This Agreement is made and entered into this 19th day of
December, 1996, by and between SEACOR Holdings, Inc., acting as agent
for and on behalf of all of its direct and indirect controlled
subsidiaries (herein, collectively, the "Seacor Group") and Smit
Internationale NV, acting as agent for and on behalf of all of its
direct and indirect controlled subsidiaries (herein, collectively, the
"Smit Group").
Recitals:
A. Certain members of each of the Seacor Group and Smit Group
have entered into an Asset Purchase Agreement, dated as of 19th day of
December, 1996 (the "Purchase Agreement") wherein certain Seacor Group
members acquired from certain members of the Smit Group all of the
Offshore Vessels (as defined in the Purchase Agreement) owned by the
Smit Group.
B. In connection therewith, the Seacor Group has agreed to make
the Offshore Vessels and other of its vessels available to the Smit
Group under certain conditions and the Smit Group has agreed to
provide the Seacor Group vessels an opportunity to bid on and
participate in certain of the Smit Group's activities.
NOW, THEREFORE, in consideration of the representations,
warranties, and covenants contained herein and in the Purchase
Agreement, and other good and valuable consideration receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. The Seacor Group agrees that it will make its entire fleet
of vessels available to Sellers on a first priority basis for use in
salvage and other non-conventional maritime activities, within the
field of business of the Smit Group, subject to any commitments which
the Seacor Group has to third parties, and on the terms and conditions
hereinafter provided. The Seacor Group shall make its weekly
chartering report covering the location of its vessels available to
Sellers on a regular basis.
2. (a) In the event that the Smit Group wishes to engage a
Seacor Group vessel for a salvage operation, then the Smit Group will
give a representative of the Seacor Group designated in each area who
can obtain a prompt response, notice as to (i) the type of vessel
required, (ii) location of the operation, (iii) the expected
commencement time for the operation, and (iv) the expected time period
for completion of the operation. The Seacor Group will use its best
endeavors to make such vessel or vessels available to the Smit Group
as it may require for a specific
salvage operation including making vessels available, which are
already readily available, and also making such arrangements within
its fleet and with its customers to make available the most suitable
vessels for a specific operation, subject to the parties' agreement as
to compensation payable for such operation.
(b) The compensation payable for a vessel to be engaged in a
salvage operation shall be twice the prevailing market time charter
rate for such vessel if such vessel is at the time employed, or, if it
is not then employed, shall be twice the prevailing market time
charter rate for vessels of similar class, specifications and trading
patterns during the preceding 90 days; provided that such charter rate
shall not exceed $35,000 per day. Such compensation shall include
operating expenses and all remuneration payable to the crew, but
charterer shall pay fuel and lubes.
(c) As promptly as possible following receipt of the notice
referred to above, the Seacor Group shall notify the Smit Group of (i)
the vessel or vessels it has available for the operation, (ii) the
compensation payable for such vessel or vessels as determined in
accordance with the foregoing paragraph, and (iii) whether
arrangements must be made with customers for the release of any such
vessel or vessels before it can participate in the proposed salvage
operations.
(d) Upon receipt of such notice from the Seacor Group, the Smit
Group and the Seacor Group shall jointly determine which vessel or
vessels, if any, are to be used in the salvage operation. Any vessels
to be used in such operations shall be time chartered to the Smit
Group for the agreed period of time based on a standard BIMCO
Supplytime or Towhire charter party, or such other form of time
charter party as may be appropriate under the circumstances, in either
case with a 'no claim for salvage' provision, and such indemnities,
and other provisions as a prudent owner would request taking into
account the nature of the work, the risk involved, the flag of the
vessel, the nationality of the crew and their articles of employment.
Such indemnities may include, for example, indemnities of the owner
without recourse to the owner, its servants or agents, other than due
to gross negligence or willful misconduct of the owner, for (a) claims
by charterer, the salved vessel or its owner or any third parties for
injury, loss or damage resulting from the salvage operation or
resulting to the salved or towed object, (b) excess claims for salvage
bonus by the crew on the Seacor Group vessel, other than for a pro
rata share of the daily hire paid to the Seacor Group above the going
market rate, (c) additional
insurance costs to the owners; provided that the owner shall also
agree to render reasonable assistance without making any additional
claim for salvage to reconnect a towline if the salved object or tow
breaks away during the course of any towage service. All compensation
payable under the time charter shall be due and payable as provided in
such time charter and shall not be dependent on the receipt of payment
by the Smit Group for its salvage services.
(e) Immediately following completion of any salvage operation in
which a Seacor Group vessel participates, the Seacor Group shall allow
the Smit Group reasonable access to the log books of the vessel
chartered and to the Master and crew on board the vessel to take
statements concerning the salvage operation.
(f) The Seacor Group agrees not to offer vessels to third party
salvors unless the Smit Group has not been awarded the salvage work.
3. (a) In the event that the Smit Group wishes to engage a
Seacor Group vessel for an operation other than a salvage operation,
including but not limited to wreck removal, offshore contracting and
installation, towage, and similar operations, then the Smit Group will
give the Seacor Group notice as to (i) the type of vessel required,
(ii) the location of the operation, (iii) the expected commencement
date of the operation, and (iv) the expected time period for
completion of the operation; provided that if the Smit Group is
seeking tenders from several parties, then the Seacor Group will be
given an opportunity to respond to such tender on the same terms and
conditions as the other parties.
(b) The Seacor Group will respond in the time prescribed in
paragraph 2(a) specifying the compensation to be paid, based on the
prevailing market conditions for such vessel, including, but not
limited to, considerations as to rate, job duration, anticipated
commencement date, and regional location of the work. The parties
agree to discuss all the commercial considerations, but, in any event,
the Seacor Group shall have the absolute right to decline any such
business in its sole discretion.
4. The Smit Group agrees that it will give the Seacor Group an
opportunity to provide environmental services on a preferred basis in
conjunction with the Smit Group's salvage, maritime contracting, and
ports and harbor activities, to the extent that such services cannot
be provided using the Smit Group's own equipment and personnel.
5. In the event that the Smit Group shall have sought bids or
tenders from several parties in connection with any of the activities
referred to herein, the Smit Group hereby agrees to permit the Seacor
Group an opportunity to review and meet the terms and conditions of
the party to whom the Smit Group intends to award the contract.
6. Any notices provided for herein shall be given as follows:
To Seacor Group:
Watchstander
Seacor Marine, Inc.
11200 Westheimer, Suite 900
Houston, Texas 77042
Tel: 281 782 5990
Fax: 281 782 5991
To Smit Group:
Salvage Watchmaster
Smit Internationale N.V.
Zalmstraat 1
3016 DS Rotterdam
The Netherlands
Tel: 31 10 454 9911
Fax: 31 10 454 9268
In Witness Whereof, the parties hereto have duly executed this
Agreement as of the date first above written.
SEACOR HOLDINGS, INC.,
as agent
By: /s/Keith Gregory
-------------------------------
Name: Keith Gregory
Title: Vice President
SMIT INTERNATIONALE N.V.,
as agent
By: /s/Karel Kaffa
-------------------------------
Name: Karel Kaffa
Title: Area Manager
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