SECOND AMENDED AND RESTATED AGREEMENT BY III TO I MARITIME PARTNERS CAYMAN I, L.P., TO RETAIN DENTAL COMMUNITY MANAGEMENT, INC., TO PERFORM ADMINISTRATIVE AND PROFESSIONAL SERVICES
SECOND
AMENDED AND RESTATED AGREEMENT BY III TO I MARITIME
PARTNERS
CAYMAN I, L.P., TO RETAIN DENTAL COMMUNITY MANAGEMENT,
INC., TO
PERFORM ADMINISTRATIVE AND PROFESSIONAL SERVICES
This is a
Second Amended and Restated Agreement by III to I Maritime Partners Cayman
I,L.P., to Retain Dental Community Management, Inc., to Perform Administrative
and Professional Services, hereinafter called "Agreement", by and between Dental
Community Management, Inc., a Texas corporation, with address of 0000 Xxxxxxxx
Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, hereinafter called "DCMI", and
III to I Maritime Partners Cayman I, L.P., a Cayman Islands exempted limited
partnership, with address of 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, hereinafter called "MPC", under the terms of which, DCMI
having agreed to perform certain administrative and professional services, for
MPC, and in consideration of which the performance of such administrative and
professional services by DCMI, MPC agrees to compensate DCMI, for performing
such administrative and professional services, all as set forth
hereinafter.
I. PREFACE
WHEREAS,
the general partner of MPC is III to I International Maritime Solutions Cayman,
Inc., hereinafter called “GP”, a Cayman Islands exempted corporation, governed
pursuant to the laws of the Cayman Islands;
WHEREAS,
MPC is an exempted limited partnership, governed pursuant to the laws of the
Cayman Islands, with GP as its general partner;
WHEREAS,
DCMI, through its representatives, has significant expertise and experience in
all aspects of administrative and professional services, especially related to
financial and business management;
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WHEREAS,
MPC agrees to compensate DCMI for its expenses incurred in performing such
administrative and professional services;
NOW,
WITNESSETH:
For and
in consideration of the foregoing, and the execution and performance of the
terms of this Agreement, as set forth hereinafter, MPC and DCMI agree as
follows:
II. MUTUAL
AGREEMENTS
A. Incorporation of
Preface. All of the terms of Article I are hereby incorporated
into this Agreement, by the terms of this A of this Article II.
B. Mutual
Representations. Each of DCMI and MPC represents to the other
that no consent, approval, or authorization of any other person, entity or
governmental authority is necessary for each of DCMI and MPC to enter into and
to perform under the terms of this Agreement, nor is any such necessary, for the
enforceability of this Agreement, and that this Agreement is the legal and
binding obligation of both MPC and DCMI, and is enforceable against both MPC and
DCMI, in accordance with its terms, except as limited by bankruptcy, insolvency,
or other laws of general application relating to the enforcement of creditors'
rights.
C. Term. This
Agreement shall have a term beginning on January 1, 2009, and ending on December 31, 2013, hereinafter
called "Initial Term". This Agreement, after the Initial Term, shall
automatically renew for subsequent one (1) year periods, subject to the right of
either DCMI or MPC to terminate this Agreement, at, or at any
anniversary of, the end of the Initial Term, on one (1) years' written notice to
the other.
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III. SERVICES OF
DCMI; COMPENSATION BY MPC
A. Administrative and
Professional Services. The administrative and professional
services to be performed by DCMI, pursuant hereto, for the benefit of MPC, shall
be the services as are generally described in (c) of Article 10.1, Management, of the
Amended and Restated Agreement of Limited Partnership of MPC, to the extent that
DCMI is licensed to perform such services, and when it is appropriate, in the
opinion of GP and representatives of DCMI, for DCMI to be so retained to perform
such administrative and professional services. Further, DCMI shall perform
administrative and professional services, for MPC, as are specifically
reasonably requested to be performed for MPC by GP. Finally, DCMI
shall formally assist MPC in fulfilling all of its various reporting
requirements, to various governmental agencies, including, especially, the
United States of America Securities and Exchange
Commission.
B. DCMI’s Compensation by
MPC. In consideration of DCMI performing the administrative
and professional services, provided for in A of this Article III, MPC, as
expenses of the MPC, shall compensate DCMI by directly paying to DCMI, the sum
of $100,000.00, each month. DCMI shall, monthly, prepare and transmit
to MPC, an invoice, for such sum, which MPC shall then pay, upon
receipt. Some expenses to be incurred by DCMI, in the performance of
its duties and obligations herein, which shall be reimbursed by MPC to DCMI,
may, instead be paid directly by MPC directly to the third party to whom such
expenses are owed.
C. Employees and Agents of
DCMI. DCMI retains the right to utilize its employees, as well
as other representatives of DCMI retained on any basis, including temporary
representatives, as well as outside independent consultants and professionals,
and including entities and persons retained on a contract basis, to perform the
administrative and professional services of DCMI, for MPC, however, in each such
case, the identity of any such entity or person, other than an employee of DCMI
or GP, participating in the administrative and professional services, shall,
upon request of MPC, be disclosed.
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D. Independence of
DCMI. DCMI, at all times, shall be considered independent of
MPC and the only relationship between MPC and DCMI shall be as set forth in this
Agreement.
IV. GENERAL
AGREEMENTS
A. Further
Documents. MPC and DCMI agree that they will execute such
other and further instruments and documents as are or may become necessary or
convenient to effectuate and carry out this Agreement.
B. Attorneys'
Fees. If any action at law or in equity is necessary to
enforce the terms of this Agreement, the prevailing of MPC or DCMI shall be
entitled to reasonable attorneys fees and costs, in addition to any other relief
to which entitled.
C. Written
Amendments. This Agreement may not be modified or supplemented
except by a writing signed by both MPC and DCMI.
D. Binding. This
Agreement shall be binding upon MPC, DCMI and their
successors. Neither DCMI nor MPC shall have the right to delegate any
portion, or all of, its obligations herein to any third party except as
otherwise contemplated with respect to DCMI in D of Article III.
E. Partial
Invalidity. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to DCMI or MPC or to any circumstance,
shall, for any reason and to any extent, be invalid or unenforceable, the
remainder of this Agreement, and the application of such provision to such other
of DCMI or MPC or circumstance, shall not be affected thereby, rather shall be
enforced to the greatest extent permitted by law.
F. Counterparts. This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original.
G. No
Arbitration. MPC and DCMI waive any arbitration
rights.
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H. Other
Services. DCMI may provide services to other persons,
including persons who engage in the same or similar business as MPC, upon such
terms as DCMI deems appropriate.
I.
Notice of
Default. This Agreement may not be terminated by either party,
except upon a material default by the other party hereunder, and defaulting
party having failed to cure such material default within ninety (90) days
following written notice thereof by the non-defaulting party to the defaulting
party. Such notice shall define, with specificity and particularity,
the nature of such material default. Upon termination of this
Agreement due to a party's default, the non-defaulting party shall be excused
from further performance under this Agreement. No termination of this
Agreement shall limit or affect the non-defaulting party's claims and causes of
action for damages or other remedies arising from the defaulting party's breach
of this Agreement.
J.
No
Fiduciary. DCMI, in performing its obligations herein, shall
never be considered to be a fiduciary of MPC, but shall only be held to the
standard of care applicable to an ordinary and reasonable person, in performing
such obligations.
K. Limitation on DCMI’s
Efforts. DCMI is only required to dedicate such time, skill,
labor and attention to the performance of DCMI’s obligations expressed herein,
in good faith, as are commercially reasonable or appropriate for DCMI property
to perform such obligations.
L. Notices,
Generally. Unless otherwise expressly provided in this
Agreement, all notices or other communications required or permitted to be given
pursuant to this Agreement shall be considered as properly given or made if
mailed from within the United States by First Class Mail, certified, postage
prepaid.
M. Waivers. No
waiver shall be deemed to be made by either MPC or DCMI of any of its rights
hereunder unless the same shall be in writing, and each waiver, if any, shall be
a waiver only with respect to the specific instance involved, and shall in no
way impair the rights of the waiving party or the obligations of the other party
in any other respect, at any other time.
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N. Entire
Agreement. This Agreement embodies the agreement and
understanding between MPC and DCMI, with respect to the subject matters
hereof.
O. Governing Law,
Venue. All of the administrative and professional services
will be performed by DCMI in the State of Texas. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED UNDER THE LAWS OF TEXAS, EXCLUDING CHOICE OF LAW PROVISIONS
THEREOF. ANY COURT PROCEEDING INITIATED BY EITHER PARTY AND
ARISING OUT OF THIS AGREEMENT SHALL BE LITIGATED IN A TEXAS STATE COURT OF
COMPETENT JURISDICTION SITTING IN THE CITY OF DALLAS, TEXAS OR THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS
DIVISION. EACH WAIVES ANY RIGHT TO OBJECT TO VENUE IN ANY COURT
SPECIFIED IN THIS Q OF THIS ARTICLE V.
P. Headings. Article
and paragraph headings contained herein are for identification purposes only,
and shall not be used to construe or interpret the terms hereof.
Dated
1/5/2009
, 2009, effective January 1, 2009.
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"DCMI"
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Dental
Community Management, Inc.,
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a
Texas corporation
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by:
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/s/
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Xxxxx
X. Xxxxxx,
President
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"MPC"
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III
to I Maritime Partners Cayman I, L.P.,
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a
Cayman Islands exempted limited partnership
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by:
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III
to I International Maritime Solutions
Cayman,
Inc., a Cayman Islands exempted
corporation,
general partner
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by:
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/s/
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Xxxxxxx
X. Xxxx,
Director
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