THIS CREW XXXXXXX AGREEMENT dated August 27, 2007 is made
BETWEEN: -
(1) Lower Lakes Towing Ltd, a company incorporated in Canada whose registered
office is at: X.X Xxx 0000, 000 Xxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx, Xxxxxx,
X0X 0X0
(the "Owners")
and
(2) Voyageur Marine Transport Limited, a company incorporated in Canada whose
registered office is at 000 Xxxxxx Xx. XX0, Xxxxxxxxxx, Xxxxxxx, Xxxxxx,
X0X 0X0.
(the "Crew Managers")
WHEREAS the Crew Managers have agreed to provide and/or procure the provision of
crew for the Ship (as hereinafter defined) on and subject to the terms
hereinafter set forth
NOW IT IS HEREBY MUTUALLY AGREED as follows: -
1 Definitions
1.1 In this Agreement, save where the context otherwise requires: -
"Associated company" means any subsidiary of the holding company of the
Crew Managers;
"Commencement Date" means August 27, 2007;
"Crew Support Costs" means all expenses of a general nature (other than in
respect of any matters referred to in Clause 11.1) which are not
particularly referable to any individual vessel for the time being manned
by the Crew Managers and which are incurred by and/or reserved against by
the Crew Managers for the purpose of providing an efficient and economic
Xxxxxxx Service and (without prejudice to the generality of the foregoing)
includes the cost of crew, training schemes for Officers and Ratings, ,
cadet training schemes, recruitment interviews and provisions for
redundancy and severance. Severance and Redundancy payments relate only to
the balance of any contract term of duty due to any Officer or Rating on
the withdrawal of the Ship.
"Xxxxxxx Services" means any services provided or procured by the Crew
Managers pursuant to this Agreement;
"Ship" means any of the vessels "Voyageur Independent" or "Voyageur
Pioneer", the details of which are listed in Schedule 1 and "Ships" means
both vessels.
"Crew" means the crew and each member of the crew to be provided for the
Ships as set out in Schedule 2.
2 Appointment of Crew Managers
2.1 The Crew Managers being fully aware of the state and condition of the
Ships as at the date hereof, the Owners hereby appoint the Crew Managers
and the Crew Managers hereby agree to provide and/or procure the provision
of the Xxxxxxx Services, as and from the Commencement Date.
3 Crew Managers' Obligations
3.1 The Crew Managers undertake to use their best endeavours to provide the
agreed Crew Management Services specified in this Agreement to the Owners
in accordance with sound crew management practice, and to protect and
promote the interests of the Owners in all matters relating to the
provision of services hereunder.
Provided, however, that the Crew 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 Crew Managers
shall be entitled to allocate available manpower in such manner as in the
prevailing circumstances the Crew Managers in their absolute discretion
consider to be fair and reasonable.
4 Xxxxxxx Services
4.1 The Crew Managers shall provide suitably qualified Crew for the Ships as
required by the Owners in accordance with the sound crew management
practice, provision of which includes but is not limited to the following
functions:
(a) selecting and engaging the Ships' Crew, including payroll
arrangements, pension administration, Crew's tax, social security
contributions and other dues payable in the seafarer's country of
domicile;
(b) ensuring that the applicable requirements of the law of the flag of
Canada are satisfied in respect of xxxxxxx levels, rank,
qualification and certification of the Crew and employment
regulations including disciplinary and other requirements;
(c) 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 Canadian
requirements, in the absence of applicable Canadian requirements the
medical certificate shall be maintained for the duration of their
service on board the Vessel;
(d) ensuring that the Crew shall have a command of the English language
of a sufficient standard to enable them to perform their duties
safely;
(e) instructing the Crew to obey all reasonable orders of the Owners
and/or the Company, including, but not limited to orders in
connection with safety and navigation, avoidance of pollution and
protection of the environment;
(f) arranging transportation of the Crew, including repatriation;
(g) training the Crew and supervising their efficiency;
(h) conducting union negotiations, if required; and
(i) operating the Owners' drug and alcohol policy, unless otherwise
agreed.
4.2 The Crew Managers shall pay, on behalf of the Owners, all expenses
incurred in relation to the Xxxxxxx of the ship provided however the Crew
Managers shall not be obliged to incur any such expenses in any month
unless and until the Crew Managers shall have received from the Owners
such amounts as shall be payable by the Owners to the Crew Managers in
respect of that month pursuant to the provisions of Clause 11.1.
5 Crew Labour Disputes
The Crew Managers shall protect and promote the Owners interest in
connection with any possible demands of maritime unions. Should the Crew
Managers notwithstanding the foregoing be forced to introduce higher Crew
wages and different employment conditions the Owner will indemnify the
Manager against any expenses which may result by any such labour dispute.
It is expressly agreed that the Crew Managers shall not be deemed in
breach of this Agreement in the event that a Ship is seized and/or
detained by any such labour organisation and/or its representatives or by
the reason of its port of registry.
Notwithstanding the above, should a Ship be seized and/or detained by any
such labour organisation, the obligation of Owners under to pay the Crew
managers a fee, under Clause 11 herein, shall be suspended.
Should such seizure or detention last for more than 10 days, the Owners
shall be at liberty to terminate with immediate effect, this Agreement in
so far as the seized or detained Ship is concerned.
6 General Administration
6.1 The Crew Managers shall handle and settle all claims arising out of the
Crew Management Services hereunder and keep the Owners informed regarding
any incident of which the Crew Managers become aware, which gives or may
give rise to claims or disputes involving third parties.
(a) The Crew Managers shall, as instructed by the Owners, bring or
defend actions, suits or proceedings, in connection with matters
entrusted to the Crew Managers according to this Agreement.
(b) The Crew Managers shall also have power to obtain legal or technical
or other outside expert advice in relation to the handling and
settlement of claims and disputes.
(c) The Owners shall arrange for the provision of any necessary
guarantee bond or other security, in the first instance.
(d) Any costs incurred by the Crew Managers in carrying out their
obligations according to Clause 6 shall be reimbursed by the Owners.
6.2 The Crew Managers shall not have the right to sub-contract any of their
obligations hereunder without the prior written consent of the Owners,
which shall not be unreasonably withheld. In the event of such a
sub-contract, the Crew Managers shall remain fully liable for the due
performance of their obligations under this Agreement.
7 Insurance Arrangements
(a) Crew Managers represent and warrant that it is a Schedule 1 employer
under the Ontario Workplace Safety and Insurance Xxx, 0000, S.O.
1997, c. 16, Sch. A (the "Act") in good standing.
(b) Crew Managers further warrant that through out the duration of this
Agreement, it will remain in good standing under the Act, as same me
be amended or replaced and that it shall, on demand, provide the
Owners with proof thereof.
(c) Crew Managers shall maintain during the duration this Agreement Crew
manager liability for an amount of at least CDN$2,000,000.
8 Replacement
The Owners shall have the right to require the replacement, at their own
expense, at the next reasonable opportunity, of any member of the Crew
found on reasonable grounds to be unsuitable for service. If the Crew
Managers have failed to fulfil their obligations in providing suitably
qualified Crew within the meaning of sub-clause 4.1, then such replacement
shall be at the Crew Managers' expense.
9 Accounts
9.1
(a) The Crew Managers shall establish an accounting system which meets
the requirements of the Owners and shall make the same available for
inspection and audit on behalf of the Owners at such times as may be
mutually agreed;
(b) The Crew managers shall prepare and furnish to the Owners (i)
monthly statements of all expenses incurred on or about the
provisions of the Xxxxxxx Services, each such statement to be
substantially in the form of the proforma thereof set out in
Schedule 3; and (ii) such other statements or reports in respect of
the Xxxxxxx Services as the Owners may from time to time reasonably
require.
10 Period and Termination
10.1 The appointment of the Crew Managers, having commenced and taken effect as
and from the Commencement Date, shall (subject as hereinafter provided)
continue unless and until terminated by either party with
respect to one or both Ships , at any time thereafter, giving to the other
notice in writing to terminate the same in which event the appointment
shall terminate with respect to the Ship(s) upon the expiration of a
period of 180 days from the date upon which such notice was given.
10.2 Notwithstanding Clause 10.1 and without prejudice to the accrued rights
hereunder of either party:
(a) The Crew Managers shall be entitled (but not bound) to terminate
their appointment, forthwith by notice in writing, in any of the
following events:
(i) if a mortgagee enters into possession of the Ship: or
(ii) if the Owners shall do or omit to do anything which is, in the
opinion of the Crew Managers likely to be detrimental to their
reputation or, after receipt of written notice of objection
thereto from the Crew Managers, the Owners proceed with
employment of or continue to employ the Ship in a trade or in
a manner which is, in the opinion of the Crew Managers, likely
to be detrimental to their reputation as managers or
(otherwise than by virtue of ordinary business competition) to
be prejudicial to the commercial interest of the Crew
Managers; or
(iii) if the Owners shall fail to procure the due performance and
fulfilment and compliance with any of the provisions of Clause
7; or
(iv) any monies payable by the Owners under this Agreement shall
not have been duly paid with 7 days of payment having been
demanded in writing by the Crew Managers; or
(v) if in the opinion of the Crew Managers the employment of the
Ship place the safety of any member of her crew in jeopardy;
or
(vi) if (in the opinion of the Crew Managers) this Agreement has,
for any reason whatsoever outside the control of the Crew
Managers, become impossible to perform in such a manner as to
enable the Crew Managers properly to carry out the services
(or any of them) hereby contracted for:
(b) If the Crew Managers fail to meet their obligations under Clause 3
of this Agreement for any reason within the control of the Crew
Managers, the Owners may give notice in writing to the Crew Managers
of the default requiring them to remedy it as soon as practically
possible. In the event that the Crew Managers fail to remedy it
within a reasonable time to the satisfaction of the Owners, the
Owners shall be entitled to terminate the Agreement with immediate
effect by notice in writing.
(c) This Agreement shall be deemed to be terminated in respect of any
given Ship in the case of the sale of the said Ship or if the said
Ship becomes a total loss or is declared as a constructive or
compromised or arranged total loss or is requisitioned or has been
declared missing.
(d) For the purpose of sub-clause 10.2 (c) hereof:
(i) the date upon which the Ship 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 Ship;
(ii) the Ship 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 Ship has occurred; and
(iii) the date upon which the Ship is to be treated as missing shall
be ten (10) days after the Ship was last reported or when the
Ship is posted as missing by Lloyd's. A missing vessel shall
be deemed lost in accordance with the provisions of sub-clause
10.2 (d)(ii).
(e) Either party may by notice in writing to the other forthwith
terminate the appointment if a meeting be convened or any petition
be presented or any order be made or resolution be passed for the
winding up of the other and/or its holding company (otherwise that a
winding up for the purposes of reconstruction or amalgamation) or if
a receiver or administrative receiver be appointed of the
undertaking or property of the other or if the other shall suspend
payment or cease to carry on business or shall make any special
arrangement or composition with its creditors.
11 Fees
11.1 The remuneration of the Crew Managers for their services under this
Agreement shall be as follows:-
(a) subject to such adjustment as may be agreed following each review
carried out pursuant to the provision of Clause 11.1 (c), the Owners
shall pay to the Crew Managers, in respect of each Ship, a monthly
fee at the rate$14,583 representing one-twelfth of the annual rate
set out in schedule 4 hereto, such fee to be payable by instalments
in advance on the Commencement Date and thereafter on the
corresponding date in each succeeding calendar month and shall be
dealt with proportionately for any period less than a month. Such
monthly fee shall be deposited by Owners in the Crew Payroll Account
(as defined hereinafter);
(b) At the commencement of the Management Period, Owner shall deposit
into a payroll account, (hereinafter, the "Crew Payroll Account"),
an agreed amount not less than the amount of payroll costs
reasonably estimated by Crew Managers to be incurred through August
31, 2007. Thereafter, Crew Managers will submit to owner on or
before the day set out in the payment schedule set out in schedule 5
a budget for the amount of payroll costs reasonably estimated by
Crew Managers to be incurred between the next half-month period,
such estimate to be in the form set out in schedule 6. These payroll
estimates shall be based on the annual payroll estimate for the
navigation season 2007 set out in schedule 7 (with appropriate
adjustment as navigation seasons go by). Owners will promptly
deposit the estimated amount into the Crew Payroll Account as per
the schedule set out in schedule 5, and Crew Managers will draw its
payroll checks, checks for required tax accounts, checks for the
cost of fringe benefits, and other payroll expenses from the payroll
account as payments become due within the payroll period, advising
Owners on or before the date of the next bimonthly budget after the
close of the period of any variance of the actual payroll costs from
the budgeted amount. Crew Managers shall credit any favourable
variance to the 2nd payroll advance each month. Owners shall
reimburse Crew Managers immediately on being advised of any
unfavourable variance on the 2nd payroll advance each month;
(c) if the appointment of the Crew Managers is terminated by the Owners
or Crew Managers in accordance with the provisions of clause 10.1 or
by the Crew Managers in accordance with the provisions of Clause
10.2 or if the Ship becomes an actual, constructive, compromised or
arranged total loss ("Total Loss") a run out fee of $3,500 per month
for each Ship in respect of which the appointment of the Crew
Managers is terminated shall be payable to the Crew Managers, under
this Agreement, in consideration of the services which it is
contemplated are likely to be performed for a further period of
three (3) calendar months from the date on which the appointment
shall have terminated or the Ship shall have become a Total Loss, as
the case may be;
(d) the monthly fee referred to in Clause 10.1(a) shall be reviewed by
the Owners and the Crew Managers no later than three (3) months
prior to each anniversary of the Commencement Date and any
adjustment agreed in consequence of such review shall become
effective as from the anniversary of the Commencement Date
concerned;
(e) in the event of lay up or extensive repair to a Ship that last for
more than two (2) months, the parties shall mutually agree on the
revision of the fee. In the event that the parties cannot agree, the
Agreement shall be terminated in respect of the said Ship in
accordance with Clause 10.
12 Xxxxxxx expenses
12.1 The Crew Managers shall at their own expense provide all office
accommodation, equipment and staff required for the provision of the
Services hereby contracted for.
12.2 Subject to Clause 11.1 and Clause 12.3 herein, the Owners shall (in
addition to the payment of the fee provided for in Clause 10.1 (a))
reimburse to the Crew Managers, amounts equivalent to all expenses of
whatsoever kind which are reasonably incurred by the Crew Managers in
connection with the provision of the Services hereby contracted for. The
request shall be submitted on or before the 15th of the month with
supporting document and payable on the 2nd payroll advance. The Owners
shall approve all expenses, prior to the demand for payment.
12.3 Without prejudice to the generality of the foregoing, the Owners shall so
pay the Crew Managers in respect of:
(a) wages, leave pay and all other costs in respect of Crewing the
Ships, including pension, social security and insurance
contributions, traveling and accommodation expenses or allowances,
offshore crewing expenses, if required, port agency and all costs of
repatriation whether incurred or paid before or after the
determination of this Agreement;
(b) the Crew Support costs attributed to the Ships by the Crew Managers;
travelling accommodation and other expenses or allowances incurred
or paid in respect of or paid to any superintendents or to Officers
or servants of the Crew Managers in accordance with the performance
of the services hereby contracted for and
(c) any payments made or liabilities incurred by the Crew Managers
(whether voluntarily or as required by Law) in Canada with the
termination of the employment of any Master, Officer or Rating
employed by the Crew Managers in consequence of or arising out of
either reductions in xxxxxxx scales affecting the Ship or the Ship
ceasing for any reason whatsoever (including termination of this
Agreement by effluxion of time) to be manned by the Crew Managers,
including (without limitation) all payment made and liabilities
incurred by the Crew Managers under any employment contract or any
other agreement or arrangement made by the Crew Managers with or
relating to any such Master, Officer or Rating;
(d) notwithstanding the foregoing, it is agreed that:
(i) crew travel costs will be billed with supporting documentation
on the 15th of each month and will be added to the second
payment due in this month to a maximum of $1,500 per annum per
man.
(ii) Total crew training cost shall not exceed $50,000 annually
with Owners agreeing to pay for two thirds of such cost or
$33,333. Crew training courses shall be arranged in
consultation with Owners;
(iii) any other costs shall be submitted with supporting document on
the 15th day of each month and will be added to the second
payment due in this month.
12.4 Unless otherwise agreed, all discounts and commissions obtained by the
Crew Managers in the course of the Crew Management of the Vessel shall be
credited to the Owners.
13 Force Majeure
13.1 Neither the Owners nor the Crew Managers shall be under any liability for
any failure to perform or delay in the performance of any of their
obligations under this Agreement by reason of any cause whatsoever beyond
their reasonable control
13.2 Without prejudice to clause 13.1, the Crew Managers shall be under no
liability whatsoever to the Owners for any loss or damage 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
Ships) and howsoever arising in the course of performance of the Xxxxxxx
Services UNLESS the same shall have resulted solely from the negligence,
gross negligence or wilful misconduct of the Crew Managers or any of their
employees or agents or any such third party as is referred to in clause
6.2, in which case (save where loss or damage has resulted from the Crew
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 Crew Managers' liability for each incident or
series of incidents giving rise to any claim for loss of damage shall not
exceed a total of ten times the annual fee for the time being payable to
the Crew Managers under this Agreement.
14 Laying up
In the event of lay up or extensive repair to a Ship that last for more
than three (3) days, the parties shall mutually agree to the extent of
down-xxxxxxx required for the remaining repair period until the Ship is
again put into service. Consequential costs of reduction and reinstatement
of the Crew shall be for the Owners' account. In the event that the
parties cannot agree, the Agreement shall be terminated in respect of the
said Ship in accordance with Clause 10.
15 Auditing
The Crew Managers shall at all times maintain and keep true and correct
accounts and shall make the same available for inspection and auditing by
the Owners at such times as may be mutually agreed. On the termination,
for whatever reasons, of this Agreement, the Crew Managers shall release
to the Owners, if so requested, the originals where possible, or otherwise
certified copies, of all such accounts.
16 Compliance with Laws and Regulations
The Crew Managers will not do, or permit to be done, anything that might
cause any breach or infringement of the laws and regulations of Canada, or
of the places where she trades.
17 Indemnities
Except where the Crew Manager has acted with negligence, wilful
misconduct, unlawfully or outside the terms and scope of this Agreement
the Owners hereby undertake to keep the Crew Managers and each third party
as is referred to in clause 6.2 and their respective employees and agents
indemnified and to hold them harmless against all actions, proceedings,
claims, demands or liabilities whatsoever or howsoever arising which may
be brought against them or incurred or suffered by them arising out of or
in connection with the performance of the Agreement, and against and in
respect of all loss, damages, costs and expenses (including legal costs
and expenses on a full indemnity basis) which the Crew Managers and each
third party aforesaid may suffer or incur (either directly or indirectly)
in defending or settling the same.
18 Confidentiality and the Crew Managers manuals etc.
18.1 Save for the purpose of enforcing or carrying out as may be necessary the
rights or obligations of the Crew Managers hereunder, the Crew Managers
agree to maintain and to use their best endeavours to procure that their
Officers and employees maintain confidence and secrecy in respect of all
information relating to the Owners' business received by the Crew Managers
directly or indirectly pursuant to this Agreement.
18.2 As between the Owners and the Crew Managers, the Owners hereby agree
and acknowledge that all title and property in and to the management
manuals of the Crew Managers and other written material of the Crew
Managers concerning xxxxxxx functions and activities is vested in the Crew
Managers and the Owners agree not to disclose the same to any third party
and, on the termination of this Agreement, to return all such manuals and
other material to the Crew Managers.
19 Notices and other matters
19.1 Every notice, request, demand or other communication under this Agreement
shall:
(a) be in writing, delivered personally or by courier or recommended
mail or fax or emails;
(b) be deemed to have been received, subject as otherwise provided in
this Agreement, in the case of fax or email at the time of dispatch
(provided that if the date of dispatch is not a business day, it
shall be deemed to have been received at the opening of business on
the next such business day) and in the case of a letter when
delivered personally or 5 days after it has been put into the post;
and
(c) be sent:
(i) if to be sent to the Owners, to them at:
Xxxxx Xxxxx Xxxxxx Xxx,
X.X Xxx 0000, 000 Xxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxxx, President
or Fax: (000) 000-0000
xxxxxxxxx@xxxxxxxxxx.xxx
(ii) if to be sent to the Crew Managers, to them at:
Voyageur Marine Transport Limited,
000 Xxxxxx Xx. XX0, Xxxxxxxxxx,
Xxxxxxx, Xxxxxx, X0X 0X0
or Fax: (000) 000-0000
or to such other address or telex number as is notified by
any one party to the other party under this Agreement.
19.2 Time shall be of the essence in the performance of the Owners' obligations
under this Agreement.
20 Law and Arbitration
20.1 This Agreement shall be governed by Canadian Maritime Law.
20.2 Any dispute arising out of or in connection with this Agreement shall be
referred exclusively to arbitration, in Toronto, to three Arbitrators, one
Arbitrator to be appointed by each party and the third Arbitrator to be
appointed by the two Arbitrators appointed by the parties. Upon receipt of
notice of appointment of an Arbitrator by the first notifying party, the
second party shall appoint its Arbitrator within 14 days, failing which
the prior notifying party shall be entitled to appoint an Arbitrator on
behalf of the second party who shall accept such appointment as if it had
been made by itself. Any such Arbitration shall be in accordance with and
subject to the AMAC rules.
21 Assignment
21.1 The Owners may assign this Agreement, or any rights hereunder, to its
lenders, in its sole discretion at any time, without the consent of
Voyageur.
22 Entire Agreement Clause
22.1 This Crew Xxxxxxx Agreement contains the entire agreement and
understanding between the parties and supercedes all prior negotiations,
representations, warranties and other documents or matter related to any
of the subject matter of this Xxxxxxx Agreement.
AS WITNESS the hands of the parties the day and year first above written.
[SIGNATURE ON NEXT PAGE]
SIGNED BY
/s/ Xxxxx Xxxxxxxx For and on behalf of Lower Lakes Towing Ltd
---------------------------------
XXXXX XXXXXXXX, President
SIGNED BY
/s/ Xxxx Xxxxxxxx For and on behalf of Voyageur Marine Transport
--------------------------------- Limited
XXXX XXXXXXXX, President
SCHEDULE 1
Description of Ship
1.
Name: Voyageur Independent
Flag: Canada
Port of Registry: Xxxxxxxx
Official Number: 827118
Date and where built: 0000 - Xxxxx Xxxxxxxxxxxx
Xx., Xxx Xxxx, XX
Tonnages: Gross registered: 12,296.00 t
Net registered: 5,581.00 t
Class: N/A
2.
Name: Voyageur Pioneer
Flag: Canada
Port of Registry: Xxxxxxxx
Official Number: 395510
Date and where built: 1983 - Xxxxx Suipbuilders
Ltd., Scotland
Tonnages: Gross registered: 22,388.00 t
Net registered: 11,648.00 t
Class: Lloyd's: 100A1 bulk carrier
SCHEDULE 4
Annual Xxxxxxx Fee
FEE FOR 2007-2008 - CAN $175,000
