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1
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Definitions
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1.1
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In this Agreement, except where the context otherwise requires:
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1.2.
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Unless the context otherwise requires, words in the singular include the plural and vice versa.
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1.3.
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References to any document include the same as varied, supplemented or replaced from time to time.
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1.4.
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References to any enactment include re-enactments, amendments and extensions thereof.
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1.5.
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Clause headings are for convenience of reference only and are not to be taken into account in construction.
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2
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Appointment of Commercial Manager
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2.1
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In consideration of the premises and the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
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2.2
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For services performed hereunder by the Commercial Manager, the Company shall pay or procure that the relevant member of the Group pays, to the Commercial Manager as a management fee (the “Fee”) comprising of: (i) a fee equal to one point twenty-five percent (1.25%) calculated on the collected gross hire/ freight/ demurrage payable when the relevant hire/ freight/ demurrage are collected
(except for any Vessels that are chartered-out to Seanergy), and (ii) a fee equal to one per cent (1%) of the contract price of any Vessel bought or sold by the Commercial Manger on the Company’s
(and the respective Shipowning Entity’s) behalf, except for any Vessels bought or sold from or to Seanergy, or in respect of any Vessel sale relating to a sale leaseback transaction. The Fee hereunder shall be paid to the Commercial Manager
to an account of the Commercial Manager advised in writing to the Company.
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3
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Purpose, Authority and Basis of Agreement
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3.1
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Subject to the terms and conditions provided herein during the period of this Agreement the Commercial Manager shall carry out the Management Services in respect of the Vessels for and on behalf of the
Shipowning Entities. The Commercial Manager (unless otherwise provided for herein) shall have authority to take such actions as it may from time to time in its discretion consider necessary to enable it to perform its obligations pursuant
hereunder in accordance with sound ship management practices, provided the Company has given its approval.
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3.2
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The Company hereby ratifies, confirms and undertakes at all times to ratify and to confirm all lawful conduct of the Commercial Manager, its employees, agents and subcontractors in connection with the
provision of the Management Services pursuant to this Agreement.
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3.3
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The Company shall procure forthwith that each Shipowning Entity (including such entities as may become members of the Group from time to time) shall evidence its agreement to be bound by the terms and
conditions of this Agreement by executing a deed of accession to this Agreement in the form of Schedule 1.
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4
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Obligations of Commercial Manager
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(a)
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required to exercise its powers pursuant hereto as to give preference in any respect to the Shipowning Entities, it being understood and agreed that the Commercial Manager shall so far as is practicable
ensure a fair distribution of available manpower, supplies and services to all ships owned or managed by it;
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(b)
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restricted from carrying on or (whether as manager or otherwise) being concerned or interested in carrying on any business which is or may be similar to or competitive with the business presently or at any
time carried on by the Shipowning Entity; and
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(c)
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answerable for the consequences of any decision or exercise of judgment taken or made in the exercise of its powers and taken or made honestly and in good faith.
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5
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Obligations of the Company
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6
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Management Services
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6.1
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The Commercial Manager shall provide and/or procure, directly or through subcontracting, the provision of the services specified hereunder in the name of the Shipowning Entities or otherwise on its behalf and
do all things which may be expedient or necessary for the provision of said services or otherwise in relation to the commercial operation of the Vessels, such services as stated below:-
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(a)
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Commercial Management
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(i)
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Employment of the Vessels
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(ii)
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Commercial operation
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(iii)
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Sale and Purchase
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(iv)
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Accounting Services
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6.2
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The Commercial Manager has the right to appoint any third party to provide any of the Management Services provided by it, as may be agreed from time to time with the Company or the Shipowning Entity. In such
event, the Commercial Manager shall promptly notify the Company and the Shipowning Entity and the appointed sub-manager will be solely liable towards the Company and the Shipowning Entity and the Commercial Manager will have no liability
for the sub-contracted services and obligations.
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6.3
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The Commercial Manager shall have the express authority to negotiate, conclude and execute all forms of documentation and agreements including contracts and acknowledgements on behalf of the Company in so far
as is necessary for the provision by the Commercial Manager of its Management Services, provided that all such documentation will be approved in advance in writing by the Company.
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7
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Accounts and Management of Funds
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7.1
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In so far as applicable to the Commercial Managers’ Services, the Commercial Manager shall operate accounting systems satisfactory to the Shipowning Entity and provide regular services, reports and records in
this regard and maintain records of all expenditure and cost together with information necessary and appropriate for the settlement of accounts between the parties hereto.
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7.2
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Notwithstanding any contrary provisions herein the Commercial Manager shall in no circumstances whatsoever be required to use or commit its own funds to finance the provision of the Management Services.
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7.3
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The Commercial Manager shall at all times maintain and keep true and correct accounts and shall make the same available for inspection and auditing by the Company at such times as may be mutually agreed. On
the termination, for whatever reasons, of this Agreement, the Commercial Manager shall release to the Shipowning Entities, if so requested, the originals where possible, or otherwise certified copies, of all such accounts and all documents
specifically relating to the Vessels and their commercial operation.
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8
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Management Expenses
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8.1
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The Commercial Manager shall, at no extra cost to the Company, provide its office accommodation and office staff. The Company will reimburse the Commercial Manager for all reasonable running and/or out of
pocket expenses, including but not limited to, telephone, fax, stationary and printing expenses. Any required travelling expenses in relation to this Agreement and the Management Services will be pre-approved by the Company and the relevant
expenses will be reimbursed to the Commercial Manager.
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8.2
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All moneys collected by the Commercial Manager pursuant to this Agreement (other than moneys payable by the Company to the Commercial Manager) and any interest thereon shall be held to the credit of each
applicable Shipowning Entity in a separate bank account.
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9
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Termination
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9.1
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Company’s default
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9.2
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Commercial Managers’ default
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9.3
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Extraordinary Termination
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9.4
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For the purpose of sub-clause 9.3. hereof:
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(a)
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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 Shipowning Entity cease to be registered as owner of the Vessel;
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(b)
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the Vessel shall only be deemed lost where 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 nevertheless adjudged by a competent tribunal that a constructive total loss of the Vessel has been occurred.
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9.5
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Either party hereto may by notice to the other party terminate forthwith the appointment if an order is made or resolution is passed for the winding up, dissolution, liquidation or bankruptcy of such party
(otherwise than for the purpose of reconstruction or amalgamation) or if any party ceases to carry on business or makes any special arrangement or composition with its creditors.
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9.6
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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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10
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Insurances
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(a)
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at no expense to the Commercial Manager, the Vessels are insured for not less than their sound market value or entered for their full gross tonnage, as the case may be for:
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(i)
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usual hull and machinery marine risks (including crew negligence) and excess liabilities;
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(ii)
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protection and indemnity risks (including pollution risks and crew insurances); and
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(iii)
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war risks (including protection and indemnity and crew risks),
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(b)
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all premiums and calls on the Shipowning Entities’ Insurances are paid promptly by their due date;
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(c)
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the Shipowning Entities’ Insurances name the Commercial Manager and, subject to underwriters' agreement, any third party designated by the Commercial Manager as a joint assured, with full cover, with the
Company procuring on behalf of the relevant Shipowning Entity cover in respect of each of the insurances specified in sub-clause 6.1, if reasonably obtainable, on terms such that neither the Commercial Manager nor any such third party shall
be under any liability in respect of premiums or calls arising in connection with the Shipowning Entities’ Insurances;
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(d)
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written evidence is provided, to the reasonable satisfaction of the Commercial Manager, of compliance with the obligations under Clause 4 within a reasonable time from the commencement of this Agreement, and
of each renewal date and, if specifically requested, of each payment date of the Shipowning Entities’ Insurances.
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11
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Force Majeure
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12
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Indemnities
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12.1
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The Commercial Manager shall be under no liability whatsoever to the members of the Group 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 the performance of the Management Services hereunder unless same is proved to have resulted solely from gross
negligence or willful default of the Commercial Manager or its employees or agents or subcontractors employed by it in connection with the Vessels, in which case (except where loss, damage, delay or expense has resulted from the Commercial
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 Commercial Manager’s liability (any such liability arising in
accordance herewith always being on an individual basis in relation to each Manager) for all incidents or series of incidents arising in any calendar year shall never exceed a total of 10 times the actual annual management fee paid in that
year.
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12.2
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No employee, agent or subcontractor of the Commercial Manager shall in any circumstances whatsoever be liable to the members of the Group for any loss, damage or delay arising or resulting directly or
indirectly from any act, neglect or default on his part while acting in the course or in connection with his employment and without prejudice to the generality of the forgoing provisions of this Clause 12, every exemption, limitation,
condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to and enjoyed by the Commercial Manager or to which the said Commercial Manager is entitled hereunder,
shall also be available and shall extend to protect every such employee, agent or subcontractor of the Commercial Manager acting as aforesaid and for the purpose of all the foregoing provisions of this clause 12 the Commercial Manager is 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 all such persons shall to this
extent be or be deemed to be parties to this Agreement.
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13
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Confidentiality and Commercial Manager’s Documents
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13.1
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Save for the purpose of enforcing or carrying out as may be necessary the rights or obligations of the Commercial Manager hereunder, the Commercial Manager agrees to maintain and to use its best endeavours to
procure that its officers and employees maintain confidence and secrecy in respect of all information relating to the Company’s business received by the Commercial Manager directly or indirectly pursuant to this Agreement.
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13.2
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As between the Company, the members of the Group and the Commercial Manager, the Company hereby agrees and acknowledges that all title and property in and to the management manuals of the Commercial Manager
and other written material concerning management functions and activities is vested in the Commercial Manager and the Company agrees not to disclose the same to any third party and, on termination of this Agreement, to return all such
manuals and other material to the Commercial Manager.
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14
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Notices and Other Matters
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14.1
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Every notice, request, demand or other communication under this Agreement shall:
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(a)
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be in writing, delivered personally or by registered or recorded first-class prepaid letter (airmail if available) facsimile or telex;
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(b)
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be deemed to have been received, subject as otherwise provided in this Agreement, in the case of a telex at the time of dispatch with confirmed answerback of the addressee appearing at the beginning and end
of the communication (provided that if the date of dispatch is not a business day in the country of the addressee it shall be deemed to have been received at the opening of business on the next such business day), in the case of a facsimile
at the time of dispatch evidenced by a timed and dated transmittal confirmation (provided that if the date of dispatch is not a business day in the country of the addressee it shall be deemed to have been received at the opening of business
on the next business day), and in the case of a letter when delivered personally or five (5) days after it has been put into the post; and
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(c)
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be sent to the respective addresses hereto or to such other address, facsimile or telex number as is notified by the parties hereto to the other parties to this Agreement:
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(i)
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in respect of the Company to:
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| UNITED MARITIME CORPORATION |
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154 Vouliagmenis Avenue
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166 74 Glyfada, Greece
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Attention: General Counsel
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Attention (email): legal@usea.gr
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(ii)
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in respect of the Commercial Manager to:
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SEANERGY MANAGEMENT CORP.
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154 Vouliagmenis Avenue
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166 74 Glyfada, Greece
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Attention: General Counsel
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Attention (email): legal@seanergy.gr
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15
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Law and Arbitration
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15.1
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This Agreement shall be governed by English Law and any dispute arising out of or in connection herewith shall be referred to arbitration in London
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15.2
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Arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) rules current at the time of commencement of the arbitration.
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15.3
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Any referral made pursuant to this Clause 15 shall be to three (3) Arbitrators on the following basis: if a dispute arises between the parties then each shall appoint an Arbitrator and the two Arbitrators so
appointed shall appoint a third.
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15.4
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Upon receipt of notice of appointment of an Arbitrator by the first notifying party (who shall therein state that it shall appoint its own arbitrator as sole arbitrator if the other party does not appoint an
Arbitrator in accordance herewith), the second party shall appoint its Arbitrator and give notice of such appointment within fourteen (14) days, failing which the prior notifying party shall be entitled either to appoint its Arbitrator as
Sole Arbitrator or appoint an Arbitrator on behalf of the second party who shall accept such appointment as if it had been made by itself.
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15.5
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If a party does not appoint its own Arbitrator and give due notice in accordance with Clause 15.4 the party referring the dispute to arbitration may without requirement for further notice to such other party
failing to so appoint make appointment in accordance with Clause 15.4 and shall advise the other party accordingly and the award of a Sole Arbitrator or panel appointed in accordance with Clause 15.4 shall be binding on all parties as if
appointment had been by agreement.
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15.6
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Nothing in this Clause 15 shall prevent the parties agreeing in writing to vary these provisions to provide for appointment of a Sole Arbitrator or to consolidate arbitration proceedings hereunder where
thought appropriate or desirable.
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15.7
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In cases where neither the claim nor any counterclaim exceeds the sum of UK £50,000 (or such other sum as the parties may agree) (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.
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15.8
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Any such Arbitration shall be in accordance with and subject to the Arbitration Act 1996 and any statutory amendment or modification thereto.
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16
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Miscellaneous
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16.1
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Subject to Clause 16.2 this Commercial Management Agreement contains the entire agreement and understanding between the parties and supersedes all prior negotiations, representations, warranties and other
documents or matter related to any of the subject matter of this Commercial Management Agreement.
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16.2
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This Agreement may be amended by mutual agreement of both parties hereto provided that any such amendment is evidenced by written amendment duly executed by both parties and following which any such amendment
shall be considered part of, appended to and read together with this Agreement.
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16.3
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All details of or pertaining to this Agreement shall be kept strictly private and confidential.
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EXECUTED as a DEED
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| by Stamatios Tsantanis |
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/s/ Stamatios Tsantanis |
| the duly authorised attorney of |
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| UNITED MARITIME CORPORATION | ) | |
| of the Republic of the Marshall Islands |
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| in the presence of: |
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| Theodora Mitropetrou | ||
| /s/ Theodora Mitropetrou |
| EXECUTED as a DEED |
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| by Stavros Gyftakis |
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/s/ Stavros Gyftakis |
| the duly authorised attorney of | ) |
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| SEANERGY MANAGEMENT CORP. |
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| of the Republic of the Marshall Islands |
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| in the presence of: |
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| Theodora Mitropetrou |
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| /s/ Theodora Mitropetrou |
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Re:
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Commercial Management Agreement of [ ] and made between (1) United Maritime Corporation (the “Company”) and Seanergy Management Corp. (the “Commercial Manager”)
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(a)
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the Company has entered into the Agreement for and on our behalf; and
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(b)
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we are bound to observe the terms and conditions of the Agreement as if we were a named signatory therein.
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For and on behalf of
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[ ]
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In the presence of:
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