Attached files
| file | filename |
|---|---|
| 10-K - Eagle Bulk Shipping Inc. | d1078166_10k.htm |
| EX-23.2 - Eagle Bulk Shipping Inc. | d1078166_ex23-2.htm |
| EX-23.1 - Eagle Bulk Shipping Inc. | d1078166_ex23-1.htm |
| EX-31.1 - Eagle Bulk Shipping Inc. | d1078166_ex31-1.htm |
| EX-31.2 - Eagle Bulk Shipping Inc. | d1078166_ex31-2.htm |
| EX-32.2 - Eagle Bulk Shipping Inc. | d1078166_ex32-2.htm |
| EX-32.1 - Eagle Bulk Shipping Inc. | d1078166_ex32-1.htm |
MANAGEMENT
AGREEMENT
This
MANAGEMENT AGREEMENT, dated as of August 4, 2009 (this "Agreement"), is
entered into by and between Delphin Shipping LLC, a Marshall Islands limited
liability company (the "Company") and Eagle
Bulk Shipping Inc., a Marshall Islands corporation (the "Manager").
W I T N E S S E T
H
WHEREAS,
the Company has been formed for the purpose of acquiring dry bulk vessels and
engaging in other activities in the shipping sector;
WHEREAS,
after the date hereof, as the Company, directly or indirectly through
wholly-owned vessel owning subsidiaries, acquires a dry bulk vessel, the
wholly-owned vessel owning subsidiary shall be set forth on Schedule I hereto
(each an "Owner" and
collectively the "Owners") and the dry
bulk vessel owned by such Owner shall be set forth next to the name of such
Owner on Schedule
I hereto (each a "Vessel" and
collectively the "Vessels");
WHEREAS,
the Company desires to engage the Manager to provide the management services
more particularly described herein with respect to the Vessels;
WHEREAS,
the Manager is in the business of furnishing commercial vessel management
services and technical vessel management supervision services for the fleet of
dry bulk vessels that are majority owned, chartered-in pursuant to a bareboat
charter or leased-in pursuant to a sale/leaseback or similar financing
arrangement by the Manager or its wholly-owned vessel owning subsidiaries
(collectively, the "Manager Vessels") and
desires to provide such services with respect to the Vessels in accordance with
the terms and conditions set forth herein;
WHEREAS,
on the date hereof, the Company, the Manager and the other parties named therein
have entered into a waiver and release agreement (the "Manager Waiver") as
set forth on Exhibit A hereto relating to certain matters regarding this
Agreement; and
WHEREAS,
on the date hereof, the Company, Kelso Investment Associates VIII, L.P., KEP VI,
LLC and Sophocles Zoullas ("Zoullas") entered
into a limited liability company agreement governing the affairs of the Company
(the "Company LLC
Agreement").
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other valuable consideration, the parties hereto hereby agree as
follows:
1.
Engagement of
Manager. The Company hereby engages the Manager to provide the
commercial management and technical management supervisory services described
more fully herein, and the Manager hereby accepts such engagement, effective as
of the date that the first Vessel is delivered to an Owner and the Company will
pay to the Manager during the term of this Agreement the Management Fee set
forth in Section 5 hereof with respect to each Vessel (other than a Manager
Acquired Vessel (as hereinafter defined)).
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2.
Manager's
Responsibilities.
(a) Management
Services. Subject to the terms and conditions set forth
herein, the Manager shall provide or, through a wholly owned subsidiary of the
Manager or other third party expressly approved in advance by the Company, cause
to be provided to the Company or the applicable Owner with respect to each
Vessel all customary commercial management services and all technical management
supervisory services as are necessary in connection with the operation of each
Vessel, including without limitation, the following services in accordance with
sound ship management practices and with the care, diligence and skill and in a
substantially similar manner and scope as the Manager currently provides,
directly or indirectly, for the Manager Vessels (collectively the "Management
Services"):
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(i)
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The
Manager's reasonable best efforts to seek employment for each of the
Vessels and to negotiate, arrange, complete, market, promote and supervise
the chartering or other employment of the Vessels and to monitor the
employment and location of each Vessel on a regular basis, provided, however, that
prior to making any offer relating to a charter contract or other
employment arrangement of a Vessel that, if accepted, would result in a
binding obligation of the Company or an Owner, the Manager shall
communicate with and describe to the Company, or one or more directors of
the Company or agent thereof generally designated by the Company to
communicate with the Manager in respect of such matters (each, a "Company
Designee") the material terms of the proposed offer, charter
contract or other employment, and no such charter contract or other such
employment arrangement will be entered into, in each case, with respect to
any Vessel without the express approval of the
Company;
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(ii)
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Arrange
for and monitor the proper payment to the Company, Owners or their
nominees of all charter hire, freight and other revenues or other moneys
of whatsoever nature arising out of the employment of the Vessels or
otherwise in connection with the Vessels to which the Company or the
Owners may be entitled to;
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(iii)
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Communicate
and maintain relations with the charterers of the Vessels and ensure that,
to the extent commercially practicable, the requirements of each charterer
of a Vessel are met on a continual basis, generally administer the
charters of each Vessel and maintain and manage relationships between the
Company and shipbuilders, insurers, and other shipping industry
participants;
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(iv)
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Act
for and on behalf of the Company and each Owner in the negotiation and
documentation of appropriate third party technical management agreements
(each a "Technical Management
Agreement") between each Owner and one or more third party
technical ship managers (each a "Technical
Manager") in which such Technical Managers would provide the
technical management services to the Vessels that the Manager, directly or
through one or more subsidiaries, does not provide to the Manager Vessels
as of the date of this Agreement, provided, however, that
each Technical Management Agreement shall be subject to the prior written
approval of the Company, and, further provided, that
each Technical Management Agreement shall constitute a direct agreement
between the Company or the relevant Owner and the Technical Manager, and
any amounts payable under the Technical Management Agreements shall be for
the account of, and paid to the Technical Manager by, the Company or the
relevant Owner;
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(v)
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Arrange
surveys associated with the commercial operation of the
Vessels;
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(vi)
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Arrange
hull and machinery, war, loss of hire and P&I risks insurances for
each Vessel in accordance with sound ship management practices or as
otherwise directed by the Company, and handle all claims arising in
connection with the insurance of the Vessels including the preparation,
documentation and submission of claims to insurers and/or P&I clubs
and the making of settlements of claims against insurers and/or P&I
clubs, in each case in accordance with the instructions of the Company,
and following up on such claims or settlements, and instituting,
defending, intervening in or settling any legal proceedings by or against
the Vessel or any Owner in any way that concerns a Vessel, its freight,
earnings and disbursements (each, a "Proceeding")
(it being understood that the handling of all such claims and legal
matters shall always be consistent with the instructions and requirements
of the Vessels' P&I club or other insurers or underwriters) provided that any out
of pocket expenses incurred by the Manager in connection with instituting,
defending, intervening or settling such Proceeding on behalf of the
Company or an Owner shall be a Company Expense (as such term is used in
Section 5(d) of this Agreement), and provided, further, that
if the Manager is advised that the Proceeding will not be covered by the
Vessel's P&I club or other insurance, then the Manager will only take
such action with respect to (x) any individual Proceeding, or group of
related Proceedings, that involve monetary claims below $50,000 with the
prior consent of Zoullas and (y) any individual Proceeding, or group of
related Proceedings, that involve monetary claims in excess of $50,000
with the prior consent of a Company
Designee.
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(vii)
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Supervise
the provision of customary technical management services provided by the
relevant Technical Manager, including voyage operations, superintendence,
surveys, maintenance, crewing, drydocking, repairs, alterations,
maintenance and renewals to hull, machinery, boilers, auxiliaries,
equipment and accommodations, the arrangement of necessary stores and
spare, and lubricating oils;
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(viii)
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Visit
each Vessel at such times as deemed necessary and appropriate by the
Manager to evaluate the technical management services and operation of the
Vessel by the relevant Technical Manager pursuant to a Technical
Management Agreement;
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(ix)
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Promptly
upon the Company's request, reporting to the Company the Vessel's
movement, position at sea, arrival and departure dates, and provide voyage
estimates and accounts and calculate and invoice of hire, freights,
demurrage and dispatch moneys due from or due to the charterers of the
Vessels;
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(x)
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Promptly
report to the Company any major casualties and damages received or caused
by the Vessel;
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(xi)
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Subject
to the procedures specified in Section 3 hereof, perform class records
review and physical inspection and make reports to the Company as to a
vessel's classification, physical condition and the compliance of the
vessel and the vessel owner's with applicable rules and regulations, and
if the Company approves the making of any offer relating thereto in
accordance with Section 3, assisting the Company in negotiating and
carrying out the purchase of dry bulk vessels and performing all functions
necessary to allow the Company to take physical delivery of the
Vessel;
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(xii)
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Implementing
(at the direction of the Company) potential divestitures or dispositions
of any of the Vessels;
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(xiii)
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Upon
the prior agreement of the Company and the Manager, with respect to any
contract entered into by the Company or an Owner relating to a newbuild
dry bulk vessel, the Manager shall (1) oversee and supervise, in all
material respects, the construction of such newbuild, (2) assist the
Company upon request in the negotiation of the shipbuilding contract and
specifications and related documentation, (3) attend to plan approval for
the design of the newbuild, (4) arrange for and supervise alternations and
changes to the newbuild, (5) liaise with the ship builder, supervising the
ship builder's progress and overseeing construction to ensure the ship
builder is constructing the newbuild in accordance with the relevant
shipbuilding contract, design and specifications, (6) attending to the
purchasing and other activities relating to the pre-delivery purchases and
(7) arranging for registration of the Vessel under the relevant flag in
accordance with applicable law and registration of the Vessel with the
relevant classification society and other authorities as may be requiring
for obtaining trading, canal and other marine certificates for the Vessel;
and
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(xiv)
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Subject
to the limitations and requirements contained elsewhere in this Agreement,
enter into, make and perform all contracts, agreements and other
undertakings as may be, in the opinion of the Manager, necessary,
advisable or incidental to the performance of the Management Services
contemplated by this Agreement; provided, however, the
Manager may only enter into any such contract that would involve payments
from the Company (whether through a direct payment to the counterparty or
indirectly through a reimbursement to the Manager in accordance with this
Agreement) in one payment or series of contemplated payments in an amount
in excess of $50,000 with the prior consent of a Company
Designee.
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(b) General Obligations;
Employment of Personnel. In the exercise of its duties
hereunder, the Manager shall act fully in accordance with the reasonable
policies, guidelines and instructions from time to time communicated to it by
the Company or Company Designees and serve the Company faithfully and diligently
in the performance of this Agreement, according to sound ship management
practices and shipping industry standards. In the performance of this
Agreement, the Manager shall protect the interests of the Company and the Owner
in all matters directly or indirectly relating to the provision of Management
Services to the Vessel in its reasonable control. All discounts,
commissions and other benefits received by the Manager and/or its employees from
third parties as a consequence of the provision of the Management Service shall
be disclosed to the Company and, unless otherwise agreed, placed at the
Company's or, as the case may be, the relevant Owner's disposal. The
Company shall, at all times, be allowed full access to the accounts and records
of the Manager which are relevant to the performance of the Management Services
hereunder. The Manager shall at all times maintain, at its own expense, staffing
levels deemed necessary in its reasonable judgment to provide the Management
Services set forth herein for the Vessels.
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(c) Engagement of
Consultants. As deemed necessary or advisable by the Manager,
the Manager shall recommend third-party consultants and advisors, including
technical managers, vessel brokers, insurance consultants, engineers,
environmental specialists, chartering agents, appraisers, attorneys, accountants
and other professionals and consultants to be engaged by the Company or an
Owner, each upon such terms as shall be approved by the Company. The
costs of all such consultants or advisors which are authorized hereunder or are
approved by the Company shall be for the account of, and shall be paid directly
by, the Company or the relevant Owner, as the case may be.
3.
Purchase of Dry Bulk
Vessels.
(a) Subject
to Section 3 (b) and (c), below, before the Company makes any proposal to
acquire, or enters into a contract or memorandum of agreement relating to the
acquisition of, a dry bulk carrier, the Company will deliver a written notice
(the "Pre-Signing
Notice") to the Manager identifying the acquisition opportunity and the
material terms and conditions thereof (a "Vessel Purchase
Opportunity"). The Manager will then have fifteen (15)
business days from receipt of the Pre-Signing Notice (the "Pre-Signing Offer
Period") to elect to pursue such Vessel Purchase Opportunity on its own
behalf. If, within the Pre-Signing Offer Period, the Company does not
receive notice from the Manager indicating that the Manager will pursue such
Vessel Purchase Opportunity or if the Manager affirmatively notifies the Company
that it will not pursue such Vessel Purchase Opportunity for its own account or
has otherwise been unsuccessful in pursuing such opportunity for its own
account, then in any such case, the Company may pursue such opportunity on its
own behalf.
(b) Notwithstanding
Section 3(a) above, to the extent the Company reasonably determines that a
Vessel Purchase Opportunity is time sensitive in such a manner that providing
the Manager with a Pre-Signing Notice before taking action with respect to such
Vessel Purchase Opportunity could prejudice the Company's ability to
successfully complete such Vessel Purchase Opportunity, the Company may make a
proposal, or sign a preliminary or definitive contract to acquire such vessel,
without providing a Pre-Signing Notice to the Manager, provided, however, that if
the Company does not deliver a Pre-Signing Notice prior to signing a definitive
agreement relating to such Vessel Purchase Opportunity, then within fifteen (15)
business days of signing such definitive agreement, the Company will deliver a
written notice (a "Post-Signing Notice")
to the Manager offering the vessel to the Manager on the same economic and other
material terms and conditions as those governing the Company's contract relating
to such vessel, which offer may be effected through an assignment of the
purchase agreement to the Manager prior to closing, if permitted under the
purchase agreement, or a back to back sale of the vessel to the Manager upon its
delivery to the Company (the "Manager Purchase
Offer"). The Manager will then have fifteen (15) business days
from the date of receipt of the Post-Signing Notice (the "Post-Signing Offer
Period") to elect to accept the Manager Purchase Offer. If,
within the Post-Signing Offer Period, the Company does not receive notice from
the Manager indicating that the Manager will accept the Manager Purchase Offer
or if the Manager affirmatively notifies the Company that it has elected not to
accept the Manager Purchase Offer, then in any such case, the Company may
acquire the vessel on its own behalf without any further obligations to the
Manager as it relates to such vessel under this Section 3. If the
Company receives a written notice from the Manager prior to the expiration of
the Post-Signing Offer Period indicating that it will accept the Manager
Purchase Offer with respect to the vessel contemplated thereby, such vessel
shall be acquired by the Manager in accordance with the provisions described in
Section 3(d) below.
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(c) Notwithstanding
Section 3(a), above, if the Company has delivered a Pre-Signing Notice but
reasonably determines that the relevant Vessel Purchase Opportunity is time
sensitive in such a manner that waiting for the expiration of the Pre-Signing
Offer Period before taking action with respect to such Vessel Purchase
Opportunity could prejudice the Company's ability to successfully complete such
Vessel Purchase Opportunity, the Company may make a proposal, or sign a
preliminary or definitive contract to acquire such vessel, without waiting for
the expiration of the Pre-Signing Offer Period, provided, however, that if
the Company executes a definitive agreement relating to a Vessel Purchase
Opportunity before the expiration of the Pre-Signing Offer Period, the Manager
shall continue to have until the expiration of the Pre-Signing Offer Period to
notify the Company of its election to acquire the vessel under contract with the
Company. If, within the Pre-Signing Offer Period, the Company does
not receive notice from the Manager indicating that the Manager will acquire the
vessel under contract with the Company or if the Manager affirmatively notifies
the Company that it has elected not to accept such offer, then in any such case,
the Company may acquire the vessel on its own behalf without any further
obligations to the Manager as it relates to such vessel under this Section
3. If the Company receives a written notice from the Manager prior to
the expiration of the Pre-Signing Offer Period indicating that it will acquire
the vessel contemplated thereby, such vessel shall be acquired by the Manager in
accordance with the provisions described in Section 3(d) below.
(d) If
the Manager accepts an offer to purchase a vessel owned by or under contract to
the Company or an Owner pursuant to Section 3(b) or (c), above, the Manager
shall (i) accept an assignment from the Company of all of its rights and
obligations under such purchase agreement (to the extent permissible in
accordance therewith), and in any event the Manager shall indemnify the Company
and the Owners for any and all liabilities or obligations of the Company and any
such Owners under such purchase agreement and shall reimburse the Company for
all reasonable out-of-pocket cost and expenses of the Company incurred in
connection with such purchase agreement or (ii) acquire the vessel from the
Company or an Owner as promptly as practicable following the delivery of such
vessel to the Company or an Owner for the same purchase price paid by the
Company (plus the reasonable out-of-pocket cost and expenses of the Company
incurred in connection with such purchase agreement) (the vessel so acquired by
the Manager, a "Manager Acquired
Vessel"). For the avoidance of doubt, the Manager shall not be
entitled to receive any Management Fees in connection with any Manager Acquired
Vessel.
(e) On
each Acquisition Date (as defined below), the Company shall update Schedule I
hereto to identify the Vessel acquired on such Acquisition Date and the Owner of
such Vessel so acquired; provided, however, in no
event shall a Manager Acquired Vessel be listed on Schedule I hereto or
considered a Vessel for any purposes of this Agreement. Notwithstanding anything
to the contrary contained in this Agreement, a Vessel shall be removed from
Schedule I hereto and shall be automatically removed from the engagement under
this Agreement (including with respect to the Management Fees contemplated by
this Section 5) from and after the time such Vessel is (i) sold to a third
party, (ii) becomes an actual or constructive or compromised or arranged total
loss, (iii) requisitioned for title or any other compulsory acquisition of such
Vessel occurs, (iv) captured, seized, detained or confiscated by any government
or persons acting or purporting to act on behalf of any government and is not
released from such capture, seizure, detention or confiscation, or (v)
unlawfully captured, seized, detained or confiscated by a person or persons not
purporting to act on behalf of any government and is not released from such
capture, seizure, detention or confiscation within three months. In
the event that a vessel formerly listed on Schedule I hereto is redelivered,
released or otherwise returned to the Company following one or more of the
events set forth in clause (iii), (iv) or (v) of this Section 3(e), the Company
shall update Schedule I hereto and such redelivery or release date shall be
deemed to be the Acquisition Date of the Vessel for purposes of this
Agreement.
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4.
Sale of Vessels. During the term of this
Agreement, if the Company proposes to sell any Vessel to an unaffiliated third
party, the Company agrees to make a bona fide offer to sell such Vessel to the
Manager. Upon receipt of such offer, the Manager shall have five (5)
business days from the date of such offer to elect to accept such
offer. If, within such five (5) business day period, the Manager does
not accept such offer or affirmatively notifies the Company that it has elected
not to accept such offer, then in any such case, the Company shall be free to
sell such Vessel to any third party. To the extent reasonably
practical under the circumstances, the Company shall continue to keep the
Manager informed as to the status of any such sale discussions.
5.
Fees, Expenses and
Reimbursements.
(a) Management Fee. In
consideration for the Manager's provision of the Management Services pursuant to
this Agreement, with respect to each Vessel, the Company shall pay the Manager a
commercial and technical management supervisory fee (the "Management Fee")
monthly in advance, commencing on the first business day of each calendar month
(each a "Payment
Date") occurring on or following the date on which the Company, directly
or through one or more Owners, takes delivery of a Vessel (the "Acquisition Date") in
accordance with and subject to the terms and conditions of this Section
5. Subject to the adjustments set forth below, the amount of the
monthly Management Fee shall be determined as follows:
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For
Vessels one (1) through and including ten (10), a monthly fee of $15,834
for each such Vessel;
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For
Vessels eleven (11) through and including twenty (20), a monthly fee of
$11,667 for each such Vessel; and
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For
Vessels in excess of twenty (20), a monthly fee of $8,750 for each such
Vessel.
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(b) Management Fee
Adjustments. As described below and on Exhibit A to this
Agreement (the "Illustrative
Example"), the amount of the Management Fee payable on a Payment Date
during the term of this Agreement shall be adjusted in the event that (i) a
Vessel is not immediately fixed under a charter contract on the Acquisition Date
of such Vessel or (ii) a Vessel is laid-up during the term of the Management
Agreement, and such lay-up lasts for more than two (2) months, in each case in
the manner set forth below. Any inconsistencies between the
Illustrative Example and the provisions below shall be resolved in favor of the
Illustrative Example.
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(i)
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Vessel Fixed upon Acquisition
Date.
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(A)
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Acquisition Date is Payment
Date: If a Vessel is immediately fixed under a charter
contract as of the Acquisition Date of such Vessel and such Acquisition
Date occurs on a Payment Date, then with respect to such Vessel, the
Company shall pay the Manager on such Acquisition Date that is a Payment
Date an amount equal to two (2) times the monthly Management Fee relating
to such Vessel, it being understood and agreed that such amount reflects
the payment of one month's Management Fee payable in advance and one
month's Management Fee as compensation to the Manager for advance work of
the Manager in connection with the initial employment of the Vessel on the
Acquisition Date (as described in the Illustrative
Example).
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(B)
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Acquisition Date is Not
Payment Date. If a Vessel is immediately fixed under a
charter contract as of the Acquisition Date of such Vessel but such
Acquisition Date does not occur on a Payment Date, then with respect to
such Vessel the Company shall pay the Manager on the next Payment Date
immediately following such Acquisition Date the aggregate of (i) an amount
equal to two (2) times the monthly Management Fee relating to such Vessel
(it being understood and agreed that such amount reflects the payment of
one month's Management Fee payable in advance and one month's Management
Fee as compensation to the Manager for advance work of the Manager in
connection with the initial employment of the Vessel on the Acquisition
Date (as described in the Illustrative Example)) and (ii) a pro-rata
portion of the monthly Management Fee for such Vessel based on the number
of days elapsed in the month from and after the Acquisition Date for such
Vessel occurred as compared to a 30-day calendar
month.
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Thereafter,
for each Payment Date after the initial Payment Date described in the
preceding paragraphs for such Vessel, the Company shall pay the Manager
the monthly Management Fee for such Vessel, provided, however, that
if such Vessel is thereafter laid-up during the term of this Agreement,
and such lay-up lasts for more than two (2) months, the monthly Management
Fee for such Vessel will be reduced to an amount equal to 30% of the
monthly Management Fee (such reduced fee the "Reduced Management
Fee") for the period exceeding two-months until one month before
such Vessel is again fixed under a charter contract. If, as
described in the Illustrative Example, the mechanics described above
result in a true up, credit or payment required to be made from the
Manager to the Company, such credit or true up shall be credited against
the other payments required to be made by the Company to the Manager on
the next Payment Date following the realization of such credit. Commencing
on the first Payment Date after the date that the Vessel is again fixed on
a charter contract, the Management Fee shall be paid in accordance with
the payment terms applicable to a Full Fee Management Payment Date, as set
forth in Section 5(b)(ii), below.
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(ii)
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Vessel not fixed upon
Acquisition date. If a Vessel is not immediately fixed
under a charter contract as of the Acquisition Date of such Vessel and the
Acquisition Date of such Vessel occurs on a Payment Date, then with
respect to such Vessel, the Company shall pay the Manager on such
Acquisition Date the Reduced Management Fee relating to such
Vessel.
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If
a Vessel is not immediately fixed under a charter contract as of the
Acquisition Date of such Vessel and such Acquisition Date does not occur
on a Payment Date, then with respect to such Vessel, the Company shall pay
the Manager on the next Payment Date immediately following such
Acquisition Date (assuming that on such Payment Date such Vessel continues
to be laid-up) the aggregate of (i) the Reduced Management Fee relating to
such Vessel and (ii) a pro-rata portion of the Reduced Management Fee
relating to such Vessel based on the number of days elapsed in the month
from and after the Acquisition Date for such Vessel occurred as compared
to a 30-day calendar month.
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Thereafter,
for each Payment Date after the initial Payment Date described above for
such Vessel, the Company shall pay the Manager the Reduced Management Fee
for such Vessel until the first Payment Date on which the Vessel is fixed
under a charter contract (the "Full Management Fee
Payment Date"). On the first Full Management Fee Payment
Date in respect of such Vessel, the Company shall pay the Manager the
aggregate of (i) the monthly Management Fee relating to such Vessel, (ii)
an amount equal to (x) a pro-rata portion of the monthly Management Fee
relating to such Vessel based on the number of days elapsed in the month
immediately prior to such Payment Date during which such Vessel was fixed
under a charter contract as compared to a 30-day calendar month minus (y) a pro-rata
portion of the Reduced Management Fee relating to such Vessel that was
paid on such immediately prior Payment Date based on the number of days
elapsed in the such month during which such Vessel was not being utilized
under a charter contract as compared to a 30-day calendar month, and (c)
an amount equal to 70% of the Management Fee relating to such
Vessel.
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(c) Adjustment to Payment
Date. Notwithstanding any other provision of this Section 5, with respect
to each Vessel that is fixed under a charter contract, the Company and the
Manager agree that the monthly amounts payable to the Manager on any Payment
Date relevant to such Vessel shall be deemed to be due and shall be paid by the
Company not more than five (5) days following the receipt of the monthly revenue
relating to the charter contract for such Vessel by the Company or an Owner,
although such day may not be on the first business day of a calendar month,
provided, however, that
such provision shall not be applicable with respect to any Vessel not then fixed
on a charter contract.
(d) Manager Expenses. The
Manager shall bear the cost of all Management Expenses. As used
herein, the term "Management Expenses"
means the day-to-day operating expenses of the Manager, including, without
limitation, salaries and employee benefit expenses of employees of the Manager,
office rent, supplies, secretarial services, telephone, investment and research
publications and other overhead expenses and any other expenses incurred by the
Manager in the performance of the Management Services hereunder to the extent
not expressly contemplated by this Agreement to be reimbursed by the Company to
the Manager.
(e) Company
Expenses. The Company shall promptly reimburse the Manager for
any third-party brokerage commissions advanced by the Manager for the account of
the Company or any Owner with respect to the purchase, sale or charter of a
Vessel, and such other reasonable and out-of-pocket expenses incurred by the
Manager; provided,
however, that other than with respect to (i) third-party brokerage
commissions, (ii) pre-purchase inspection fees and expenses, and (iii) travel,
lodging and other travel related expenses incurred in connection with visiting a
Vessel, the Manager shall not incur any expenses in excess of $50,000 (fifty
thousand dollars) on behalf of the Company for which any reimbursement will be
sought hereunder unless and until such expenses have been discussed with and
approved by the Company or Company Designee.
6.
Manager's Vessels, Other
Activities; Devotion of Time.
(a) The
parties hereto acknowledge and agree that, during the term of this Agreement,
depending on a number of facts and circumstances that may exist at
any given time when a Vessel and a Manager Vessel are both available for
charter, the Manager may have a conflict of interest in pursuing charter
opportunities for itself (with respect to the Manager Vessels) and also
complying with its obligations under this Agreement (with respect to identifying
and pursuing chartering opportunities with respect to the Vessels), including,
without limitation, providing the Management Services described in Section 2(a)
hereof. Except as set forth in Section 6(b) hereof, the Manager shall
have the right to give priority to the Manager Vessels (but not, for the
avoidance of doubt, any other vessel for which the Manager may now or hereafter
be engaged to provide management services with respect to) over the Vessels with
respect to all potential charter opportunities for which the Manager believes in
good faith that a Manager Vessel could be expected to compete with the Vessels
in accordance with factors relevant to such decision (including, without
limitation, the availability, suitability and positioning of the Manager Vessels
as compared to the Vessels with respect to the intended voyage). The
Manager agrees that, except with respect to the expiration of a Manager Vessel
charter as described in Section 6(b)(ii), if the Manager decides to pursue a
potential charter opportunity with a Manager Vessel instead of a Vessel, then
the Manager will deliver notice to the Company informing the Company of such
decision with respect to such potential charter opportunity.
12
(b) The
parties further agree that, notwithstanding Section 6(a) above, upon the
expiration of an existing charter contract of a Vessel or a Manager Vessel, as
the case may be, the Manager shall act in accordance with the
following:
(i) Expiration of Vessel
Charter. Upon or in anticipation of the expiration of any
charter contract relating to a Vessel, the Company shall have the right to
exclusively negotiate, with the assistance of the Manager acting in accordance
with Section 2(a), a renewal of such contract with a Vessel, provided, however, that if the Company
is not successful in obtaining a renewal of an expired charter contract and a
Manager Vessel that meets the customer's requirements relating to, among other
factors, suitability, specification, positioning, size and cost is available for
charter at such time, the Company shall notify the Manager of such opportunity
and the Manager shall be entitled to pursue such employment with a Manager
Vessel.
(ii) Expiration of Manager Vessel
Charter. Upon or in anticipation of the expiration of any
charter contract relating to a Manager Vessel, the Manager shall have the right
to exclusively negotiate a renewal of such contract with a Manager Vessel, provided, however, that if
the Manager is not successful in obtaining a renewal of an expired charter and a
Vessel that meets the customer's requirements relating to, among other factors,
suitability, specifications, positioning, size, and cost is available for
charter at such time, the Manager shall notify the Company of such opportunity
and, at the request of the Company, prepare a summary of the material terms of a
proposed charter contract or other employment that could be explored by the
Company with a Vessel in respect of such expired charter contract in accordance
with Section 2(a).
(c) The
Manager shall at all times devote a sufficient amount of its time, resources and
personnel to provide the Management Services. Nothing in this
Management Agreement shall in any way restrict the amount of time, resources or
personnel devoted to the Manager Vessels or to engage independently or with
others, for its or their own accounts and for the accounts of others, in other
business ventures and activities of every nature and description, whether such
ventures are competitive with the business of the Company, any Owner, or
otherwise; provided, however, during the term of this Agreement, the Manager
shall not, directly or indirectly, agree to provide management services to other
companies or entities in such a manner that would conflict with its obligations
to the Company under this Agreement, including without limitation, performing
the Management Services to the Company and giving priority to the Vessels in
seeking employment and charter over any and all other vessels (other than the
Manager Vessels in the manner contemplated by Section 6 hereof) that may come
under the management control of the Manager or for which the Manager or any of
its subsidiaries or affiliates may provide management services with respect
to. Neither the Company nor any Owner shall have any rights or
obligations by virtue of this Management Agreement or otherwise in or to such
independent ventures and activities or the income or profits derived
therefrom.
13
7. Termination.
(a) Initial Term, Renewal
Term. This Agreement shall have an initial term of one (1)
year (the "Initial
Term") and shall thereafter be renewable for successive one year terms
(each a "Renewal
Term") upon the election of and at the option of the Company by
delivering notice to the Manager not less than 90 days prior to the expiration
of the Initial Term or each successive Renewal Term thereafter, as the case may
be, subject to the Manager's right not to renew, which notice must be provided
to the Company not less than 90 days prior to the commencement of any Renewal
Term.
(b) Termination by
Company. The Company may terminate this Agreement at any time
after the Initial Term (i) upon not less than thirty (30) days prior written
notice to the Manager, (ii) upon the consummation of a Change of Control of the
Manager or (iii) upon the consummation of a sale of the Company whether in an
initial public offering, a private sale of the Company by way of a merger, sale
of equity securities, sale of assets or otherwise or any other debt or equity
capital raising transaction. It is agreed that the Manager shall have
no right under this Agreement or otherwise, to participate in or object to any
such sale of, or transaction relating to, the Company. A "Change of Control" of
the Manager shall be deemed to occur upon the occurrence of any of the following
(1) the sale, lease, transfer or other disposition (other than pursuant to
sale/leaseback or similar financing arrangement), in one or a series of related
transactions, of all or substantially all of the Manager's assets, (2) the
consummation of any transaction the result of which is that any person or group
becomes the beneficial owner, directly or indirectly, of more than a majority of
the Manager's outstanding voting securities, or (3) a change in directors after
which a majority of the members of the board of directors of the Manager are not
Continuing Directors. "Continuing Directors"
shall mean, as of any date of determination, any member of the board of
directors of the Manager who (i) was a member of such board of directors as of
the date hereof, or (ii) was nominated for election or elected to such board of
directors with, or whose election to such board of directors was approved by,
the affirmative vote of the Continuing Directors who were members of such board
of directors at the time of such nomination or election.
14
(c) Termination for
Cause. The Company and the Manager shall each have the right
to terminate this Agreement at any time (i) if the other party becomes
insolvent, admits in writing its inability to pay its debts as they become due,
is adjudged bankruptcy or declares bankruptcy or makes an assignment for the
benefit of creditors, a proposal or similar action under the bankruptcy,
insolvency or other similar laws of any applicable jurisdiction, or commences or
consents to proceedings relating to it under any reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, or (ii) by written notice delivered to the other party if such
other party shall have committed a material breach of any provision of this
Agreement and, if such breach is reasonably subject to cure, such breach is
continuing and has not been cured in full within ten (10) days of the receipt of
such notice of termination.
(d) Termination
Adjustments. Upon any termination of this Agreement in
accordance with its terms, the Manager shall remit to the Company the pro-rata
portion of any Management Fees held by the Manager attributable to any period
following the effective date of termination of this Agreement. The
Manager shall be entitled to reimbursement of any expenses advanced in
accordance with Section 5(e) hereof prior to the effective date of termination
of this Agreement that have not been reimbursed by the Company prior to such
termination.
(e) Effect of
Termination. In the event of termination of this Agreement by
either Manager or the Company as provided in Section 7, the Agreement shall
forthwith become void and there shall be no liability or obligation on the part
of the Company, any Owner or the Manager, except (i) Sections 7, 11, 12, 13 and
14 shall survive in accordance with their terms, (ii) the Manager Waiver shall
survive in accordance with its terms, (iii) Section 3 shall survive for so long
as Zoullas is an employee of the Manager and holds an interest in the Company
and (iv) no such termination shall relieve any party hereto from any liabilities
or damages for any breach of this Agreement occurring prior to such
termination.
8.
"Himalaya". No
employee or agent of the Manager shall be liable to the Company or an Owner for
any loss, damage or delay of any nature arising directly or indirectly from any
act, neglect or default relating to the performance of the Management Services
by the such employee or agent of the Manager or other persons or independent
contractors employed by the Manager in connection with the Management Services;
provided, however, the foregoing shall in no way limit the liability, if any, of
the Manager for the fraud, gross negligence, willful misconduct or willful
breach of this Agreement by the Manager or its directors, officers, employees,
agents or sub-contractors employed by them in connection with the Vessel or the
performance of the Management Services hereunder, in each case to the extent
provided in Section 9 hereof.
15
9.
Indemnification. Except
to the extent set forth in second sentence of this Section 9 or in the Manager
Waiver, the Company and the Owners hereby undertake to keep the Manager and its
directors, officers, 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 this 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 Manager may suffer or incur (either directly or indirectly) in
the course of the performance of this Agreement, unless and to the extent such
costs, losses, damages or expenses results from the fraud, gross negligence,
recklessness, willful misconduct or willful breach of this Agreement by the
Manager or its directors, officers, employees, agents or
sub-contractors. The Manager shall be under no liability whatsoever
to the Company or the Owner 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 from the performance of the Management Services unless and to
the extent the same results from the fraud, gross negligence, willful misconduct
or willful breach of this Agreement by the Manager or its directors, officers,
employees, agents or sub-contractors employed by them in connection with the
Vessel or the performance of the Management Services hereunder, in which case
(except where loss, damage, delay or expense has resulted from the Manager's or
such directors, officers, employees, agents or sub-contractors personal act or
omission committed with the intent to cause the same or recklessly and with
knowledge that such loss, damage, delay or expense would probably result), the
Manager's liability for each incident or series of incidents giving rise to a
claim or claims shall never exceed a total of ten times the annual management
fee payable hereunder with respect to such Vessel or Vessels with respect to
which such loss, damage, delay or expenses arose.
10. Force
Majeure. Neither the Company, the Owner nor the Manager shall
be under any liability for any failure to perform any of their obligations under
this Agreement by reason of any cause whatsoever of any nature or kind beyond
their reasonable control due to civil war, insurrections, strikes, riots, fires,
floods, explosions, earthquakes, serious accidents, or any acts of God, or
failure of transportation, epidemics, quarantine restrictions, or labor trouble
causing cessation, slow down or interruption of work.
11. Non-Solicitation. During
the term of this Agreement and for a period of twelve months thereafter, the
Company agrees that it shall not for any reason, without the prior written
consent of the Manager, solicit any person then currently employed by the
Manager to join the Company as an employee, member or partner; provided, however
(i) for so long as Zoullas is an employee of the Manager, the foregoing
restriction shall not prohibit Zoullas' participation in the Company as
contemplated by and in accordance with the terms of this Agreement and the LLC
Agreement and (ii) from and after the time Zoullas ceases to be an employee of
the Manager for any reason, the foregoing restriction shall not apply with
respect to Zoullas.
16
12. Notices. Any
notices required to be delivered hereunder shall be in writing and must be
delivered either by hand in person, by facsimile transmission or by electronic
mail or by nationally recognized overnight delivery service (receipt request)
and shall be deemed given when so delivered by hand (with written confirmation
of receipt), sent by facsimile transmission (with confirmation of receipt of
transmission from sender's equipment), sent by electronic mail, or if delivered
by overnight delivery service when received by the addressee, in each case at
the appropriate addresses set forth below (or to such other addresses as a party
may designate for that purpose upon fifteen (15) days written notice to the
other party).
If to the
Company or any Owner at:
Delphin
Shipping LLC
Sophocles
Zoullas
c/o
Seward & Kissel LLP
One
Battery Park Plaza
New York,
New York 10004
Attention:
James Abbott
Facsimile: 212
480 8421
E-Mail:
abbottj@sewkis.com
Kelso
& Company
320 Park
Avenue, 24th
Floor
New York,
New York 10022
Attention: James
J. Connors II, Esq.
Facsimile: (212)
223-2379
E-Mail:
jconnors@kelso.com
with a
copy to (which shall not constitute notice) to:
Skadden,
Arps, Slate, Meagher & Flom LLP
Four
Times Square
New York,
New York 10036
Attention: Lou
R. Kling
Facsimile:
(917) 777-2770
E-Mail:
lou.kling@skadden.com
If to the
Manager, at:
Eagle
Bulk Shipping Inc.
477
Madison Avenue
Suite
1400
New York,
New York 10022
17
Attention: Alan
S. Ginsberg
Facsimile
: 212-785-3311
E-Mail:
aginsberg@eagleships.com
with a
copy to (which shall not constitute notice) to:
Seward
& Kissel LLP
One
Battery Park Plaza
New York,
New York 10004
Attention:
Gary J. Wolfe
Facsimile: 212
480 8421
E-Mail:
Wolfe@sewkis.com
13. Assignments;
Successors. Neither this Agreement nor any of Manager's rights
or obligations hereunder shall be directly or indirectly assigned, pledged,
hypothecated, or otherwise transferred or disposed of by the Manager without the
prior consent of the Company; provided, however, any of the Management Services
hereunder may be subcontracted to a wholly-owned subsidiary of the Manager
without the consent of the Company; provided, that notwithstanding any such
subcontracting, the Manager shall remain fully liable for the due performance of
its obligations under the Agreement. This Agreement shall not be
assigned by the Company without the prior consent of the
Manager. Subject to such limitations on the right of assignment, this
Agreement shall be binding upon and shall inure to the benefit of the respective
permitted successors and assigns of the parties.
14. Miscellaneous
Provisions.
(a) Authority of the
Parties. Each party hereto represents to the other that it is
duly authorized with full power and authority to execute, deliver and perform
its obligations under this Agreement. The Manager represents that its
engagement hereunder has been duly authorized by the Manager and is in
accordance with all governing documents of the Manager and does not conflict
with any material contract, employment agreement, credit agreement or indenture
to which the Manager is a party to as of the date hereof.
(b) Confidentiality. Except
as (i) the parties may otherwise agreement, or (ii) may be required in the
disclosing party's reasonable opinion after consultation with outside legal
counsel by applicable law (including without limitation U.S. federal securities
law) or compliance with the requirements of regulatory authority or stock
exchange on which the shares of the Company or the Manager are listed, any
non-public information or confidential information relating to this Agreement or
the business or affairs of any party hereto or their affiliates shall be kept
strictly confidential by the other party hereto; provided, however, in the case
of clause (ii) hereof, prior to any public disclosure by a party hereto
contemplated to be made in order to comply with applicable law or requirements
of regulatory authorities or stock exchange requirements, the disclosing party
shall provide a draft of such public disclosure or other communication to the
non-disclosing party in advance and consult with the non-disclosing party
regarding the contents of such disclosure and, to the extent reasonably
practicable in the circumstances, take into consideration any comments on such
disclosure as may be provided by the non-disclosing party.
18
(c) Entire
Agreement. This Agreement and the Manager Waiver constitutes
the entire agreement among the parties with respect to the subject matter hereof
and supersedes any prior agreement or undertaking among them with respect to
such subject matter.
(d) Headings. The
Section headings in this Agreement are for convenience of reference only, and
shall not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.
(e) Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
(f) Modification. No
change or modification of this Agreement shall be of any force unless such
change or modification is in writing and has been signed by all of the
parties.
(g) Waivers. No
waiver of any breach of any of the terms of this Agreement shall be effective
unless such waiver is in writing and signed by the party against whom such
waiver is claimed. No waiver of any breach shall be deemed to be a
waiver of any other or subsequent breach.
(h) Severability. If
any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(i) Independent
Contractor. The parties agree that the Manager is and shall
act as an independent contractor in the performance of its duties
hereunder. The Manager is not, and in the performance of its duties
hereunder will not hold itself out as, an employee, agent or partner of the
Company, but shall advise person with whom it deals on behalf of the Company
that it is conducting such business as an independent contractor for the Company
or relevant Owner.
(j) Attorneys'
Fees. In any action brought by any party to enforce any of
such party's rights or remedies under this Agreement, the prevailing party shall
be entitled to all reasonable attorneys' fees and all costs, expenses and
disbursements in connection with any such action.
(k) Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws (as opposed to the conflict of laws
provisions) of the State of New York.
19
(l) Third
Parties. This Agreement is not intended to, nor shall it
create, any rights, claims or benefits enforceable by any person not a party to
it.
[Remainder of Page Intentionally Left
Blank]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
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THE
MANAGER:
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EAGLE
BULK SHIPPING INC.
|
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By:
|
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Name:
|
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|
Title:
|
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THE
OWNER:
|
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DELPHIN
SHIPPING LLC
|
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By:
|
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Name:
|
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|
Title:
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21
SCHEDULE
I
LIST OF
VESSELS/OWNERS
Vessel Owner
22