EXHIBIT 10.7
EXECUTION VERSION
VESSEL CONSTRUCTION AGREEMENT
Between
XXXXXXXXX GRETNA, L.L.C.,
as Builder
and
K-SEA TRANSPORTATION L.L.C.,
as Buyer
Hull 416
Hull 000
Xxxx 000
Xxxx 422
March 23, 2001
TABLE OF CONTENTS
PAGE
ARTICLE 1. SCOPE OF WORK .......................................................1
ARTICLE 2. PRICE AND PAYMENT; PERFORMANCE BOND .................................3
ARTICLE 3. DELIVERY AND ACCEPTANCE .............................................9
ARTICLE 4. CHANGES AND EXTRAS ..................................................11
ARTICLE 5. BUYER'S RIGHT OF CANCELLATION .......................................12
ARTICLE 6. RISK OF LOSS AND INSURANCE ..........................................12
ARTICLE 7. INDEMNIFICATION .....................................................17
ARTICLE 8. PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY ........................18
ARTICLE 9. PLAN APPROVAL, INSPECTION, ACCESS AND TEST ..........................21
ARTICLE 10. FORCE MAJEURE ......................................................22
ARTICLE 11. DAMAGES FOR DELAY; EARLY DELIVERY BONUS ............................23
ARTICLE 12. CONSEQUENTIAL DAMAGES ..............................................23
ARTICLE 13. WARRANTY ...........................................................24
ARTICLE 14. LIENS AND ENCUMBRANCES .............................................26
ARTICLE 15. BUYER-FURNISHED EQUIPMENT AND INFORMATION ..........................27
ARTICLE 16. TAXES AND UNEMPLOYMENT CONTRIBUTIONS ...............................29
ARTICLE 17. USE OF PLANS AND SPECIFICATIONS ....................................29
ARTICLE 18. DEFAULT ............................................................30
ARTICLE 19. ASSIGNMENT .........................................................31
ARTICLE 20. SUBCONTRACTORS .....................................................32
ARTICLE 21. NOTICES ............................................................32
ARTICLE 22. GENERAL CONDITIONS .................................................33
ARTICLE 23. REPRESENTATIONS AND WARRANTIES .....................................35
EXHIBIT A FORM OF PROTOCOL OF DELIVERY AND ACCEPTANCE
EXHIBIT 1 SPECIFICATIONS
i
VESSEL
CONSTRUCTION AGREEMENT
THIS AGREEMENT entered into this 23rd day of March, 2001, by and
between Xxxxxxxxx Gretna, L.L.C., a
Louisiana Limited Liability Company with the
current mailing address of 4640 Xxxxxx Road, Harvey, 1A 70058 (hereinafter
referred to as "Xxxxxxxxx"), and K-Sea Transportation L.L.C., a Delaware Limited
Liability Company, with the current mailing address of 0000 Xxxxxxxx Xxxxxxx,
Xxxxxx Xxxxxx, X.X. 00000 (hereinafter referred to as "Buyer").
W I T N E S S E T H
That Xxxxxxxxx and Buyer, for the consideration hereinafter set out,
agree as follows:
ARTICLE I. SCOPE OF WORK
A. For and in consideration of the amounts to be paid to Xxxxxxxxx
by Buyer as hereinafter set forth, and subject to the terms and conditions
contained herein, Xxxxxxxxx agrees to design, build, outfit, install
Buyer-furnished equipment as stated in the Specifications and deliver to Buyer
afloat at Xxxxxxxxx'x yard in Harvey,
Louisiana or at any mutually agreeable
location (hereinafter referred to as "Shipyard"), one 100,000 barrel tank barge,
being Xxxxxxxxx'x Xxxx No. 416, one 80,000 barrel tank barge, being Xxxxxxxxx'x
Hull No. 417, one 80,000 barrel tank barge, being Xxxxxxxxx'x Xxxx No. 421, and
one 100,000 barrel tank barge, being Xxxxxxxxx'x Hull No. 422 (hereinafter
referred to collectively as a "Vessel", whether one or more, provided that the
term "Vessel" shall mean any and all vessels provided for in this Agreement),
and in accordance with the following documents which have been concurrently
identified by the parties hereto and attached hereto as Exhibit 1 and made a
part hereof as if fully set forth herein:
1) Specifications dated March 23, 2001 ("Specifications");
2) Drawings as referred to in (1);
Provided that Xxxxxxxxx'x total undertaking hereunder, being (i) the
engineering design of each Vessel, the (ii) construction of each Vessel
according to detail design plans and technical documents prepared by Xxxxxxxxx
and approved by Buyer in accordance with Article 9, (iii) the installation of
any Buyer-furnished equipment as stated in the Specifications, and including
(iv) any changes in the design or construction of each Vessel, shall be
hereinafter referred to and is hereby defined as the "work".
Xxxxxxxxx shall prepare soundly conceived and engineered detail design
plans and documents, developed under the supervision of experienced naval
architects
and marine engineers, and incorporating good shipbuilding practice, to develop
the design of each Vessel for guidance of Xxxxxxxxx'x material procurement,
fabrication and installation, and for prior review by the Buyer. Detail design
plan means a drawing showing sufficient detail that: i) parts, except fasteners,
gaskets and related hardware ("Parts"), are shown either individually or in
typical configuration or referenced to another drawing; ii) Parts are located,
oriented and sized by dimensions, shape offsets, intersection into or
dimensioned offset from, or alignment with another located Part, as necessary
for construction. Double line cargo and vapor piping drawings will be provided.
All other piping will be field routed using schematics; iii) details are shown
or identified by reference to another submitted document, such as shipyard
standard structural or piping details; iv) background arrangement, adjacent
structure or equipment are shown to illustrate design rationale, connections,
support, clearances as necessary for construction; v) all material is
identified, either on the drawing or by a submitted xxxx of material, and
specifies industry specification for common material, or manufacturer and part
number for equipment or special material, and critical additional requirements
or specifications are given or referenced, as necessary for procurement and
construction; vi) all welding, assembly or other joining arrangements for
structure, steel outfitting, piping and machinery are indicated or referenced;
and vii) special production processes such as coatings, galvanizing or machining
are identified. Section (ii) of this paragraph does not apply to Parts inside
cabinets or equipment, or to individual cables or piping in a wireway or
pipeway, or to field-routed piping or tubing below a specified size. Xxxxxxxxx
shall prepare the technical documents specifying the hydrostatic, capacity and
stability characteristics of the Vessel, in accordance with good shipbuilding
technical documents practices.
All equipment, structure, and/or piping of each Vessel is to be
fabricated/installed in accordance with the Specifications, Buyer-approved
detail design plans and documents and drawings to be supplied by Buyer
respecting Buyer-furnished equipment. Buyer-requested changes in dimensions,
locations, construction or materials made following the execution of this
Agreement and not in accordance with the Specifications, will be for Buyer's
account in accordance with Article 4 of this Agreement. Changes agreed upon by
Buyer and Xxxxxxxxx which do not require changes to existing work, will be
accepted at no additional charge if the scope of the changes does not result in
additional costs to Xxxxxxxxx.
The construction by Xxxxxxxxx shall be in conformity with applicable
requirements of United States laws, rules and regulations applicable to
coastwise and foreign trade vessels of the United States which pertain to the
Vessel, and of the American Bureau of Shipping ("ABS") and the other regulatory
bodies as listed in the Specifications; provided, however, that Xxxxxxxxx makes
no representation concerning the suitability of Buyer-furnished equipment for
and Buyer's right to engage in coastwise trade. Subject to the provisions of
Article 4 hereof, if any enforced changes in United States laws, rules, and
regulations or in the regulatory
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bodies' rules are published subsequent to the date of this Agreement, and become
effective prior to the Delivery Date of each Vessel, whereby the cost of
outfitting the Vessel is increased and/or the time required for completion is
extended, Buyer shall authorize and pay for, as a change under this Agreement,
such alterations, additional work items, outfit and/or equipment or additional
time as may be required to meet the enforced changes.
B. All general language or requirements contained in the
Specifications and all other requirements inconsistent or in conflict with the
provisions of this Agreement are superseded by this Agreement, it being the
intent of the parties that provisions of this Agreement shall prevail. If there
is a conflict or inconsistency between the Drawings and Specifications, the
Specifications shall control.
C. In any and all events, Xxxxxxxxx shall exercise reasonable
efforts to cooperate with Buyer, at Buyer's expense, to facilitate the mating of
the Vessel and its companion tug by means of the JAK-Coupling System and the
testing of such System if and only if, any work which is to be performed on the
companion tugs with respect to the JAK-Coupling System is performed by a
contractor other than Xxxxxxxxx.
D. On or before September 30, 2001, by written notice to Xxxxxxxxx,
Buyer may cancel its obligation to purchase either Xxxxxxxxx Hull No. 421, or
Xxxxxxxxx Xxxx No. 422, or both, without penalty of any kind. This right of
Buyer to cancel is separate and distinct from Buyer's right to cancel contained
in Article 5, INFRA.
ARTICLE 2. PRICE AND PAYMENT; PERFORMANCE BOND
A. In consideration of Xxxxxxxxx'x obligations hereunder, Buyer
agrees to pay to Xxxxxxxxx the sums of (w) Ten Million Three Hundred Seventy-two
Thousand Nine Hundred Twelve and no/100 ($10,372,912.00) U.S. Dollars for Hull
No. 416, (x) Eight Million Nine Hundred One Thousand Four Hundred Sixty-three
and no/100 ($8,901,463.00) U.S. Dollars for Hull No. 417, (y) Eight Million Six
Hundred Ninety-six Thousand Seven Hundred Twelve and no/100 ($8,696,712.00) U.S.
Dollars for Hull No. 421, and (z) Ten Million One Hundred Sixty-eight Thousand
One Hundred Sixty-one and 00/100 ($10,168,161.00) U.S. Dollars for Hull No. 422,
at par without discount or exchange (hereinafter each such sum severally
referred to as the "Agreement Price" for each Vessel), for full and complete
performance of the work covered by this Agreement, subject to the provisions of
this Agreement, as follows:
3
------------------------------------------------------------------------------------------
PROGRESS PAYMENT SCHEDULE AMOUNT DUE FOR HULL
NO. 416
------------------------------------------------------------------------------------------
5% upon execution of this Agreement $ 518,600.00
------------------------------------------------------------------------------------------
13% upon start of fabrication $ 1,348,500.00
------------------------------------------------------------------------------------------
13.5% upon keel laying (adjoining of first two bottom modules) $ 1,400,300.00
------------------------------------------------------------------------------------------
12% upon erection of midship bottom & bulkhead modules $ 1,244,700.00
------------------------------------------------------------------------------------------
10% upon erection of midship side modules $ 1,037,300.00
------------------------------------------------------------------------------------------
15% upon erection of midship decks $ 1,555,900.00
------------------------------------------------------------------------------------------
10% upon erection of forward and aft rake $ 1,037,300.00
------------------------------------------------------------------------------------------
10% upon launching of hull $ 1,037,300.00
------------------------------------------------------------------------------------------
10% upon delivery and acceptance $ 1,037,300.00
------------------------------------------------------------------------------------------
1.5% on the 60th day after delivery and acceptance(1) $ 155,712.00
------------------------------------------------------------------------------------------
TOTAL AGREEMENT PRICE $ 10,372,912.00
------------------------------------------------------------------------------------------
----------
(1) Subject to and in accordance with the terms of this Article 2.
4
------------------------------------------------------------------------------------------
PROGRESS PAYMENT SCHEDULE AMOUNT DUE FOR HULL
NO. 417
------------------------------------------------------------------------------------------
5% upon start of fabrication $ 445,100.00
------------------------------------------------------------------------------------------
13% upon keel laying (adjoining of first two bottom modules) $ 1,157,200.00
------------------------------------------------------------------------------------------
13.5% upon erection of midship bottom and bulkhead modules $ 1,201,700.00
------------------------------------------------------------------------------------------
15% upon erection of midship side modules $ 1,335,200.00
------------------------------------------------------------------------------------------
15% upon erection of midship decks $ 1,335,200.00
------------------------------------------------------------------------------------------
15% upon erection of forward and aft rake $ 1,335,200.00
------------------------------------------------------------------------------------------
12% upon launching of hull $ 1,068,200.00
------------------------------------------------------------------------------------------
10% upon delivery and acceptance $ 890,100.00
------------------------------------------------------------------------------------------
1.5% on the 60th day after delivery and acceptance(2) $ 133,563.00
------------------------------------------------------------------------------------------
TOTAL AGREEMENT PRICE $ 8,901,463.00
------------------------------------------------------------------------------------------
----------
(2) Subject to and in accordance with the terms of this Article 2.
5
------------------------------------------------------------------------------------------
PROGRESS PAYMENT SCHEDULE AMOUNT DUE FOR HULL
NO. 421
------------------------------------------------------------------------------------------
5% upon start of fabrication $ 434,800.00
------------------------------------------------------------------------------------------
13% upon keel laying (adjoining of first two bottom modules) $ 1,130,600.00
------------------------------------------------------------------------------------------
13.5% upon erection of midship bottom and bulkhead modules $ 1,174,100.00
------------------------------------------------------------------------------------------
15% upon erection of midship side modules $ 1,304,500.00
------------------------------------------------------------------------------------------
15% upon erection of midship decks $ 1,304,500.00
------------------------------------------------------------------------------------------
15% upon erection of forward and aft rake $ 1,304,500.00
------------------------------------------------------------------------------------------
12% upon launching of hull $ 1,043,600.00
------------------------------------------------------------------------------------------
10% upon delivery and acceptance $ 869,700.00
------------------------------------------------------------------------------------------
1.5% on the 60th day after delivery and acceptance(3) $ 130,412.00
------------------------------------------------------------------------------------------
TOTAL AGREEMENT PRICE $ 8,696,712.00
------------------------------------------------------------------------------------------
----------
(3) Subject to and in accordance with the terms of this Article 2.
6
------------------------------------------------------------------------------------------
PROGRESS PAYMENT SCHEDULE AMOUNT DUE FOR HULL
NO. 422
------------------------------------------------------------------------------------------
5% upon start of fabrication $ 508,400.00
------------------------------------------------------------------------------------------
13% upon keel laying (adjoining of first two bottom modules) $ 1,321,900.00
------------------------------------------------------------------------------------------
13.5% upon erection of midship bottom and bulkhead modules $ 1,372,700.00
------------------------------------------------------------------------------------------
15% upon erection of midship side modules $ 1,525,200.00
------------------------------------------------------------------------------------------
15% upon erection of midship decks $ 1,525,200.00
------------------------------------------------------------------------------------------
15% upon erection of forward and aft rake $ 1,525,200.00
------------------------------------------------------------------------------------------
12% upon launching of hull $ 1,220,200.00
------------------------------------------------------------------------------------------
10% upon delivery and acceptance $ 1,016,800.00
------------------------------------------------------------------------------------------
1.5% on the 60th day after delivery and acceptance(4) $ 152,561.00
------------------------------------------------------------------------------------------
TOTAL AGREEMENT PRICE $ 10,168,161.00
------------------------------------------------------------------------------------------
B. Upon delivery and acceptance of each Vessel, as evidenced by a
Protocol of Delivery and Acceptance as described in Article 3B hereof, Buyer
shall pay to Xxxxxxxxx a sum equal to (x) the balance of 98.5% the Agreement
Price of the delivered Vessel which remains due after crediting the payments
theretofore made on said Vessel, together with (y) any increase or decrease in
the Agreement Price for such Vessel that may be due for changes and extras to
the appropriate Vessel as defined in Article 4 hereunder. The remainder of the
Agreement Price of each Vessel, equal to 1.5% (the "Hold-back") of the Agreement
Price for such Vessel, shall be paid by Buyer (without interest) to Xxxxxxxxx on
the 60th day (the "Hold-back Period") after the day on which such Vessel is
delivered to and accepted by Buyer.
----------
(4) Subject to and in accordance with the terms of this Article 2.
7
Notwithstanding the foregoing, and notwithstanding the terms of Article 13E, in
the event during the Hold-back Period the Vessel needs repairs that are covered
by Xxxxxxxxx'x Warranties as set forth in Article 13 hereof, or a claim is
asserted against the Vessel for which Buyer is not responsible in accordance
with Article 14 hereof, all or part of the Hold-back amount may be used by Buyer
to pay for such repairs or to pay such claim. Buyer is entitled to cause such
repairs to be made in a facility other than that owned by Xxxxxxxxx.
C. Except for increases due to changes, extra work, change orders or
as otherwise provided hereunder, at no time shall the total billing for each
Vessel exceed the Agreement Price stated above.
X. Xxxxxxxxx shall deliver statements to Buyer for all payments due
Xxxxxxxxx hereunder. Such statements shall specify the work completed, and shall
state that all work for which payment is requested has been completed in
accordance with the terms of this Agreement. Any payments which are not paid to
Xxxxxxxxx within thirty (30) days after the same shall become due shall bear
interest at the rate of 1 1/2% per month from date of invoice until paid.,
except those payments for amounts due upon delivery and acceptance and upon
expiration of the Hold-back Period shall become due upon such delivery and
acceptance or expiration, as the case may be, and interest at the rate of 1 1/2%
shall accrue from such dates until paid.
E. In the event that Buyer disputes the amount of an invoice or
statement or any portion thereof, Buyer shall notify Xxxxxxxxx in writing of the
dispute within ten (10) calendar days following receipt of the invoice or
statement, such notice to set out the specific reasons why the invoice or any
portion thereof is being disputed. Buyer shall pay the disputed invoice or
statement or the disputed portion so long as the amount of the Agreement Price
for such Vessel, including any adjustments, that would remain unpaid after
payment of the disputed amount exceeds the sum of all amounts in dispute. In any
event, notwithstanding any such dispute, Buyer shall pay when due the undisputed
portion of each and every invoice or statement.
If any payment of any undisputed amount shall not be made within
thirty (30) days after the due date as herein provided, Xxxxxxxxx may, in its
sole discretion, suspend or reschedule progress of the work (such right being in
addition to any other right granted hereunder by operation of law). In the event
of delay in payment of any undisputed amount when due as herein provided,
Xxxxxxxxx shall not be obligated to reschedule progress of the work, but may
pursue any and all other remedies granted hereunder or by operation of law,
provided that Buyer be given fifteen (15) days prior written notice by Xxxxxxxxx
before Buyer is considered to be in default.
8
X. Xxxxxxxxx agrees to obtain and deliver to Buyer, in exchange for
the first payment made by Buyer hereunder and upon receipt of a construction
financing commitment letter, a performance bond (collectively, the "Performance
Bond") in favor of Buyer or its assignee or financier, as the case may be, in a
form satisfactory to Buyer and its financier. Buyer shall promptly reimburse
Xxxxxxxxx for all costs incurred in obtaining the Performance Bond under this
Agreement. The Performance Bond shall at no time be less than an amount to
provide for completion of the work in accordance with the terms of this
Agreement, as modified by any changes and by delivery. The Performance Bond
shall be issued by a first class bank, insurance company, or other financial
institution satisfactory to the Buyer. Together with such Performance Bond,
Xxxxxxxxx shall cause to be delivered to Buyer evidence of the due authorization
thereof by the issuing entity and the authority of the person executing the
same.
ARTICLE 3. DELIVERY AND ACCEPTANCE
A. Upon completion, the Vessel shall be given dock trials as per the
Specifications, the said trials to be of sufficient duration to assure Buyer of
the satisfactory performance of such Vessel and of all of the various systems
and operations installed therein, including satisfactory workmanship, proper
working order, alignment of moving parts, suitability for intended purpose and
compliance with applicable laws, rules and regulations of the United States
respecting the Vessels engaged in the coastwise trade, Specifications and other
requirements of this Agreement. Adequate crew, properly qualified and
credentialed, and sufficient amounts of fuel, water, and lube oil will be
supplied by Xxxxxxxxx, at its expense, in order to properly complete the testing
of the Vessel and all equipment on board during dock trials.
X. Xxxx No. 416, after required trials and contemporaneously with
payment in full (except for the Hold-back as stated in Article 2 above), shall
be delivered to Buyer afloat at Shipyard free and clear of all liens and
encumbrances, except those created by Buyer, sixteen (16) months after the
execution of this Agreement, or on such later date or dates as may be required
by reason of agreed or enforced changes in the Vessel or by reason of specified
delays resulting from force majeure, as that term is defined herein.
Hull No. 417, after required trials and contemporaneously with payment
in full (except for the Hold-back as stated in Article 2 above), shall be
delivered to Buyer afloat at Shipyard free and clear of all liens and
encumbrances, except those created by Buyer, twenty-two (22) months after the
execution of this Agreement, or on such later date or dates as may be required
by reason of agreed or enforced changes in the Vessel or by reason of specified
delays resulting from force majeure, as that term is defined herein.
9
Subject to Article 1D hereof, Hull No. 421, after required trials and
contemporaneously with payment in full (except for the Hold-back as stated in
Article 2 above), shall be delivered to Buyer afloat at Shipyard free and clear
of all liens and encumbrances, except those created by Buyer, thirty (30) months
after the execution of this Agreement, or on such later date or dates as may be
required by reason of agreed or enforced changes in the Vessel or by reason of
specified delays resulting from force majeure, as that term is defined herein.
Subject to Article 1D hereof, Hull No. 422, after required trials and
contemporaneously with payment in full (except for the Hold-back as stated in
Article 2 above), shall be delivered to Buyer afloat at Shipyard free and clear
of an liens and encumbrances, except those created by Buyer, thirty-eight (38)
months after the execution of this Agreement, or on such later date or dates as
may be required by reason of agreed or enforced changes in the Vessel or by
reason of specified delays resulting from force majeure, as that term is defined
herein.
Each date for such delivery of each Hull described in the foregoing
four paragraphs is herein called the "Delivery Date" for such Vessel. Delivery
shall be evidenced by the execution and delivery by Xxxxxxxxx and Buyer of a
Protocol of Delivery and Acceptance substantially in the form attached hereto as
Exhibit A. Upon execution and delivery of such Protocol, subject to the terms of
Article 6A, risk of damage to or loss of the Vessel shall pass to Buyer. Until
delivery is effected by the execution and delivery of such Protocol, risk of
damage or loss of the Vessel and its equipment are entirely with Xxxxxxxxx.
C. Such Vessel shall be presented by Xxxxxxxxx in a manner
consistent with the reputation of Xxxxxxxxx, with good housekeeping in evidence
and ready for Buyer to provision, outfit, crew and depart.
D. Upon delivery and acceptance, the following documents shall be
furnished by Xxxxxxxxx at the Shipyard or at the National Vessel Documentation
Center in Falling Waters, West Virginia, as appropriate:
(a) ABS Class Certificate +A1 Oil Tank Barge;
(b) Letter of Stability;
(c) International Loadline Certificate, issued by ABS for Unmanned
Ocean Service;
(d) ABS or U.S.C.G. Approved Loading Manual;
(e) U.S.C.G. Certificate of Documentation for such Vessel, evidencing
that the Vessel was built in the United States and is eligible
for coastwise trade and registry trade under U.S. law;
10
(f) Full Warranty Xxxx of Sale sufficient to transfer title (free and
clear of all liens and encumbrances other than those created by
Buyer) from Xxxxxxxxx to Buyer, duly acknowledged;
(g) U.S.C.G. Certificate of Inspection for such Vessel;
(h) U.S. and International Tonnage Certificate;
(i) Three (3) copies of as-built detail design plans and technical
documents, to be provided within ninety (90) days following final
delivery and acceptance of the Vessel;
(j) Three (3) copies of manufacturer-supplied documentation for all
Xxxxxxxxx-supplied systems, components, and appliances;
(k) U.S.C.G. International Oil Pollution Prevention Certificate.
Xxxxxxxxx shall pay all costs relating to the completion and
recordation of these documents.
ARTICLE 4. CHANGES AND EXTRAS
A. Buyer shall have the privilege during construction of the Vessel
to request, in writing, reasonable changes in or addition to the Work hereunder;
provided that where such changes or additions involve increases or decreases in
the cost to Xxxxxxxxx, Xxxxxxxxx and Buyer shall make the necessary price
adjustments and/or modifications of Delivery Date as provided below.
Xxxxxxxxx shall not depart from the design shown by the Buyer-approved
detail design plans and documents or from the Specifications, or make any other
changes in the work described in the Specifications, without prior written
authorization by Buyer, to be done at a price or credit mutually agreed upon
between Buyer and Xxxxxxxxx, which amount will be in addition to or credited
against the Agreement Price, as the case may be. The payment (or credit) for
each change will be made by (or credited to) Buyer on the Delivery Date of the
relevant Vessel.
Any proposed changes in the Specifications shall include the cost
thereof and shall include an agreement as to the number of days by which the
Delivery Date and any milestones would thereby be extended or reduced, as the
case may be. Xxxxxxxxx and Buyer shall then mutually agree as to the cost of the
proposed changes and as to the precise computation of the said number of days.
Xxxxxxxxx shall not be obligated to furnish any spare parts or supplies other
than those specifically set forth in the specifications, and any additional
spare parts requested
11
by Buyer shall be considered extra equipment for which Xxxxxxxxx shall receive
additional compensation as stated herein.
In the event that the parties cannot agree upon the cost for such
changes, then Xxxxxxxxx will charge for such services at a labor rate of $38.00
per hour, together with a material xxxx-up of 10%.
B. If any change is mandated by a regulatory body or required due to
a change in law that is published following the effective date of this
Agreement, and effective before the Delivery Date of each Vessel, the cost of
such change shall be for Buyer's account and Buyer and Xxxxxxxxx shall agree on
the price thereof and any change in Delivery Date. Absent agreement on the cost,
scope and time required for the mandated change, (a) Xxxxxxxxx may proceed with
such change and any adjustments will be charged and paid at a labor rate of
$38.00 per hour, together with a material xxxx-up of 10%, or (b) if such
change(s) increases the total payments due Xxxxxxxxx by Buyer for the Vessel in
question by more than 25%, Buyer may, at Buyer's option, terminate this
Agreement, in which case Buyer's sole liability to Xxxxxxxxx shall be limited to
all costs incurred for labor and materials, including Xxxxxxxxx'x pro rata
profit, net of progress payments paid as of the date of notice of cancellation.
ARTICLE 5. BUYER'S RIGHT OF CANCELLATION
In addition to Buyer's right to cancel the Agreement under the
specific circumstances in Article 4 (B), supra, it is expressly understood and
agreed by and between Xxxxxxxxx and Buyer that this Agreement shall be subject
to cancellation at the option of Buyer and within thirty (30) days of execution
of this Agreement if, in Buyer's sole discretion, acceptable financing for all
construction contemplated under this Agreement cannot be obtained. In the event
Buyer exercises its right of cancellation pursuant to this Article, then this
Agreement shall be deemed null and void, except that Buyer and Xxxxxxxxx further
agree that Buyer's sole liability under this Agreement shall be to reimburse
Xxxxxxxxx for all reasonable out of pocket costs and expenses incurred by
Xxxxxxxxx from the date of execution of this Agreement up to and including the
date notice of cancellation is received by Xxxxxxxxx. Payment of such
reasonable costs and expenses shall be deducted from the 5% paid to Xxxxxxxxx by
Buyer upon execution of this Agreement, with remainder to be refunded to Buyer
within 30 days of receipt of notice of cancellation.
ARTICLE 6. RISK OF LOSS AND INSURANCE
A. Title to the Work, Materials, and Components (as the term "Work",
"Materials", and "Components" are defined in
Louisiana law per La. R.S. 9:5522)
shall, as to Work, vest in Buyer as and when performed, as to Materials (other
than those that are furnished by Buyer), vest in Buyer as and when delivered to
Xxxxxxxxx, and as to Components, vest in Buyer as and when fabricated; and in
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addition to the foregoing, title to each completed Vessel hereunder shall vest
in Buyer upon execution and delivery of a Protocol of Delivery and Acceptance.
Notwithstanding the foregoing, Xxxxxxxxx shall have during construction and
until execution and delivery of a Protocol of Delivery and Acceptance, risk of
loss or damage to the Vessel and the Work, Materials and Components hereunder,
including all material, machinery, and equipment, whether or not already
attached to or installed in the Vessel. With respect to items (including
Buyer-furnished equipment) furnished by parties other than Xxxxxxxxx, Xxxxxxxxx
shall have risk of loss or damage commencing at the time such items have been
received by Xxxxxxxxx at the Shipyard. Buyer shall report, or cause to be
reported as promptly as possible, to Xxxxxxxxx the dates of arrival at
Xxxxxxxxx'x facility, of all materials and equipment being furnished by any
party other than Xxxxxxxxx and the value thereof for insurance purposes. Title
to all Buyer-furnished materials, and equipment is at all times recognized by
Xxxxxxxxx to be vested in Buyer free and clear of any interest or claim of
Xxxxxxxxx or of any other person through Xxxxxxxxx.
Delivery to and acceptance of the Vessel by execution and delivery of
a Protocol of Delivery and Acceptance by Xxxxxxxxx and Buyer shall transfer,
risk of loss or damage of the Vessel, and all work, material, machinery, and
equipment respecting such Vessel, to Buyer.
In the event there is a total loss or constructive total loss of the
Vessel prior to delivery and acceptance, REGARDLESS OF FORCE MAJEURE, Buyer will
have the option to (i) cancel this Agreement, in which event Xxxxxxxxx shall not
later than five (5) business days after reimbursement by insurers or sixty days
after Buyer shall notify Xxxxxxxxx that Buyer is exercising its option under
this Subclause, whichever action comes first, (ii) reimburse Buyer the sum of
(a) the amount, if any, paid to Xxxxxxxxx toward the Agreement Price of the
Vessel, and (b) an amount equivalent to the agreed insured value for
Buyer-furnished equipment which are damaged or are a total loss or a
constructive total loss, or (ii) request Xxxxxxxxx to advise a new Delivery Date
and Agreement Price for the replacement Vessel and if such date and price are
acceptable to Buyer, maintain this Agreement, and Xxxxxxxxx shall thereafter
deliver to Buyer a Vessel in accordance with the terms of this Agreement with
the Delivery Date and Agreement Price adjusted as advised by Xxxxxxxxx and
agreed by Buyer. In adjusting the Agreement Price for the replacement Vessel,
adjustments either upward or downward will be based only on increases or
decreases in the cost of materials and labor and on changes mandated by
regulatory agencies of the U.S. Government and ABS.
X. Xxxxxxxxx agrees, during the entire time of its performance of
work hereunder, to carry at its sole cost and expense, with an insurance company
reasonably satisfactory to Buyer, the following insurance with terms and
conditions acceptable to Buyer:
13
1) Statutory Worker's Compensation insurance covering all of Xxxxxxxxx'x
employees engaged in the work to be performed hereunder, in accordance
with the laws of the State of
Louisiana, the United States
Longshoremen's and Harbor Worker's Compensation Act, and any other
applicable workers' compensation law. The policy will also include
Employer's Liability (other than Maritime) for a limit not less than
$1,000,000 each accident (or $1,000,000 each employee for disease),
and shall contain the "Alternate Employer Endorsement" stipulating
that any claim made against Buyer by any employee of Xxxxxxxxx or its
subcontractors shall be covered under this policy and that Buyer shall
have the benefit of this insurance with respect to any such claim.
2) Maritime Employer's Liability insurance (including transportation,
wages, maintenance and cure) for limits not less than $1,000,000 each
person and $1,000,000 each occurrence.
3) Commercial General Liability (CGL) insurance with a combined bodily
injury and property damage limit of not less than $1,000,000 each
occurrence, including products and completed operations coverage,
non-owned watercraft coverage, and contractual coverage for all
liability assumed by Xxxxxxxxx under the terms of this Agreement with
limits of liability not less than those set out herein.
4) Business Auto Liability insurance with a combined bodily injury and
property damage limit of not less than $1,000,000 each occurrence.
5) Excess Liability insurance with a combined bodily injury and property
damage limit of not less than $5,000,000 each occurrence.
6) Builder's Risk insurance (including protection and indemnity clauses
and covering all periods up to delivery and acceptance of each Vessel
after tests and trials) for loss of or damage to each Vessel and work
hereunder, including Buyer-furnished equipment. The amount of
Builder's Risk insurance shall not be less than the aggregate from
time to time of (x) all payments respecting the Agreement Price for
such Vessel made by Buyer, (y) the value of any changes (as agreed
between Xxxxxxxxx and Buyer), and (z) the value (as advised by Buyer
to Xxxxxxxxx) of Buyer-furnished equipment for such Vessel received at
the Shipyard.
With respect to Workers' Compensation, Employer's Liability, and
Maritime Employer's Liability insurance, Xxxxxxxxx agrees that all of the
policies shall contain waivers of underwriters' rights of subrogation against
Buyer. With respect to CGL, Business Auto Liability, and Excess Liability
insurance, Xxxxxxxxx agrees that all of
14
the policies shall contain waivers of underwriters' rights of subrogation
against Buyer, and that Buyer shall be named an additional assured on such
policies, without any liability for premium, it being understood and agreed that
such naming and waiving shall apply only with respect to the obligations and
risks assumed by Xxxxxxxxx in this Agreement. It is further understood and
agreed that any indemnity obligations hereunder of Buyer to Xxxxxxxxx shall be
considered primary to any obligation of Xxxxxxxxx'x CGL insurer, Business Auto
Liability insurer, and Excess Liability insurer, to afford coverage to Buyer.
With respect to Builder's Risk insurance, Xxxxxxxxx agrees that such policy
shall contain waivers of underwriters' rights of subrogation against Buyer, that
Buyer shall be named an additional assured, without any liability for premium,
and that Buyer (and Buyer's lender, if any) shall be named as a loss payee as
its interests may appear.
Xxxxxxxxx agrees to furnish Buyer with certificates of insurance (and
copies of policies if requested by Buyer) evidencing the above coverage within
thirty (30) days of the effective date of this Agreement. Such certificates (and
policies) shall stipulate that thirty (30) days advance written notice of
non-renewal, cancellation or material changes shall be given to Buyer (and
Buyer's lender, if any). It is understood that should at any time the Buyer
require insurance coverage in addition to that mentioned in this Article, such
insurance shall be procured by Buyer and be at Buyer's expense.
The full premium cost of each policy of insurance hereinabove referred
to shall be borne by Xxxxxxxxx. Xxxxxxxxx agrees to allow Buyer to inspect all
such policies or copies thereof at all reasonable times, and Xxxxxxxxx shall
notify Buyer as soon as practicable in the event of any policy non-renewal,
cancellation, material alteration, or notice of any of the foregoing that may be
received by Xxxxxxxxx relating to the Vessel.
Xxxxxxxxx'x compliance, or its failure to comply, with the insurance
provisions of this Agreement shall not relieve or limit its obligation to
indemnify or hold Buyer harmless where and to the extent so required by the
provisions of this Agreement.
C. Buyer agrees during the entire time of its performance or work
hereunder to carry at its sole cost and expense with an insurance company
reasonably satisfactory to Xxxxxxxxx, the following insurance with terms and
conditions acceptable to Xxxxxxxxx:
1) Statutory Worker's Compensation insurance covering all of Buyer's
employees engaged in the work to be performed hereunder, in
accordance with the laws of the State of
Louisiana, the United
States Longshoremen's and Harbor Worker's Compensation Act, and
any other applicable workers compensation law. The policy will
also include Employer's Liability (other than Maritime) for a
limit not less
15
than $1,000,000 each accident, and shall contain the "Alternate
Employer Endorsement" stipulating that any claim made against
Xxxxxxxxx by any employee of Buyer or its subcontractors shall be
covered under this policy and that Xxxxxxxxx shall have the
benefit of this insurance with respect to any such claim.
2) Maritime Employer's Liability insurance (including
transportation, wages, maintenance and cure) for limits not less
than $1,000,000 each person and $1,000,000 each occurrence.
3) Commercial General Liability (CGL) insurance with a combined
bodily injury and property damage limit of not less than
$1,000,000 each occurrence, including products and completed
operations coverage, watercraft exclusion deleted, and
contractual coverage for all liability assumed by Buyer under the
terms of this Agreement with limits of liability not less than
those set out herein.
4) Business Auto Liability insurance with a combined bodily injury
and property damage limit of not less than $1,000,000) each
occurrence.
5) Excess Liability insurance with a combined bodily injury and
property damage limit of not less than $5,000,000 each
occurrence.
With respect to Workers' Compensation, Employer's Liability, and
Maritime Employer's Liability insurance, Buyer agrees that all of the policies
shall contain waivers of underwriters' rights of subrogation against Xxxxxxxxx.
With respect to CGL, Business Auto Liability, and Excess Liability insurance,
Buyer agrees that all of the policies shall contain waivers of underwriters'
rights of subrogation against Xxxxxxxxx, and that Xxxxxxxxx shall be named an
additional assured (without any liability for premium) on such policies, it
being understood and agreed that such naming and waiving shall apply only with
respect to the obligations and risks assumed by Buyer in this Agreement. It is
further understood and agreed that the indemnity obligations of Xxxxxxxxx to
Buyer shall be considered primary to any obligation of Buyer's CGL insurer,
Business Auto Liability insurer, and Excess Liability insurer, to afford
coverage to Xxxxxxxxx.
Buyer agrees to furnish Xxxxxxxxx with certificates of insurance (and
copies of policies if requested by Xxxxxxxxx,) evidencing the above coverage
within thirty (30) days of the effective date of this Agreement. Such
certificates (and policies) shall stipulate that thirty (30) days advance
written notice of non-renewal, cancellation or material change shall be given to
Xxxxxxxxx. It is understood that should at any time Xxxxxxxxx require insurance
coverage in addition to that mentioned in this Article, such insurance will be
procured by Xxxxxxxxx and be at Xxxxxxxxx'x expense.
16
The full premium cost of each policy of insurance hereinabove referred
to shall be home by Buyer. Buyer agrees to allow Xxxxxxxxx to inspect all such
policies or copies thereof at all reasonable times, and Buyer shall notify
Xxxxxxxxx immediately in the event of any policy non-renewal, cancellation,
material alteration, or notice of any of the foregoing that may be received by
Buyer relating to the Vessel.
Buyer's compliance, or its failure to comply, with the insurance
provisions of this Agreement shall not relieve or limit its obligation to
indemnify or hold Xxxxxxxxx harmless where and to the extent so required by the
provisions of this Agreement.
To the extent that Buyer acquires and maintains Hull and Machinery
insurance and Protection and Indemnity insurance on the Vessel following
delivery and acceptance of the Vessel, Buyer agrees during the Warranty period
as defined in Article 13 to cause its insurers to waive subrogation against
Xxxxxxxxx in any Hull and Machinery policy and Protection and Indemnity policy
in force after delivery and acceptance of the Vessel. Nothing contained in this
agreement requires Buyer to obtain Hull and Machinery or Protection and
Indemnity insurance, it being understood that Buyer may elect to be self-insured
and this paragraph will only be applicable if Buyer acquires Hull and Machinery
or Protection and Indemnity insurance in the commercial insurance market.
ARTICLE 7. INDEMNIFICATION
X. Xxxxxxxxx expressly agrees to defend, indemnify and hold harmless
Buyer (including any assignees of Buyer made in accordance with the terms of
this Agreement), its officers, directors, members, representatives, agents,
employees, the Vessel itself, and Buyer-furnished equipment, from and against
all occurrences, claims, demands, suits, or causes of action arising prior to
the delivery to and acceptance of the Vessel by the Buyer, and out of or
resulting from the performance of this Agreement, including but not limited to
occurrences, claims, demands, suits and causes of action for bodily injury,
illness, disease, death, loss of services, maintenance, cure, property damage,
and all reasonable attorney's fees in connection therewith, in favor of
Xxxxxxxxx'x employees, hired personnel, Xxxxxxxxx'x subcontractors and their
employees, invitees of both Xxxxxxxxx and Xxxxxxxxx'x subcontractors and
trespassers, whether or not said occurrence, claim, demand, suit or cause of
action is alleged to be caused by the sole or concurrent negligence, act,
omission, fault or strict liability of Buyer, (including any assignees of Buyer
made in accordance with the terms of this Agreement) its officers, directors,
members, representatives, agents, hired personnel, or employees, or Buyer's
subcontractors or such subcontractors' employees or as a result of claims of
unseaworthiness of any Vessel, defect in premises, or any other act or omission
by any employees or agents
17
of Buyer, and regardless of whether such negligence, act, or omission is active
or passive, primary or secondary.
B. Buyer expressly agrees to defend, indemnify and hold harmless
Xxxxxxxxx, its officers, directors, agents and employees from and against all
occurrences, claims, demands, suits and causes of action arising prior to the
final delivery to and acceptance of the Vessel by the Buyer, and out of or
resulting from the performance of this Agreement, including but not limited to
occurrences, claims, demands, suits and causes of action for bodily injury,
illness, disease, death, loss of services, maintenance, cure, property damage
(excluding, however, the Vessel itself and any Buyer-furnished equipment), and
all reasonable attorney's fees in connection therewith, in favor of Buyer's
employees, Buyer's subcontractors and invitees of both Buyer and Buyer's
subcontractors, whether or not said occurrence, claim, demand, suit or cause of
action is alleged to be caused by the sole or concurrent negligence, act,
omission, fault or strict liability of Xxxxxxxxx, its officers, directors,
agents or employees or Xxxxxxxxx'x subcontractors or such subcontractor's
employees or as a result of claims of unseaworthiness of any Vessel, defect in
premises or any other act or omission by any employees or agents of Xxxxxxxxx,
and regardless of whether such negligence, act, or omission is active or
passive, primary or secondary.
ARTICLE 8. PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY
X. Xxxxxxxxx agrees to protect and hold harmless Buyer against
claims of third persons for damage sustained by reason of infringement of patent
rights, plans, proprietary information, copyrights, and trade secrets with
respect to designs, materials, processes, plans, proprietary information,
machinery, and equipment selected and furnished by Xxxxxxxxx in such works.
Except with respect to violations by Xxxxxxxxx of the provisions contained in
Article 8.B., Buyer agrees to protect and hold harmless Xxxxxxxxx against claims
of third persons for damages sustained by reason of infringement of patent
rights, plans, proprietary information, copyrights, and trade secrets with
respect to designs, materials, processes, plans, proprietary information,
machinery and equipment supplied or specifically acquired by Buyer or by any
other party on behalf of Buyer, or required by any plans and specifications
furnished by Buyer. The indemnitee shall notify the indemnitor of the filing of
any suit so as to permit the timely filing of an answer thereto, and upon such
notice the indemnitor shall have the obligation to assume full defense of such
suit and the right to control the defense of such suit with attorneys of
indemnitor's selection and shall have the right to settle such suit in
indemnitee's name, and further provided that the indemnitee shall fully
cooperate with the indemnitor, in the defense of such suit. The indemnitee may,
at indemnitee's election, participate in the defense of a claim at indemnitee's
expense, provided that the indemnitor's decisions as to settlement and defense
shall be final.
18
In the event any third party obtains injunctive relief prohibiting use
or practice of any patent, copyright, trademark, service xxxx, trade secret,
design or other intellectual property incorporated into a Vessel by Xxxxxxxxx,
other than Buyer-furnished designs, plans specifications, or equipment, or in
the event that upon assertion of such a claim, the parties consent to refrain
from any such infringing use with respect to any Vessel, Xxxxxxxxx, at its cost
and expense, shall procure a license for such intellectual property or a
substitute technology reasonably acceptable to Buyer.
B.1. The push-pin socket assembly portion of the JAK-Coupling
System (hereinafter "Push Pin Sockets") will be installed by Xxxxxxxxx in
accordance with the plans and specifications prepared by the manufacturer of
such system (the "JAK Manufacturer") and supplied by the Buyer to Xxxxxxxxx in a
timely manner. Buyer shall also supply to Xxxxxxxxx evidence that ABS has
approved the manufacture of the Push Pin Sockets and its installation design in
accordance with plans and specifications supplied by the JAK Manufacturer. The
Push Pin Sockets shall constitute part of Buyer-furnished equipment under this
Agreement.
2. Xxxxxxxxx recognizes that all information respecting the Push
Pin Sockets and all plans and specifications relating thereto constitutes a
trade secret of the JAK Manufacturer and the Buyer and proprietary and
confidential information of the JAK Manufacturer and the Buyer. Xxxxxxxxx agrees
that "trade secrets and confidential information" consists of trade secrets and
confidential business lists, records, and information, including but not limited
to the following: , contacts, addresses, lists, contracts, transactions, plans,
designs, specifications, engineering calculations and graphics, policies,
reports, histories, information reports, and information; methods of generating
customer leads; techniques, policies, methods and procedures for sales, pricing
and marketing; prices and price lists; inventory and inventory lists; supplies,
suppliers names and addresses, and supplier and supply lists; manufacturer,
distributor and supplier company names, contacts, addresses, lists,
transactions, contracts, policies, reports, histories, products, rate books,
comparisons, and information; advertising, advertising copy and programs;
endorser names and addresses; sales reports, business reports, financial
statements and reports, and operating statements; employees, agents, subagents,
and independent contractor names, addresses, lists, commissions, productivity
and information; computer programs, computer software, databases, and data; and
know-how, discoveries, inventions, writings, conceptions, knowledge,
information, plans, programs, and ideas and tangible expressions of ideas. These
lists of trade secrets and confidential information are not exclusive; there may
not and in the future be other types of information that constitute trade
secrets and confidential information respecting the JAK-Coupling System and
which are included within the scope of this paragraph.
19
3. Xxxxxxxxx further agrees that all plans, drawings,
specifications, engineering calculations, graphics, drawings, books, papers,
records, lists, files, forms, reports, accounts, documents, supplies, equipment,
photographs, cassettes, compact disks, video tapes, databases, disks, data,
computers, peripherals, hardware, programs, software, floppy disks, hard drives,
magnetic media, storage media, cd-roms, accessories, parts, components, manuals,
documentation, research papers and information relating in any manner to the JAK
Manufacturer or the JAK-Coupling System, and whether or not containing a trade
secret or confidential information, are the exclusive property of the JAK
Manufacturer and the Buyer. Xxxxxxxxx shall immediately return the foregoing to
Buyer on the date of termination of this Agreement or earlier at the Buyer's
request at any time.
4. Xxxxxxxxx agrees to keep secret and treat confidentially all of
the JAK Manufacturer's or Buyer's trade secrets and confidential information
(whether or not copyrightable or patentable). Xxxxxxxxx agrees not to do any of
the following, directly or indirectly: use, publish, disclose or communicate any
of the JAK Manufacturer's or Buyer's trade secrets or confidential information
to anyone, except as specifically allowed by this Agreement or after the Buyer's
prior written approval; print, copy, publish, display, reproduce or allow anyone
else to print, copy, publish, or display or reproduce any information in
tangible form containing a trade secret or confidential information; aid others
in learning of or using or planning the use of any of the JAK Manufacturer's or
Buyer's trade secrets or confidential information, except in pursuance of the
objects of this Agreement; use the JAK Manufacturer's or Buyer's trade secrets
or confidential information for Xxxxxxxxx'x own account or benefit; or aid,
assist or plan for other persons or entities to use the JAK Manufacturer's or
Buyer's trade secrets or confidential information for their own account or
benefit. This obligation of confidentiality shall exist during the term of this
Agreement, and it shall continue after the date of termination of this Agreement
for the longer of (i) five years, or (ii) the date that all elements of the
trade secrets and confidential information described in this paragraph subclause
B. are public knowledge and no longer proprietary to the JAK Manufacturer or the
Buyer. Notwithstanding the foregoing, Xxxxxxxxx shall not be restricted from
disclosure or use of confidential information or a trade secret, as contemplated
and defined herein, that:
(1) was in the public domain at the time of disclosure or thereafter
enters the public domain through no breach of this Agreement by
Xxxxxxxxx; or
(2) was, at the time of receipt, otherwise known to Xxxxxxxxx without
restriction as to use or disclosure; or
20
(3) becomes known to Xxxxxxxxx from a source other than Buyer or the JAK
Manufacturer without breach of this Agreement by Xxxxxxxxx; or
(4) is developed independently by Xxxxxxxxx and without reliance upon
confidential information or trade secrets disclosed hereunder.
5. Xxxxxxxxx agrees that each of the above matters is important,
material, confidential, and gravely affects the effective and successful conduct
of the business of the JAK Manufacturer and Buyer and affects their value,
reputation and good will. If Xxxxxxxxx breaches any provision of this Agreement
respecting the JAK-Coupling System as set forth in subclauses B. 1. through B.4.
hereof, the JAK Manufacturer and the Buyer, either individually or together, is
entitled to obtain temporary and permanent injunctions, specific performance,
damages (to the extent, if at all, that they are ascertainable; including but
not limited to the compensatory, incidental, consequential, punitive, exemplary,
and lost profits damages), costs and reasonable attorney's fees at all levels,
including but not limited to appeals. Xxxxxxxxx agrees that if Xxxxxxxxx
breaches any provision of this Agreement respecting the JAK-Coupling System as
set forth in subclauses B. 1. through B.4. hereof, it shall be conclusively
presumed that a irreparable injury would result to the JAK Manufacturer and the
Buyer and there would be no adequate remedy at law. Xxxxxxxxx agrees that this
covenant is not contrary to public health, safety or welfare. Xxxxxxxxx also
agrees that this covenant is reasonable and protects the legitimate business
interests of the JAK Manufacturer and the Buyer. This Agreement respecting the
JAK-Coupling System as set forth in subclauses B.1. through B.4. hereof does not
limit the rights and remedies that the JAK Manufacturer or the Buyer otherwise
has with respect to the JAK-Coupling System by law, equity or statute.
ARTICLE 9. PLAN APPROVAL, INSPECTION, ACCESS AND TEST
X. Xxxxxxxxx shall submit three (3) copies of each detail design
plan and technical document to the Buyer for Buyer's review for compliance with
the Specifications and this Agreement. The Buyer shall return one copy of each
drawing with comments and changes to the drawing required for Xxxxxxxxx to
comply with the Specifications and this Agreement within 7 calendar days of
receipt, or Xxxxxxxxx may consider the drawing approved by Buyer. Revisions made
to such drawings by Xxxxxxxxx shall be resubmitted in the same procedure.
Xxxxxxxxx shall respond to comments, and make required changes in reasonably
prompt order to avoid delay in the work. Xxxxxxxxx may not purchase, fabricate
or install items for each Vessel, unless shown on detail design plans approved
by the Buyer, however Xxxxxxxxx may do so at its sole risk of rejection by
Buyer. Within 45 days of the date of this Agreement Xxxxxxxxx shall submit to
Buyer a plan schedule
21
identifying each detail design plan and technical document, the scheduled date
for submission to Buyer and whether the document is intended to be submitted to
any regulatory body.
B. During construction, outfitting tests and trials, Buyer or its
accredited representatives shall have access to inspect the Vessel and the work
at all reasonable times. Buyer shall bear the cost for Buyer's representative in
such access and inspection but shall not be required to compensate Xxxxxxxxx for
the reasonable use of Xxxxxxxxx'x facilities in connection therewith. Xxxxxxxxx
will perform dock tests and trials of the Vessel and its component systems
(including the Push Pin Sockets) of sufficient nature and duration so as to
assure that the Vessel is delivered to Buyer in an operating, fit and seaworthy
condition and in accordance with the terms of this Agreement; provided however,
that Xxxxxxxxx shall be responsible solely for the installation of the Push Pin
Sockets and shall have no responsibility to ensure their functionality and
successful operation. Xxxxxxxxx will give Buyer at least forty-eight (48) hours
written or telephoned notice of the date of said tests and trials. All the
workmanship and material required under this Agreement, while the same is in
fabrication, erection, construction, installation and performance, shall be
inspected promptly by the representative and agents of Buyer and shall be
accepted promptly in accordance with this Agreement, the Specifications or a
Buyer-approved detail design plan and rejected promptly if not in accordance
therewith.
ARTICLE 10. FORCE MAJEURE
A. All work performed by Xxxxxxxxx under this Agreement, with
respect to any stipulated completion date of such Work or the stipulated
Delivery Date of the Vessel, shall be subject to extension by reason of force
majeure. The parties agree that such causes shall include, but not be limited
to, the following: all strikes, or any other industrial disturbance,
unavailability or inadequacy of fuel supplies or electricity, act of God, war,
preparation for war, the intervention of the Military or other agencies of
government, blockade, sabotage, vandalism, riots, insurrection, rain,
landslides, floods, named tropical storms, tornadoes, earthquakes, collisions,
fire, epidemics, lightning, any delay or non-delivery of Buyer-furnished
material and/or equipment, delays caused by changes authorized by Buyer, and
delays of material which Xxxxxxxxx cannot avoid with the exercise of due
diligence and planning. No such extension, however, shall suspend, alter or
affect Xxxxxxxxx'x right to receive compensation for, or Buyer's duty, if any,
to compensate for, all work completed through the date of suspension.
B. Within fifteen (15) days of knowledge that the stipulated
Delivery Date will be affected by any force majeure event, Xxxxxxxxx shall
notify Buyer in writing, and shall furnish an estimate, if possible, of the
extent of the delay. Upon receipt of any such notice, Buyer shall, within seven
(7) days, acknowledge the same in
22
writing and indicate agreement if such development is to be treated as a force
majeure event or state any objections, and the reasons therefor, to acceptance
of this development as a force majeure event. If Buyer shall fail to respond
within seven (7) days, the extension of time shall be considered approved. If
and when the completion of the Vessel is delayed by force majeure, the
stipulated Delivery Date shall be extended by a period equal to the period of
the delay. An extension of a Delivery Date shall only be allowed if any of the
events above designated adversely affects the normal work of Xxxxxxxxx and in so
doing demonstrably, directly and adversely affects a Delivery Date.
Except as specifically above provided, acts of commission or omission
(irrespective as to negligence and whether voluntary or compulsory) of
employees, independent contractors, subcontractors representatives, agents or
others engaged by Xxxxxxxxx, including their officers, employees, crew, and
inspectors shall not excuse Xxxxxxxxx from delay hereunder.
ARTICLE 11. DAMAGES FOR DELAY; EARLY DELIVERY BONUS
X. Xxxxxxxxx and Buyer agree and fully understand that time is of
the essence in this Agreement and stipulate that after required trials and
completion in accordance with this Agreement and Specifications relating
thereto, the Vessel shall be delivered to Buyer in accordance with the date and
terms set forth in Article 3 of this Agreement. In the event that Xxxxxxxxx
fails to deliver a Vessel on or before the contractual Delivery Date, as
adjusted for changes made hereunder and delays resulting from force majeure as
defined herein, Buyer will suffer damages which are difficult to ascertain and
therefore Buyer accepts, in lieu of actual damages, damages (and not penalty) in
the amount of $2,500.00 per day of delay for such Vessel, with no maximum
aggregate sum in the event of delayed delivery of such Vessel.
B. In the event that a Vessel is delivered before the contractual
Delivery Date, as adjusted for any and all changes made hereunder, then Buyer
agrees to pay Xxxxxxxxx an early delivery bonus in the amount of $1,250.00 per
day of early delivery of such Vessel, with no maximum aggregate sum in the event
of early delivery of a Vessel.
ARTICLE 12. CONSEQUENTIAL DAMAGES
Except as otherwise specifically provided for in this Agreement, this
Article applies to and takes precedence over any other Articles, Sections, or
provisions of this Agreement. Under no circumstances and under no theory of law,
whether contract, quasi-contract, strict liability, warranty, tort (including
the sole or concurrent negligence) fault, or any other theory of law or cause of
action, shall Xxxxxxxxx have any liability to Buyer, or Buyer have any liability
to Xxxxxxxxx, for (i) loss of revenue, loss of profit, loss of use of capital or
production delays, loss of any
23
portion of or all of a Vessel or any aspect of the work, delays in delivery of
the Vessel, losses resulting from failure to meet other contractual commitments
or deadlines, downtime of facilities or vessels, in each case, regardless of
whether such claim, or the basis thereof, is considered as a consequential
damage or not, or (ii) indirect or consequential loss or damage, however and
whenever arising under this Agreement or as a result of or in connection with
the Vessel, and whether based on negligence, whether sole or concurrent or
active or passive, or unseaworthiness, breach of warranty, breach of contract,
or otherwise; i) and ii) above are defined as Consequential Damages.
ARTICLE 13. WARRANTY
A. WORKMANSHIP. Xxxxxxxxx warrants that all work will be done in a
good and workmanlike manner and that all labor and installations made shall meet
the requirements and standards described in any United States law, rule or
regulation or regulation of ABS applicable to a United States vessel to be used
in the coastwise trade and in the Specifications which pertain to the Vessel,
except in the event that Buyer or the vendor of Buyer-furnished or
Buyer-specified material or equipment requires a specific installation that does
not meet such requirements and standards described hereinabove. Xxxxxxxxx
further warrants that all materials and equipment used by Xxxxxxxxx and
incorporated into the Vessel, except Buyer-furnished equipment, shall be new and
should be as provided for in the Specifications.
B. MATERIALS AND EQUIPMENT. Xxxxxxxxx does not warrant that any
material or equipment purchased by it for use or installation in the Vessel is
free from manufacturer's defects, and specifically disclaims any warranties
expressed or implied, with respect to such material or equipment, but does
hereby assign each manufacturer's warranty to Buyer, and will use reasonable
efforts in order to enforce any claims against manufacturers which may occur;
the manufacturer's warranties assigned by Xxxxxxxxx shall be in effect for a
term of not less than 180 days, and begin with the Delivery Date of each Vessel.
Xxxxxxxxx warrants the installation of systems or equipment or engines shall be
in accordance with manufacturer's recommendations and requirements, and that in
the absence of manufacturer's recommendations and requirements, that material
and equipment will be installed in accordance with good shipyard practice.
Xxxxxxxxx shall not be liable for the performance or suitability of any
Buyer-furnished equipment nor the impact of said Buyer-furnished equipment upon
the performance characteristics of the Vessel.
C. PAINT. Xxxxxxxxx warrants only that it will i) purchase paint of
good marine quality as designated in the specifications, ii) apply the paint in
accordance with the Manufacturer's specifications and recommendations, and iii)
hereby assigns to Buyer a manufacturer's warranty which provides for repair and
24
replacement due to defective material for a period of time which is at least as
long as Xxxxxxxxx'x warranty provided for herein.
D. TERM. Xxxxxxxxx'x warranty shall extend only to the original
Buyer and its assigns in accordance with the terms of this Agreement and only to
such claims related to undertakings, representations, warranties, design,
defects, workmanlike performance, installation of material or equipment or
unseaworthiness ("Claims") reported in writing to Xxxxxxxxx within three hundred
sixty five (365) days of the delivery and acceptance of each respective Vessel
(the "Warranty Term") or, with respect to a repair made by Xxxxxxxxx during the
Warranty Term, within three hundred sixty five (365) days of the completion of
such repair made by Xxxxxxxxx at the Shipyard. Upon receipt of due notice of any
defect covered under this warranty, Xxxxxxxxx will make repairs or replacements,
at its option, at its Shipyard without expense to it for transporting the Vessel
or any component thereof to or from its Shipyard. Subject to the terms of
Article 2 respecting the Hold-back, in the event repairs must be made other than
at the Shipyard because it is impractical to transport the Vessel to a Xxxxxxxxx
facility, and if Buyer has such repairs made under the terms of this warranty,
it is expressly understood by Buyer that Xxxxxxxxx will be responsible only for
the retail costs (without overtime) which Xxxxxxxxx would have charged, had
Xxxxxxxxx done the work. In the event of any Claim the nature or extent of which
does not require placement of the Vessel in a shipyard, Xxxxxxxxx shall, at its
sole cost and expense, make repairs or replacements at a mutually agreed upon
location which is practical and reasonable under the circumstances.
E. SOLE REMEDY. Subject to the terms of Article 2 respecting the
Hold-back, the sole and exclusive remedy of Buyer for Claims shall be limited to
the obligation of Xxxxxxxxx to repair and/or replace, or cause to be repaired or
replaced, at its option, or to pay for or reimburse Buyer for the cost thereof
in accordance with the terms of Article 13D hereof, any such defective
workmanship or installation of materials or equipment, provided such defects or
breakdowns have not been caused by the negligent operations of the Vessel or its
equipment, after delivery and acceptance, by those in charge of the Vessel's
operation, or other persons not in the employ of Xxxxxxxxx, or the manufactured
supplied items.
In no event shall Xxxxxxxxx be responsible for any sum in excess of
the cost of the repairs and replacement of materials as specified herein, it
being specifically understood that Xxxxxxxxx shall under no circumstances have
any liability for any Consequential Damages.
F. REPORTING OF CLAIMS. Xxxxxxxxx shall have no responsibility
whatsoever with respect to any Claims not reported in writing within said three
hundred sixty five (365) days, regardless of any negligence on the part of
Xxxxxxxxx or its employees or subcontractors or their employees or of any
furnisher of materials in connection therewith, and Buyer waives and releases
Xxxxxxxxx, its employees,
25
subcontractors and their employees and all furnishers of materials and supplies
from all such liability and all damages resulting therefrom, whether same be
based on contract or tort, for any damages or loss to the Vessel resulting from
Claims.
G. DISCLAIMERS. XXXXXXXXX MAKES NO WARRANTIES OR REPRESENTATIONS
WHATSOEVER OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, AND ANY OTHER
WARRANTIES, WHICH MIGHT OTHERWISE BE IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR FREEDOM
FROM ANY LATENT VICES OR DEFECTS, ARE EXPRESSLY EXCLUDED AND NEGATED. FURTHER,
XXXXXXXXX DOES NOT WARRANT THAT THE WORK IS FREE FROM REDHIBITORY LATENT DEFECTS
OR VICES. BUYER HEREBY (I) EXPRESSLY WAIVES ALL RIGHTS IN REDHIBITION AND
REDUCTION OF PURCHASE PRICE PURSUANT TO
LOUISIANA CIVIL CODE ARTICLES 2520 ET
SEQ. AND THE WARRANTY IMPOSED BY
LOUISIANA CIVIL CODE ARTICLE 2476 AND (II)
RELEASES SELLERS FROM ANY LIABILITY FOR REDHIBITORY OR LATENT DEFECTS OR VICES
UNDER
LOUISIANA CIVIL CODE ARTICLES 2520 THROUGH 2548; PROVIDED, HOWEVER, THAT
THE FOREGOING SHALL NOT BE DEEMED TO BE A WAIVER OF ANY CLAIM FOR WILLFUL
CONCEALMENT OR FRAUD. ALL CLAIMS REGARDING THE WORK WHETHER OR NOT DUE TO
XXXXXXXXX'X NEGLIGENCE AND ALL CLAIMS RELATING TO THE WORK WHETHER ARISING IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR
OTHERWISE, SHALL BE SUBJECT TO THE AGREEMENTS AND LIMITATIONS OF THIS SECTION.
THE ABOVE OBLIGATIONS OF XXXXXXXXX AND REMEDIES PROVIDED TO BUYER ARE THE SOLE
AND EXCLUSIVE OBLIGATIONS OF XXXXXXXXX AND REMEDIES OF BUYER RESPECTING A CLAIM.
ARTICLE 14. LIENS AND ENCUMBRANCES
A. Following payment of the sums (other than the Hold-back in
accordance with Article 2 hereof) due to Xxxxxxxxx by Buyer hereunder respecting
a Vessel, Xxxxxxxxx agrees to deliver the Vessel to Buyer free and clear of any
and all liens, mortgages, claims, encumbrances and rights in rem, excluding only
those liens, mortgages, claims, or encumbrances created by Buyer.
In the event of the filing or attaching of any lien, claim, mortgage,
or encumbrance or rights in rem (excluding those created by Buyer) against the
Vessel before delivery to and acceptance by Buyer, Buyer may, but shall not be
required to, satisfy the same out of any amount (including, but not limited to
the Hold-back) remaining to be paid to Xxxxxxxxx hereunder, or Buyer may, at its
option, withhold
26
the amount thereof from any payment to become due hereunder. When final payment
is to be made under this Agreement, as condition precedent thereto, Buyer may,
in its discretion, require that Xxxxxxxxx provide to Buyer a statement
certifying that there exist no claims, lien, encumbrances or rights in rem of
any kind against the Vessel or its respective machinery, fittings, or equipment
excluding any liens or encumbrances created by Buyer.
In addition to and notwithstanding the foregoing, Xxxxxxxxx agrees to
indemnify Buyer and hold it harmless from and against all claims, liens,
encumbrances and rights in rem and claims for labor, material, taxes, privileges
and licenses arising out of, in connection with, or resulting from the
construction of the Vessel, the delivery and acceptance of the Vessel, or the
operations or activities of Xxxxxxxxx, its employees or agents or subcontractors
and the employees or agents of their subcontractors, except for liens,
mortgages, claims, or encumbrances created by Buyer, and Xxxxxxxxx agrees to
defend any such claim asserted or suit brought against Buyer and to pay any
judgment rendered in any such action, provided, however, that Buyer shall have
the right, if it so elects, to participate at its own expense in the defense of
any such claims or suits, but such participation shall not operate to affect
Xxxxxxxxx'x liability and obligation hereunder.
B. Buyer agrees to indemnify Xxxxxxxxx and hold it harmless from and
against all claims, liens, encumbrances and rights in rem for labor, materials,
taxes, privileges and licenses arising out of, in connection with, or resulting
from the operations or activities of Buyer, its employees or agents or
subcontractors and the employees or agents of their subcontractors, and agrees
to defend any such claim asserted or suit brought against Xxxxxxxxx and to pay
any judgment rendered in any such action, provided, however, that Xxxxxxxxx
shall have the rights, if it so elects, to participate at its own expense in the
defense of any such claims or suits, but such participation shall not operate to
affect Buyer's liability and obligation hereunder.
ARTICLE 15. BUYER-FURNISHED EQUIPMENT AND INFORMATION
X. Xxxxxxxxx shall, at its own expense and risk, receive, inspect,
check as to agreement with Bills of Lading, store, protect, insure and install
aboard the Vessel all of the Buyer-furnished equipment required by the
Specifications to be furnished by Buyer. Xxxxxxxxx shall not be deemed to have
extended any warranty as to materials or equipment furnished by Buyer. Xxxxxxxxx
shall be liable to, and does hereby indemnify, Buyer for any damage to or loss
of Buyer-furnished equipment by Buyer occurring during Xxxxxxxxx'x custody
thereof which may arise from any event. The cost of technical support required
to commission Buyer-furnished equipment after installation by Xxxxxxxxx shall be
the responsibility of Buyer.
27
B. Buyer shall cause to be delivered to Xxxxxxxxx Push Pin Sockets
for each Vessel ready for installation. Buyer shall also deliver to Xxxxxxxxx
plans and specification for the installation of the Push Pin Sockets on each
Vessel. Buyer shall cause the delivery of such Push Pin Sockets in a timely
manner and, in any event, not later than the need date identified therefor with
respect to the Vessel by Xxxxxxxxx in Xxxxxxxxx'x construction schedule as
described below.
For each Vessel hereunder, at least eight weeks prior to the need date
identified by Xxxxxxxxx for the Push Pin Sockets, Xxxxxxxxx shall provide the
JAK Manufacturer such detailed specifications, diagrams or other documents as
may be required by the JAK Manufacturer to allow it to manufacture and timely
deliver to Xxxxxxxxx the Push Pin Sockets and any other Components of the JAK
Coupling System as may be required.
Notwithstanding any provision in this Agreement to the contrary,
Xxxxxxxxx shall install the Push Pin Sockets in accordance with Buyer-furnished
drawings, and Xxxxxxxxx shall not provide engineering or design services with
respect to the Push Pin Sockets and shall have no liability with regard to the
suitability, effectiveness, merchantability, or performance of the Push Pin
Sockets.
C. No later than 14 days after the submission by Xxxxxxxxx to Buyer
of Xxxxxxxxx'x construction schedule for the Vessel, including dates upon which
Buyer-furnished equipment and Buyer-furnished information must be received at
Xxxxxxxxx'x facility ("need dates"), Buyer shall provide a schedule of
Buyer-furnished equipment and Buyer-furnished information detailing the value
(which shall be the amount of insurance therefor required to be carried by
Xxxxxxxxx in accordance with Article 6 hereof) of each specific unit, if any,
and confirming Buyer's acceptance of Xxxxxxxxx'x need dates, the delivery date
of each unit, accessories and information. If Buyer fails to provide the value
of any Buyer-furnished equipment to Xxxxxxxxx, then Xxxxxxxxx'x liability to
Buyer for any damage to or loss of such item occurring during Xxxxxxxxx'x
custody thereof shall not exceed the sum of $150,000.00 per Vessel.
Buyer acknowledges that the components and information being supplied
have critical importance to the maintenance and achievement of the construction
schedule. Buyer also acknowledges that the failure to deliver said components
and/or information in accordance with the required dates established in the
construction schedule as the need dates, may cause a delay in the completion of
the Vessel. In the event that completion of the Vessel is delayed as a result of
Buyer's failure to timely provide Buyer-furnished equipment and/or
Buyer-furnished information under this Agreement, the stipulated Delivery Date
shall be extended by a period equal to the period of the delay.
28
D. Any Buyer-furnished equipment relating to a Vessel remaining in
or on Xxxxxxxxx'x facilities 90 days following delivery and acceptance of such
Vessel shall become the property of Xxxxxxxxx without further compensation due
by Xxxxxxxxx to Buyer, or Xxxxxxxxx may, at Xxxxxxxxx'x sole discretion, dispose
of such Buyer-furnished equipment at Buyer's sole cost and expense.
ARTICLE 16. TAXES AND UNEMPLOYMENT CONTRIBUTIONS
Xxxxxxxxx does hereby acknowledge and accept full liability for the
payment of all work-in-progress property or personal taxes, franchise taxes,
payroll taxes and unemployment contributions or other taxes or contributions now
or hereafter imposed by any government or taxing authority having jurisdiction
in the premises, and which are measured or computed in accordance with salaries
or other compensation, and which have become due or payable by virtue of the
performance of Xxxxxxxxx'x obligations hereunder, and Xxxxxxxxx hereby agrees to
indemnify Buyer therefor.
Notwithstanding the foregoing, Buyer does hereby acknowledge and
accept exclusive liability for the payment of all sales or use taxes or other
taxes (other than franchise taxes or income taxes or payroll taxes), which may
become due by virtue of the work performed hereunder, including without
limitation, sales taxes arising from the sale of the Vessel or the components of
said Vessel to Buyer and Buyer does hereby agree to indemnify therefor. Sales
taxes for material, equipment, and services to be provided by Xxxxxxxxx, as
provided in this Agreement and accompanying contract documents, are included in
the price of the Vessel provided in Article 2 hereof.
If sales and use taxes are assessed and found to be due on the
transfer of any and all of Buyer's rights under this Agreement or on any
transfer of the Vessel that may occur, then those sales or use taxes will be for
the account of Buyer.
ARTICLE 17. USE OF PLANS AND SPECIFICATIONS
Except with respect to the Push Pin Sockets and the JAK-Coupling
System, the Specifications, Contract Plans, Xxxxxxxxx'x numeric control tapes,
design, engineering calculations, modeling studies (if any), and Xxxxxxxxx'x
working and as built drawings of the Vessel (hereinafter "Plans and
Specifications") are and shall remain the property of Xxxxxxxxx. Buyer shall
have the right to use the "as built" drawings furnished under this Agreement for
the purposes of causing the Push Pin Sockets to be constructed for each Vessel
and repairing, maintaining, operating and refurbishing each Vessel built under
this Agreement. Buyer shall have no right to use any of the Plans and
Specifications to construct any additional vessel(s).
29
ARTICLE 18. DEFAULT
A. Each of the following events described in subclauses (x), (y)
and (z) next following shall constitute a default hereunder of the party subject
to such event:
(x) either party hereto shall become adjudicated bankrupt or an order
appointing receiver of it or the major part of its property shall be made, an
order shall be made approving a petition or answer seeking its reorganization
under the Federal Bankruptcy Act, as amended, or either party shall institute
proceedings for voluntary bankruptcy or apply for or consent to the appointment
of a receiver of itself or of its property, shall make an assignment for the
benefit of creditors or shall admit in writing, its inability to pay its debts
generally as they become due, for the purpose of seeking a reorganization under
the Federal Bankruptcy laws; or
(y) either party otherwise commits a material violation of any
material provision of this Agreement and such violation is not cured within
thirty (30) days of receipt of notice thereof by the non-defaulting party; or
(z) Xxxxxxxxx shall fail to maintain in full force and effect a
Performance Bond satisfying the terms of this Agreement respecting a Vessel from
and including the dates specified in Article 2(F) hereto to and including the
Delivery Date of such Vessel.
In any one or more of such events the other party shall have the
option forthwith to terminate this Agreement (with respect to one Vessel or all
Vessels at the option of such other party) to all intents and for all purposes
by giving written notice of its intention to do so, provided, no notice of
termination shall be required if an event shall have occurred under Subc1ause
(x) hereof. Any termination of this Agreement made pursuant to the provisions of
this Article shall not relieve either party from any accrued obligations
hereunder due and owing at the date of such termination.
B. In the event of default by Xxxxxxxxx, Buyer, without prejudice to
any other right or remedy that may exist under this Agreement or under
applicable law:
(i) may terminate the employment of Xxxxxxxxx and take possession of
all materials, equipment, tools, and machinery thereon owned or furnished by
Buyer and stored by Xxxxxxxxx, and may enter the premises of Xxxxxxxxx and, at
Buyer's option, remove one Vessel or all Vessels and all components thereof,
Buyer-furnished equipment and material relating thereto, and may finish the work
by whatever method Buyer may deem appropriate at the facilities of Xxxxxxxxx or
at another location or facility. If the unpaid balance of the Agreement Price
for any Vessel exceeds the costs of finishing the work, including compensation
for additional
30
services made necessary thereby, and damages sustained by Buyer, such excess
shall be paid to Xxxxxxxxx. If such costs exceed the unpaid balance, Xxxxxxxxx
shall pay the difference to Buyer; or
(ii) may recover all amounts paid toward the Agreement Price of, at
Buyer's option, any Vessel or all Vessels, and Xxxxxxxxx hereby agrees to repay
all such amounts to Buyer forthwith and Buyer may enter the premises of
Xxxxxxxxx and take possession of any Buyer-furnished equipment and remove the
same from the Shipyard.
C. In the event of default by Buyer, Xxxxxxxxx may, without
prejudice to any right or remedy that may exist under this Agreement or under
applicable law, and at its sole option and discretion, suspend all work upon one
Vessel or all Vessels at Xxxxxxxxx'x option until the default has been cured,
reserving the right to thereafter terminate this Agreement by giving written
notice to do so, or may sell one Vessel in its then present condition and
location, or all Vessels at Xxxxxxxxx'x option or may complete such Vessel(s)
for sale to a third party and apply the proceeds of sale, net of all expenses,
to any unpaid balance due and owing to Xxxxxxxxx and shall pay the remainder to
Buyer. Buyer represents and certifies that, in the event Xxxxxxxxx exercises its
option to sell a Vessel as a result of Buyer's uncured default, Xxxxxxxxx and
any party to whom Xxxxxxxxx sells such Vessel shall have the right to use, own,
and convey the Vessel, without the Push Pin Sockets and without any further
fees.
ARTICLE 19. ASSIGNMENT
A. This Agreement and the benefit and the payment of any benefits
made hereunder may be assigned by Buyer, in one or more assignments, outright or
by way of security, to any individual, firm or corporation which it may
designate, provided that:
(a) no such assignment may violate any law of the United States or rule or
regulation issued or promulgated by any department or agency or
instrumentality of the United States government;
(b) regardless of such assignment, Buyer shall remain fully liable and
responsible to Xxxxxxxxx for the performance of all obligations of
Buyer hereunder, as if said assignment had not been executed;
(c) regardless of any such assignment, Xxxxxxxxx shall not be required to
perform any of its obligations hereunder if at the time such
performance is demanded, Buyer is in default (and such default shall
not have been cured) with respect to any of its obligations to
Xxxxxxxxx hereunder, and without limiting the generality of the
foregoing, Xxxxxxxxx shall not be required to deliver the Vessel
hereunder until
31
and unless full payment (other than the Hold-back) and conditions for
same have been made to Xxxxxxxxx as provided herein.
Xxxxxxxxx agrees to consent to any such assignment by Buyer, but
subject to the limitations set forth above.
B. Buyer agrees that Xxxxxxxxx may assign Xxxxxxxxx'x rights to
receive payment hereunder to any firm, individual, or corporation which it may
designate. Xxxxxxxxx may not make any assignment of its obligations hereunder,
without the express written consent of Buyer, which consent shall not be
unreasonably withheld.
ARTICLE 20. SUBCONTRACTORS
Xxxxxxxxx reserves the right to subcontract any part or all the work
under this Agreement, and in such event, Xxxxxxxxx shall remain primarily
responsible to Buyer for the performance of any and all work subcontracted by
Xxxxxxxxx as if such subcontract had not been made. Xxxxxxxxx agrees that it is
completely responsible to Buyer to assure that the subcontracted work meets the
requirements of this Agreement.
ARTICLE 21. NOTICES
All notices or communications hereunder shall be in writing and shall
be either delivered in person or mailed by certified mail, return receipt
requested, or can be faxed with confirmation to follow by letter, as follows:
A. If to Xxxxxxxxx:
--------------------------------------------------------------------------------
Xxxxxxxxx Gretna, L.L.C. Xxxxxxxxx Shipyards Lockport, L.L.C.
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxxx
0000 Xxxxxx Xx. X. X. Xxx 000
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
B. If to Buyer:
--------------------------------------------------------------------------------
c/o K-Sea Transportation Corp. Holland & Knight LLP
Attention: Xxx Xxxxx Attention: Xxxxxxxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxxxx 000 Xxxxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxx Xxxx, XX 00000
--------------------------------------------------------------------------------
If such notice is mailed, then it shall be deemed received either on
the date of receipt or on the third business day following the date of mailing,
whichever is
32
earlier. Any of the above addresses may be changed upon proper notice of the
other party, in which event the new address shall thereafter be used.
ARTICLE 22. GENERAL CONDITIONS
A. This Agreement represents the entire agreement between the
parties and supersedes all prior negotiations and agreements. Any amendments
hereto shall be in writing and signed by the party against whom it is sought to
be enforced; a purported amendment, not in writing and not so signed, shall be
void.
B. This Agreement shall be construed in accordance with the laws of
the State of
Louisiana.
C. DISPUTES
(i) CLASSIFICATION DISPUTES. In the event that a difference of
opinion between the parties arises in respect of the materials or workmanship
directly affecting classification of the Vessel, such difference of opinion
shall be referred to the classification society for resolution, whose opinion
thereon shall be final and binding upon the Buyer and Xxxxxxxxx. In case the
opinion of the classification society is not available to resolve such disputes
or in the event that a difference of opinion should arise as to other matters,
then such matters shall be resolved in the manner set forth below.
(ii) NON-CLASSIFICATION DISPUTES. Any and all differences and disputes
of whatsoever nature, except for disputes concerning compliance with
classification society rules resolved pursuant to paragraph (a) above, shall be
resolved promptly and in good faith by negotiations between senior executives of
the Buyer and Xxxxxxxxx who have authority to settle the controversy. The
disputing party shall promptly give written notice of a dispute and appoint a
senior executive as its representative during the negotiations. The receiving
party will respond in writing within five (5) days of such notice by identifying
the senior executive who will act as its representative during the negotiations.
The executives shall meet at a mutually acceptable time and place within ten
(10) days of the disputing party's notice to exchange relevant information and
to attempt to resolve the dispute. If the matter has not been resolved within
fifteen (15) days of the disputing party's notice, either party may initiate
arbitration pursuant to Article 22D. All deadlines specified in this paragraph
may be extended or shortened by mutual agreement of the parties, provided
however that in no event shall the failure or alleged failure of a party to
comply with the provisions of this Article 22C operate to preclude or delay the
commencement of arbitration proceedings pursuant to Article 22D below.
D. ARBITRATION.
Except as provided in Article 22C hereto any and all differences and
disputes
33
of whatsoever nature arising out of this Agreement shall be arbitrated in New
York, New York, in accordance with the rules of the Society of Maritime
Arbitrators, Inc. before three persons, consisting of an arbitrator appointed by
each of the parties, and the third arbitrator chosen by the other two. Except as
provided in Article 22C, arbitration shall be the exclusive method of resolving
differences and disputes between the parties. Any award made by a majority of
the three (3) arbitrators shall be final and binding upon the Buyer and
Xxxxxxxxx hereto, and any relief deemed just and equitable may be granted by a
majority of the arbitrators including without limitation attorneys' fees,
injunctive relief, and specific performance. Judgment may be entered upon an
award in any court of competent jurisdiction.
In the event of reference to arbitration of any dispute arising out of
matters occurring prior to delivery of the Vessel, the award may include any
postponement of the Delivery Date which the arbitration panel may deem
appropriate.
E. Unless exempt, Xxxxxxxxx shall comply with Executive Order 11246,
effective October 4, 1965, together with all amendments thereto.
F. The provisions of this Agreement are separate and severable. If
any provision, item or application of this Agreement shall be deemed invalid, in
whole or in part, such invalidity shall not affect other provisions, items or
applications of this Agreement that can be given effect without the invalid
provision, item or application; provided, however, that in the event a party
would be substantially deprived of its original bargain by enforcement of the
remaining provisions of the Agreement, the parties agree to an equitable
reformation.
G. The article headings are for quick reference and convenience
only, and do not alter, amend, explain or otherwise affect the terms and
conditions of this Agreement.
H. Forbearance or failure of either party to promptly enforce its
rights hereunder, one or more times, shall not operate as a waiver of either
party's rights or the right of either party to enforce this Agreement as to any
provision that a party has not enforced, one or more times.
I. Buyer and Xxxxxxxxx agree to execute such further documentation,
consents and/or amendment to this Agreement as may be reasonably required by the
Maritime Administration of the United States and/or Buyer's construction
financier.
J. This Agreement may be executed in counterparts, each of which
shall constitute one and the same instrument.
34
ARTICLE 23. REPRESENTATIONS AND WARRANTIES
X. Xxxxxxxxx hereby represents and warrants to Buyer and its
assignees in accordance with the terms of this Agreement as follows:
1. This Agreement has been duly authorized, executed, and delivered
by it and constitutes its legal, valid and binding obligation enforceable
against it in accordance with the terms hereof;
2. Under present applicable law in effect as of the date of
execution of this Agreement, no sales, use or other taxes are payable to any
governmental entity, whether national, state or local or otherwise in connection
with the transfer of title of a Vessel to Buyer or the removal of a Vessel from
the Shipyard by the Buyer or, only with respect to the State of
Louisiana and
any subdivisions thereof, the use of a Vessel by the Buyer, so long as the Buyer
removes the Vessel from the State of Louisiana on or immediately after delivery
to Buyer;
3. All permits, consents and approvals in connection with the
construction of the Vessel and the work required by any United States or other
governmental authority, ABS or any other entity or person in order for the
Vessel to be documented in the United States coastwise trade have been or will
be timely obtained by Xxxxxxxxx;
4. Xxxxxxxxx will not document any Vessel in its name or in the name
of any affiliate with the United States Coast Guard or any Louisiana titling
authority;
5. Xxxxxxxxx will not grant any security interest, chattel mortgage
or similar lien or encumbrance against any Vessel not arising as a matter of
law.
B. Buyer hereby represents and warrants to Xxxxxxxxx as follows:
1. This Agreement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation enforceable
against it in accordance with the terms hereof;
2. Buyer is qualified under the laws of the United States to engage
in coastwise trade with each Vessel.
35
IN WITNESS WHEREOF, Xxxxxxxxx Gretna, L.L.C. has executed this
Agreement on this 23rd day of March, 2001 before the undersigned competent
witness, but this Agreement shall be effective as of the day, month, and year
first above written.
WITNESS: Xxxxxxxxx Gretna, L.L.C.
/s/ Xxxx X. Poir By /s/ Xxxxx Xxxxxxx
----------------------------- ------------------------------
its Executive Vice President
------------------------------
IN WITNESS WHEREOF, K-Sea Transportation L.L.C. has executed this
Agreement on this 23rd day of March, 2001 before the undersigned competent
witness, but this Agreement shall be effective as of the day, month and year
first above written.
WITNESS: K-Sea Transportation L.L.C.
/s/ Xxxxxxxx Xxxxx By /s/ Xxxx X. Xxxxxx
----------------------------- ------------------------------
its Chief Financial Officer
------------------------------
March 23, 2001
36
