within a reasonable time to the satisfaction of the Owners, the Owners shall be entitled to terminate the Agreement with immediate effect by notice in writing.
| 18.3 | Extraordinary Termination |
This Agreement shall be deemed to be terminated in the case of the sale of the Vessel or if the Vessel becomes a total loss or is declared as a constructive or compromised or arranged total loss or is requisitioned.
| 18.4 | For the purpose of sub-clause 18.3 hereof |
| (i) | the date upon which the Vessel is to be treated as having been sold or otherwise disposed of shall be the date on which the Owners cease to be registered as Owners of the Vessel; |
| (ii) | the Vessel shall not be deemed to be lost unless 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, |
| 18.5 | This Agreement shall terminate forthwith in the event of an order being made or resolution passed for the winding up, dissolution, liquidation or bankruptcy of either party (otherwise than for the purpose of reconstruction or amalgamation) or if a receiver is appointed, or if it suspends payment, ceases to carry on business or makes any special arrangement or composition with its creditors. |
| 18.6 | The termination of this Agreement shall be without prejudice to all rights accrued due between the parties prior to the date of termination. |
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| 19. | Law and Arbitration |
| 19.1 | This Agreement shall be governed by and construed in accordance with English law. and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996- or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced. The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within 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 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified, the party referring a 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 binding on both parties as if he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator. In cases where neither the claim nor any counterclaim exceeds the sum of USD50,000 (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. |
| 19.2 |
| 19.3 |
| 19.4 | If Box 18 in Part I is not appropriately filled in, sub-clause 19.1 of this Clause shall apply. Note: 19.1, 19.2 and 19.3 are alternatives; indicate alternative agreed in Box 18. |
| 20. | Notices |
| 20.1 | Any notice to be given by either party to the other party shall be in writing and may be sent by email, fax, |
| 20.2 | The address of the Parties for service of such communication shall be as stated in Boxes 19 and 20, respectively. |
| 21. | Administrative Services |
The Manager shall provide certain general administrative services to the Owners, including, but not limited to, the following:
(a) keeping all books and records of things done and transactions performed on behalf of the Owners as it may require from time to time, including, but not limited to, liaising with accountants, lawyers and other professional advisors;
(b) except as otherwise contemplated herein, representing the Owner generally in its dealings and relations with third parties;
(c) maintaining the general ledgers of the Owner, establishing bank accounts with such financial institutions as may be requested, managing, administering and reconciling of bank accounts, preparation of periodic financial statements, including, but not limited to, those required for governmental and regulatory or self-regulatory agency filings and reports to shareholders, arranging of the auditing and/or review of any such financial statements and the provision of related data processing services as required;
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(d) preparing and providing (or procuring, at the Owner’s cost) tax returns required by any law or regulatory authority and developing, maintaining and monitoring internal audit controls;
(e) providing office accommodation, office staff (including secretarial and administrative assistance), facilities and stationery;
(f) maintaining, at the Owner’s cost, corporate existence, qualification and good standing in all necessary jurisdictions and assisting in all other corporate and regulatory compliance requirements;
(g) negotiating the terms and thereafter arranging for cash management services and/or hedging arrangements, in each case with a third party provider at the cost of the Owner.
(h) providing any such other administrative services as may be requested and the Manager may agree to provide from time to time.
(i) Negotiate, at the Owner’s request, loan and credit terms with lenders and monitor and maintain compliance therewith and in addition negotiate and arrange, at the Owner’s request, for interest rate swap agreements, foreign currency contracts, forward exchange contracts and any other hedging arrangements;
(j) Provide, or arrange for the provision of, information technology services
| 22. | Commercial Services |
In addition to any commercial services provided under this Agreement, the Manager shall provide the following commercial services to the Owners:
(a) managing relationships between the Owners and any existing or potential charterers, shipbuilders, insurers, lenders, investors, fund managers, shareholders and other shipping industry service providers/participants; and
(b) providing certain services in connection with taking physical delivery of the vessel, if applicable, registering a vessel under a ship register, tendering physical delivery of a Vessel or deleting a Vessel from the applicable port of registry, in each case on behalf of the Owners.
| 23. | Management Fees |
| 23.1 | In consideration of the Manager providing the services herein, the Owners shall pay the Manager the following management fee: |
(a) A fee of US$2.500 per day per Vessel, payable quarterly in arrears (pro rated to reflect the number of days that the Owners owns the Vessel during the applicable quarter);
(b) a fee equal to 1.25% calculated on the aggregate of the gross freight, charter hire, ballast bonus or other income obtained for the employment of the Vessel during the term of this Agreement, payable to the Manager monthly in arrears, only to the extent such freight, charter hire, ballast bonus or other income, as the case may be, is received as revenue. Such fee will be payable in USD. For the avoidance of any doubt and regardless of anything stipulated in this Agreement, chartering commissions shall survive the termination of this agreement under all circumstances until the termination of the charter party in force at the time or termination of any other employment arranged;
| 23.2 | The Management Fees will be fixed for the period commencing on the date the stipulated in Box 4 (the “Commencement Date”) and ending on the last day of the calendar year (the “Initial Year”). For the 12-month period starting on the day falling immediately after 31st December of the Initial Year and for each subsequent calendar year falling thereafter (each such 12-month period referred to hereinafter as an “Annual Period”), the Management Fee for the Vessel payable pursuant to this clause will be adjusted upwards with effect from the beginning of such Annual Period by application, to the relevant per Vessel amount, of a percentage figure equal to three per cent (3%), PROVIDED ALWAYS, that in the event of any of the provisions of Section 23.2 applying, further increases may be applied to such Management Fees as determined pursuant to Section 23.2. |
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| 23.3 | The Management Fees for the Vessel payable pursuant to this clause, for the Annual Period commencing on the day falling immediately after the end of the Initial Year and each subsequent Annual Period thereafter, will, in each case, be further adjusted upwards with effect from the beginning of such Annual Period if the Manager has incurred a material unforeseen increase in the cost of providing the management services, by an amount to be agreed between the Manager and the Owners, each acting in a commercially reasonable manner. |
| 23.4 | The Owners hereby acknowledge that any capital expenditure, financial costs, operating expenses for the Vessel and any general and administrative expenses of the Owners whatsoever are not covered by the management fees and any such expenditure, costs and expenses shall be paid fully by the Owners, whether directly to third parties or by payment to such third parties through the Manager and to the extent incurred by the Manager, shall be reimbursed to it by the Owners. The said capital expenditure, financial costs, operating expenses for the Vessel and general and administrative expenses include, without limiting the generality of the foregoing, items such as: |
(a) fees, interest, principal and any other costs due to the Owner’s financiers and their respective advisors:
(b) all voyage expenses and vessel operating and maintenance expenses relating to the operation and management of the Vessels (including Crew costs, surveyor’s attendance fees, bunkers, lubricant oils, spares, survey fees, classification society fees, maintenance and repair costs, vetting expenses, etc.);
(c) any commissions, fees, remuneration or disbursements due to lawyers, brokers, agents, surveyors, consultants, financial advisors, investment bankers, auditors, insurance advisors or any other third parties whatsoever appointed by the Manager whether in its name or on behalf and/or in the name of the Owners:
(d) applicable deductibles, insurance premiums and/or P&I calls;
(e) postage, communication, traveling, lodging, victualing, overtime, out of office compensation and out of pocket expenses of the Manager and/or its personnel, incurred in pursuance of the services: and
(f) any other out of pocket expenses that are incurred by the Manager in the performance of the services pursuant to this Agreement and Supervision Agreement.
| 23.5 | At their sole discretion the Owner on an annual basis in order to provide the Managers with a performance incentive, may make a payment to the Managers of an incentive fee in addition to the management fee. |
| 24. | Incentive Fee |
| 24.1 | At their sole discretion the Owners on an annual basis in order to provide the Managers with a performance incentive, may make a payment to the Managers of an incentive fee in addition to the management fee. |
| 25. | Termination After Change of Control |
| 25.1 | This Agreement will terminate automatically immediately after a change of control (as defined below) of the Owners and/or of the Owner’s ultimate parent. Upon such termination, the Owners will be required to pay the Manager the Termination Payment in a single Installment. |
For the purpose of this Agreement “Change of Control” means the occurrence of any of the following:
(i) The acquisition by any individual, entity or group of beneficial ownership of fifty (50) percent (%) or more of either (A) the then-outstanding shares of stock of the Owner and/or the Owners ultimate parent or (B) the combined voting power of the then-outstanding voting securities of the Owner and/or the Owners ultimate parent entitled to vote generally in the election of directors:
(ii) The consummation of a reorganization, merger or consolidation of Owner and/or the Owners ultimate parent or the sale or other disposition of all or substantially all of the assets of Owner and/or Owners ultimate parent.
(iii) The approval by the shareholders of Owner and/or the Owners ultimate parent of a complete liquidation or dissolution of Owner and/or the Owners ultimate parent.
Further, for the purpose of this Agreement “Termination Payment” means a payment to be received by the Manager in the event of a Change of Control. Such payment shall be equal to the estimated remaining fees payable to the Manager under the then current term of the agreement but in any case shall not be less than for a period of 36 months and not more than a period of 60 months.
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ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO)
STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: “XXXXXXX 98”
| Date of Agreement | : | December 21, 2012 | ||
| Name of Vessel(s) | : | Clean Energy | ||
| Particulars of Vessel(s) | : | 149,700 cubic meters membrane LNG carrier 288 meters LOA Breadth Moulded 44.2 meters | ||
Addendum No. 1
Dated 7th October 2013
to the
Management Agreement dated 1st January, 2013 (the “Management Agreement”)
Between Pegasus Shipholding S.A. (the “Owners”)
and
Dynagas LTD. (the “Managers”)
with respects to the LNG carrier Clean Energy (the “Vessel”)
WHEREAS:
The Owners and the Managers have entered into the Management Agreement in connection with the vessel.
It is deemed appropriate that Article 24 (Incentive Fee) is deleted as agreed herein for the purposes of clarity.
IT IS HEREBY MUTUALLY AGREED
That the following clause shall be deleted, with retroactive effect from 1st January 2013.
Clause 24 “Incentive Fee”, including subclause 24.1 “At their sole discretion the Owners on an annual basis in order to provide the Managers with a performance incentive, may make a payment to the Managers of an incentive fee in addition to the management fee.”
All other terms and conditions of the Management Agreement to remain unaltered, fully enforced and effective.
In witness whereof, this Addendum has been executed on 7th October, 2013, with retroactive effect from 1st January 2013.
| For the Owners | For the Managers | |||
| /s/ Illegible |
/s/ Illegible | |||
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