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EXHIBIT 10.10
VESSEL CONSTRUCTION
CONTRACT
March 30, 2000 Page 1 of 23
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Table of Contents
Article Page No.
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1. SUBJECT MATTER....................................................3
2. PERFORMANCE BOND..................................................4
3. CONSIDERATION AND PROGRESS PAYMENTS...............................4
4. MASTER CONSTRUCTION SCHEDULE......................................5
5. INVOICING.........................................................5
6. INSPECTION, ACCESS, AND TESTS.....................................5
7. TIME FOR COMPLETION...............................................6
8. DELIVERY AND RISK OF LOSS.........................................7
9. ALTERATIONS OR CHANGES............................................9
10. INSURANCE AND INDEMNITY..........................................10
11. TITLE TO THE VESSEL..............................................12
12. DEFAULT..........................................................12
13. PAYMENT OF SUPPLIERS AND WORKMEN.................................15
14. ASSIGNMENT.......................................................15
15. REPRESENTATIONS ABOUT COMMISSIONS................................15
16. REGARDING WARRANTIES AND RELATED MATTERS.........................15
17. ARBITRATION PROVISION............................................17
18. NOTICES..........................................................17
19. OWNER-FURNISHED EQUIPMENT........................................17
20. TAXES............................................................17
21. EFFECT OF WAIVER.................................................18
22. CONTRACT EMBODIES ALL AGREEMENTS.................................18
23. PATENTS..........................................................18
24. USE OF PLANS AND SPECIFICATIONS..................................18
25. CONSTRUCTION OF AGREEMENT........................................18
26. CONTRACT EFFECTIVE DATE..........................................19
27. APPENDIX A - TECHNICAL SPECIFICATIONS AND PLANS..................20
28. APPENDIX B - MASTER CONSTRUCTION SCHEDULE........................21
29. APPENDIX C - MODEL PERFORMANCE BOND..............................22
30. APPENDIX D - UNIT RATES..........................................23
March 30, 2000 Page 2 of 23
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THIS VESSEL CONSTRUCTION CONTRACT(hereinafter referred to as "the Contract") is
made and executed this __ day of ________; 2000, by and between XXXXXX
SHIPBUILDING & REPAIR CO. INC. whose address is 000 X. Xxxxx Xx. Xxxxxx Xxxxxxx
00000, (hereinafter called "Builder"), and Torch Deepwater Inc. whose address is
000 Xxxxxxx Xxxxxx. Xxxxx 000, Xxxxxx. XX 00000, (hereinafter called "Owner").
WITNESSETH:
1. SUBJECT MATTER
Builder agrees to construct, complete, test and deliver the "Midnight Warrior"
(hereinafter referred to as "Vessel" or the "Work") at its yard in Mobile,
Alabama to Owner at Builder's dock. The Vessel is to be constructed in
accordance with final detailed construction plans prepared by the Builder, based
on Owner's specifications, preliminary drawings and appendices thereof, dated
March 30th, 2000, which are made a part hereof, and approved by Owner. The final
construction plans are hereinafter referred to as the "Plans", and the Technical
Specifications are hereinafter referred to as the "Specifications". The Plans
and Specifications are identified by the initials of the designated
representatives of Builder and Owner. Any conflict between the requirements of
the Contract, the Specifications, or the Plans shall be resolved by giving
preference first to the terms of the Contract, and then to the Specifications,
and then to the Plans.
Builder agrees to furnish at its expense all plant, labor, tools, equipment, and
materials, all naval architecture, engineering and detailed working plans and
drawings, and to obtain all licenses, permits, inspections, surveys, and
approvals necessary for the construction of the Vessel.
The Vessel, when delivered, shall have the certificates listed in the
Specifications under "Regulatory, Approvals and Certifications", as appropriate,
all of which shall be procured by Builder at Builder's expense.
All certificates shall be procured in Owner's name.
March 30, 2000 Page 3 of 23
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2. PERFORMANCE BOND
Builder agrees to furnish, at its own expense, a performance bond of an amount
up to 100% of the Contract Price in favor of Owner, in form and substance, and
with such surety as may be approved by Owner, MarAd or any other financial
institution, as it may apply, as per model in Appendix C. The Contract Price
mentioned in Article 3 here below includes the cost of such performance bond
equal to 100% of the Contract Price.
3. CONSIDERATION AND PROGRESS PAYMENTS
Owner agrees to pay Builder for the construction of the Vessel covered by this
Contract the total sum of $36,258,856.00 (U.S. Dollars) (the "Contract Price"),
payable as per Article 5.
Percentage complete is to be established through mutual agreement of Builder's
Representative, and Owner's Representative.
Owner shall deduct 5% from each progress payment as "Retention" and deposit this
amount in a bank mutually agreed between Owner and Builder. Any interest on this
account shall be payable to Builder. Upon completion of the Work according to
the Specifications and approval of the Classification Society, the Owner shall
release this "Retention" in full to the Builder prior to the delivery of the
Vessel. If a dispute arises, Article 17 ? Arbitration Provision shall apply.
It is agreed that progress payments shall be made by Owner to Builder within
thirty (30) days of the Builder submitting an invoice to the Owner.
All payments shall be made by bank wire to Builder's bank account, or check as
specified by Builder upon Contract execution.
It is specifically understood and agreed that the Contract Price will only be
increased or decreased in strict accordance with the provisions of Article 9
hereof.
Owner's obligation to pay the aggregate sum set forth above shall be absolute,
and not in any way dependent upon whatever financial commitments, Owner may have
from others, whether or not the Vessel is lost or destroyed after delivery and
acceptance, and regardless of any occurrence, happening or event of whatsoever
nature which occurs after delivery of said Vessel. Builder shall not suffer or
permit any liens, claims or encumbrances to be made or asserted against the
Vessel in connection with the Work provided that Owner pays for the Work as
contemplated hereby.
Builder will invoice Owner, and Owner will pay Builder a 10% down payment upon
Contract execution. Progress Payments shall be made by Owner to Builder based on
approved progress reports as per Master Construction Schedule.
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Additional payments to the Contract Price may be due for Changes and Additions
to the Work as defined in Article 7, hereunder.
Billing of approved Change Orders by Builder, and payment by Owner, shall be
made monthly and payment by Owner will be made as mentioned herein. Article 3,
for the Contract Price Progress Payments.
4. MASTER CONSTRUCTION SCHEDULE
The Master Construction Schedule has been established by Builder and is attached
at Appendix B of the Contract. This Master Construction Schedule is primarily a
XXXX chart of the Vessel construction including about 300 tasks in the Master
Construction Schedule and shows "critical path" tasks. Builder and Owner
acknowledge that the Master Construction Schedule is based on information
available as of the execution date of this Contract. As drawings are produced
information available as of the execution date of this Contract. The Master
Construction Schedule will evolve into a more comprehensive CPM schedule. The
CPM schedule will be updated periodically during the course of the Work and the
"critical path" tasks will change as the Work progresses, subject to Article 7
and 9. Attached to the Master Construction Schedule is a spreadsheet that
allocates the Contract Price for each of the tasks in the Master Construction
Schedule over 10,000 points. Each task is broken down between labor and material
(material includes equipment and subcontractors). The point value of one point
equals the Contract Price divided by 10,000.
At the end of each month Builder and Owner will agree on the progress achieved
for each task component and derive the cumulative number of points earned by
Builder.
5. INVOICING
The monthly invoice amount will equal the difference between the current month's
cumulative points earned less the cumulative number of points earned at the end
of the previous month. The points earned during the month will be multiplied by
the point value calculated in accordance with Article 4 above, less 10% thereof.
6. INSPECTION, ACCESS, AND TESTS.
The detailed manner and method of performing the Work hereunder shall be under
the control of Builder, Owner being interested only in the result obtained.
Notwithstanding, Owner and its designated representatives shall be given a
reasonable opportunity to inspect the Work and perform all tests it deems
appropriate at all times during normal business hours. Builder will, upon notice
in writing by Owner or its representative, correct any deficiencies or defects
in the Work, irrespective of possible ABS/USCG prior acceptance of same. No
inspection or testing shall affect in any manner any of the
March 30, 2000 Page 5 of 23
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thereof by Owner; provided, however, that Builder shall not be required to delay
Work because of the absence of such representative.
Builder shall provide fully furnished offices, within walking distance from the
Vessel, with communications and computer facilities for up to four (4) Owner
Representatives and two (2) Standard Pick-up Trucks to be utilized within
shipyard facilities at no cost to Owner.
7. TIME FOR COMPLETION
Builder shall deliver the Vessel on or before eighteen (18) months after
Contract Effective Date as defined in Article 26 below.
If, at any time before actual delivery, the construction of the Vessel is
delayed due to acts of the U.S. Government, foreign government, princes or
rulers; war, blockade, revolution, insurrection, mobilization, civil commotion,
or riots; strikes; Acts of God or the public enemy; plague or other epidemic,
quarantines; freight embargoes; earthquakes, tidal waves, flood, typhoons,
hurricanes or storms that result in damage to the Shipyard or Works of the
Builder, or to the Vessel, or any part thereof; fire, flood, or other causes
beyond the control of the Builder or its sub-contractors, as the case may be,
("Force Majeure"); then, subject to the next succeeding sentence, the time for
delivery of the Vessel under this Contract shall be extended for a period of
time which shall not exceed the total cumulated time of all such permissible
delays. Force Majeure events giving rise to delay(s) lasting 24 hours or less
shall not be considered a permissible delay. If any series of Force Majeure
events occurs which are due to a single cause, then, in such case, all such
events shall be treated as one event. Builder shall take all reasonable steps to
minimize the effects of Force Majeure.
Delays on account of such causes as provided for in the previous paragraph shall
be understood to be permissible delays and are to be distinguished from
non-permissible delays on account of which the Contract Price of the Vessel is
subject to adjustment, as provided for in the last paragraph of this Article.
All reasonable action shall be taken by the party claiming Force Majeure to
remove or overcome the cause of Force Majeure and to minimize the effect of
Force Majeure on the delivery date, such claiming party to act with all
reasonable dispatch. Force Majeure shall not apply, however, to financial
obligations otherwise due. Each party claiming Force Majeure shall maintain
records thereof which shall be open to inspection by the other and each party
claiming Force Majeure shall give notice to the other in writing within two (2)
working days of learning of the existence of a Force Majeure event or
development. Such notice shall include a new delivery date, which shall be no
more distant than the previous delivery date plus the number of day(s) of actual
Force Majeure
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delay. It is further agreed by the parties that delays that do not affect the
"critical path tasks" cannot be used to increase the price or extend the
delivery date.
If and when the completion of the Vessel is delayed by Force Majeure, the
stipulated delivery date may be extended by a period equal to the subsequent
delay affecting the critical path tasks, unless otherwise agreed to in writing.
The delivery date shall automatically be extended to the new delivery date
unless the other party, within five (5) working days after receipt of notice of
a Force Majeure event or development, shall state its objection in writing to so
treating such event or development as Force Majeure, in which event the rights
of both parties shall be preserved, and the burden shall be on the party
claiming Force Majeure to establish its right to rely on, and its compliance
with, the provisions of this section. It is understood and agreed that Builder
has included normal rain days in its schedule and that rain days shall not be
considered Force Majeure unless the number of rain days exceeds the mean number
as established by the National Weather Service for the area of Builder's yard by
more than ten (10) days during the period of the Contract.
Within thirty (30) calendar days after the Contract Effective Date hereof,
Builder shall furnish Owner with a written schedule specifying the date upon
which each item of material and equipment for the Vessel being furnished by
someone other than Owner shall be delivered to Builder's yard(s). Permissible
delays, as herein above defined, in delivery of material or equipment being
furnished for the Vessel by someone other than Owner shall be calculated on the
basis of said schedule.
Since time is of the essence for the delivery of the Vessel, should a delay in
the delivery of the Vessel be due to causes within the control of Builder and
not one of the excusable delays set forth in the paragraphs above, Owner shall
not be excused from its obligation to accept and pay for said Vessel, but Owner
shall be entitled to Liquidated Damages in the amount of $50.00 per calendar day
from the 10th day after the scheduled date for delivery until the actual
delivery date. Said Liquidated Damages shall in no event exceed 10% of the
Price. It is agreed that the Vessel is considered to be complete in accordance
with the Contract and ready for delivery if only minor items remain outstanding
and if these items do not adversely affect the commercial utility or efficient
and lawful operation of the Vessel (collectively, the "Minor Items") and Builder
has agreed to correct such Minor Items in a timely manner.
8. DELIVERY AND RISK OF LOSS
Builder agrees to complete and deliver the Vessel in accordance with the Plans
and Specifications, and after completion of reasonable and satisfactory local
sea trials, as described in the Specifications and/or required by the
Classification Society, and delivery to the specified port, on payment of the
balance of the price by Owner to Builder, deliver the Vessel to the Owner free
and clear of all liens, claims or other encumbrances, in a seaworthy condition
and in accordance with the Plans and Specifications, at a safe berth floating
alongside the dock. In the event Owner fails to sign such a written acceptance,
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acceptance shall be conclusively presumed when Owner takes possession and
control of the Vessel and departs the dock with the Vessel. Risk of loss shall
pass to Owner upon documented delivery and acceptance.
Owner shall not unreasonably withhold acceptance of the Vessel, and shall notify
Builder, in writing, within three (3) days of the completion of sea trials and
inspections, of the exact nature of any defect or fault in construction which
constitutes a refusal to accept such Vessel. Owner shall give Builder a
reasonable time within which to correct such defect or fault not to exceed 30
days after receipt of written notice of same. Upon satisfactory correction of
such defect or fault, Owner shall immediately accept the Vessel.
In the event Owner and Builder are unable to agree that the reason for refusing
to accept the Vessel constitutes a fault or defect, Owner shall pay Builder the
undisputed amount remaining outstanding, and shall deposit the disputed amount
into an escrow account at a mutually acceptable financial institution, and the
dispute shall be referred to arbitration as provided in Article 17 hereof.
Builder shall perform Vessel model tank tests to confirm that the ship basic
design (hull and propulsion) is adequate to obtain the specified basic design
speed. The Vessel motion, hydrodynamic characteristics, sea-keeping capability,
stability and dynamic response (all as determined by response amplitude
operators - RAOs) will be determined through model testing and non-linear time
domain computer simulations. Such model tests and non-linear time domain
computer simulations, will have to be undertaken under Builder's responsibility
immediately after the Contract Effective Date and upon completion of hull line
refinement no later than two (2) months after the Contract Effective Date.
If design confirmation is obtained, then Builder shall guarantee the 13 knots
Vessel design speed. In the contrary, Owner will decide whether to accept the
reduced speed that will result from the model tests and Builder shall guarantee
the same. Alternatively, Owner and Builder will decide the course of action
needed to reach the originally required speed and the revised Vessel design will
be the subject of a Contract Change (Article 9 of Contract).
(a) If the Vessel makes a speed of at least twelve and eight
tenths (12.8) knots but less than thirteen (13) knots, Builder
shall have the option of making corrections/changes as
required to make the design speed or accepting payment of
ninety nine per cent (99%) of the Price specified above.
(b) If the Vessel makes a speed of at least twelve and one half
(12.5) knots but less than twelve and eight tenths (12.8)
knots, Builder shall have the option of making corrections/
changes as required to make the design speed or accepting
payment of ninety eight per cent (98%) of the Price specified
above.
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(c) If the Vessel makes a speed of at least twelve (12.0) knots
but less than twelve and one half (12.5) knots, Builder shall
have the option of making corrections/changes as required to
make the design speed or accepting payment of ninety seven per
cent (97%) of the Price specified above.
(d) If the Vessel makes a speed of at least eleven and one half
(11.5) knots but less than twelve (12.0) knots, Builder shall
have the option of making corrections/ changes as required to
make the design speed or accepting payment of ninety five per
cent (95%) of the Price specified above.
(e) If the Vessel makes a speed of at least eleven (11.0) knots
but less than eleven and one half (11.5) knots, Builder shall
have the option of making corrections/changes as required to
make the design speed or accepting payment of ninety three per
cent (93%) of the Price specified above.
Sea trial procedures will be developed by Builder on the basis of Xxxxx Xxxxx &
Associates relevant Standard Specifications and SNAME Technical Research
Bulletin 3-47 Guide for Sea Trials.
Furthermore, upon assessment by Owner of the Builder's report on the mentioned
model tank tests and non-linear time domain computer simulations, Owner may
require certain modifications of the Vessel basic design to alter the Vessel
motion, hydrodynamic characteristics, sea-keeping capability, stability or
dynamic response. Any such modifications will also be the subject of a Contract
Change Order (Article 9 of the Contract).
9. ALTERATIONS OR CHANGES
If during construction of the Vessel, Owner desires to make any additions to,
deductions from, or alterations in the Plans and/or Specifications, Owner's
representative shall give notice in writing to Builder specifying in detail the
changes proposed by Owner. Change Orders proposed by Owner must be mutually
agreed upon by Owner and Builder, and Builder shall have no obligation to
perform said changes unless a Change Order is signed by the Owner and the
Builder and said Change Order must specify:
(a) Details of change proposed, including reference to new Plans
and/or Specifications, if any;
(b) The value of the Change Order, positive or negative; and
(c) The number of days by which the delivery date of the Vessel
shall be increased or decreased as per Change Order. Changes
that do not affect the Master Construction Schedule's critical
path cannot be used to extend the delivery date.
Should the regulatory agencies' rules and regulations referred to in the
Technical Specifications, or the interpretation thereof, written and officially
published by the following organizations:
International Maritime Organization "IMO", Maritime Safety Committee "MSC",
United States Coast Guard NVIC "USCG NVIC", International Association of
Classification Societies "IACS", when relevant and applicable, be altered
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or changed after the Contract Execution Date, then such change(s) will be the
subject of a Change Order to the extent they affect the design and/or
construction of the Vessel.
In the event that the parties cannot agree upon the cost of such changes, Owner
will pay such changes by application of the Unit Rates for Procurement of
Materials, Unit Rates for Itemized Work, Unit Rates for Labor or for Equipment
as attached to this Agreement in Appendix D at its discretion.
10. INSURANCE AND INDEMNITY
Risk of loss of the Vessel shall be with the Builder until delivery.
A. Builder shall procure, at its expense, Builder's Risk insurance
covering the Vessel and the Work (including Owner Furnished Equipment
insured while located in Builder's yard) to its full value. The
Builder's Risk policy shall be under the latest full American Institute
Builder's Risk form including the Protection and Indemnity and the SRCC
endorsement. The policy shall name Owner as additional assured and
provide that payment of all losses shall be payable to the Owner, all
progress payments made to Builder and the cost of any losses of Owner
Furnished Equipment or materials destroyed as a result of such loss.
B. Builder hereby agrees to indemnify, defend and hold harmless Owner, its
officers, employees, agents, and affiliates from and against any and
all claims, demands or causes of action, by any and all third parties,
arising out of or in any way connected with, directly or indirectly,
the performance by the Builder of this Contract, for damages for death
or injury to any person or loss of or damage to property, of any and
all third parties, howsoever arising, and whether based in whole or in
part on any negligent act or omission of Owner; provided, however,
Builder shall not be required to defend, hold harmless and indemnify
Owner for any claims caused by the sole negligence of Owner. Provided
further, the foregoing indemnity shall be limited to the insurance
coverages and limits set forth in paragraph C immediately following.
C. Builder further agrees to procure and maintain, at its sole cost and
expense, insurance to fully cover all of its obligations set forth in
this Contract, which shall include, but not be limited to, the
following:
1. Worker's Compensation Insurance at statutory amounts, endorsed
to include the Longshoreman and Harbor Worker's Compensation
Act coverage, with alternate employer and borrowed servant
endorsements in favor of Owner. However, the alternate
employer and the borrowed servant endorsements shall not
operate to grant assured or additional assured status to
Owner.
2. Employers' and Maritime Employers' Liability insurance with
alternate employer and borrowed servant endorsements in favor
of Owner, in the minimum amount of $1,000,000 per occurrence
covering injury to or death of any employee which may be
outside the scope of the workmen's compensation statute in the
area where the Work is performed. However, the alternate
employer and the borrowed
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servant endorsements shall not operate to grant assured or
additional assured status to Owner.
3. Comprehensive General Liability insurance, with the watercraft
and care, custody and control exclusions deleted throughout,
in the minimum amount of $1,000,000 per occurrence for bodily
injury, personal injury and property damage and subject to a
$2,000,000 general aggregate. Such insurance shall
specifically cover the contractual liabilities and indemnities
herein assumed by Builder and shall include "Action
Over/Indemnity Buyback", "Products and Completed Operations
Liability" and "Shiprepairer's Liability" provisions or
endorsements.
4. Automobile Liability insurance covering owned, non-owned, and
hired automotive equipment in the minimum amount of $1,000,000
combined single limit for bodily injury or property damage.
5. Excess liability insurance in the amount of $20,000,000 above
the coverages in (2) through (4) above.
6. If Builder uses any vessel in connection with its Work for
Owner, Builder is required to maintain the following coverages
with respect to such vessels:
x. Xxxx and Machinery Insurance on each vessel per the
American Institute Hull clauses (June 2, 1977) or
equivalent, covering fire explosions and marine
perils, together with full four-fourths collision and
running down clause [including Tower's Liability
Insurance per the American Institute Tug Form (August
1, 1976) or equivalent, if the vessel is a tug] in an
amount equal to the full insurable value of the
vessel.
b. Primary Protection and Indemnity Insurance and Excess
Protection and Indemnity Insurance per the SP-23 Form
(Revised 1/56) or equivalent including excess
Collision (and excess Tower's Liability Insurance, if
the vessel is a tug) with limits of liability not
less than $10,000,000 each accident on each Vessel.
All such insurance policies shall name the Owner as additional assured (with the
exception of the Worker's Compensation and Employers' and Maritime Employers'
Liability coverages) with a waiver of subrogation, provided that there is no
recourse to Owner for the payment of premiums, deductibles or other charges, and
be endorsed to be primary as respects any other insurance carried by Owner, and
any "other insurance" or "cover elsewhere" clauses are to be deemed deleted as
to Owner.
All such policies shall be upon such terms and with such insurers and
underwriters as are acceptable to Owner, and shall provide not less than thirty
(30) days written notice to Owner of any cancellation, failure to renew, or of
any material change in coverage. Further, the Comprehensive General Liability
policies of Builder shall delete any provisions that might exclude coverage to
Owner for claims by Builder's employees on the grounds of that employment
relationship.
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It is further agreed that the additional assured status and subrogation waivers
shall be enforceable even if the contractual defense and indemnity obligations
assumed by Builder under this Contract are invalidated or unenforceable by
application of any state or federal law, including without limitation, the
Longshoremen and Harbor Workers Compensation Act.
All premiums and deductibles shall be for Builder's sole account.
11. TITLE TO THE VESSEL.
Title and right to possession of the Vessel and all materials, equipment and
machinery purchased for the Vessel are to be vested in Owner at all stages of
construction subject to security interest in favor of Builder against the
Vessel, material, equipment and machinery for all amounts due from owner to
Builder. Builder shall identify, segregate and label all such materials,
equipment and machinery.
12. DEFAULT
If any of the following events shall occur:
(a) The Owner shall fail to make any payment when due under the
Contract or fail to accept delivery of the Vessel completed in
accordance with the Contract and such failure shall continue
for more than fifteen (15) days after the Builder shall have
given written notice thereof to the Owner; or
(b) The Owner or Builder shall file a voluntary petition in
bankruptcy or shall be adjudicated as bankrupt or insolvent,
or shall file a petition or answer seeking any composition,
readjustment, liquidation, dissolution or similar relief for
itself under any federal, state or other law or regulation, or
shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of itself or of all or any
substantial part of its assets, or shall make any general
assignment for the benefit of creditors, or shall liquidate or
dissolve; or
(c) Further to above, if a petition shall be filed against the
Owner or Builder seeking any reorganization, arrangement,
composition, adjustment, liquidation, dissolution or similar
relief under any federal, state or other law or regulation,
and such petition shall remain undismissed or unstayed for an
aggregate of thirty (30) days, or if any trustee, receiver or
liquidator of the Owner or Builder or of all of any
substantial part of its properties shall be appointed without
the consent or acquiescence of the Owner or Builder and such
appointment shall remain unvacated or unstayed for an
aggregate of thirty (30); or
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(d) Builder shall fail to prosecute the Work with diligence, in
accordance with the Master Construction Schedule, made part of
the Contract, hereto as Appendix B or otherwise to comply
substantially with all of its obligations under this Contract
(except and to the extent that such failure is due to Force
Majeure or Excusable delays) and such failure shall continue
for more than five (5) calendar days after the Owner shall
have given written notice thereof to Builder;
Then in any such event:
1. Action By Owner Upon Default
In the event of Builder's default, and Owner's election to have all or
part of the Work completed, the Builder, at Owner's option, shall (i)
assign such subcontracts and orders for material, services, and
supplies to be used in the performance of the Work to the Owner as the
Owner may direct and (ii) pay to the Owner the amount by which the
total costs to the Owner of completing the Work, plus all amounts paid
to the Builder hereunder, exceeds the total Contract Price, as adjusted
hereunder; provided, however, that in computing the amount, if any, to
be paid by the Builder to the Owner, appropriate adjustment shall be
made for Change Orders.
In the event of Builder's default, and if the Owner shall elect not to
complete the Vessel, the Owner, at any time within one hundred and
twenty (120) days, (but not less than sixty (60) days, unless the
parties agree otherwise), from the date of termination hereunder, may
sell the partially completed Vessel, work-in-process, materials,
articles of machinery, outfit and equipment and supplies, together with
all Plans, Specifications, calculations and other records required for
the construction or equipment thereof. The sale shall be public,
(unless the parties agree otherwise), and shall be made free from any
equity of redemption and without appraisement or valuation and shall be
conducted in the manner determined by the Owner. Any purchaser at any
such sale shall be given reasonable time, not less than sixty (60) days
from the date of sale, within which to remove from the Builder's
Shipyard the Vessel, work-in-process, materials, articles of machinery,
outfit, equipment and supplies purchased. The Owner may become a
purchaser at such a sale. The proceeds of the sale shall be applied,
first, to payment of all costs and expenses, including reasonable
attorney's fees incurred by the Owner or its assigns in making such
sale; secondly, to reimbursement of the Owner for payments theretofore
made by the Owner, if any, to the Builder on account of the Vessel,
and, thirdly, to payment of any damages, demands or deficiencies
arising by reason of default of the Builder. The remaining proceeds, if
any, shall be paid over to the Builder. In the event the proceeds of
the sale shall not be sufficient to pay the first, second and third
items, as above set forth, the difference shall be paid to the Owner by
the Builder or the Builder's surety or guarantor.
The failure of the Owner to exercise the rights conferred upon it
hereunder in any one or more instances of the occurrence of an event of
default, as hereinabove
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defined, shall not constitute a waiver of the Owner's rights under the
Contract, as herein provided, in the event of any subsequent Builder's
default.
2. Actions by Builder Upon Default:
If any event of default specified in this Article 12 has not been cured
by Owner within thirty (30) days following Owner's receipt of notice of
default, the Builder shall have an option to:
(i) suspend work on the Vessel under the Contract until such
default is cured by Owner paving any payments in default plus
interest at a floating rate per annum equal to the Prime Rate,
published in The Wall Street Journal during the period for
which such calculations are made plus two percent, computed
from the due date of such installment to the date when the
Builder has received the payment;
(ii) continue to perform the Contract provided the Owner shall
remain liable to pay any payments in default plus interest at
a floating rate per annum equal to the Prime Rate, published
in The Wall Street Journal during the period for which such
calculations is made plus two percent, computed from the due
date of such installment to the date when the Builder has
received the payment; or
(iii) terminate the Contract by giving notice to the Owner without
prejudice to all claims of the Builder for the proved loss and
damages caused by such Owner's default, and any lien or
property right of Owner in and to the Vessel and to any
material, parts or equipment thereof, including Owner's
Supplies at the Shipyard and not yet utilized in the
construction of the Vessel, shall forthwith cease, and the
Vessel and any parts or equipment thereof, including Owner's
Supplies, shall become the sole property of the Builder,
provided, that any proceeds thereof obtained at the public
auction or at private sale by the Builder shall be applied by
the Builder for mitigation of the damages caused by the
Owner's default. In the event progress payments paid by the
Owner, and the proceeds from the public auction or the private
sale as aforesaid are insufficient to adequately compensate
the Builder for the proved loss or damages which the Builder
has sustained from the Owner's default, the Owner shall be
liable for and shall pay the Builder additional compensation
to cover such loss or damages. If the proceeds of the sale are
more than what the Builder can prove as its loss and/or
damages, any amounts in excess of Builder's proven loss and/or
damages shall be paid by the Builder to the Owner by immediate
transfer of funds.
March 30, 2000 Page 14 of 23
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13. PAYMENT OF SUPPLIERS AND WORKMEN
Builder warrants that Builder will pay its suppliers and workmen on time for all
materials, equipment and labor which go into the construction of the Vessel and
that its books and records reflecting that these debts are kept current will be
made available for reasonable inspection by the Owner. Builder also warrants
that, insofar as is reasonably practical, all equipment and materials purchased
for use in the construction of the Vessel will be marked, tagged or stored in
such a manner that they may be readily identifiable as destined for use in the
Vessel.
14. ASSIGNMENT
The Contract may not be assigned by Owner or Builder without the prior written
consent of the other; with the exception of MarAd or any other financial
institution.
15. REPRESENTATIONS ABOUT COMMISSIONS
Owner and Builder both represent that no commission, finders fees or similar
fees are due or owing to any third party in connection with the Contract or the
procurement thereof. Should any third party claim any such fee as a result of
any alleged prior agreement between Owner or Builder and such third party, Owner
or Builder, as the case may be, agrees to indemnify, protect and hold the other
harmless from and against any such claim or claims.
16. REGARDING WARRANTIES AND RELATED MATTERS
(A) Builder warrants that the Vessel will be built in accordance with the
Plans and Specifications in a good and workmanlike manner and that all
labor and installations made shall meet the requirements and standards
described in the Specifications, and all materials and equipment used
by Builder and incorporated into the Vessel, except those specified or
furnished by Owner, shall be of the quality set forth in the
Specifications. If at any time within one year (365 days) after
delivery of the Vessel there shall appear or be discovered in such
Vessel any defect in any Builder furnished workmanship or material
(hereinafter called a "Construction Deficiency"), such Construction
Deficiency shall be made good, at Builder's expense, to the
requirements of the Plans and Specifications.
Builder shall be responsible for the cost of correcting any such
Construction Deficiency only to the extent that the same resulted from
defective workmanship or material and not, for instance, from ordinary
wear and tear, or the negligence or improper act of Owner or any other
person other than the Builder or its subcontractors. Any work required
to be performed to correct a Construction
March 30, 2000 Page 15 of 23
16
Deficiency for which Builder is liable hereunder shall be carried out
at Builder's shipyard, if practical.
Where, because of geographical distance involved, it would be
impractical to return the Vessel to Builder's yard for repairs or
replacements under this warranty, Owner may contract to have such work
performed by another shipyard or ship repair facility, and Builder
shall be responsible only for a sum representing no more than the cost
of corrections at straight time commercial shipyard or ship repair yard
rates charged by Builder or prevailing on the coast of the Gulf of
Mexico. In the event Owner elects to have any work required to be
performed to correct a Construction Deficiency, it is an express
condition precedent of this warranty that Builder must be notified
three (3) days prior to the commencement of work unless the work shall
be of an emergency nature to prevent further damage or to complete a
critical operation to the Vessel at sea, in which case repairs may be
started immediately and Builder must be notified not later than Noon on
the next business day.
Such notification shall include description of the Construction
Deficiency, location of the Vessel and the company selected to perform
the work. Builder shall not be liable for any alleged Construction
Deficiency of which it is not notified in writing within or before five
(5) days following the end of the one year (365 day) guarantee period.
The one year (365 day) construction warranty constitutes Builder's sole
warranty and legal obligation with respect to the quality, design,
manufacture or fitness of the Vessel.
(B) Builder shall not be liable, under any theory of liability whatsoever,
including, but not limited to, express or implied warranty, negligence
or manufacturer's strict liability under the General Maritime Law or
the law of any state or country whatsoever, for contingent,
consequential or incidental damages, such as, but not limited to, any
claim for "down time", loss of earnings or damage to the Vessel or
cargo but shall be liable only for making good the Construction
Deficiency or pay cost of same, as set forth in paragraph (A) of this
section.
(C) It is expressly provided that Builder DOES NOT WARRANT machinery,
equipment and fittings purchased by Builder for installation in the
Vessel, but hereby extends and assigns the manufacturer's and/or
supplier's warranty or guarantee, if any, to Owner. Builder will,
however, be responsible for proper installation of said equipment
purchased by Builder and installed in the Vessel under supervision and
direction of manufacturer's representative.
(D) EXCEPT AS HEREIN SET FORTH IN THIS ARTICLE 15, BUILDER MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, AND PARTICULARLY DOES NOT MAKE ANY
IMPLIED WARRANTIES OF FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY
OR WORKMANSHIP WITH RESPECT TO THE VESSEL
March 30, 2000 Page 16 of 23
17
17. ARBITRATION PROVISION
1. Disputes arising prior to delivery of the Vessel concerning the
Specifications, Plans, any milestone event and other technical disputes
related to the construction of the Vessel shall be resolved by
arbitration as set forth in this paragraph. The arbitration shall be in
New Orleans, Louisiana before the Houston Manager of the Lloyds
Register of Shipping (or his designee) (the "Technical Arbitrator").
The Technical Arbitrator shall promptly arbitrate such dispute, and any
expense of the Technical Arbitrator and the parties attorneys' fees in
connection with the resolution of such technical disputes shall be paid
by the party against whom the adverse decision is rendered. In the
event the Technical Arbitrator is unable or unwilling to examine or
adjudicate upon the matter in dispute, such dispute shall be referred
to arbitration as provided in Clause 17-2.
2. The parties agree that all other disputes under the Contract will be
resolved by binding arbitration under the auspices of the American
Arbitration Association (AAA) in New Orleans, Louisiana. All disputes,
controversies or differences which may arise between Builder and Owner
out of or in relation to or in connection with the Contract, or for the
breach thereof, shall be finally settled by arbitration. Arbitrators
shall be commercial men familiar with shipbuilding practices, with each
side choosing one arbitrator and the two arbitrators then choosing the
third. In the event that the two arbitrators are unable to agree on an
umpire, the Chief Judge of the United States District Court for the
District of New Orleans shall appoint the umpire. It is mutually agreed
that New Orleans, Louisiana, shall be and it is hereby designated as
the place for conducting any such arbitration.
18. NOTICES
All notices shall be sent to the respective address of Owner and Builder set
forth above, unless Owner or Builder notifies the other in writing of a change
of address in which event the notices shall be sent to the changed address.
19. OWNER-FURNISHED EQUIPMENT
All Owner-furnished equipment and information, if any, must be delivered F.O.B.
Builder's yard(s) at Mobile, Alabama, in accordance with Section 1 of the
Specifications.
All Owner Supplied Equipment shall be stored at no cost to Owner (estimated
space: 10,000 sqft). Some equipment may require climate controlled storage or
covered space (estimated: 2,000 sqft).
20. TAXES
Builder shall pay all local, state and federal taxes measured by Builder's
receipts or income, and all withholding, worker's compensation, social security
or old age benefits, and any other taxes, changes, assessments and contributions
of any kind now or
March 30, 2000 Page 17 of 23
18
hereinafter imposed upon, or with respect to or measured by the wages, salaries,
or other remuneration paid to persons employed in connection with the
performance of this Contract.
21. EFFECT OF WAIVER
No waiver by either party hereto of any default by the other in the strict and
literal performance of or compliance with any provision, condition, or
requirement herein shall be deemed to be a waiver of the strict and literal
performance of and compliance with any other provision, condition, or
requirement herein, nor to be a waiver of, or in any manner release such other
from, strict compliance with any provision, condition, or requirement in the
future.
22. CONTRACT EMBODIES ALL AGREEMENTS
The Contract embodies all agreements between the parties hereto and any
promises, agreements, representations, or obligations which may have been
previously made or undertaken by either party and not set out herein are
canceled and shall be of no further force or effect.
23. PATENTS
Builder agrees to protect and hold harmless Owner against claims of third
persons for damage sustained by reason of the infringement of any patent rights
with respect to the design, materials, processes, machinery and equipment
selected and used by Builder in the construction of the Vessel.
24. USE OF PLANS AND SPECIFICATIONS
The Specifications, Contract Plans and Builder's working and construction
drawings as of the Vessel, as approved by Classification Society are and shall
remain the property of Owner.
25. CONSTRUCTION OF AGREEMENT
The Contract shall be governed by and construed in accordance with the General
Maritime Law of the United States. In the event such law is found inapplicable
with respect to the issues presented in a particular interpretation of the
Contract, then the Contract shall be governed by and construed in accordance
with the law of the State of Louisiana.
March 30, 2000 Page 18 of 23
19
26. CONTRACT EFFECTIVE DATE
The Contract will become effective at the date when all conditions here below
are fulfilled ("The Contract Effective Date"):
o MarAd has approved Builder and the Contract,
o Owner has secured construction financing for the Contract,
o Builder has submitted the requested performance Bond to Owner (Article
2); and
o Builder has received the Contract 10% down payment from Owner (Article
3).
If the above conditions are not fulfilled within (ninety) 90 days of the
Contract execution date then the Contract will become null and void unless the
parties agree otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed, this the day, month and year first herein above mentioned.
WITNESSES: BUILDER:
Xxxxxx Shipbuilding & Repair Co., Inc.
/s/ Xxxxx X. By: /s/ X.X. Xxxxxx, Xx.
------------------------ ------------------------------------
/s/ Xxxxxxx X. Xxxxxxxxx Its: Pres.
------------------------ ----------------------------------
WITNESSES: OWNER - Torch Deepwater, Inc.
/s/ Xxxx X. Xxxxxx By: Xxxx X. Xxxxxxxxxx
------------------------ -----------------------------------
/s. Xxxxxxx Xxxxxx Its: C.E.O
------------------------ -----------------------------------
March 30, 2000 Page 19 of 23
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27. APPENDIX A TECHNICAL SPECIFICATIONS AND PLANS
March 30, 2000 Page 20 of 23
21
28. APPENDIX B MASTER CONSTRUCTION SCHEDULE
March 30, 2000 Page 21 of 23
22
Midnight Warrior Construction Contract
29. APPENDIX C - MODEL PERFORMANCE BOND
March 30, 2000 Page 22 of 23
23
30. APPENDIX D UNIT RATES
March 30, 2000 Page 23 of 23
24
Torch Deepwater, Inc.
Xx. Xxxxxxx Xxxxxx
President
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Gretna, Louisiana
June 28, 2000
REF: Memorandum of Agreement to extend the validity of that certain vessel
construction contract to build the Midnight Warrior between Xxxxxx Shipbuilding
and Repair Co., Inc. and Torch Deepwater, Inc. executed on March 30, 2000, from
June 28, 2000 to September 28, 2000.
Dear Xxxxxxx,
This is to confirm to you that we agree to extend the validity of the
above-mentioned contract to September 28, 2000, subject to our mutual agreement
on the items of additional cost that has resulted from the extension. The mutual
decision as to the items of cost and their amount shall be determined within the
next 30 days from the above date, as per appendix A.
Please signify your agreement to the above by signing in the space provided
below.
Yours truly
/s/ FRANC G. XXXXXXXX XX.
Xxxxxx Shipbuilding and Repair Co., Inc.
Franc G. Xxxxxxxx Xx.
Vice President
Accepted and agreed this 28 day of June, 2000.
By: /s/ Xxxxxxx Xxxxxx
25
[TORCH OFFSHORE LETTERHEAD]
Xxxxxx Shipbuilding and Repair
000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Our reference: ENG-BEN-LE-006 September 25, 2000
Attention: Xxx Xxxxxx
Subject: Midnight Warrior Construction Contract dated March 30, 2000.
Dear Sirs,
With reference to our fax Eng-Ben-Fx-005 dated September 7, 2000, your letter
#0-0000-000 dated September 7, 2000 and our meeting of today, we confirm Torch
Deepwater Inc. agreement to the $781,213 additional increase of the Midnight
Warrior construction price requested by Xxxxxx Shipbuilding and Repair for
extending from 182 days to 266 days the period of time mentioned at Article 26 -
Contract Effective Date of the above mentioned contract.
For the sake of good order the Contract Price (Article 3, Consideration and
Progress Payment) becomes $37,909,427 and the Contract validity is extended
until December 31, 2000 (Article 26, Contract Effective Date) by the mutual
agreement of Builder and Owner.
Therefore, we would be glad to receive your confirmation of this agreement by
returning a signed copy of this letter to Torch.
Sincerely yours,
/s/ Xxxx Xxxxxxxxxx /s/ X.X. Xxxxxx, Xx.
Xxxx Xxxxxxxxxx Xxxxxx Shipbuilding and Repair
Chairman and CEO
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26
[XXXXXX SHIPBUILDING AND REPAIR LETTERHEAD]
Telecopier Cover Sheet
To: Xxxxxxx Xxxxxxx From: Xxxxx Xxxxxxx
Torch Offshore, L.L.C.
Date: 27 December 2000
Fax: 504/367/7075 No. of Pages: 1, Including this page.
If you have not received all
of these pages, please call.
Subj: Midnight Warrior Construction Contract dated March 30, 2000
Dear Xxxxxxx,
As per telephone conversation today, this is to confirm the cancellation of our
scheduled meeting on December 28, 2000.
For the sake of good order, the contract price of $37,909,427.00 (letter of
September 25, 2000) and the contract validity is extended until 10 January 2001.
Therefore, we would be glad to receive your confirmation of this agreement by
returning a signed copy of this letter to Xxxxxx.
Regards,
XXXXXX SHIPBUILDING & REPAIR CO., INC.
/s/ H. Xxxxx Xxxxxxx
H. Xxxxx Xxxxxxx Read and agreed to:
By: /s/ Xxxxxxx Xxxxxxx
--------------------
Xxxxxxx Xxxxxxx
SN-8403
Date: 12-27-00
------------------
Page 1 of 1
27
[TORCH OFFSHORE LETTERHEAD]
Xxxxxx Shipbuilding and Repair
000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Our reference: XXX-XXX-XX-000 Xxxxxxx 0, 0000
Xxxxxxxxx: Xxx Xxxxxx
Subject: Midnight Warrior Construction Contract dated March 30, 2000.
Dear Sirs,
With reference to our fax Eng-Ben-Fx-005 date December 7, 2000, your letter
dated December 7, 2000 and our exchange of e-mails of today, we confirm Torch
Deepwater Inc. and Xxxxxx Shipbuilding and Repair agreement for extending from
266 days to 405 days the period of time mentioned at Article 26 - Contract
Effective Date of the above mentioned contract at no cost to Torch Deepwater
Inc.
For the sake of good order the Contract Price (Article 3, Consideration and
Progress Payment) is $37,909,427 and the Contract validity is extended until May
10, 2001 (Article 26, Contract Effective Date) by the mutual agreement of
Builder and Owner.
Therefore, we would be glad to receive your confirmation of this agreement by
returning a signed copy of this letter to Torch.
Sincerely yours,
/s/ Xxxx Xxxxxxxxxx /s/ X.X. Xxxxxx, Xx.
Xxxx Xxxxxxxxxx Xxxxxx Shipbuilding and Repair
Chairman and CEO PRES & CEO
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