Exhibit 10.21
EXECUTION COPY
AGENCY AGREEMENT
BETWEEN
SEA MASTER LOGISTICS (HOLDING) LIMITED
(AS PRINCIPAL)
AND
SEA MASTER LOGISTICS (CHINA) LIMITED
(AS AGENT)
DATED THE 22ND DAY OF SEPTEMBER 2006
1
<PAGE>
THIS AGREEMENT is made on the 22nd day of September 2006
BETWEEN
(1) SEA MASTER
LOGISTICS (HOLDING) LIMITED, a company incorporated under the
laws of
Hong Kong, with company registration number 1057368 and whose
registered
office is at Rooms 2102-3 China Insurance Group Building, 141
Des Voeux
Road, Central, Hong Kong (the "PRINCIPAL"); and
(2) SEA MASTER
LOGISTICS (CHINA) LIMITED, a company incorporated under the
laws of
the People's Republic of China ("PRC"), with business
registration
number
3101092011431 and whose place of business is at Room 704-Y, 710
Si
Ping Road,
Shanghai, the PRC (the "AGENT").
WHEREAS
(A) The
Principal is engaged in the business of providing ocean
transportation
intermediary services to major retailers, wholesalers, importers,
and
domestic
manufacturers in the Transpacific and South African trade lanes
and
possess or will possess all required licenses to conduct
business
through
all of its offices as an international freight agency.
(B) The Agent
maintains facilities, property, and conducts all of its
business
in the PRC
as a Class A licensed international freight agent in ocean, air
and land
transportation.
(C) By a Sale
and Purchase Agreement dated 28 September 2006 between Maritime
Logistics
US Holdings Inc. ("Maritime Logistics") and the Principal (the
"Sale and
Purchase Agreement"), it is contemplated that Maritime
Logistics,
through its wholly-owned subsidiary SeaMaster Logistics, Inc.,
will
acquire the shares in and of the Principal and the Principal
has
executed
an Agreement to acquire the Agent (the "Acquisition"). Pursuant
to the
Sale and Purchase
2
<PAGE>
Agreement
and subject to and upon approval by the necessary governmental
authority
of the contemplated Acquisition of the Agent or assets of the
Agent by
the Principal, the Agent will become the subsidiary of the
Principal
wholly owned by the Principal.
(D) The Agent
agrees to act as the exclusive agent of the Principal to
provide
the
Services (as defined below) in the Territory (as defined below)
subject to
and in accordance with the terms and conditions of this
Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1.
INTERPRETATION
1.1 In this
Agreement unless the context otherwise requires:-
"INTELLECTUAL PROPERTY"
means any patent, copyright, registered
design, trade mark or other industrial or
intellectual property right subsisting in
the Territory in
respect of the Services,
and applications for any of the foregoing;
"PRC"
means the People's Republic of China
"RESTRICTED INFORMATION" means any
information which is disclosed to
the Agent by the Principal under or in
connection with this Agreement (whether
orally or in writing, and whether or not
such information is expressly stated to be
confidential or marked as such) including
all of the Principal's trade secrets,
vendors, proprietary information, customer
lists, account books, service contracts and
records, of any kind.;
3
<PAGE>
"RMB"
means Renminbi, the lawful currency of the
PRC
"SERVICES"
means international freight agency by
shipment and land transport, civil aviation
transport sales, international express
delivery, road freight, cargo storage;
distribution of imported and exported goods,
customs services (including custom
clearance), applying for commodity
inspection, reinsurance, container
devanning, bill replacement, shipping fee
collection, transit, door-to-door transport
of imported and exported goods and space
booking; and any other services requested by
Principal including those listed in Schedule
A;
"TERRITORY"
means the People's Republic of China;
1.2 Any
reference in this Agreement to "writing" or related expressions
includes a
reference to cable, facsimile transmission, e-mail or
comparable
means of communication.
1.3 Any
reference in this Agreement to any provision of a statute shall
be
construed
as a reference to that provision as amended, re-enacted or
extended
at the relevant time.
1.4 The headings
in this Agreement are for convenience only and shall not
affect its
interpretation.
2
APPOINTMENT OF AGENT
2.1 By this
Agreement the Principal appoints the Agent as exclusive agent
for
the
purpose of
4
<PAGE>
providing
the Services in the Territory and the Agent agrees to act in
that
capacity, subject to the terms and conditions of this
Agreement.
2.2 Save with
the Principal's consent, the Agent shall not during the
continuance of this Agreement accept the appointment of any other
person,
firm or
company for the provision of the Services in the Territory or
for
the
solicitation of customers for the Services in the Territory i.e.
the
Agent
shall provide the Services exclusively to the Principal.
3
THE AGENT'S DUTIES
3.1 The Agent
shall use its best endeavors to provide the Services in the
Territory
and to solicit orders for the Services in the Territory, and
generally
to assist the Principal in the provision of the Services in the
Territory,
but the Agent shall not be entitled to provide the Services or
to enter
into any negotiations or contracts for the provision of the
Services
on behalf of the Principal, or to bind the Principal in any
way.
3.2 The Agent
shall conduct the provision of the Services in the Territory
with all
due care and diligence and shall cultivate and maintain good
relations
with customers and potential customers in the Territory in
accordance
with sound commercial principles.
3.3 Subject as
provided in this Agreement and to any directions which the
Principal
may from time to time properly give, the Agent shall be
entitled
to perform
its duties under this Agreement in such manner as it may think
fit.
3.4 The Agent
shall procure that its representatives:
3.4.1 make
themselves available, at all reasonable times and upon
reasonable notice, to the Principal for the purposes of
consultation
and advice relating to this Agreement and the Services;
5
<PAGE>
3.4.2
attend meetings with representatives of the Principal and such
customers or prospective customers in the Territory as may be
necessary for the performance of its duties under this
Agreement;
3.4.3 make
such calls upon customers or potential customers in the
Territory for the purpose of promoting the Services as the Agent
may
think fit; and
3.4.4
attend such trade exhibitions and other functions in the
Territory
as the Principal or the Agent may think commercially suitable
for
the purpose of promoting the Services.
3.5 The Agent,
if requested by, the Principal, agrees to provide statistical
information or data covering the movement of cargo from his area,
in
accordance
with Principal's procedure. This information is to be provided
free of
charge to the Principal. If this information can only be
obtained
through
sources which charge, the Principal agrees to the reimbursement
of
these
expenses billed to the Agent, provided the cost will be agreed
upon
beforehand
between the Agent and the Principal.
3.6 Upon
request, the Agent shall provide, at no cost to the Principal, in
any
or all
offices, suitable desk space for a representative of the
Principal
who may be
assigned either temporarily or permanently to promote the
Principal's business or supervise its interests in the Agent's
area.
3.7 The Agent
shall promptly notify the Principal of all enquiries
concerning,
and orders
for, the Services which it receives from customers and
prospective customers both within and outside the Territory.
3.8 As soon as
practicable after commencement of services as agent, the Agent
shall
inform the
6
<PAGE>
Principal
of all tariffs, wage scales and customary charges for services,
the cost
of which the Principal will bear that are covered by this
Agreement.
3.9 The Agent
also agrees to provide the Principal with monthly reports
containing
information with respect to general conditions at the locations
covered by
this Agreement and will notify the Principal immediately of any
changes in
said information.
3.10 The Agent will
also cooperate with the Principal in obtaining any
information which the Principal might request concerning
transshipment
facilities, rates, etc.
3.11 Principal or
Maritime Logistics participates in the US Customs Service
Vessel
Automated Manifest System and takes responsibility for filing
all
cargo
declarations 24 hours prior to a vessel loading in accordance
with
US
Customs. Agent must provide Principal or Maritime Logistics with
all
required
information to comply with this program in the requisite time
frame.
Agent agrees to timely submit to Principal or Maritime
Logistics
true and
accurate information to enable Principal or Maritime Logistics
to
make the
required submissions to US Customs and agrees to indemnify and
hold
harmless Principal or Maritime Logistics for any damages caused
by
Agents
failure to comply hereunder.
3.12 The Agent shall
in relation to the Services:
3.12.1
describe itself as "Agent" for the Principal;
3.12.2 not
hold itself out, or permit any person to hold it out, as being
authorized to bind the Principal in any way;
3.12.3 not
do any act which might reasonably create the impression that it
is so authorized to bind Principal; and
7
<PAGE>
3.12.4 The
Agent further guarantees that its business organization does
not, under the laws of its state/country of domicile imply an
employer/employee relationship between the Principal and the
Agent,
or the Principal and any of the Agent's individual employees.
3.13 The Agent shall
be responsible for obtaining all licenses, permits and
approvals
which are necessary or advisable for the provision of the
Services
in the Territory and for the performance of its duties under
this
Agreement;
provided, however, Principal shall establish a "foreign owned
entity' in
the PRC to effectuate the Acquisition of the Agent by the
Principal
and Agent shall assist Principal as requested to consummate
their
transaction.
3.14 The Agent shall
not during the continuance of this Agreement change its
name or
business address without the consent of the Principal.
3.15 The Agent shall
indemnify and hold the Principal harmless against and from
any and
all claims or liabilities against the Principal, its employees
or
agents,
resulting directly or indirectly from, or arising out of, any
act
or failure
to act by the Agent or any employees of the Agent.
3.16 Agent shall be
liable for any loss, damage or claim for all cargo in the
care of
Agent, or Agent's nominated terminal, trucking, subagent or
carrier
that are uninsured and carried on Principal's airway bills and
bills of
lading. Agent shall carry sufficient insurance to cover these
liabilities. All of the Principal's airway bills and bills of
lading
issued by
Agent shall be insured under Principal's liability insurance
policy.
4
PROVISION OF THE SERVICES
4.1 Services in
the Territory shall be provided on such terms as the Principal
in its
absolute discretion may from time to time determine, and:
8
<PAGE>
4.1.1 the
Principal shall provide to the Agent copies of those terms as
varied from time to time;
4.1.2 the
Agent shall bring to the notice of all customers and
prospective
customers for the Services in the Territory those terms;
4.1.3 the
Agent shall not make or give any promises, warranties,
guarantees or representations concerning the Services other
than
those contained in those terms.
4.2 Unless
otherwise agreed in writing, the Agent shall not be entitled to
receive
payments on the Principal's behalf in respect of provision of
the
Services.
4.3 All
manifests, airway bills, bills of lading or any other document
or
forms used
in the performance of this Agreement together with all amounts
received
by Agent for prepaid freights on outward cargo, freight payable
at
destination on inward, cargo or other charges collected for account
of
Principal,
shall be and remain the property of Principal, shall be held in
trust by
Agent for Principal and shall at all times be kept separate and
apart from
Agent's other documents, papers and monies. Agent shall be
liable to
Principal for a returned checks or drafts for customers
solicited
by Agent for which Principal is unable to collect funds for
whatever
reason. Agent shall account to Principal at Principal's office
as
Principal
may designate in accordance with instructions to be
communicated
to Agent
by Principal. Agent agrees to remit promptly to Principal
monies
received
for Principal's account and Principal, on its part, agrees to
pay
Agent as
agreed upon in Schedule B. Agent shall maintain separate
records
and
accounts for the recording of all transactions by Agent on behalf
of
Principal.
These and related or supporting documents shall be open to
inspection
by Principal.
4.4 The Agent
shall notify the Principal within 24 hours of its receipt of a
claim. The
Agent agrees and is hereby authorized to settle promptly all
bona fide
claims against the Principal
9
<PAGE>
for cargo
loss or damage, after due in accordance with Principal's
current
processing
instructions and up to the limit of $50,000 per claim, but
always
with written notification to the Principal. The Agent shall
submit
all larger
claims to the Principal for instructions. The Agent shall
render any
necessary assistance to the Principal's attorney in connection
with any
claim made or received. Should any cargo claims lead to a
lawsuit,
compensation will be given to the Agent according to the amount
of work
performed.
5
INTELLECTUAL PROPERTY
5.1 The Agent
shall promptly and fully notify the Principal of any actual,
threatened
or suspected infringement in the Territory of any Intellectual
Property
of the Principal which comes to the Agent's notice, and of any
claim by
any third party so coming to its notice that the provision of
the
Services
in the Territory infringes any rights of any other person, and
the Agent
shall at the request and expense of the Principal do all such
things as
may be reasonably required to assist the Principal in taking or
resisting
any proceedings in relation to any such infringement or claim.
5.2 Nothing in
this Agreement shall give the Agent any rights in respect of
any trade
names or trademarks used by the Principal in relation to the
Services
or of the goodwill associated with them, and the Agent
acknowledges that, except as expressly provided in this Agreement,
it
shall not
acquire any rights in respect of any trade names or trade marks
and that
all such rights and goodwill are, and shall remain, vested in
the
Principal.
5.3 The Agent
shall not use in the Territory any trade marks or trade names
so
resembling
the trade marks or trade names of the Principal as to be likely
to cause
confusion or deception.
5.4 The Agent
shall, at the expense of the Principal, take all such steps as
the
Principal may reasonably require to assist the Principal in
maintaining the validity and enforceability of the Intellectual
Property
of the
Principal during the continuance of this Agreement.
10
<PAGE>
5.5 Without
prejudice to the right of the Agent o
