COOPERATIVE ENDEAVOR AGREEMENT
THIS COOPERATIVE ENDEAVOR AGREEMENT (herein
"Agreement") effective as of May 16, 1997, is made between the
STATE OF LOUISIANA (herein "State"), acting by and through the
Secretary of the Department of Economic Development and the
Commissioner of Administration, the BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL
COLLEGE, a public constitutional corporation organized and
existing under the laws of the State of Louisiana acting herein
on behalf of the University of New Orleans (herein "University"),
UNIVERSITY OF NEW ORLEANS RESEARCH AND TECHNOLOGY FOUNDATION,
INC., a non-profit corporation organized under the laws of the
State of Louisiana (hereinafter "Foundation"), and AVONDALE
INDUSTRIES, INC., a Louisiana corporation, domiciled in Avondale,
Xxxxxxxxx Xxxxxx, Louisiana, engaged in maritime manufacturing
(herein "Avondale").
I. DEFINITIONS
A. Definitions.
"Act" shall mean Act 149 of the 1993 Regular Session of the
Legislature.
"Agreement" shall mean this Cooperative Endeavor Agreement and
any amendments or modifications thereto.
"Avondale" shall mean Avondale Industries, Inc., a Louisiana
corporation domiciled at Avondale, Xxxxxxxxx Xxxxxx, Louisiana,
engaged in maritime manufacturing.
"Economic Benefit" shall mean the impact on the economy of the
State of Louisiana of the building construction proposed pursuant
to the Navy LPD-17 Contract and of the ongoing fulfillment of the
contract obligations thereunder.
"Facility" or "Facilities" shall mean the improvements to be
constructed on the Property, to be known as the UNO/Avondale
Maritime Technology Center of Excellence.
"Foundation" shall mean the University of New Orleans Research
and Technology Foundation, Inc., a Louisiana non-profit
corporation organized, among other things, to develop and operate
the University of New Orleans Research and Technology Park, to
develop university-industry relationships and to support the
technology transfer component of the University or its successor
in accordance with the provisions of its articles of
incorporation.
"Ground Lease" shall mean that certain lease of the Property by
University to Foundation which, among other things, obligates
Foundation to construct the Facility on the Property and sets
forth the terms and conditions pursuant to which the construction
will occur, a copy of which is attached hereto and made a part
hereof as Exhibit "A".
"Legislature" shall mean the Legislature of the State.
"Navy LPD-17 Contract" shall mean that certain contract or
contracts between Avondale and the United States Navy for the
production of a series of up to twelve (12) large, amphibious
troop transport carriers.
"Person" shall mean an individual, a corporation, a partnership,
a joint venture, an association, a trust or any other entity or
organization, including a state or municipal corporation or
government or political subdivision or an agency or
instrumentality thereof.
"Property" shall mean the immovable property described on Exhibit
"B" hereto and leased by University to Foundation.
"State" shall mean the State of Louisiana, acting by and through
the Secretary of the Department of Economic Development and the
Commissioner of Administration.
"Sublease Agreement" shall mean that certain agreement by which
Foundation subleases to Avondale the property and leases to
Avondale the Facilities.
"University" shall mean the Board of Supervisors of Louisiana
State University and Agricultural and Mechanical College, a
public constitutional corporation organized and existing under
the laws of the State of Louisiana acting herein on behalf of the
University of New Orleans.
"UNO" shall mean the University of New Orleans.
"Vessel" or "Vessels" shall mean any vessel or vessels to be
constructed and delivered pursuant to the Navy LPD-17 contract.
B. Use of Defined Terms. Terms defined in this Agreement shall
have their defined meanings when used herein and in any document,
certificate, report or agreement furnished from time to time in
connection with this Agreement unless the context otherwise
requires.
II. STATE'S AUTHORITY AND SCOPE OF AGREEMENT
A. Authority of State. The State of Louisiana, through the
Department of Economic Development and the Commissioner of
Administration, was granted the authority, pursuant to the Act,
to enter into cooperative endeavor agreements with public and
private associations or corporations for the public purpose of
enhancing or maintaining the economic well-being of the State.
B. Scope of Authorized Agreement. Such cooperative endeavor
agreements may provide for the use of State funds and the
guarantee by the State of certain financial obligations, or may
otherwise obligate the State financially to achieve the goals set
forth therein subject to (a) appropriation by the Legislature of
requisite funds, and (b) the approval of the State Bond
Commission.
C. Condition Precedent. On December 26, 1996, the unsuccessful
bidder filed a protest with the General Accounting Office (GAO)
with respect to the award of the Navy LPD-17 Contract and on
December 27, 1996, Avondale received a stop work order, which is
customary during protests of this nature. The GAO will review
the award and must render a decision within one hundred (100)
days of the filing of the protest. All obligations described
hereunder are subject to the successful resolution of the Navy
LPD-17 Contract protest and Avondale's receipt of a rescission of
the stop work order.
III. AVONDALE'S REPRESENTATIONS
A. Representations of Avondale to Induce State. As a material
inducement to the State to enter into this Agreement, without
which the State would not have entered into this Agreement,
Avondale makes the following representations to the State:
1. Navy LPD-17 Contract. On December 17, 1996, the team led
by Avondale was awarded a contract for the construction of
the first vessel of an anticipated twelve (12) of the new
LPD-17 class. Avondale will be assisted in the construction
by Bath Iron Works, Xxxxxx Aircraft Company, and Intergraph
Corp. Avondale hopes to construct eight (8) ships of the
twelve (12) that are projected, and Bath Iron Works
anticipates constructing the remaining four (4) vessels.
The initial contract for the first vessel is valued at $641
million and contains options for the second and third
vessels bringing the total value to approximately $1.5
billion. The Navy's plans call for the ultimate
construction of twelve (12) vessels and, as the lead
contractor, the Avondale team is in a favorable competitive
position for the remaining nine (9) vessels needed to meet
the Navy's requirements. These new amphibious troop
transport carriers will be designed to transport personnel,
landing craft, and helicopters.
2. Economic Benefit. The Division of Business and Economic
Research at UNO at the request of Avondale, has prepared a
study which estimates that the Economic Benefit will include
approximately 4050 jobs to be produced or saved, as well as
the following measurable financial impact:
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Income Produced $ 2.6 billion
Direct Spending $ 2.9 billion
Secondary Spending $ 3.3 billion
Total Spending $ 6.2 billion
State Tax Revenue $160.2 million
Local Tax Revenue $ 61.3 million
Total Governmental Revenue $221.5 million
An explanation of the projected Economic Benefit is more
particularly set forth on Exhibit "C" hereto. The State's
commitment and the cooperation with UNO were integral parts of
Avondale's LPD-17 technical proposal. These elements were key
discriminators of the Avondale bid and contributed significantly
to Avondale's ultimate success in acquiring the Navy LPD-17
Contract. The Economic Benefit occurring as a result of the
payment or performance of the State's obligations hereunder will
equal or exceed the value of the State's obligations.
3. Duly Organized. Avondale is a Louisiana corporation
validly existing and in good standing under the laws of the State
of Louisiana, and has all powers and all governmental licenses,
authorizations, qualifications, consents and approvals required
to carry on its business as now conducted and necessary to the
ownership, use, operation or maintenance of its properties, and
in particular, to perform all of its obligations under the Navy
LPD-17 Contract.
4. Requisite Power. Avondale has all requisite power and
authority to enter into this Agreement and all other documents
contemplated hereby, including, but not limited to, the Navy LPD-
17 Contract, and to carry out the terms hereof under applicable
law including, without limitation, the Act, and has complied with
all provisions of applicable law including, without limitation,
the Act, in all matters related to such actions of Avondale as
are contemplated by this Agreement.
5. Compliance by Avondale. Avondale is in full compliance
with all of the terms and conditions of this Agreement and no
default hereunder has occurred and is continuing, and no event,
act or omission has occurred and is continuing which, with the
lapse of time, the giving of notice, or both, would constitute
such a default.
6. Authority of Avondale. Avondale has taken or caused to
be taken all necessary and proper action to authorize the
execution, issuance and delivery of, and the performance of its
obligations under this Agreement and any and all instruments and
documents required to be executed or delivered pursuant hereto or
in connection herewith.
7. No Ultra Xxxxx Act. The execution and delivery of, and
performance by Avondale of its obligations under this Agreement
and any and all instruments or documents required to be executed
in connection herewith were and are within the powers of Avondale
and will not violate any provisions of any law including, without
limitation, the Act, regulation, decree or governmental
authorization, applicable to Avondale or any agreements of
Avondale with any of its creditors.
8. Authorizations. All authorizations which are required to
be obtained by Avondale under any applicable law in connection
with the execution, delivery and performance by Avondale of its
obligations under or in connection with this Agreement have been
received and all such authorizations are in full force and
effect.
9. Validity of Avondale Obligation. This Agreement
constitutes a valid and legally binding obligation of Avondale.
10. Litigation. Except as may be otherwise disclosed in
writing pursuant to Exhibit "D" hereto, there is no action, suit,
investigation or proceeding pending, or to its best knowledge,
threatened, against Avondale, before any court, arbitrator, or
administrative or governmental body, or insurance underwriting
agency which could reasonably be expected to result in a material
adverse change in the financial condition or operations of
Avondale or which could reasonably be expected to materially
adversely affect the ability of Avondale to comply with its
obligations hereunder or in connection with the transactions
contemplated hereby, including the Navy LPD-17 Contract.
11. Accuracy of Statements. Neither this Agreement nor any
other documents, certificate or statement furnished to the State
by or on behalf of Avondale, in connection with the transactions
contemplated hereby contains any untrue statement of any material
fact necessary in order to make the statements contained herein
or therein not misleading with respect to Avondale. There is no
fact or circumstance known to Avondale which Avondale has not
disclosed in writing to the State which materially adversely
affects or, so far as Avondale can now reasonably foresee, will
materially adversely affect the condition of Avondale or the
ability of Avondale to perform its obligations hereunder, or
under the Navy LPD-17 Contract.
12. Full Capabilities to Perform. Avondale has full
capabilities to complete all work under the Navy LPD-17 Contract
in accordance with all terms, conditions, and time periods
required by the Navy LPD-17 Contract, and Avondale has no
knowledge of any obligation of Avondale under the Navy LPD-17
Contract which Avondale cannot fulfill in a timely manner as
required by the Navy LPD-17 Contract.
13. Approval of Plans and Consistency with Bid. Avondale
has reviewed all currently existing drawings and specifications
for the work under the Navy LPD-17 Contract, and the work
required by the drawings and specifications is consistent with
the scope of the work bid upon by Avondale. Avondale can timely
complete all such work in accordance with all terms of the Navy
LPD-17 Contract.
14. Labor Matters. Except as disclosed on Exhibit "E"
hereto, Avondale hereby represents that as of the date of this
Agreement, no dispute with organized labor or other labor
oriented issues exists or is anticipated to exist which could
affect in a material adverse manner Avondale's ability to perform
under the Navy LPD-17 Contract.
IV. COOPERATIVE ENDEAVOR OBLIGATIONS
A. Obligations of University. University hereby agrees that it
will accept a donation from Avondale of the Property and will
lease said Property to the Foundation pursuant to the terms of
the Ground Lease. University hereby affirms that it will fulfill
its obligations pursuant to the Ground Lease to Foundation.
Furthermore, University agrees that it will locate a laboratory
and support areas for the School of Naval Architecture and Marine
Engineering in said Facility. University will operate said
laboratory in the Facility and will coordinate certain aspects of
its teaching, research, and public service missions with Avondale
and with other private shipbuilding entities which choose to
utilize the resources available through the University of New
Orleans School of Naval Architecture and Marine Engineering.
B. Obligations of Foundation. Foundation agrees that it will
enter into and fulfill its obligations as set forth in the Ground
Lease. Foundation hereby agrees that it will construct the
Facility on the Property in accordance with plans and
specifications approved by University and by Avondale and will
equip said Facility in accordance with the Equipment Plan set
forth on Exhibit "G" hereto, said Facility and equipment to be
utilized by Avondale for the design and construction of Vessels
in satisfaction of Avondale's obligations pursuant to Navy LPD-17
Contract and other contracts and for the housing of a University
of New Orleans School of Naval Architecture and Marine
Engineering laboratory. The construction and acquisition costs
to be expended by the Foundation shall not exceed forty million
and 00/100 dollars (40,000,000.00), exclusive of interest, but
inclusive of any applicable taxes. Foundation agrees that it
shall use the funds received by it pursuant to this Agreement to
fulfill its obligations hereunder. Foundation agrees that it
will enter into a Sublease Agreement for the sublease to Avondale
of the Property and a lease to Avondale of the Facilities and
Facility Equipment, said Sublease Agreement to be in the form
acceptable to all parties hereto.
C. Obligations of State. State hereby agrees that it will
provide funding as herein stipulated for the accomplishment of
this Cooperative Endeavor and will pay to Foundation no more than
the present value of forty million and 00/100 dollars
($40,000,000.00) which amount may be paid in one or more
installments, but shall be paid no later than September 1 of each
year pursuant to the following schedule not to exceed the
indicated amounts, limited, however, to the expenditures by
Foundation for the project:
on or before September 1, 1997 $3,743,673.00
on or before September 1, 1998 $6,257,928.00
on or before September 1, 1999 $7,054,081.00
on or before September 1, 2000 $7,194,789.00
on or before September 1, 2001 $7,194,789.00
on or before September 1, 2002 $7,194,789.00
on or before September 1, 2003 $7,194,789.00
on or before September 1, 2004 $7,194,789.00
on or before September 1, 2005 $7,194,789.00
on or before September 1, 2006 $3,451,116.00
on or before September 1, 2007 $ 936,861.00
on or before September 1, 2008 $ 140,708.00
On or before November 1 of each year beginning in 1997,
Foundation shall submit to the Commissioner of
Administration documentation supporting the amount to
be appropriated for the immediately following year in
satisfaction of the State's obligations herein. In the
event that the amount required to be drawn is less than
the amount initially requested, Foundation shall
immediately notify the Commissioner of Administration
and the amount drawn shall be reduced accordingly.
State agrees that Foundation may use said funds to
fulfill its obligations hereunder to provide the
Facility for the accomplishment of the goals of this
Cooperative Endeavor in accordance with the provisions
hereof.
D. Obligations of Avondale. Avondale agrees that it
will donate the Property to University and furthermore
agrees that it will enter into a Sublease Agreement
with Foundation for the lease of the Facilities and the
sublease of the Property. Avondale agrees that it will
utilize the Facilities for the design and construction
of Vessels pursuant to the Navy LPD-17 Contract and
other contracts. Avondale agrees that it will fulfill
its obligations pursuant to said Navy LPD-17 Contract
and other contracts. Furthermore Avondale agrees that
it will provide support to the University of New
Orleans School of Naval Architecture and Marine
Engineering by providing to University a Right of Use
of space constituting initially 12,000 square feet to
be increased to 21,000 square feet no later than
January 1, 2002, in the Facility subleased by Avondale
from Foundation, the location of which space shall be
as more particularly described on Exhibit "F" hereto.
Avondale shall assist in the equipping of the space
subject to the Right of Use as agreed to by the parties
hereto. University anticipates that its space will be
used to house a laboratory for its School of Naval
Architecture and Marine Engineering. However,
notwithstanding anything to the contrary contained
herein, University may use said space for any purpose
within its mission which is not incompatible with
Avondale's use of the Facilities. Furthermore, at its
sole option, University may cancel the Right of Use as
to part or all of said space without penalty.
University and Avondale will enter into a Right of Use
Agreement detailing the terms and conditions agreed to
by the parties. With respect to the construction of
the Facility, Avondale will provide all construction
planning and construction and acquisition management
services and expertise required to construct the
Facility and will reimburse UNO and the Foundation for
the legal and other transaction costs involved in
accomplishing the Cooperative Endeavor. Avondale
agrees that, in the event State fails to fulfill its
obligations to make payments hereunder to Foundation,
Avondale will make such payments to Foundation.
Avondale may recover any such payments from Foundation
only when and if Foundation receives the appropriation
for which Avondale made payment to the Foundation.
Avondale agrees that it will fulfill its obligations
under the Sublease Agreement, including but not limited
to the obligation to pay all expenses of operation and
maintenance of the Facilities, during the term of the
Lease, and to pay all rental required thereunder.
Avondale agrees that University shall have full access
to Avondale's computer system and software and
technology belonging to Avondale and utilized by
Avondale in the Facility. University may access said
system, software and technology, and access to all
upgrades thereto will be provided to University.
Avondale shall prepare an annual report and deliver a
copy of said report to all parties hereto on or before
March 1 of the following year detailing the Economic
Benefit realized for the year, and Avondale shall make
available for audit by the Legislative Auditor all
books and records utilized to prepare such report.
Furthermore, in the event that the costs of the project
required to be expended by Foundation in constructing
the Facility in accordance with the plans and
specifications and in acquiring the Facility Equipment
in accordance with the Equipment Plan exceed the
amounts paid by the State Avondale will pay to
Foundation the amounts required for Foundation to
fulfill its obligations pursuant to paragraph IV.B
above to construct and equip the Facility in accordance
with the approved plans and specifications and
Equipment Plan.
V. APPROPRIATIONS
Appropriations. All obligations of the State under
this Agreement shall be subject to appropriation by the
Legislature of sufficient funds therefor and the
availability of funds following Legislative
appropriation. The State, through the Commissioner of
Administration, agrees to make a good faith effort to
effect the Legislative appropriation required to
fulfill the provisions of paragraph IV C hereof,
including any such appropriation request in the
Executive Budget, prepared by the Division of
Administration, but makes no representations,
warranties or covenants, express or implied, that the
Legislature will make such appropriations. A failure
by the Legislature to appropriate sufficient funds to
satisfy the State's obligation under this Agreement
shall not constitute an Event of Default under this
Agreement, and this Agreement shall continue in full
force and effect as if the appropriation had been made.
VI. INSURANCE
VII. Insurance. The Property and the Facility will be
insured as set forth in and required by Ground Lease
and the sublease to Avondale of the property and lease
to Avondale of the Facilities.
VIII. AUDIT
Audit. The Legislative Auditor of the State may audit
any and all books and records of Avondale and
Foundation related to this Agreement and to the
Sublease Agreement, but only to the extent required by
La. R.S. 39:1516. Avondale and Foundation shall make
such books and records available for such purpose
during reasonable business hours and shall be liable
for all fees, costs and expenses of the Legislative
Auditor for such audit and shall retain such books and
records for three (3) years after the close of the year
in which the books and records were created or
generated.
IX. INDEMNIFICATION
A. Indemnification. Avondale agrees to indemnify the
State, University, and the Foundation for, and to hold
them harmless against, any loss, liability or expense
(hereinafter, individually a "Loss" and collectively
the "Losses") actually incurred by State, University,
or Foundation and arising in connection with this
Agreement or the Navy LPD-17 Contract, including the
State, University, or Foundation's reasonable costs and
expenses of defending against any such claim or
liability. This indemnity shall include, but not be
limited to, losses relating to or in any way arising
out of injury to persons, property or the environment,
trademark, patent or invention rights or strict
liability in tort in connection with the legal or
beneficial ownership or operation of any facilities of
Avondale, provided that this indemnity shall not cover
Losses due to the State's, University's, or
Foundation's negligence or willful misconduct.
B. Notice to Avondale. The State, University, or
Foundation shall promptly, after receipt of notice of
the existence of a claim in respect of which the
indemnity hereunder may be sought or of the
commencement of any action against the State or
University in respect of which indemnity hereunder may
be sought, notify Avondale in writing of the existence
of such claim or commencement of such action. Should
any such action be brought against the State,
University, or Foundation, it shall notify Avondale of
the commencement thereof and Avondale shall be entitled
to participate therein, but each party shall be
represented by separate counsel unless the State or
University and Avondale shall otherwise agree.
X. TERM
Term of this Agreement. The initial term of this
Agreement shall be for fifteen (15) years from the
effective date hereof. At the conclusion of said
initial term, with the consent of all parties hereto,
the term may be extended for one or more additional
five-year periods up to a total of seven (7) such
additional five-year periods.
XI. RESEARCH PARK
Research Park. The parties recognize and agree that
the Property will form a part of the University of New
Orleans Research and Technology Park; provided that the
obligations of the University in paragraph IVA above
are not reduced thereby.
XII. AFFIRMATIVE COVENANTS
A. Affirmative Covenants of Avondale. Until this
Agreement terminates and all obligations of Avondale
under or in respect of this Agreement are satisfied in
full, Avondale shall perform the following
requirements:
1. Reports and Other Information. Avondale will furnish or
cause to be furnished to the State:
a. as soon as available and in any event within one
hundred twenty (120) days after the end of each fiscal
year of Avondale, a copy of the annual report for such
fiscal year for Avondale, certified by an independent
certified public accountant;
b. forthwith upon the occurrence of any failure or
Event of Default or event, act or omission which, with
the giving of notice, the lapse of time, or both, would
constitute an Event of Default, a certificate of
Avondale setting forth, to the best of its knowledge,
the details thereof and the action that Avondale is
taking or proposes to take with respect thereto;
c. as promptly as practicable, written notice of all
litigation filed against Avondale and all proceedings
before any court or governmental authority which, if
adversely determined, would materially adversely affect
the operations or the financial condition of Avondale
with respect to the Navy LPD-17 Contract;
d. promptly when available, all quarterly, annual, or
other filings made with the Securities and Exchange
Commission;
e. such other information regarding the affairs and
condition of Avondale and the Navy LPD-17 Contract as
the State may from time to time request, in its sole
discretion, in connection with this Agreement and the
transactions contemplated hereby and thereunder.
B. Further Assurances. From time to time hereafter, Avondale
shall execute and deliver such additional instruments,
certificates or documents, and take all such actions as the State
may reasonably request for the purpose of fulfilling its
obligations hereunder.
C. Taxes, Claims, etc. So long as this Agreement is in effect,
Avondale shall pay (i) all taxes, assessments and governmental
charges imposed upon it or upon its property, and (ii) all claims
including, without limitation, claims for labor, materials,
supplies or services which might, if unpaid, become a lien upon
the Property or Facility, unless in each case, the validity or
amount thereof is being contested in good faith by appropriate
proceedings and Avondale has maintained adequate reserves with
respect thereto.
D. Recourse. This Agreement is made with full recourse to
Avondale and pursuant to and upon all the warranties,
representations, covenants, and agreements on the part of
Avondale contained herein and otherwise in writing in connection
herewith.
XIII. MISCELLANEOUS
X. Xxxxxxxxx. To the fullest extent possible, each provision of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provisions
of this Agreement shall be prohibited or invalid under such law,
such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
B. Amendments. This Agreement may be amended only upon the
written consent of all parties hereto, subject to the approval of
the State Bond Commission.
C. No Personal Liability of Avondale or State Officials. No
covenant or agreement contained in this Agreement shall be deemed
to be the covenant or agreement of any official, trustee,
officer, agent or employee of any party hereto in his individual
capacity, and neither the officers of any party hereto nor any
official executing this Agreement shall be liable personally with
respect to this Agreement or be subject to any personal liability
or accountability by reason of the execution and delivery of this
Agreement except to the extent provided by law.
D. Approvals by the State. Should the approval of the State be
necessary for any purpose as required by this Agreement, such
approval shall be considered effective when received from the
Commissioner of Administration.
E. Captions. The captions or headings in this Agreement are for
convenience only and in no way define, limit or describe the
scope or extent of any of the provisions of this Agreement.
F. Counterparts. This Agreement may be executed in several
counterparts, each which shall be an original and all of which
when taken together shall be deemed one and the same Agreement.
G. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of
Louisiana.
H. Books, Records, and Accounts. Each party hereto shall keep,
or cause to be kept, accurate, full, and complete books,
including bank accounts and accounts showing exclusively any
financial matters concerning the Facility and the operation
thereof until three (3) years after the termination of this
Agreement.
I. Use of Name. No party shall make use of any other party's
name, logo, seal, or trademarks without the prior written consent
of the party whose name or logo is sought to be utilized.
J. Addresses for Notices. Any notice required or permitted to be
given under or in connection with this Agreement shall be in
writing and shall be either hand-delivered or mailed, postage
prepaid by first-class mail, registered or certified, return
receipt requested, or by private, commercial carrier, express
mail, such as Federal Express, or sent by telex, telegram,
telecopy or other similar form of rapid transmission confirmed by
written confirmation mailed (postage prepaid by first-class mail,
registered or certified, return receipt requested or private,
commercial carrier, express mail, such as Federal Express) at
substantially the same time as such rapid transmission, or
personally delivered to an officer of the receiving party. All
such communications shall be mailed, sent or delivered to the
address or numbers set forth below, or as to each party at such
other address or numbers as shall be designated by such party in
written notice to the other party.
1. If to the State:
(Post Office Address for U. S. Postal Service Delivery)
Xx. Xxxx Xxxxxxx, Commissioner
Division of Administration
Capitol Annex
P. O. Xxx 00000
Xxxxx Xxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(Street Address for Courier or Express Mail Delivery)
Xx. Xxxx Xxxxxxx, Commissioner
Division of Administration
Capitol Annex
Room 229, 0000 Xxxxx 0xx Xxxxxx
Xxxxx Xxxxx, XX 00000
and
(Street Address for all Deliveries)
Xx. Xxxxx X. Xxxxxx, Xx., Secretary
Department of Economic Development
One Maritime Plaza, 000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
P. O. Xxx 00000
Xxxxx Xxxxx, XX 00000-0000
Telephone: (000)000-0000
Telecopy: (000) 000-0000
2. If to Avondale:
(Post Office Address for U. S. Postal Service Delivery)
Xx. Xxxxxx X. Kitchen, Vice President and Chief Financial
Officer
Avondale Industries, Inc.
P. O. Xxx 00000
Xxx Xxxxxxx, XX 00000-0000
Telephone: (000)000-0000
Telecopy: (000)000-0000
(Street Address for Courier or Express Mail Delivery)
Xx. Xxxxxx X. Kitchen, Vice President and Chief Financial
Officer
Avondale Industries, Inc.
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
with a copy to:
Xx. X. X. Xxxxx, Xx.
Avondale Industries, Inc.
P. O. Xxx 00000
Xxx Xxxxxxx, XX 00000-0000
Telephone: (000)000-0000
Telecopy: (000)000-0000
(Street Address for Courier or Express Mail Delivery)
Avondale Industries, Inc.
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
3. If to University:
Xx. Xxxxx X. Xxxxxxx, President
Louisiana State University System
Office of the Board of Supervisors
of Louisiana State University and
Agricultural and Mechanical College
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Telephone: (000)000-0000
Telecopy: (000)000-0000
with copies to:
Mr. Xxxxxxx Xxxxx, Vice Chancellor for Property and
Facilities Development
University of New Orleans
Third Floor, 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Telephone: (000)000-0000
Telecopy: (000)000-0000
4. If to Foundation:
Xx. Xxxxx Xxxxx, Agent for Service of Process
University of New Orleans Research and Technology
Foundation, Inc.
UNO TEC Center
Suite 1400, 0000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (504)
Telecopier: (000)000-0000
X. Xxxxx or Omission. No delay or omission in the exercise
of any right or remedy accruing to the State upon any breach
by Avondale under this Agreement shall impair such right or
remedy or be construed as a waiver of any breach theretofore
or thereafter occurring. The waiver of any condition or the
breach of any term, covenant, or condition herein or therein
contained shall not be deemed to be a waiver of any other
condition or of any subsequent breach of the same or any
other term, covenant or condition herein or therein
contained.
L. Venue. The 19th Judicial District Court, East Baton
Rouge Parish, State of Louisiana, shall be deemed to be the
exclusive court of jurisdiction and venue for any
litigation, special proceeding or other proceeding as
between the parties that may be brought, or arise out of, in
connection with, or by reason of this Agreement.
M. Public Records Act. Avondale and Foundation acknowledge
that State and University are subject to the Public Records
Act.
N. Rules of Interpretation. The following rules shall apply
to the construction of this Agreement unless the context
requires otherwise:
1. the singular includes the plural and the plural the
singular;
2. words importing any gender include the other genders;
3. references to statutes are to be construed as including
all statutory provisions consolidating, amending or
replacing the statute to which reference is made and all
regulations promulgated pursuant to such statutes;
4. references to "writing" including printing, photocopy,
typing, lithography and other means of reproducing words in
a tangible, visible form;
5. the words "including," "includes," and "include" shall be
deemed to be followed by words "without limitation";
6. references to the introductory paragraph, preliminary
statements, articles, sections (or subdivision of sections),
exhibits, appendices, annexes or schedules are to those of
this Agreement unless otherwise indicated;
7. references to agreements and other contractual
instruments shall be deemed to include all subsequent
amendments and other modifications to such instruments;
8. references to Persons include their respective successors
and assigns to the extent successors or assigns are
permitted or not prohibited by the terms of this Agreement;
9. "or" is not exclusive;
10. provisions apply to successive events and transactions;
11. references to documents or agreements which have been
terminated or released or which have expired shall be of no
force and effect after such termination, release, or
expiration;
12. references to mail shall be deemed to refer to first-
class mail, postage prepaid, unless another type of mail is
specified;
13. all references to time shall be to Baton Rouge,
Louisiana, time;
14. references to specific persons, positions, or officers
shall include those who or which succeed to or perform their
respective functions, duties, or responsibilities;
15. the terms "herein," "hereunder," "hereby," "hereof," and
any similar terms refer to this Agreement as whole and not
to any particular articles, sections, or subdivisions
hereof; and the term "heretofore" means before the Effective
Date, and the term "hereafter" means after the Effective
Date; and
16. all parties have been actively involved in drafting this
document and no provision hereof shall be constructed in
favor or of against any party on the basis of such party's
role in drafting that particular provision.
This Agreement has been executed by the parties on the dates
indicated but effective as of the 16th day of May, 1997, in
the presence of the undersigned witnesses.
WITNESSES: "University"
BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL
COLLEGE
/s/ XXXXX XXXXXXX By: /s/ XXXXX X. XXXXXXX
------------- ---------------------
Xxxxx X. Xxxxxxx
President, Louisiana State
University System
/s/ XXXXX XXXXX Date: 5/20/97
----------- -------
"Foundation"
UNIVERSITY OF NEW ORLEANS
PROPERTY FOUNDATION, INC.
/s/ XXXXXX XXXXXXXXXX XX. By: /s/ XXXX XXXXX
--------------------- --------------
Name Xxxx Xxxxx
----------
Title Chairman
--------
/s/ XXXXXX X. XXXX Date: May 20, 1997
-------------- ------------
"Avondale"
AVONDALE INDUSTRIES, INC.
/s/ XXXXX X. XXXXXXX By: /s/ XXXXXX X. KITCHEN
---------------- ---------------------
Xxxxxx X. Kitchen
Vice President and
Chief Financial Officer
/s/ XXXXXX X. XXXXXX Date: 5-16-97
---------------- -------
"State"
STATE OF LOUISIANA
THROUGH DEPARTMENT OF
ECONOMIC DEVELOPMENT
/s/ XXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
---------------- -------------------
Xxxxx X. Xxxxxx
Secretary of Department of
Economic Development
/s/ XXXXXXX XXXXXX Date: 6/3/97
---------------- ------
DIVISION OF ADMINISTRATION
/s/ XXXXX X. XXXXXX By: /s/ XXXX XXXXXXX
--------------- ----------------
Xxxx Xxxxxxx,
Commissioner of Administration
/s/ XXX XXXX XXXXX Date: 6/9/97
--------------- ------
FOR THE DEPARTMENT OF ECONOMIC DEVELOPMENT
/s/ XXXXX XXXXX
--------------- By: /s/ XXX X. XXXXXX
Contract Monitor -----------------
Xxx X. Xxxxxx, Undersecretary
/s/ XXXXXX XXXXX
----------------
Xxxxxx Xxxxx, Assistant Secretary
Office of Commerce and Industry
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE ACKNOWLEDGMENT
BE IT KNOWN that on this 20th day of May, ,
---- ---
1997, before me, the undersigned Notary Public, duly
--
commissioned and qualified in and for the above Parish and State,
and in the presence of the undersigned competent witnesses,
personally came and appeared Xxxxx X. Xxxxxxx, appearing herein
in his capacity as President, Louisiana State University System,
who, being by me first duly sworn, declared and acknowledged to
me, Notary, that he executed the above and foregoing instrument
on behalf of said Board of Supervisors with full authority of the
Board of Supervisors and that said instrument is the free act and
deed of said Board of Supervisors and was executed for the uses,
purposes and benefits therein expressed.
IN TESTIMONY WHEREOF, Appearer has executed this
acknowledgment in the presence of the undersigned competent
witnesses and me, Notary, after due reading of the whole.
WITNESSES:
/s/ XXXXX XXXXXXX /s/ XXXXX X. XXXXXXX
------------- --------------------
Xxxxx X. Xxxxxxx, President
Louisiana State University System
/s/ XXXXX XXXXX
-----------
/s/ XXXXX X. XXXXXXXXX
----------------------
NOTARY PUBLIC
STATE OF LOUISIANA
PARISH OF ORLEANS ACKNOWLEDGMENT
BE IT KNOWN that on this 20th day of May, 1997, before me,
----
the undersigned Notary Public, duly commissioned and
qualified in and for the above Parish and State, and in the
presence of the undersigned competent witnesses, personally
came and appeared Xxxx Xxxxx, appearing herein in his capacity
as Chairman of University of New Orleans Research and Technology
Foundation, Inc., who, being by me first duly sworn, declared
and acknowledged to me, Notary, that he executed the above
and foregoing instrument on behalf of said Corporation with full
authority of its Board of Directors and that said instrument is
the free act and deed of said Corporation and was executed for
the uses, purposes and benefits therein expressed.
IN TESTIMONY WHEREOF, Appearer has executed this acknowledgment
in the presence of the undersigned competent witnesses and me,
Notary, after due reading of the whole.
WITNESSES:
/s/ XXXXXX XXXXXXXXXX XX. /s/ XXXX X. XXXXX
--------------------- -------------
Xxxx X. Xxxxx
Universitiy of New Orleans
Foundation, Inc.
/s/ XXXXXX X. XXXX
--------------
/s/ XXXXXXXXX X. XXXXXXXX
---------------------
NOTARY PUBLIC
STATE OF LOUISIANA
PARISH OF JEFFERSON ACKNOWLEDGMENT
---------
BE IT KNOWN that on this 16th day of May, 1997,
---- --- --
before me, the undersigned Notary Public, duly commissioned
and qualified in and for the above Parish and State, and in the
presence of the undersigned competent witnesses, personally
came and appeared Xxxxxx X. Kitchen, appearing herein in his
capacity as the Vice President and Chief Financial Officer of
Avondale Industries, Inc., who, being by me first duly sworn,
declared and acknowledged to me, Notary, that he executed the
above and foregoing instrument on behalf of said Corporation
with full authority of its Board of Directors and that said
instrument is the free act and deed of said Corporation and
was executed for the uses, purposes and benefits therein
expressed.
IN TESTIMONY WHEREOF, Appearer has executed this
acknowledgment in the presence of the undersigned competent
witnesses and me, Notary, after due reading of the whole.
WITNESSES:
/s/ XXXXX X. XXXXXXX /s/ XXXXXX X. KITCHEN
---------------- -----------------
Xxxxxx X. Xxxxxxx, Vice President
and Chief Financial Officer
Avondale Industries, Inc.
/s/ XXXXXX X. XXXXXX
----------------
/s/ X. XXXXXXXXX
------------
NOTARY PUBLIC
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE ACKNOWLEDGMENT
----------------
BE IT KNOWN that on this 3rd day of June, 1997,
--- ---- --
before me, the undersigned Notary Public, duly commissioned
and qualified in and for the above Parish and State, and in the
presence of the undersigned competent witnesses, personally
came and appeared Xxxxx X. Xxxxxx, appearing herein in his
capacity as Secretary of the State of Louisiana through the
Department of Economic Development, who, being by me first
duly sworn, declared and acknowledged to me, Notary, that he
executed the above and foregoing instrument on behalf of said
Department of Economic Development with full authority and
that said instrument is the free act and deed of said
Department of Economic Development and was executed for the
uses, purposes and benefits therein expressed.
IN TESTIMONY WHEREOF, Appearer has executed this
acknowledgment in the presence of the undersigned competent
witnesses and me, Notary, after due reading of the whole.
WITNESSES:
/s/ XXXXXX X. XXXXXX /s/ XXXXX X. XXXXXX
---------------- ---------------
Xxxxx X. Xxxxxx
Secretary of Department of
Economic Development
/s/ XXXXXXX XXXXXX
--------------
/s/ XXXXX X. MANNY
--------------
NOTARY PUBLIC
STATE OF LOUISIANA
PARISH OF ACKNOWLEDGMENT
-------------
BE IT KNOWN that on this day of , 19 ,
before me, the undersigned Notary Public, duly commissioned
and qualified in and for the above Parish and State, and in the
presence of the undersigned competent witnesses, personally
came and appeared Xxxx Xxxxxxx, appearing herein in his capacity
as Commissioner of Administration of the State of Louisiana,
who, being by me first duly sworn, declared and acknowledged to
me, Notary, that he executed the above and foregoing instrument
on behalf of the Division of Administration with full authority
and that said instrument is the free act and deed of said
Division of Administration and was executed for the uses,
purposes and benefits therein expressed.
IN TESTIMONY WHEREOF, Appearer has executed this
acknowledgment in the presence of the undersigned competent
witnesses and me, Notary, after due reading of the whole.
WITNESSES:
/s/ XXXXX X. XXXXXX /s/ XXXX XXXXXXX
--------------- ------------
Xxxx Xxxxxxx
Commissioner of Administration
State of Louisiana
/s/ XXXXXX XXXXXX XXXXXXX
---------------------
NOTARY PUBLIC
