MANAGEMENT AND ADMINISTRATIVE SERVICES AGREEMENT
THIS MANAGEMENT AND ADMINISTRATIVE SERVICES AGREEMENT (this
"Agreement"), dated and effective as of February 16, 2001 is by and between
ENVIRONMENTAL REMEDIATION HOLDINGS CORPORATION, a Colorado corporation
("COMPANY") and CHROME OIL SERVICES, LTD., a Bahaman corporation ("Chrome").
W I T N E S S E T H :
WHEREAS, COMPANY desires that Chrome furnish COMPANY with certain
management, administrative, and other support services described in this
Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. RIGHTS AND DUTIES OF CHROME.
(a) Upon the terms and subject to the conditions set forth herein,
Chrome agrees from and after the effective date hereof to provide the services
described in Section 2 (collectively, the "Services") to COMPANY.
(b) COMPANY acknowledges and agrees that Chrome may, at its election,
cause one or more of it affiliates or third party contractors or service
providers to perform all or any portion of the Services.
Section 2. DESCRIPTION OF SERVICES. Chrome and COMPANY agree that
Chrome shall provide the following Services to COMPANY:
(a) Supplying such persons to serve as corporate officers and directors
of COMPANY as COMPANY may from time to time desire;
(b) Assisting with formulation, implementation, and administration of
COMPANY policies and procedures;
(c) Assisting with strategic planning for current and future business
activities of COMPANY;
(d) Assisting with management activities of the COMPANY, including
without limitation negotiation and administration of contractual undertakings of
the COMPANY;
(e) Providing such other management services as may mutually be agreed
upon by the parties hereto.
(f) accounting and financial services, including opening and
administration of bank accounts, maintenance of books and records, accounting
systems and payroll systems;
(g) advisory services relating to the preparation and filing of, and
assistance with respect to any required tax returns;
(h) the purchase and maintenance of insurance and the processing and
administration of insurance claims;
(i) management information and system services, including computer
operations, data input, systems and programming and technical support;
(j) office space and support staff on a shared non-dedicated basis at
the offices of Chrome in Houston; and
(k) such other services as may mutually be agreed upon by the parties
hereto.
Section 3. ADMINISTRATION OF SERVICES.
(a) Chrome shall keep the COMPANY fully informed of the Services
performed pursuant to this Agreement and shall cooperate with the COMPANY with
respect to the performance of Services. COMPANY shall have complete and full
access to all data, records, files, statements, invoices, xxxxxxxx and other
information generated by or in the custody of Chrome relating to the Services
provided pursuant to this Agreement during normal business hours and with prior
written notice to be first given.
(b) COMPANY acknowledges and agrees that the Services shall be provided
only with respect to the business of COMPANY.
(c) Each party shall (i) maintain confidential and secret all
confidential information that may be disclosed by the other party in connection
with the provision of the Services hereunder, (ii) restrict disclosure of such
confidential information to those of its employees who have a need to know such
information in order to comply with its obligations hereunder and (iii) employ
the same standards of care with respect to such confidential information as it
uses to protect its own confidential information. The obligations of this
Section 3(c) shall survive the expiration and termination of this Agreement for
a period of two (2) years. Nothing herein, however, shall prevent either party
from disclosing to others or using in any manner information which such party
can show:
(i) has been published and become part of the public
domain other than by acts, omissions, or fault of
such party or such party's employees;
(ii) has been furnished or made known to such party by
third parties other than those acting directly or
indirectly for or on behalf of the other party as a
matter of legal right without restriction on
disclosure; or
(iii) was in such party's possession prior to the
disclosure thereof by one party to the other party;
or
(iv) is required to be disclosed by law or a court of
competent jurisdiction.
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Section 4. COMPENSATION.
(a) Chrome shall be compensated for the performance of the
Services as follows:
(i) COMPANY shall reimburse Chrome for the actual cost of
any goods or third party services purchased, leased
or otherwise procured by Chrome for the direct
benefit of COMPANY in accordance with this Agreement,
including the premium cost of the insurances and
deductibles thereunder as per Section 2(c) above
("Direct Costs"); and
(ii) COMPANY shall pay to Chrome a lump sum amount of
$68,000.00 per month which shall be inclusive of all
indirect general and administrative costs incurred by
Chrome plus margin thereon in performing the services
hereunder, including all corporate overhead costs and
expenses such as accounting, administrative,
secretarial or other services, office rent,
telephone, employee compensation and benefits, taxes,
depreciation and other expense items of a general and
administrative nature and any other expenses incurred
by Chrome that are reasonably necessary to the
performance of the Services (the "Service Fee"). The
Service Fee shall be adjusted from time to time to
reflect increases in such general and administrative
costs.
(b) Chrome shall invoice COMPANY by the last day of each month for
all Direct Costs and Service Fee incurred for the immediately
preceding month. All invoices shall provide COMPANY with an
account of all Direct Costs. All amounts shown on each invoice
shall be due and payable within 30 days of the date of the
invoice.
(c)(i) In the event COMPANY disputes any charges
invoiced by Chrome pursuant to this Agreement,
COMPANY shall deliver a written statement describing
the dispute to Chrome within 10 days following
receipt of the disputed invoice. Fees not so disputed
shall be deemed accepted and shall be payable as
provided in subsection (a) hereinabove. If the
parties cannot resolve the dispute in a mutually
satisfactory manner, the dispute shall be submitted
within 30 days from the date of notice to Xxxxxxx
Xxxx Xxxxxxx or its successor or another independent
public accountant mutually acceptable to the parties.
The independent public accountants will review the
books and records of COMPANY and Chrome, as the case
may be, and make such other investigation as they may
deem necessary to verify the invoice. The costs of
such accountants' fees shall be borne by COMPANY if
the invoice is determined to be substantially correct
and borne by Chrome if the disputed amount is
determined to be substantially incorrect. Pending any
such final determination, COMPANY agrees to pay the
undisputed amount to Chrome, with appropriated
adjustment thereto (including, without limitation,
interest at the rate of interest which commercial
banks charge to their most creditworthy customers
from the date of such payment) to be made following
such final determination.
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(ii) COMPANY's receipt of any Service performed hereunder
shall be an unqualified acceptance of, and a waiver
by COMPANY of any and all Claims (as defined in
Section 6(c)(iv) with respect to, such Service unless
COMPANY gives Chrome notice of Claim within 30 days
after the end of the month in which the invoice for
such Service was received by COMPANY, except for any
Claims arising from the bad faith, gross negligence
or willful misconduct of Chrome or its affiliates
(other than COMPANY).
(d) In addition to any other amounts payable to Chrome hereunder,
COMPANY shall reimburse Chrome for any taxes, excises, imposts, duties, levies,
withholdings or other similar charges (excepting any charges based on net
income) that Chrome may be required to pay on account of COMPANY in connection
with its performance of Services.
Section 5. TERMS OF AGREEMENT; TERMINATION. This Agreement shall
commence on the effective date hereof and shall remain in effect on an evergreen
basis until terminated by either party upon the giving of the other party thirty
(30) days prior written notice.
Section 6. LIMITATION OF LIABILITY; WARRANTY, INDEMNIFICATION.
(a) Chrome makes no representation or warranty whatsoever, express or
implied, with respect to the Services. In no event shall Chrome be liable to
COMPANY for (i) any loss, cost or expense arising or resulting from, directly or
indirectly, in any way to the performance of this Agreement or breach hereof
including the provision or failure to provide the Services called for hereunder,
except for the bad faith, gross negligence or willful misconduct of Chrome or
(ii) any special, indirect, incidental, or consequential damages arising or
resulting, directly or indirectly, from any error or omission in the performance
or breach of this Agreement including the provision or failure to provide the
Services called for hereunder, regardless of how such Claim arose and even if
caused by the negligence, whether sole or concurrent or active or passive, gross
negligence, of other legal fault, including strict liability, of Chrome. EXCEPT
AS STATED ABOVE, THERE ARE NO WARRANTIES RELATING TO THE SERVICES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) Neither Chrome nor COMPANY shall be liable for any loss or damage
or any nonperformance, partial or whole, under this Agreement, caused by any
strike, labor troubles, riot, act of a public enemy, insurrection, act of God,
or any law, rule or regulation promulgated by any governmental body or agency,
or any demand or requisition of any governmental body or agency, or any other
cause beyond the control of the parties hereto.
(c)(i) COMPANY releases Chrome from any liability to COMPANY for, and
COMPANY will defend, indemnify and hold harmless Chrome from
and against all Claims by COMPANY arising or resulting from,
directly or indirectly, in any way to the performance of this
Agreement or breach hereof including the provision or failure
to provide the Services called for hereunder, regardless of
how such Claim arose and even if caused by the negligence,
whether sole or concurrent or active or passive of other legal
fault, including strict liability, of Chrome or its affiliates
(other than COMPANY), except for
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any Claims arising from the bad faith, gross negligence or
willful misconduct of Chrome.
(ii) Chrome releases COMPANY from any liability to Chrome for, and
Chrome will defend, indemnify and hold COMPANY harmless from
and against all Claims by Chrome arising or resulting from,
directly or indirectly, in any way to the performance of this
Agreement or breach hereof, regardless of how such Claim arose
and even if caused by the negligence, whether sole or
concurrent or active or passive of other legal fault,
including strict liability, of COMPANY, except for any Claims
arising from the bad faith, gross negligence or willful
misconduct of COMPANY.
(iii) COMPANY will defend, indemnify and hold Chrome harmless from
and against all Claims by third parties arising or resulting
from, directly or indirectly, in any way to the performance of
this Agreement or breach hereof including the provision or
failure to provide the Services called for hereunder,
regardless of how such Claim arose and even if caused by the
negligence, whether sole or concurrent or active or passive of
other legal fault, including strict liability, of Chrome or
its affiliates (other than COMPANY), except for any Claims
arising from the bad faith, gross negligence or willful
misconduct of Chrome.
(iv) For the purpose of this Agreement, "Claims" means all suits,
actions, claims and demands, by whomever brought, based on
personal injury, death or loss of or damage to or loss of use
of property or property rights, breach of or termination of
contract, or other economic damage of any kind, whenever
occurring, suffered or incurred. All references to "COMPANY"
in this Agreement shall be deemed to include for all purposes,
including the benefit of any release, indemnification, and
exculpatory provisions, COMPANY and its affiliates (other than
Chrome) and their respective officers, directors, employees,
and agents. All references to "Chrome" in this Agreement shall
be deemed to include for all purposes, including the benefit
of any release, indemnification, and exculpatory provisions,
Chrome and its affiliates (other than COMPANY) and their
respective officers, directors, employees, and agents.
(d)(i) If any Claim is made or asserted by a third party against
Chrome for which Chrome is entitled to indemnification under
this Section 6, Chrome shall, with reasonable promptness, give
COMPANY written notice of the Claim or assertion of liability
and request COMPANY to defend against the Claim. Failure to
notify COMPANY shall not relieve COMPANY of any liability
which COMPANY might have to Chrome, unless such failure
materially prejudices COMPANY's position. COMPANY shall have
the right to defend against the Claim, in which event COMPANY
shall give written notice to Chrome of acceptance of the
defense of such Claim and the identity of counsel selected by
COMPANY with respect to such matters. In the event COMPANY
does not accept the defense of the Claim as provided above or
in the event that COMPANY or its counsel fails to use
reasonable care in maintaining such defense, Chrome, upon
written notice to COMPANY, shall
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have the right to employ counsel for such defense at the
expense of COMPANY. Chrome and COMPANY shall cooperate with
one another in the defense of any such Claim and the relevant
records and personnel of each shall be available to the other
with respect to such defense. Provided that COMPANY accepts
the defense of the Claim, it shall not be liable for any
amount hereunder arising out of any settlement of any Claim
made without its consent.
(ii) If any Claim is made or asserted by a third party against
COMPANY for which COMPANY is entitled to indemnification under
this Section 6, COMPANY shall, with reasonable promptness,
give Chrome written notice of the Claim or assertion of
liability and request Chrome to defend against the Claim.
Failure to notify Chrome shall not relieve Chrome of any
liability which Chrome might have to COMPANY, unless such
failure materially prejudices Chrome's position. Chrome shall
have the right to defend against the Claim, in which event
Chrome shall give written notice to COMPANY of acceptance of
the defense of such Claim and the identity of counsel selected
by Chrome with respect to such matters. In the event Chrome
does not accept the defense of the Claim as provided above or
in the event that Chrome or its counsel fails to use
reasonable care in maintaining such defense, COMPANY, upon
written notice to Chrome, shall have the right to employ
counsel for such defense at the expense of Chrome. Chrome and
COMPANY shall cooperate with one another in the defense of any
such Claim and the relevant records and personnel of each
shall be available to the other with respect to such defense.
Provided that Chrome accepts the defense of the Claim, it
shall not be liable for any amount hereunder arising out of
any settlement of any Claim made without its consent.
Section 7. RELATIONSHIP OF PARTIES.
Nothing contained in this Agreement (a) shall constitute Chrome and
COMPANY as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (b) shall be construed to
impose any liability as such on either of them, (c) shall be deemed to confer on
either of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the other, or (d) shall be deemed to, or in
fact, create any benefit for, or impose any obligation on the parties in favor
of, any person not party to this Agreement. COMPANY shall ratify and confirm all
that shall be done by Chrome under and in accordance with the terms of this
Agreement.
Section 8. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the parties
hereto with respect to the matters set forth in this Agreement. This Agreement
shall not be amended, modified or supplemented except by an instrument in
writing executed by each of the parties hereto.
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(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery, certified or registered mail, return
receipt requested or telecopy transmission with confirmation of receipt to the
address of each of the parties set forth opposite the signature of such party on
the signature page hereof. All notices and communications shall be deemed given
upon receipt thereof.
(c) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Texas.
(d) This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns. This Agreement
shall not be assignable by any party hereto without the prior written consent of
the other party.
(e) This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Addresses for Notices: ENVIRONMENTAL REMEDIATION HOLDINGS CORPORATION
0000 Xxxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
By: /s/ Chude Mba
------------------------------------
Name: Chude Mba
Title: President
CHROME OIL SERVICES, LTD
0000 Xxxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
By: /s/ Xxx Xxxxx Xxxxx
------------------------------------
Name: Xxx Xxxxx Xxxxx
Title: Chairman
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