Exhibit 4.17
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1. Date of Agreement
[x]
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2. Owners (name, place of registered office and law of registry) (Cl. 1)
Name
[x]
Place of registered office
[x]
Law of registry
[x]
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3. Managers (name, place of registered office and law of registry) (Cl. 1)
Name
Navilands Container Management Ltd.
Place of registered office
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960
Law of registry
Marshall Islands
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4. Day and year of commencement of Agreement (Cl. 2)
Upon handover of management from current manager (V. Ships Greece Ltd.) to the Managers
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5. Crew Management (state “yes” or “no” as agreed) (Cl. 3.1)
YES
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6. Technical Management (state “yes” or “no” as agreed) (Cl. 3.2)
YES
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7. Commercial Management (state “yes” or “no” as agreed) (Cl. 3.3)
YES, Annual Management Fee for the provision of commercial management services in the amount of United States Dollars 36,500 (or United States Dollars
36,600 in a leap year)
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8. Insurance Arrangements (state “yes” or “no” as agreed) (Cl. 3.4)
YES
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9. Accounting Services (state “yes” or “no” as agreed) (Cl. 3.5)
YES
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10. Sale or purchase of the Vessel (state “yes” or “no” as agreed) (Cl. 3.6)
YES
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11. Provisions (state “yes” or “no” as agreed) (Cl. 3.7)
YES
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12. Bunkering (state “yes” or “no” as agreed) (Cl. 3.8)
YES
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13. Chartering Services Period (only to be filled in if “yes” stated in Box 7) (Cl. 3.3(i))
Not applicable
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14. Owners’ Insurance (state alternative (i), (ii) or (iii) of Cl. 6.3)
Clause 6.3(ii)
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15. Annual Management Fee (state annual amount) (Cl. 8.1)
United States Dollars 182,500 (or United States Dollars 183,000 in a leap year)
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16. Severance Costs (state maximum amount) (Cl. 8.4(ii))
United States Dollars 75,000
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17. Day and year of termination of Agreement (Cl. 17)
See Clause 17
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18. Law and Arbitration (state alternative 19.1, 19.2 or 19.3; if 19.3 place of arbitration must be stated) (Cl. 19)
See Clause 19.1
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19. Notices (state postal and cable address, telex and telefax number for serving notice and communication to the Owners) (Cl. 20)
c/o Costamare Shipping Company S.A. 60 Zefyrou Street, 17564 Athens, Greece
Telefax: +30 210 94 09 051
Email: tpmc@costamare.com Attention: General Manager
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20. Notices (state postal and cable address, telex and telefax number for serving notice and communication to the Managers) (Cl. 20)
25-27 Evrota Street, 145 64 Kifisia, Greece
Email: george.mouratis@navilands.com; info@cont1gr.navilands.com
Attention: Capt. George Mouratis/General Manager
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It is mutually agreed between the party stated in Box 2 and the party stated in Box 3 that this Agreement consisting of PART l and PART ll as well as Annexes “A” (Details of Vessel), “B” (Details of Crew), and “C” (Budget) and “D” (Associated vessels) attached hereto, shall be performed subject to the
conditions contained herein. In the event of a conflict of conditions, the provisions of PART l and Annexes “A”, “B”, and “C” and “D” shall prevail over those of PART ll to the extent of such conflict but no further.
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Signature(s) (Owners)
[x]
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Signature(s) (Managers)
Navilands Container Management Ltd.
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PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
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1.
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Definitions
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In this Agreement save where the context otherwise requires, the following words and expressions shall have the meanings hereby assigned to them.
"Owners" means the party identified in Box 2. "Managers" means the party identified in Box 3.
"Vessel" means the vessel or vessels details of which are set out in Annex "A" attached hereto.
"Business Day" means a day (excluding Saturdays and Sundays) on which banks are open for business in Athens (Greece) and in respect of any
payments to be made under this Agreement in United States Dollars, New York (USA).
"Crew" means the Master, officers and ratings of the numbers, rank and nationality specified in Annex "B" attached hereto.
"Severance Costs" means the costs which the employers are legally obliged to pay to or in respect of the Crew as a result of the early termination of any employment
contract for service on the Vessel.
"Crew Insurances" means insurances against crew risks which shall include but not be limited to death, disability, sickness,
repatriation, injury, shipwreck unemployment indemnity and loss of personal effects.
"Management Services" means the services specified in sub-clauses 3.1 to 3.8 as indicated affirmatively in Boxes 5 to 12.
"ISM Code" means the International Management Code for the Safe Operation of Ships and for Pollution Prevention as adopted by the International Maritime Organization
(IMO) by resolution A.741(18) or any subsequent amendment thereto.
“ISPS Code” means the International Ship and Port Facility Security Code constituted pursuant to resolution A.924(22) of the International Maritime Organization now set out in Chapter XI-2 of the
International Convention for the Safety of Life at Sea (SOLAS) 1974 (as amended) and the mandatory ISPS Code as adopted by a Diplomatic Conference of the International Maritime Organisation on Maritime Security in December 2002
and includes any amendments or extensions to it and any regulation issued pursuant to it.
"STCW 95" means the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended in 1995 or any subsequent amendment thereto.
"Subcontractor" means any person to whom the Managers have sub-contracted any part of their obligations under this Agreement in accordance with Clause 10.
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2.
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Appointment of Managers
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With effect from the day and year stated in Box 4 and continuing unless and until terminated as provided herein, the Owners hereby appoint the Managers and the Managers hereby agree to act
as the Managers of the Vessel.
The Managers hereby acknowledge that they are aware that Costamare Shipping Company S.A. has also been appointed as managers of the Vessel pursuant to a management
agreement dated [x] with the Owners. The Owners hereby appoint Costamare Shipping Company S.A. as the Owners’ agent and attorney-in-fact and the Managers agree and acknowledge that all instructions received by Costamare
Shipping Company S.A. in relation to the Vessel under this Agreement shall be deemed to be instructions of the Owners for the purposes of this Agreement.
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
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3.
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Basis of Agreement
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Subject to the terms and conditions herein provided, during the period of this Agreement, the Managers shall carry out Management Services in respect of the Vessel as
agents for and on behalf of the Owners. The Managers shall have authority to take such actions as they may from time to time in their absolute discretion consider to be necessary to enable them to perform this Agreement in accordance with sound
ship management practice.
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3.1
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Crew Management
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(only applicable if agreed according to Box 5)
The Managers shall provide suitably qualified Crew for the Vessel as required by the Owners in accordance with the STCW 95 requirements, provision of which includes
but is not limited to the following functions:
(i) selecting and engaging the Vessel's Crew, including payroll arrangements, pension administration, and insurances for the Crew other than
those mentioned in Clause 6;
(ii) ensuring that the applicable requirements of the law of the flag of the Vessel are satisfied in respect of manning levels, rank, qualification and
certification of the Crew and employment regulations including Crew's tax, social insurance, discipline and other requirements;
(iii) ensuring that all members of the Crew have passed a medical examination with a qualified doctor certifying that they are fit for the duties
for which they are engaged and are in possession of valid medical certificates issued in accordance with appropriate flag State requirements. In the absence of applicable flag State requirements the medical certificate shall be dated
not more than three months prior to the respective Crew members leaving their country of domicile and maintained for the duration of their service on board the Vessel;
(iv) ensuring that the Crew shall have a command of the English language of a sufficient standard to enable them to perform their duties
safely;
(v) arranging transportation of the Crew, including repatriation, board and lodging as and when required at rates and types
of accommodations as customary in the industry;
(vi) training of the Crew and supervising their efficiency;
(vii) keeping and maintaining full and complete records of any labor agreements which may be entered into with the Crew and, if applicable, conducting union
negotiations;
(viii) operating the Managers' drug and alcohol policy unless otherwise agreed in writing. The Owners may direct the Managers
to replace any member of the Crew and the Managers shall comply with such direction and shall find a replacement for such member. It is hereby understood that the replacement of any member of the Crew shall be at the sole
discretion of the Owners.
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3.2
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Technical Management
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(only applicable if agreed according to Box 6)
The Managers shall provide technical management which includes, but is not limited to, the following functions:
(i) provision of competent personnel to supervise the maintenance and general efficiency of the Vessel;
(ii) arrangement and supervision of dry dockings, repairs, alterations and the upkeep of the Vessel to the standards required by the Owners provided that the Managers shall be entitled to incur the
necessary expenditure to ensure that the Vessel will comply with the law of the flag of the Vessel and of the places where she trades, and all requirements and recommendations of the classification society;
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
(iii) arrangement of the supply of necessary stores, spares and lubricating oil;
(iv) appointment of surveyors and technical consultants as the Managers may consider from time to time to be necessary;
(v) development, implementation and maintenance of a Safety Management System (SMS) in accordance with the ISM Code (see sub-clauses 4.2 and 5.3). and of a security system in accordance with the ISPS Code;
(vi) on request by the Owners, providing the Owners with a copy of any inspection report, survey, valuation or any other similar
report prepared by any shipbrokers, surveyors, the Class etc..
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3.3
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Commercial Management
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(only applicable if agreed according to Box 7)
The Managers shall provide the commercial operation of the Vessel, as required by the Owners, and only to the extent so required (if at all), which
includes, but is not limited to, the following functions:
(ii) arranging of the proper payment
to Owners or their nominees of all hire and/or freight revenues or other moneys of whatsoever nature to which Owners may be entitled arising out of the employment of or otherwise in connection with the Vessel.
(iii) providing voyage estimates and accounts and calculating of hire, freights, demurrage and/or despatch moneys due from or due to the charterers of the Vessel;
(ivi) issuing to the Crew of appropriate voyage instructions and monitoring voyage performance;
(viii) appointing agents;
(viv) appointing stevedores;
(vii) arranging surveys associated with the commercial operation of the Vessel.
(vi) carrying out the necessary communications with the shippers, charterers and others involved with the receiving and handling of the
Vessel at the relevant loading and discharging ports, including sending any notices required under the terms of the Vessel’s employment at the time;
(vii) invoicing on behalf of the Owners all freights, hires, demurrages, outgoing claims, refund of taxes, balances of disbursements,
statements of account and other sums due to the Owners and accounts receivable arising from the operation of the Vessel and, upon the request of the Owners, issuing releases on behalf of the Owners upon receipt of
payment or settlement of any such amounts;
(viii) preparing off-hire statements and/or on-hire statements;
(ix) procuring and arranging for port entrance and clearance, pilots, consular approvals and other services necessary for the management
and safe operation of the Vessel; and
(x) reporting to the Owners of any major casualties, damages received or caused by the Vessel or any release or discharge of oil or other
hazardous material not in compliance with any laws.
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
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3.4
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Insurance Arrangements
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(only applicable if agreed according to Box 8)
The Managers shall arrange insurances in accordance with Clause 6, on such terms and conditions as the Owners shall have instructed and
only to the extent so instructed, or agreed, in particular regarding underwriters, conditions, insured values, deductibles and
franchises.
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3.5
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Accounting Services
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(only applicable if agreed according to Box 9) The Managers shall:
(i) establish an accounting system which meets the requirements of the Owners and provide regular accounting services, supply regular reports and records,
(ii) maintain the records of all costs and expenditure incurred as well as data necessary or proper for the settlement of accounts between the
parties and shall make the same available for inspection and auditing by the Owners or any person the Owners may designate in writing.
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3.6
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Sale or Purchase of the Vessel
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(only applicable if agreed according to Box 10)
The Managers shall, in accordance with the Owners' instructions, and only to the extent so instructed (if at all), supervise the sale
or purchase of the Vessel, including the performance of any sale or purchase agreement, but not negotiation of the same. The Managers shall, in accordance with the instructions of the Owners and
only to the extent so instructed (if at all) assist the Owners with the registration of the Vessel under the laws of the relevant flag state from time to time and for the deletion of the Vessel from the same. Notwithstanding
anything to the contrary contained in this Agreement, any services to be provided by the Managers under this Clause may be required by the Owners before this Agreement has commenced (but after it has been signed) and/or after
it has been terminated and, in either such case, the Managers shall be obliged to provide the same as and when requested by the Owners.
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3.7
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Provisions
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(only applicable if agreed according to Box 11)
The Managers shall arrange for the supply of provisions.
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3.8
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Bunkering
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(only applicable if agreed according to Box 12)
The Managers shall arrange for the provision of bunker fuel of the quality specified by the Owners and only to the extent so instructed as
required for the Vessel's trade.
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4.
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Managers' Obligations
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4.1 The Managers undertake to use their best commercially reasonable endeavours to provide the agreed
Management Services as agents for and on behalf of the Owners in accordance with sound ship management practice and to protect and promote the interests of the Owners in all matters relating to the provision of services hereunder. The Managers shall exercise care to cause adequate manpower to be employed by them to perform their obligations under this Agreement. Provided, however, that the Managers in the
performance of their management responsibilities under this Agreement shall be entitled to have regard to their overall responsibility in relation to all vessels as may from time to time be entrusted to their management and in
particular, but without prejudice to the generality of the foregoing, the Managers shall be entitled to allocate available supplies, manpower and services in such manner as in the prevailing circumstances the Managers in their
absolute discretion consider to be fair and reasonable.
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
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4.2
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Where the Managers are providing Technical Management in accordance with sub-clause 3.2, they shall procure that the requirements of the law of the flag of the Vessel are satisfied and they shall in
particular be deemed to be the "Company" as defined by the ISM Code, assuming the responsibility for the operation of the Vessel and taking over the duties and responsibilities imposed by the ISM Code and/or
the ISPS Code when applicable.
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4.3. In the exercise of their duties hereunder, the Managers shall act in accordance with the reasonable policies, guidelines and instructions from time to time communicated to them in writing by the
Owners.
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5.
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Owners' Obligations
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5.1
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The Owners shall pay all sums due to the Managers punctually in accordance with the terms of this Agreement.
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5.2
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Where the Managers are providing Technical Management in accordance with sub-clause 3.2, the Owners shall:
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(i) procure that all officers and ratings supplied by them or on their behalf comply with the requirements of STCW 95;
(ii) instruct such officers and ratings to obey all reasonable orders of the Managers in connection with the operation of the Managers' safety
management system.
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5.3
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Where the Managers are not providing Technical Management in accordance with sub-clause 3.2, the Owners shall procure that the requirements of the law of the flag of the Vessel are satisfied and that
they, or such other entity as may be appointed by them and identified to the Managers, shall be deemed to be the "Company" as defined by the ISM Code assuming the responsibility for the operation of the Vessel and taking over the
duties and responsibilities imposed by the ISM Code when applicable.
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6.
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Insurance Policies
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The Owners shall procure, whether by instructing the Managers under sub-clause 3.4 or otherwise, that throughout the period of this Agreement:
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6.1
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at the Owners' expense, the Vessel is insured for not less than her sound market value or entered for her full gross tonnage, as the case may be for:
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(i) usual hull and machinery marine risks (including crew negligence) and excess liabilities;
(ii) protection and indemnity risks (including pollution risks and Crew Insurances); and
(iii) war risks (including protection and indemnity and crew risks) in accordance with the best practice of prudent owners of vessels of a similar
type to the Vessel, with first class insurance companies, underwriters or associations ("the Owners' Insurances");
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6.2
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all premiums and calls and applicable deductibles and/or franchises on the Owners' Insurances are paid promptly by their due date,
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6.3
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the Owners' Insurances name the Managers and, subject to underwriters' agreement, any third party designated by the Managers as a joint assured, with full cover, with the Owners obtaining cover in
respect of each of the insurances specified in sub-clause 6.1:
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(i) on terms whereby the Managers and any such third party are liable in respect of premiums or calls arising in connection with the Owners'
Insurances; or
(ii) if reasonably obtainable, on terms such that neither the Managers nor any such third party shall be under any liability in respect of premiums or calls arising in connection with the Owners' Insurances; or
(iii) on such other terms as may be agreed in writing.
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
Indicate alternative (i), (ii) or (iii) in Box 14. If Box 14 is left blank then (i) applies.
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6.4
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written evidence is provided, to the reasonable satisfaction of the Managers, of their compliance with their obligations under this Clause 6 within a reasonable time of the commencement of the
Agreement, and of each renewal date and, if specifically requested, of each payment date of the Owners' Insurances.
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7.
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Income Collected and Expenses Paid on Behalf of Owners
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7.1
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All moneys collected by the Managers under the terms of this Agreement (other than moneys payable by the Owners to the Managers) and any interest thereon shall be held to the credit of the Owners in a
separate bank account.
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7.2
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All expenses incurred by the Managers under the terms of this Agreement on behalf of the Owners (including expenses as provided in Clause 8) may be debited against the Owners in the account referred to
under sub-clause
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7.1 but shall in any event remain payable by the Owners to the Managers on demand.
In the event a Subcontractor has incurred expenses for which it has sought reimbursement from the Managers under the relevant subcontract, the Owners hereby agree that, upon the Managers making such reimbursement such expenses shall be deemed as expenses incurred by the Managers and these shall be recoverable from the Owners under this sub-clause. The Owners further agree that any expenses incurred by a Subcontractor, which the Managers have not already reimbursed, shall, upon relevant request of the Managers, be payable by the Owners to (i) the Managers for onwards remittance to such Subcontractor or (ii) such Subcontractor directly, as may be requested by the Managers. For the avoidance of doubt the Owners shall not, under any circumstances, be liable to pay any management fee of any Subcontractor, such fee being payable by the Managers only.
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8.
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Management Fee
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8.1
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The Owners shall pay to the Managers for their services as Managers under this Agreement an annual management fee as stated in Box 15 which shall be payable by equal monthly instalments in advance and
the additional management fee as stated in Box 7 for the provision of commercial management services, which shall be payable by equal monthly instalments in advance, the first instalment being payable on
the commencement of this Agreement (see Clause 2 and Box 4) and subsequent instalments being payable every month.
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8.2
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8.3
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The Managers shall, at no extra cost to the Owners, provide their own office accommodation, office staff, facilities and stationery. Without limiting the generality of Clause 7 the Owners shall
reimburse the Managers for postage and communication expenses, travelling expenses, and other out of pocket expenses properly incurred by the Managers in pursuance of the Management Services., including, for the avoidance of doubt, any expenses incurred by a Subcontractor which the Managers have reimbursed to such Subcontractor and any payment made by the Managers to a
Subcontractor in relation to additional payments due to such Subcontractor's superintendents for attending the Vessel under the relevant subcontract.
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8.4
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In the event of the appointment of the Managers being terminated by the Owners or the Managers in accordance with the provisions of Clauses 17 and 18 other than by reason of default by the Managers, or if the Vessel is lost, sold
or otherwise disposed of, the "management fee" payable to the Managers according to the provisions of sub-clause 8.1, shall continue to be payable for a further period of
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PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
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(ii)
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the Owners shall pay an equitable proportion of any Severance Costs which may materialize, not exceeding the amount stated in Box 16.
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8.5
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If the Owners decide to lay-up the Vessel whilst this Agreement remains in force and such lay-up lasts for more than
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8.6
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Unless otherwise agreed in writing all discounts and commissions obtained by the Managers in the course of the management of the Vessel shall be credited to the Owners.
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9.
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Budgets and Management of Funds
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9.1
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The Managers shall on or before October 1 of each calendar year present to the Owners
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9.2
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The Owners shall indicate to the Managers their acceptance and approval of the annual budget within one month of presentation and in the absence of any such indication the Managers shall be entitled to
assume that the Owners have accepted the proposed budget.
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9.3
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Following the agreement of the budget, the Managers shall prepare and present to the Owners their estimate of the working capital requirement of the Vessel and the Managers shall each month up-date this
estimate. Based thereon, the Managers shall each month request the Owners in writing for the funds required to run the Vessel for the ensuing month, including the payment of any occasional or extraordinary item of expenditure, such as
emergency repair costs, additional insurance premiums, bunkers or provisions. Such funds shall be received by the Managers within ten running days after the receipt by the Owners of the Managers' written request and shall be held to
the credit of the Owners in a separate bank account.
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9.4
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The Managers shall produce a comparison between budgeted and actual income and expenditure of the Vessel in such form as required by the Owners monthly or at such other intervals as mutually agreed.
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9.5
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Notwithstanding anything contained herein to the contrary, the Managers shall in no circumstances be required to use or commit their own funds to finance the provision of the Management Services.
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10.
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Managers' Right to Sub-Contract
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10.1
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Except to Navilands Agency Philippines, Navilands Marine Inc., Navilands Training Center Inc., Navilands Shipmanagement Inc., Navilands (Shanghai) Container Management Co., Ltd. and
any Manager Affiliate (as defined below), t
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For the purposes of this clause 10:
"Manager Affiliate" means, in relation to the Managers, any entity which is controlled by, controlling or under common control with the
Managers.
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10.2
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Without limiting the generality of sub-clause 10.1, the Owners acknowledge that subcontracting under sub- clause 10.1 may result in the Managers delegating to a Subcontractor any of the obligations
of the Managers under sub-clauses 9.1, 9.3 and/or 9.4, including:
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(a)
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the presentation to the Owners of a budget for the following calendar year;
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(b)
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the preparation and presentation to the Owners of an estimate of the working capital requirement of the Vessel; and
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PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
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(c)
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requesting monthly the Owners in writing for the funds required to run the Vessel for the ensuing month. The Owners agree that any such funds sent by the Owners to a Subcontractor may be
debited by such Subcontractor against the Owners in the same manner the Managers may do so in accordance with clause 7.1.
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11.
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Responsibilities
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11.1
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Force Majeure – Neither the Owners nor the Managers shall be under any liability for any failure to perform any of their obligations hereunder by reason of any cause whatsoever of any nature or kind
beyond their reasonable control.
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11.2
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Liability to Owners
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(i)
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Without prejudice to sub-clause 11.1, the Managers shall be under no liability whatsoever to the Owners for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect,
(including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel) and howsoever arising in the course of performance of the Management Services UNLESS same is proved to have
resulted solely from the negligence, gross negligence or wilful default of the Managers or their employees, or agents or sub-contractors employed by them in connection with the Vessel, in which case (save where loss, damage, delay
or expense has resulted from the Managers' personal act or omission committed with the intent to cause same or recklessly and with knowledge that such loss, damage, delay or expense would probably result) the Managers' liability
for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of ten times the annual management fee as stated in Box 15 and payable
hereunder.
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(ii)
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Notwithstanding anything that may appear to the contrary in this Agreement, the Managers shall not be liable for any of the actions of the Crew, even if such actions are negligent, grossly negligent or
wilful, except only to the extent that they are shown to have resulted from a failure by the Managers to discharge their obligations under sub-clause 3.1, in which case their liability shall be limited in accordance with the terms of
this Clause 11.
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11.3
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Indemnity – Except to the extent and solely for the amount therein set out that the Managers would be liable under sub-clause 11.2, the Owners hereby undertake to keep the Managers and their employees,
agents and sub-contractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them
arising out of or in connection with the performance of
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11.4
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"Himalaya" - It is hereby expressly agreed that no employee or agent of the Managers (including every sub- contractor from time to time employed by the Managers) shall in any circumstances whatsoever be
under any liability whatsoever to the Owners for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with
his employment and, without prejudice to the generality of the foregoing provisions in this Clause 11, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity
of whatsoever nature applicable to the Managers or to which the Managers are entitled hereunder shall also be available and shall extend to protect every such employee or agent of the Managers acting as aforesaid and for the purpose
of all the foregoing provisions of this Clause 11 the Managers are or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be their servants or agents from time to time
(including sub-contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to this Agreement.
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12.
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Documentation
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Where the Managers are providing Technical Management in accordance with sub-clause 3.2 and/or Crew Management in accordance with sub-clause 3.1, they shall make
available, upon Owners' request, all documentation and records related to the Safety Management System (SMS) and/or the Crew which the Owners need in order to demonstrate compliance with the ISM Code, the ISPS
Code and STCW 95 or to defend a claim against a third party.
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
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13.
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General Administration
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13.1
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The Managers shall handle and settle all claims arising out of the Management Services hereunder not exceeding US$5,000 and keep the Owners informed
regarding any incident of which the Managers become aware which gives or may give rise to claims or disputes involving third parties.
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13.2
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The Managers shall, as instructed by the Owners, under this Agreement, bring or defend actions, suits or proceedings in connection with matters
entrusted to the Managers according to this Agreement.
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13.3
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The Managers shall,
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13.4
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The Owners shall arrange for the provision of any necessary guarantee bond or other security.
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13.5
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Any costs reasonably incurred by the Managers in carrying out their obligations according to this Clause 13 shall be reimbursed by the Owners.
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13.6 Upon request the Managers shall provide the Owners with all documents required for the purposes of submitting claims to the Vessel's insurers
(through brokers or directly) or for defending or presenting claims against other parties etc. This obligation will survive for six (6) years after termination of this Agreement.
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14.
|
Auditing
|
The Managers shall at all times maintain and keep true and correct accounts and shall make the same available for inspection and auditing by the Owners or their agents at such times as may be mutually agreed. On the termination, for whatever reasons, of this Agreement, the Managers shall release to the Owners, if so requested, the originals where
possible, or otherwise certified copies, of all such accounts and all documents specifically relating to the Vessel and her operation.
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15.
|
Inspection of Vessel
|
The Owners shall have the right at any time after giving reasonable notice to the Managers to inspect, survey and audit the Vessel for any reason they consider necessary. The Managers shall visit and thoroughly inspect and survey the Vessel at least four times per calendar year. Following each such visit and inspection/survey, the Managers shall prepare
and make available to the Owners a detailed condition report in relation to the Vessel, her operations and other related matters as observed by such visit and inspection/survey. If the Managers’ superintendents or other qualified
staff spend more than 28 days visiting and inspecting/surveying the Vessel pursuant to this Clause in any calendar year, the Managers will charge the Owners for such excess days United States Dollars 500 per excess day for each
such person. The Owners are entitled to make recommendations as to possible repair or maintenance matters, in writing, to the Managers only. Such recommendations should not be given to the Crew directly by the Owners.
For the avoidance of doubt, the inspections mentioned above do not relate in any way to the attendance required for the purpose of dry-docking of the Vessel.
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16.
|
Compliance with Laws and Regulations
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The Managers will not do or permit to be done anything which might cause any breach or infringement of the laws and regulations of the Vessel's flag, or of the places
where she trades or of any sanctions imposed by the U.S., the U.N., the E.U. or the U.K..
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17.
|
Duration of the Agreement
|
This Agreement shall come into effect on the day and year stated in Box 4 and shall continue until the date stated in Box 17. Thereafter it shall continue until terminated by either party giving to the other notice in writing, in which event
the Agreement shall terminate upon the expiration of a period of two months from the date upon which such notice was given.
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
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18.
|
Termination
|
|
18.1
|
Owners' default
|
(i) The Managers shall be entitled to terminate theis Agreement
with immediate effect by notice in writing if any moneys payable by the Owners under this Agreement and/or the owners of any associated vessel, details of which are listed in Annex "D",
shall not have been received in the Managers' nominated account within ten running Business dDays of receipt by the Owners of the Managers’ written request or if the Vessel is repossessed by the Mortgageesmortgagees.
(ii) If the Owners:
|
(a)
|
fail to meet their obligations under sub-clauses 5.2 and 5.3 of this Agreement for any reason within their control, or
|
|
(b)
|
proceed with the employment of or continue to employ the Vessel in the carriage of contraband, blockade running, or in an unlawful or sanctionable trade,
or on a voyage which in the reasonable opinion of the Managers is unduly hazardous or improper,
|
the Managers may give notice of the default to the Owners, requiring them to remedy it as soon as practically possible. In the event that the Owners fail to remedy it
within a reasonable time to the satisfaction of the Managers, the Managers shall be entitled to terminate theis Agreement with immediate effect by
notice in writing.
| 18.2 |
Managers' Default
|
If the Managers fail to meet their obligations under Clauses 3 and 4 of this Agreement for any reason within the control of the Managers, the Owners may give notice to the Managers of the
default, requiring them to remedy it as soon as practically possiblepromptly. In the event that the Managers fail to remedy it
within a reasonable promptly time to the satisfaction of the Owners, the Owners
shall be entitled to terminate the Agreement with immediate effect by notice in writing.
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18.3
|
Extraordinary Termination
|
This Agreement shall be deemed to be terminated in the case of the sale of the Vessel or if the Vessel becomes a total loss or is declared by the Owners as a constructive or compromised or arranged total loss or is requisitioned.
|
18.4
|
For the purpose of sub-clause 18.3 hereof
|
(i) the date upon which the Vessel is to be treated as having been sold or otherwise disposed of shall be the date on which the Owners cease to be
registered as Owners of the Vessel;
(ii) the Vessel shall not be deemed to be lost unless either she has become an actual total loss or agreement
has been reached with her underwriters in respect of her constructive, compromised or arranged total loss or if such agreement with her underwriters is not reached it is adjudged by a competent tribunal that a constructive loss of
the Vessel has occurred.notice of abandonment is served by the Owners on the Vessel's underwriters.
|
|
|
|
(a)
|
the other party ceases to conduct business, or all or substantially all of the equity-interests, properties or assets of such other party are sold, seized or appropriated which, in the
case of seizure or appropriation, is not discharged within 20 Business Days.
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PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
|
(b)
|
(i) the other party files a petition under any bankruptcy law, makes an assignment for the benefit of its creditors, seeks relief under any law for the protection of debtors or
adopts a plan of liquidation; (ii) the other party admits in writing its insolvency or its inability to pay its debts as they mature; (iii) an order is made for the appointment of a liquidator, manager, receiver or trustee
of the other party of all or substantial part of its assets; or (iv) if an order is made or a resolution is passed for the other party’s winding up; (c) the other party is prevented from performing its obligations
hereunder, in any material repsect, by reasons of Force Majeure for a period of two or more consecutive months.
|
|
18.6
|
The termination of this Agreement shall be without prejudice to all rights accrued due between the parties prior to the date of termination.
|
|
19.
|
Law and Arbitration
|
19.1 This Agreement and any non-contractual obligations connected with it shall be governed by and construed in accordance with English law. All disputes arising out of this Agreement and/or any non-contractual obligations connected with it shall be arbitrated in London in the following manner.
One arbitrator is to be appointed by each of the parties hereto and a third by the two so chosen. Their decision or that of any two of them shall be final. The arbitrators shall be commercial persons, conversant with shipping matters.
Such arbitration is to be conducted in accordance with the London Maritime Arbitration Association (LMAA) Terms current at the time when the arbitration proceedings are commenced and in accordance with the Arbitration Act 1996 or any
statutory modification or re- enactment thereof. In the event that a party hereto shall state a dispute and designate an arbitrator in writing, the other party shall have 10 Business Days to designate its own arbitrator. If such other
party fails to designate its own arbitrator within such period, the arbitrator appointed by the first party can render an award hereunder. Until such time as the arbitrators finally close the hearings, either party shall have the
right by written notice served on the arbitrators and on the other party to specify further disputes or differences under this Agreement for hearing and determination. The arbitrators may grant any relief, and render an
award, which they or a majority of them deem just and equitable and within the scope of this Agreement, including but not limited to the posting of security. Awards pursuant to this Clause
19.1 may include costs and judgements may be entered upon any award made herein in any court having jurisdiction. and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent
necessary to give effect to the provisions of this Clause.
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SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
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19.4
|
If Box 18 in Part I is not appropriately filled in, sub-clause 19.1 of this Clause shall apply.
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Note: 19.1, 19.2 and 19.3 are alternatives; indicate alternative agreed in Box 18.
|
20.
|
Notices
|
|
20.1
|
Any notice to be given by either party to the other party shall be in writing and may be sent by fax, Email
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|
20.2
|
The address of the Parties for service of such communication shall be as stated in Boxes 19 and 20, respectively.
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PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
|
21.
|
Entire Agreement
|
This Agreement constitutes the entire agreement made between the parties and no promise, undertaking, representation,warranty or statement by either party prior to the date stated in Box 2 shall
affect this Agreement. Any modification of this Agreement shall not be of any effect unless in writing and signed by or on behalf of the parties.
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22.
|
Third Party Rights
|
Except (i) to the extent provided in Sub-clauses 11.3 (Indemnity) and 11.4 (Himalaya), and (ii) by Costamare Shipping Company S.A., and (iii) any Subcontractor no third parties may enforce any term
of this Agreement.
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23.
|
Partial Validity and amendments in writing
|
If any provision of this Agreement is or becomes or is held by any arbitrator or other competent body to be illegal, invalid or unenforceable in any respect under any law or jurisdiction, the
provision shall be deemed to be amended to the extent necessary to avoid such illegality, invalidity or unenforceability, or, if such amendment is not possible, the provision shall be deemed to be deleted from this Agreement to
the extent of such illegality, invalidity or unenforceability, and the remaining provisions shall continue in full force and effect and shall not in any way be affected or impaired thereby.
Any amendment to this Agreement must be made in writing and signed by both parties. No third party is required to provide its consent to any such amendments.
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24.
|
Interpretation In this Agreement:
|
|
(a)
|
Singular/Plural
|
The singular includes the plural and vice versa as the context admits or requires.
|
(b)
|
Headings
|
The index and headings to the clauses and appendices to this Agreement are for convenience only and shall not affect its construction or interpretation.
|
(c)
|
Day
|
“Day” means a calendar day unless expressly stated to the contrary.
|
25.
|
Pre-approval
|
Notwithstanding anything to the contrary in this Agreement, the Managers agree that before taking any action the result of which will be a cost to the Owners of at least USD10,000, including (but
without limiting the generality of the foregoing) the Managers:
(a) making an appointment of a person in connection with this Agreement (such as repair supervisors, surveyors, technical consultants, port agents, stevedores or any other person of
any kind); or
(b) arranging for the supply of provisions, bunker fuel, stores, spares or lubricant oils, paints and major spare parts; or
(c) arranging dry dockings, repairs or maintenance in relation to the Vessel; or
(d) arranging surveys, etc.,
the Managers shall seek and obtain the prior written approval of the Owners in respect of such action (including in respect of MARCAS and any service provider associated with the Managers). In the
event that the Owners shall decide to perform such action themselves to the exclusion of the Managers, they shall advise the Managers in writing.
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26.
|
Purchasing Alliance
|
The Managers may participate in and/or engage a contracting association providing access to commodities and dry dock services globally ( the "Purchasing Alliance"). The Purchasing Alliance negotiates
on behalf of its members with selected suppliers price, terms and conditions for the bulk purchase of goods and services. To enable the Managers to arrange such supplies on acceptable terms, the Managers shall be entitled to
make bulk purchases through such Purchasing Alliance.
|
27.
|
Information System Software
|
The Managers will, subject to the remaining provisions of this Clause 27, provide the Owners and the Vessel with the Managers' selected ship management software in executable object code form as the
same may be upgraded and updated from time to time (the “Information System Software”) to allow information from both the
Vessel’s and the Managers’ office to be accessed directly by the Owners via a secure website. Financial, technical and operational information relating to the Vessel will be available from both the Vessel and
office outputs, with the ability to "drill down" on accounts. This will provide the Owners with immediate access to the same information available to the Managers and to reports generated for the Owners. Should the Owners have existing
software applications on board the Vessel which they wish to retain, the Owners will permit the Managers to carry out an on board audit to assess the suitability, compatibility with the Information System Software, and any risks or
disadvantages associated with the continued use of such applications. The main features of the Information System Software at the date of this Agreement are:
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
(i) comprehensive management software providing single point of entry to the Vessel incorporating crew administration, vessel noon reporting, operational and port reporting, defect
and deficiency reporting and performance monitoring;
(ii) a ship to shore and shore to ship e-mail package providing cost efficient communications available to the Owners and their charterers; and
(iii) a computerised maintenance system including inventory control and automated purchase order handling. Installation and set-up of the Information System Software will be undertaken
at no cost to the Owners on a date agreed between the Managers and the Owners having regard to the Vessel's schedule and the availability of the Managers' personnel.
Solely for the duration of this Agreement the Managers hereby grant the Owners a personal, non-transferable nonexclusive
license to use a single copy of the Information System Software as installed by the Managers on a single computer on board the Vessel.
The Information System Software is is protected by applicable
copyright and patent laws. The Owners may not copy the Information System Software (except for back-up purposes only) or any written materials which accompany it, and may not sell, rent, lease, lend,
sub-licence, reverse engineer or distribute the Information System Software or such written materials.
The Managers do not warrant that the Information System Software will meet the Owners requirements or that the use or operation of the Information System Software will be uninterrupted or error free.
|
28.
|
Vessel trading in high risk areas
|
In the event that the Vessel is to trade in a high risk area and in particular an area where piracy is prevalent, the Managers shall:
(i) comply in full with the guidance provided by ‘Best Management Practices to Deter Piracy off the Coast of Somalia and in the Arabian Sea Area (BMP)’ as may be revised from time to
time and also with any similar guidance which may be issued for other high risk areas;
(ii) monitor daily guidance and updates provided by The Maritime Security Centre – Horn of Africa (MSCHOA) website (www.mschoa.org ) as may be revised from time to time and advise the
Vessel accordingly;
(iii) comply with the guidelines for ‘Transiting off the coast of Somalia, the Arabian Sea, Gulf of Aden and Red Sea’ as may be revised from time to time and also with any similar
guidance which may be issued for other high risk areas. The guidelines set out their policy of full compliance with BMP and additional guidance and information on Self Protection Measures (SPM’s) and Citadels or Safe Areas.
The Owners will be provided with a copy of the guidelines and costs for SPM’s will be included in the Vessel budget;
(iv) where appropriate, ensure the Vessel follows the International Recommended Transit Corridor (IRTC), using the services of an escorted convoy if available or joining a group transit
if not;
(v) monitor routing recommendations for transiting high risk areas as provided by charterers and insurers and review the same as part of the risk assessment carried out for the transit
concerned;
(vi) provide sufficient Self Protection Measures (SPM) appropriate to the Vessel’s type, size and speed with a view to protecting
the Crew as far as possible in the event of an attack. To be determined by the risk assessment required by BMP for the transit concerned and before entering the high risk area; and
(vii) provide training for the Crew in BMP prior to transiting any high risk area.
All these services set out in this clause (other than materials or personnel required for SPM implementation) are provided by the
Managers free of any cost to the Owners.
|
29.
|
Float
|
On or prior to the date stated in Box 4 the Owners shall provide to the Managers a sum of $75,000 which shall be available to the Managers in their reasonable discretion for payment of any sum due
under the terms of this Agreement, which sum will be held in the Managers' bank account (the “Float”). The Owners agree that on termination of this Agreement, the Managers shall be entitled to retain all or part of the Float in
payment of any sums then outstanding under the terms of this Agreement and, subject thereto, the Managers shall reimburse the Float to the Owners by no later than 3 months after the termination of this Agreement.
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
|
30.
|
Crew
|
The Owners authorizethe Managers and agree, upon the Managers' request, to authorize any Subcontractor to agree and sign, in each case, on behalf of the Owners (i) subject to the immediately
following next paragraph, the terms and conditions of employement under which the Crew are engaged and (ii) the ITF Special Agreement and agree to provide all information necessary for this purpose. The Owners agree to implement
in full the terms and conditions of any such employment or other agreements.
The rate of wages, overtime, leave pay, allowances and any other moneys payable to a member of the Crew shall be as expressly agreed by the Owners in writing. Any proposal for
the increase of any such amounts shall be referred by the Managers or any Subcontractor to the Owners for their consideration and approval.
The Managers undertake that they shall, and shall procure that any manning agent appointed by the Managers shall:
(a) retain and refresh a pool of qualified seafarers (hereinafter the “POOL”) who shall be exclusively assigned to Costamare Shipping Company S.A. with their full details and
documentation being inputted by the Managers or, as the case may be the relevant manning agent, in an information system designated by Costamare Shipping Company S.A. and being freely and fully accessible by / available to
Costamare Shipping Company S.A.;
(b) ensure that no one from the POOL is to be utilized on vessels other than vessels under the (joint) management of the
Managers and Costamare Shipping Company S.A. without prior written consent of Costamare Shipping Company S.A.;
(c) maintain a systematic personnel service record and make available to the Owners and Costamare Shipping Company S.A.:
(i) a waiting list for all seafarers in the POOL. This list, among others, to include:
- Monitoring of the seafarers’ previous services on vessels currently or previously managed by the Managers
- The date of readiness of each seafarer
- The contact phone number of each seafarer
- other details, such as following next level license examinations, IMO courses etc.
(ii) a report of the rotation schedule for each vessel (jointly) managed by the Managers and Costamare Shipping Company S.A. at the time and for all ranks
of officers over the next 12 months period; and
(iii) a list of Deck and Engine cadets (for the new candidates or first time joiners at sea, information regarding their grades of the Nautical Academy to
be included);
(d) ensure that all data protection obligations in relation to the seafarers’ personal data are complied with and that all necessary notifications to each seafarer are duly made.
Where the Owners require that a member of the Crew be a Filipino seafarer the Manager shall, without prejudice to the other terms of this Agreement, procure that the relevant manning
agent used shall with respect to each Filipino member of the Crew sourced by it:
(i) execute the standard contract of employment prescribed by POEA under such terms and conditions as the Owners will authorize from time to time;
(ii) arrange for all vaccination, inoculation, travel documents, Seaman’s Certificate or passport, flag administration endorsements, visa and government
clearance needed in respected of such member of the Crew before leaving The Philippines to join the Vessel;
(iii) ensure that all documents relating to the employment of such member of the Crew have an expiry date not earlier than one and half year after the date
of departure from The Philippines of such member; and
(iv) perform a pre-departure briefing informing such member of the Crew of his/her responsibilities when onboard the Vessel.
As remuneration for the Managers (either directly or through a Manning Agent) sourcing (i) Filipino seafarers or (ii) European seafarers, in each case, as members of the Crew in accordance with the
terms of this Agreement, the Owners shall pay to the Managers a fee of (i) in the case of a Filipino seafarer, $70 per month or pro rata and (ii) in the case of a European seafarer, $120 per month or pro rata, in each case for
each such member of the Crew for the period he/she serves on board the Vessel. No other fees shall be payable by the Owners to the Managers in relation to the sourcing of Crew. All expenses incurred by the Managers in respect of
such sourcing of Crew, which are in any event for the Owners’ account pursuant to the terms hereof, shall be charged to the Owners at cost and without any mark-up whatsoever (and after taking into account any rebates received in
connection with such expense). In the event that the Managers re-charge to the Owners expenses they have incurred vis a vis the relevant manning agent, the Managers shall procure that such manning agent shall charge to the
Managers all such expenses at cost and without any mark-up whatsoever (and after taking into account any rebates received in connection with such expense).
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
|
31.
|
Sanctions
|
All intended carriage, trade or voyages to be performed by the Vessel, the Managers and the performance of any service by the Managers under this Agreement must be fully compliant with the
international sanctions and prohibitions applicable to either party. Managers and Owners accept such requirement as a condition of this Agreement entitling either party to immediately terminate this Agreement should there be a
breach of the relevant international sanctions and prohibitions.
|
32.
|
MLC
|
For the purposes of this Clause:
“MLC” means the International Labour Organization (ILO) Maritime Labour Convention (MLC 2006) and any amendment thereto or substitution thereof.
“Shipowner” shall mean the party named as “shipowner” on the Maritime Labour Certificate for the Vessel.
(a) Subject to Clause 3 (Basis of Agreement), the Managers shall, to the extent of their Management Services, assume the Shipowner’s duties and responsibilities imposed by the MLC for
the Vessel, on behalf of the Owners.
(b) The Owners shall ensure compliance with the MLC in respect of any crew members supplied by them or on their behalf.
The Owners shall procure, whether by instructing the Managers under Clause 6 (Insurance Policies) or otherwise, insurance cover or financial security to satisfy the Shipowner’s financial security
obligations under the MLC.
|
33.
|
Notification
|
The Owners shall notify the Managers in writing of any dispute of the Vessel expenses such as crew wages and other manning costs, stores and supplies, spares, lubricating oil and grease, repairs and
maintenance, management fee payable to the Managers, docking, insurance premiums and other amounts, within ninety (90) days from the receipt by the Owners of the Debit Note, Statement of Accounts or any other funding request
documents of the Managers. If the Owners fail to notify the Managers of the dispute within the said timeline, the Vessel expenses will be deemed to be final and have been accepted in full by the Owners. Dispute notice to the
Managers must be accompanied by reasonably detailed supporting documentation to facilitate efficient resolution and the Managers shall work with the Owners to resolve the dispute promptly.
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
ANNEX “A” (DETAILS OF VESSEL OR VESSELS) TO
STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: SHIPMAN 98
Date of Agreement:
Name of Vessel(s):
Particulars of Vessel(s):
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
ANNEX “B” (DETAILS OF CREW) TO
STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: SHIPMAN 98
Date of Agreement:
Details of Crew:
| Numbers |
Rank |
Nationality |
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
ANNEX “C” (BUDGET) TO
STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: SHIPMAN 98
Date of Agreement:
Managers´ Budget for the first year with effect from the Commencement Date of this Agreement:
PART II
SHIPMAN 98 STANDARD SHIP MANAGEMENT AGREEMENT
STANDARD SHIP MANAGEMENT AGREEMENT - CODE NAME: SHIPMAN 98
NOTE: PARTIES SHOULD BE AWARE THAT BY COMPLETING THIS ANNEX “D” THEY WILL BE SUBJECT TO THE PROVISIONS OF SUB-CLAUSE 18.1(i) OF THIS AGREEMENT.
Date of Agreement:
Details of Associated Vessels:
N/A
Copyright © 1998 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org. First published 1988. Revised 1998.