EXHIBIT 10.1
VESSEL CONSTRUCTION CONTRACT
THIS CONTRACT entered into as of this September 6, 2005 by and between
Trinity Marine Products, Inc., a corporation organized and existing under the
laws of the state of Delaware (the "Builder"), and M/G Transport Services, Inc.,
a corporation organized and existing under the laws of the state of Ohio the
"Purchaser").
W I T N E S S E T H:
ARTICLE I - DESCRIPTION OF VESSEL:
Builder, in consideration of the obligations of Purchaser set forth in this
Contract, agrees to build, equip, and complete, free and clear of any liens,
claims and encumbrances, the barge(s) (hereinafter referred to as the "Vessel",
whether one or more), described on the attached Exhibit "A" and which shall be
constructed in accordance with the documents referred to in such Exhibit
(hereinafter, the "Contract Documents"), all of which have concurrently been
identified by the parties and made a part of this Contract as if fully set forth
herein.
Except for any Purchaser furnished equipment as may be listed in the
Contract Documents, Builder agrees to furnish all plant, labor, tools, equipment
and material, consumable or direct, necessary for the construction and delivery
of the Vessel.
The Vessel shall be constructed to meet the applicable requirements of the
regulatory bodies as set forth in the Contract Documents and, to the extent
required by the Contract Documents; certificates evidencing the required
classifications shall be furnished by Builder to Purchaser.
If any changes in the rules and regulations of the American Bureau of
Shipping or other applicable classification society or of any governmental
agency are made subsequent to the date of execution of this Contract
necessitating alterations or additions to the Vessel, the result of which is the
cost of the Vessel is increased and/or the time required for completion for the
Vessel is extended, Purchaser shall authorize, and pay for, as a change order
under this Contract, any such alterations, additions, outfit and/or equipment,
and shall grant Builder any extension of the Date of Delivery, as defined in
this Contract, as may be required to comply with any such regulatory change.
All provisions, conditions or requirements contained in the Contract
Documents and any other provision, condition or requirement inconsistent or in
conflict with the provisions of this Contract are superseded by this Contract,
it being the intent of the parties that the provisions of this Contract shall
prevail. If there is any conflict or inconsistency between the Drawings and
Specifications, the Specifications shall control.
ARTICLE II - PRICE AND PAYMENT:
Purchaser agrees to pay Builder for each Vessel the sum(s) as set forth in
Exhibit "A" in United States Dollars (hereinafter the "Contract Price".) The
schedule of payments to be made by Purchaser for the Vessel is also set forth in
Exhibit "A" to this Contract.
Builder shall submit invoices for each payment as set forth on Exhibit "A",
except for any initial payment, with invoice(s) being due and payable according
to the terms of Exhibit "A". Builder may, in its discretion, charge Purchaser
interest on any amounts hereunder, if not paid when due, at the rate of 2-1/2%
per annum above the prime rate of JPMorgan Chase Bank, Houston, Texas, accruing
from the date such amount is due until paid in full. The full Contract Price,
including any amounts or credits due for extras, change orders, other additional
costs as provided in this Contract, and interest shall be paid in immediately
available funds upon delivery of the Vessel. If any invoice is not paid when
due, Builder may, at its discretion, withhold issuance and delivery of the
Builder's Certificate until receipt of payment, including payment of any accrued
interest.
Additionally, as security for the payment and fulfillment of its
obligations to Builder hereunder, Purchaser hereby grants to Builder a first
priority security interest in the Vessel and the products, proceeds and
accessions of and to the Vessel, together with all right, title and interest of
Purchaser therein and all rights and remedies which Purchaser might exercise
with respect thereto but for the execution of this Contract. Purchaser
acknowledges that this Agreement shall constitute a security agreement between
the parties, and Purchaser shall promptly take all action requested by Builder
to create, establish, maintain and perfect such a security interest, including,
but not limited to, executing security agreements and uniform code financing
statements in forms approved by Builder in its sole and absolute discretion.
Builder agrees to not record its security interest unless payment is not
properly made when due hereunder and Builder gives Purchaser notice of any such
filing. Upon Builder's receipt of payment of the Contract Price, plus any
accrued interest, for the Vessel, the security interest as to each paid Vessel
shall terminate.
If any invoice is not paid when due, Builder may, at its discretion,
suspend or reschedule progress of the work (such right being in addition to any
other right at law or in equity), and Purchaser shall then be obligated to
Builder, in addition to other amounts becoming due hereunder, for any direct
costs resulting from such suspension or rescheduling of the work. In addition to
any other remedies available to Builder at law or in equity, Builder shall be
entitled either to terminate this Contract or to xxx Purchaser for specific
performance of this Contract. If Builder elects to terminate this Contract,
Builder shall have the option, in its sole discretion, to (i) xxx Purchaser for
damages as a result of its breach and apply any deposits or other payments made
hereunder toward those damages, or (ii) retain title to the Vessel, free of any
claim of Purchaser, and retain any deposits or other payments made hereunder. In
any such event, Builder shall have no further obligation whatsoever to
Purchaser.
ARTICLE III - TIME AND CONDITIONS OF DELIVERY:
The Vessel, after completion, in accordance with the Contract Documents,
shall be delivered to Purchaser, on or before the date indicated on the attached
Exhibit "A" (hereinafter called the "Date of Delivery") , or on such later date
or dates as provided for in Articles I, IV, and VI hereof (the "Extended Date of
Delivery").
Builder shall deliver the Vessel to Purchaser at a location as set forth on
the attached Exhibit "A" (the "Place of Delivery"). All costs and expenses of
transporting the Vessel to the Place of Delivery, if other than Builder's yard,
shall be borne by and be the obligation of the Builder. All costs and expenses
of operating and/or transporting the Vessel after it has reached the Place of
Delivery shall be borne by and be the obligation of Purchaser.
Builder shall furnish Purchaser on delivery of the Vessel a Builder's
Certificate, together with any other documents as may be required by the
Contract Documents. Builder shall also furnish whatever other documents that may
be required by any regulatory agency of the United States having relevant
jurisdiction in order for Purchaser to document the Vessel in its name. Any cost
or expense in connection with the documentation of the Vessel with the U. S.
Coast Guard or other governmental agency shall be paid by Builder.
The Vessel shall be delivered by Builder to Purchaser with a clear and
merchantable title, free and clear of all maritime and non-maritime liens,
claims, encumbrances and charges of whatsoever kind and nature. In addition to
and notwithstanding the foregoing, Builder agrees to indemnify Purchaser and
hold it harmless from and against all liens and claims for labor, material, or
the like arising solely out of, in connection with, or resulting from the
operations or activities of Builder, its employees or agents or subcontractors
and the employees or agents of their subcontractors, and agrees to defend any
such claim asserted or suit brought against Purchaser and to pay any judgment
rendered in any such action.
Purchaser shall execute a Delivery and Acceptance Certificate immediately
prior to the time of delivery of the Vessel, substantially in the form of
Exhibit "B".
Should Purchaser fail to take delivery of the Vessel within ten (10) days
of receipt of written notice that the Vessel is complete and available for
Delivery in accordance with the Contract Documents, Purchaser shall be in
default of this Contract, and Builder shall have the right to mitigate its
damages and protect its rights and interests, including, but not limited to, the
right to xxx for specific performance of this Contract, to retain any deposits
or other payments made hereunder, to retain title to the Vessel and/or to sell
the Vessel free of any claim of Purchaser at a price acceptable to Builder.
Builder's exercise of the foregoing remedies, or any other remedies or rights,
shall not be deemed a waiver or release by Builder of any other rights or
remedies that Builder may have at law or in equity, including, but not limited
to, the right to xxx for any additional damages, costs, expenses or attorneys'
fees incurred by Builder as a result of Purchaser's default.
ARTICLE IV - CHANGES IN THE DRAWINGS AND SPECIFICATIONS:
Subject to the requirements of other work and orders, both current and
future, in Builder's yard, Purchaser has the right to request any deletions from
or additions to the plans and specifications for the Vessels on giving due
notice in writing to Builder, the dollar amount of any such changes to be agreed
upon in advance by Purchaser and Builder, and added to, or deducted from, the
total Contract Price for the Vessels. If any such change shall delay the
completion of the Vessel, Builder shall be allowed a reasonable extension of
time of the Date of Delivery for such Vessel sufficient to cover such delay. A
statement of the increase or decrease of the Contract Price, and/or any
additional contract time required, as aforesaid, shall be submitted to Purchaser
by Builder, and shall be approved by Purchaser in writing (which approval shall
not be unreasonably withheld) before any such change is made. Notwithstanding
the foregoing, no change shall be made in the general dimensions and/or
characteristics of the Vessel which would diminish the capacity of the Vessel to
perform as originally intended by the Contract Documents, except by mutual
consent of the parties.
ARTICLE V - INSPECTION BY PURCHASER'S REPRESENTATIVE(S):
Builder will furnish reasonable space at its yard for the duly authorized
representative (s) of Purchaser who shall have reasonable access to the work of
Builder during normal yard hours. Purchaser's representative (s) shall promptly
inspect and accept all workmanship and material which is in conformity with the
Contract Documents and shall, with equal promptness, reject all workmanship and
material which does not comply with the Contract Documents, provided that the
acceptance of such workmanship and material by Purchaser's representative shall
not prejudice the rights of Purchaser under the provisions of Article VII
hereof. Purchaser's representatives shall comply with all safety procedures and
rules of Builder then in effect in Builder's yard.
ARTICLE VI - FORCE MAJEURE:
The Date of Delivery of the Vessel shall be subject to extension by reason
of Force Majeure, which term is hereby defined to include all causes whatsoever
beyond the reasonable control of Builder, including, but not be limited to, the
following: strikes, lockouts or other industrial disturbances; shortages or late
delivery of supplies, equipment or material (including steel, tubing, piping,
wiring and all components); unavailability, interruptions or inadequacy of fuel
supplies; acts of God; acts of the Purchaser, its officers, directors,
employees, agents or contractors; war, preparation for war or the acts or
interventions of naval or military executives or other agencies of government;
blockade, sabotage, vandalism, malicious mischief, bomb scares, insurrection or
threats thereof; landslides, floods, hurricanes and earthquakes; collisions or
fires; delays of subcontractors or of carriers by land, sea or air; non-delivery
and/or late delivery of any Purchaser-furnished supplies, material, equipment or
labor, including plans, drawings or engineering; delays due to changes in
drawings or specifications; and any delays in a previously contracted Vessel,
which precede the Vessel, the subject of this Contract, in Builder's production
schedule caused by one of the circumstances enumerated in this Contract. Adverse
weather, including but not limited to, rain, temperature or high humidity, shall
not be considered a Force Majeure event unless its occurrence requires a shut
down of a substantial portion of Builder's yard and/or the painting/coating area
of Builder's yard prior to 12:00 noon on a regularly scheduled work day and, for
each such day, Builder shall be entitled to an extension of the Delivery Date
equal to one (1) regularly scheduled work day of the Builder (which is Monday
through Friday and excludes Saturdays, Sundays and holidays). Delays in
receiving material, equipment or fuel, short deliveries thereof (except
Purchaser-furnished material) or delays of subcontractors shall be considered
Force Majeure events only if Builder shows that such materials, equipment, fuel
or services were timely ordered, that due diligence was exercised to obtain
timely delivery thereof and that no other alternate source of supply was
reasonably available.
Shortages of skilled workers shall not be considered a Force Majeure event
unless Builder shows that diligence has been used in recruiting, hiring and
maintaining a sufficient work force and that Builder's wage scale for each
classification of employee, during the pendency of this Contract, retains the
same competitive relationship as exists as of the date of this Contract between
Builder's labor force and that of comparable yards in the geographic area of
Builder's yard in which the Vessel is being constructed.
If the completion of the Vessel is delayed by one or more events of Force
Majeure, the Date of Delivery shall be extended by a period of time as may be
reasonably necessary under the circumstances to complete the Vessel, and at a
minimum, shall be equal to one (1) regularly scheduled work day of the Builder
(which is Monday through Friday and excludes Saturdays, Sundays and holidays)
for each day, or portion thereof, by which the delivery of the Vessel was
delayed by such events of Force Majeure. However, the Date of Delivery shall not
be extended unless Builder notifies Purchaser in writing within twenty (20) days
of the beginning of a delay caused by a Force Majeure event, describing the
circumstances and providing an estimate, if possible, of the extent of the
probable delay.
ARTICLE VII - WARRANTY:
A. Warranty for Vessel
Builder warrants to Purchaser that the Vessel shall be free from defects in
workmanship and shall conform to the requirements of the Contract Documents.
B. Warranty for Application of Paints, Coatings, Primers and Sealant
Builder warrants that it will purchase paints, coatings, primers and/or
sealant of good marine quality in accordance with the contract documents and
that it will apply the paints, coatings, primers and/or sealant in accordance
with the specifications and recommendations of the manufacturer of the paints,
coatings, primers and/or sealant.
C. Warranty Period
Builder shall have no responsibility whatsoever with respect to any claim
under Sections A and B of this Article VII which is not received in writing by
Builder within one hundred eighty (180) days from the Delivery Date, as
specifically defined in this Article VII (such 180 day period being hereinafter
referred to as the "Warranty Period"). For purposes solely of this Article VII,
"Delivery Date" shall be defined as the earlier of the following: (1) fourteen
(14) days after date of a written notice from Builder that the Vessel is
complete in accordance with the Contract Documents and available for delivery,
or (2) the date of actual physical delivery of the Vessel to Purchaser or
Purchaser's Agent.
D. Builder's Obligation under Warranty and Claims Notice
In the event Purchaser notifies Builder in accordance with Section C of
this Article VII of any claim covered under Sections A and B of this Article VII
(which notice Purchaser agrees shall set forth with specificity the Vessel
effected and the nature and location of the defect), and upon inspection
thereafter by Builder at which time Builder confirms that the warranted defect
set out in the notice in fact exists, Builder shall promptly correct the
nonconforming work by making repairs or replacements at its option at one of
Builder's yards without expense to Builder for transporting the Vessel, or any
component thereof, to or from that yard; provided, however, that if it is not
practical to have the Vessel proceed to such yard, Purchaser may, with prior
written consent of Builder, have such repairs or replacements made elsewhere,
and, in such event, Builder shall reimburse Purchaser an amount equivalent to
the lesser of (i) the amount Builder would have expended at its own yard at
Builder's then prevailing rates, or (ii) the amount actually expended by
Purchaser, provided, however, that in no event shall Builder be liable to
Purchaser for any amount in excess of the cost of repairs or replacements as
specified above. Builder shall not be obligated to repair or replace any
material or equipment, if: (1) such repair or replacement is caused, in whole or
in part, by the negligent operation or maintenance of the Vessel, its equipment,
or components or (2) Purchaser fails to provide Builder with access to the
Vessel, within a reasonable period of time, to conduct any inspections, repairs
or replacements. Notwithstanding the foregoing, if Purchaser fails to give
Builder access to the Vessel within ninety (90) days after Builder's receipt of
notice of nonconforming work or defect, then Builder shall have no
responsibility to perform any repair or replacement under this warranty.
E. Warranty Exclusions and Assignments
OTHER THAN AS SET OUT IN SECTION B OF THIS ARTICLE VII, BUILDER MAKES NO
WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO PAINTS, COATINGS, PRIMERS AND/OR
SEALANT OR THE PRODUCT MANUFACTURER'S SPECIFICATIONS AND RECOMMENDATIONS.
BUILDER WILL ASSIGN TO PURCHASER AT DELIVERY ALL WARRANTIES THAT ARE AVAILABLE
FROM THE MANUFACTURERS OF PAINTS, COATINGS, PRIMERS AND/OR SEALANT.
Builder does not warrant any components, equipment, engineering,
specifications, designs, plans or workmanship specified or furnished by
Purchaser, its subcontractors, employees, architects or engineers, or any labor
performed by others at the direction or request of Purchaser or Purchaser's
representative(s) and Builder specifically disclaims any warranties, express or
implied, in connection therewith.
F. Warranty Termination for Improper use of Dry Void Spaces
Purchaser stipulates that the dry void spaces in the Vessel are to be used
solely for periodic access by Purchaser's employees, consultants and agents for
barge maintenance and inspection of the integrity of Vessel hull and cargo hold.
Purchaser acknowledges that the warranty set out in Sections A and B of this
Article VII shall terminate as to a dry void space without notice or action of
any kind required by Builder, in the event any such dry void space on a Vessel
is used for any other purpose whatsoever and Purchaser waives its right to
object to termination of the warranty under this Section F on the grounds that
the warranty has failed for its essential purpose . BUILDER HEREBY ADVISES
PURCHASER THAT A DRY VOID SPACE IS A CONFINED SPACE AND NO PERSON SHOULD BE
ALLOWED TO ENTER SUCH SPACE WITHOUT PROPER SUPERVISION, ASSISTANCE AND
COMPLIANCE WITH APPLICABLE CONFINED SPACE REGULATIONS.
G. Warranty Disclaimers and Waiver
THE WARRANTY AND REMEDIES SET FORTH IN THIS ARTICLE VII ARE IN SUBSTITUTION
OF AND IN LIEU OF ANY AND ALL OTHER WARRANTIES OR REMEDIES WHETHER EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WORKMANLIKE SERVICES, AND
PURCHASER HEREBY WAIVES ANY RIGHT TO SUCH OTHER EXPRESS OR IMPLIED WARRANTIES OR
REMEDIES.
H. Limitations of Remedy and Liability
FOLLOWING DELIVERY OF THE VESSEL PURCHASER'S SOLE REMEDY FOR BREACH OF THIS
WARRANTY SHALL BE REPAIR, REPLACEMENT OR REIMBURSEMENT, AS THE CASE MAY BE,
EXPRESSED IN SECTION D OF THIS ARTICLE VII. BUILDER SHALL IN NO EVENT BE LIABLE
TO PURCHASER FOR THE BREACH OF WARRANTY, EXPRESS OR IMPLIED, IN FACT OR IN LAW,
EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE VII. BUILDER SHALL HAVE NO
LIABILITY TO PURCHASER OR TO ANYONE CLAIMING TO, THROUGH OR UNDER PURCHASER FOR
LOSS OR DAMAGES OF ANY KIND WHICH ARE PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR
INDIRECT TO A BREACH OF THIS WARRANTY, INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS OR LOSS OF USE OF THE VESSEL, AND WHETHER OR NOT RESULTING FROM
BUILDER'S OR ITS EMPLOYEES', AGENTS', SUBCONTRACTORS' OR CONSULTANTS' ACTS,
ERRORS, OMISSIONS, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCT LIABILITY, OR
OTHERWISE, PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT LIMIT PURCHASER'S
RIGHTS UNDER COMMON LAW FOR CONTRIBUTION OR INDEMNITY FROM BUILDER FOR ACTUAL
DAMAGES OR SETTLEMENTS PAID BY PURCHASER ARISING FROM A THIRD PARTY ACTION DUE
TO INJURY TO THIRD PERSONS OR DAMAGE TO THIRD PARTY PROPERTY PROXIMATELY
RESULTING FROM A BREACH OF THIS CONTRACT.
ARTICLE VIII - INSURANCE:
A. Until the Vessel has been completed, physically delivered at the Place
of Delivery and accepted by Purchaser, the Vessel and all materials, outfitting,
equipment, and appliances to be installed in the Vessel, including all
materials, outfitting, equipment and appliances provided by Purchaser and
delivered to Builder's yard for the Vessel or in the construction thereof, shall
be declared under a Builder's Risk Policy of Builder in force and effect at the
time that the Vessel's keel is laid, all at Builder's expenses. Purchaser shall
bear all risk of loss or damage to the Vessel upon delivery to and acceptance by
Purchaser as to each delivered Vessel.
Partial losses, if any, shall be payable to Builder and the proceeds
thereof devoted by Builder to the repair and/or replacement of the damage.
Builder shall advise Purchaser promptly of any such occurrence. In the event
that an "actual total loss" or a "constructive total loss" (as those terms are
defined in the Builder's Risk Policy) should occur prior to the Vessel being
complete and ready for delivery, Purchaser shall be reimbursed out of the
proceeds of each policy any down payment attributable to the damaged Vessel made
to Builder and the cost of any Purchaser furnished equipment or materials
destroyed as a result of such total loss. All other proceeds of the policy shall
be paid to Builder. Following payment of such insurance proceeds upon a total
loss, Builder shall have the option, in its sole discretion, either to terminate
this Contract with regard to the damaged Vessel only, or to reconstruct such
Vessel pursuant to the terms of the Contract, with completion being accomplished
within a period of time equal to the time originally allowed under the Contract.
B. Builder shall also purchase and maintain, at its expense, during the
life of this Contract, Workers' Compensation Insurance at statutory amounts,
with Longshoreman & Harbor Workers Compensation Act coverage endorsement,
Employer's Liability Insurance in the amount of at least One Million Dollars
($1,000,000) and Public Liability Insurance against property damage, death and
personal injury in the amount of not less than One Million Dollars ($1,000,000).
C. A memorandum outlining the pertinent terms and conditions of the
Builder's Risk Policy referred to in subparagraph A above shall be available to
the Purchaser at Builder's office and Purchaser, at its request, shall be
furnished a certificate of insurance as to all other policies required
hereunder. The original of the said Builder's Risk Policy shall be available in
Builder's parent's office in Dallas, Texas, for review upon reasonable request.
All of the policies of insurance and certificates referred to herein shall
contain a provision requiring the insurer at risk to give Purchaser thirty (30)
days, notice, in writing, prior to the cancellation of any such insurance.
ARTICLE IX - TAXES:
Any transportation, sales, use, transfer or other tax which may be levied
on, or imposed by any state, local, federal, municipal or other governmental
agency in connection with the construction or delivery of the Vessel or any
personal property tax which may be levied or imposed with respect to the Vessel
shall be paid by Purchaser. Builder agrees that it shall not pay any such tax on
behalf of Purchaser, or concede any liability on behalf of Purchaser for same,
without prior notice to Purchaser.
To the extent the Vessel is subject to any waiver, exemption, suspension
of, or exception to, sales, use or other tax of any government or agency,
Purchaser shall provide Builder upon request with certificates or other
documents as required by applicable law evidencing Purchaser's and/or the
Vessel's entitlement to any such waiver, exemption, suspension or exception.
Purchaser's obligations under this Article shall survive delivery of the Vessel
and completion of this Contract.
ARTICLE X - PATENTS:
Builder agrees to defend, indemnify and hold harmless Purchaser against
loss or damage sustained by Purchaser by reason of any alleged infringement of
patent rights or other proprietary interests in any materials, processes,
machinery, equipment, or hull form selected by Builder.
Purchaser agrees to defend, indemnify and hold harmless Builder against
loss or damage sustained by Builder by reason of an alleged infringement of
patent rights or other proprietary interests in any materials, designs,
processes, machinery, equipment, or hull form selected by Purchaser or required
by the Contract Documents.
ARTICLE XI - MATERIAL SUBSTITUTIONS:
Builder may substitute other sizes and material for those specified,
subject to Purchaser's approval, which will not be unreasonably withheld or
delayed providing the same is of equal quality, strength and suitability for the
use intended. No increase in cost shall be made for such changes.
ARTICLE XII - USE OF THE DRAWINGS AND SPECIFICATIONS:
Any Purchaser furnished specifications, contract plans and drawings for the
Vessel shall remain the property of Purchaser, and any specifications, contract
plans and drawings for the Vessel, if any, furnished or prepared by Builder
shall remain the property of Builder.
ARTICLE XIII - BANKRUPTCY:
If either party hereto shall be adjudicated a bankrupt or an order
appointing a receiver of it or of the major part of its property shall be made,
or an order shall be made approving a petition or answer seeking its
reorganization under the Federal Bankruptcy Act, as amended, or if either party
shall institute proceedings for voluntary bankruptcy or apply for or consent to
the appointment of a receiver of itself or its property, or shall make an
assignment for the benefit of its creditors, or shall admit in writing its
inability to pay its debts generally as they become due for the purpose of
seeking a reorganization under the Federal Bankruptcy laws, or otherwise, then,
in any one or more of such events, the other party to this Contract shall have
the option at its discretion to terminate this Contract by written notice.
Termination of this Contract pursuant to the provisions of this Article by one
party to this Contract shall not relieve the other party from any payment
obligations hereunder due and owing as of the date of such termination or from
any obligations due or which may become due under Article IX of this Contract.
ARTICLE XIV - NOTICES:
Notices required by this Contract shall be in writing and shall be
delivered in person or by registered mail, return receipt requested or by
overnight courier service providing evidence of receipt to Builder or Purchaser,
or the designated representative or either, as the case maybe.
Notices to Builder shall be addressed to:
Trinity Marine Products, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
with a copy (which shall not be considered as notice) to:
Vice President Legal Affairs
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Notices to Purchaser shall be addressed and forwarded to the person(s) as
set forth in Exhibit "A".
In all matters relating to this Contract, except warranty claims which are
covered under Article VII, the parties shall be represented by none other than
the representatives named on Exhibit "A".
Each party agrees that at least one of its above-named representatives
shall be available for consultation during normal working hours. Purchaser and
Builder agree that no one other than their respective named representatives
shall be considered as their authorized agent with power or authority to bind
them, respectively. Except as may be herein authorized, no change or
modification to this Contract or the Contract Documents shall be valid or
enforceable unless in writing and signed by one of the above designated
representatives of each party.
Any other person may be designated to represent either Purchaser or Builder
upon written notice of such designation accomplished in accordance with the
notice provisions of this Article XIV.
ARTICLE XV - CONSTRUCTION:
The headings of the Articles, Exhibits or other provisions have been
inserted as a convenience for reference only and are not to be considered in any
construction or interpretation of this Contract.
ARTICLE XVI - LAW APPLICABLE:
This Contract shall be governed by and interpreted under the laws of the
State of Texas (without regard to conflict of laws principles) and, to the
extent applicable, federal maritime law of the United States of America.
ARTICLE XVII - ASSIGNMENT:
This Contract may not be assigned by Builder or Purchaser without the prior
written consent of the other party, and to the extent an assignment by Purchaser
is approved by Builder, Purchaser shall be required to executed Builder's
Consent and Agreement form attached hereto and incorporated herein as Exhibit C.
ARTICLE XVIII - UNITED STATES APPROVAL:
All obligations of Builder herein are subject to compliance with all
applicable laws and regulations of the United States government and agencies
thereof and, if required, the prior approval of the Departments of Commerce,
Defense, Transportation or State.
ARTICLE XIX - NON-DISCLOSURE:
Neither party shall disclose to any third party the terms and conditions of
the Contract or the information received from the other party in either
negotiating the contract or in the performance of the Contract. This obligation
shall survive the completion of the Contract. The obligations of this provision
shall not apply to any disclosures required by law, regulation, governmental
authority or court order or to any information, data, or design that a
disclosing party can show it possessed prior to its disclosure by it, was or has
become available to the public domain, or is subsequently provided to it by
another party having the right to possess and disclose the information, data or
designs.
ARTICLE XX - MISCELLANEOUS:
The Contract Documents constitute the entire agreement between the parties
and supersede all prior agreements and understandings, both written and oral.
The invalidity or unenforceability of any phrase, sentence, clause or article in
this Contract shall not affect the validity or enforceability of the remaining
portions of this Contract, or any part thereof.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of
the day and year first above written.
Builder: Purchaser:
Trinity Marine Products, Inc. M/G Transport Services, Inc.
By: By:________________________________
Name: Name:______________________________
Title: Title:_____________________________
Page 1 of 2
EXHIBIT A
I. DESCRIPTION OF VESSEL:
A. The Vessel is: Sixty (60) 195' x 35' x 13'-0" Rake Open Xxxxxx Barges
X. Xxxx No. will be assigned when production starts.
C. The Vessel shall be built in accordance with the following Contract
Documents:
1. This Contract
2. Specifications, dated August 10, 2005 Exhibit "A-1".
3. General Arrangement Dwg. No. E4185, Rev. 1, Exhibit "A-2".
4. Tax Exemption Forms for signature
II. PRICE, DOWN PAYMENT AND PAYMENT SCHEDULE:
A. The contract price for the Vessel is Four Hundred Thousand Dollars
($400,000.00) per vessel subject to plate steel surcharge if
applicable.
B. A one million six hundred thousand dollar ($1,600,000) down payment is
required upon signing of Contract, the receipt of which is hereby
acknowledged. Said down payment shall be used equally to fund the
final payment on each Vessel as same shall become due and payable to
Builder, until down payment is exhausted.
C. During the third and forth quarters of 2006, it is anticipated that
the Vessels will be delivered to Purchaser as they are completed.
Builder will invoice Purchaser during each week that Vessel(s) are
completed, inspected, delivered and accepted, and Purchaser shall wire
transfer said amount to Builder on the Friday of such week (subject to
the credit for the down payment set forth in section II.B above).
III. PLACE OF DELIVERY:
The Vessel shall be delivered at Builder's shipyard.
IV. DATE OF DELIVERY:
The Date of Delivery is commencing third or fourth quarter 2006.
Page 2 of 2
V. Notice to Purchaser shall be addressed as follows:
M/G Transport Services, Inc.
0000 Xxxxxxx Xxxx. Tel: 513/000-0000
Xxxxxx, XX 00000-0000 Fax: 513/000-0000
Attention: Xx. Xxxx X. Xxxxx
VI. The parties' representatives are:
A. For Purchaser: Xx. Xxxx X. Xxxxx
B. For Builder: Xx. Xxxxxxx Xxxxxxxx
EXHIBIT APPROVED BY:
Builder: ________________(Initial) Purchaser: _______________(Initial)
EXHIBIT B
FORM OF CERTIFICATE
OF DELIVERY AND ACCEPTANCE
In accordance with that certain Vessel Construction Contract by and between
M/G Transport Services, Inc. ("Purchaser") and Trinity Marine Products, Inc.
("Builder");
On this _______ day of _____________________, 2005, Builder hereby tenders
the Vessel, Hull No. ______ Barge Name _________ for delivery to Purchaser,
complete in accordance with the Contract Documents, and free and clear of all
liens, claims or encumbrances; and
Purchaser, through its duly authorized undersigned agent, hereby accepts
the Vessel, and all of its equipment, material and components as complete in
accordance with the Contract Documents as of the date above written.
BUILDER: PURCHASER:
Trinity Marine Products, Inc. M/G Transport Services, Inc.
By: ______________________________ By: _________________________________
Printed/Typed Name:________________ Printed/Typed Name:__________________
Title: ___________________________ Title: _____________________________
EXHIBIT APPROVED BY:
Builder: ______________(Initial) Purchaser: ________________(Initial)
EXHIBIT C
CONSENT AND AGREEMENT
The undersigned, Trinity Marine Products, Inc. ("TMP"), hereby acknowledges
notice of and consents to the assignment of that certain Vessel Construction
Contract dated (herein the "Contract") between TMP and M/G Transport Services,
Inc. (herein "Purchaser") to _________________, a (herein the "Grantee")
relating to any of the Vessels (herein the "Vessels") sold by TMP to Purchaser,
subject to the terms and conditions of the Contract.
TMP hereby confirms that all of its representations, warranties and agreements
contained in the Contract which have been assigned by Purchaser to the Grantee
shall, subject to the terms and conditions of the Contract, inure to the benefit
of the Grantee to the same extent as if the Grantee had been named as the
"Purchaser" in the Contract.
By its execution hereof, Purchaser agrees to indemnify and hold harmless TMP
against any loss, liability, damage, cost or expense (including reasonable
attorneys' fees) resulting from:
(i) any claim arising under the Contract made by Purchaser in its
individual capacity at any time after the assignment of the Contract
to Grantee,
(ii) any assertion by Grantee or Purchaser that the Contract is not binding
upon Grantee or that the assignment has modified the contract rights
of TMP, and
(iii) any assertion by Grantee or Purchaser that Purchaser's execution of
this Consent and Agreement subjects Purchaser to any liability to
which it would not otherwise be subject under the Contract.
In executing this Consent and Agreement, TMP has not been requested to review or
comment on any of the agreements between Purchaser and Grantee relative to the
assignment. In executing this document, TMP is relying upon the indemnification
of Purchaser contained herein. The effectiveness of Purchasers consent hereunder
is conditioned upon the execution of this document by Purchaser and its delivery
to TMP.
Neither Purchaser's assignment to Grantee of all of the rights of Purchaser
under the Contract nor Purchaser's consent to such assignment shall relieve
Purchaser of its obligation to purchase and pay for the Vessels if Grantee fails
to do so.
IN WITNESS WHEREOF, the undersigned has caused this Consent and Agreement to be
duly executed on this the ______ day of _____________, 2005.
Builder:
Trinity Marine Products, Inc.
By:
Name:
Title:
Purchaser:
M/G Transport Services, Inc.
By:
Name:
Title:
EXHIBIT APPROVED BY:
Builder: ______________(Initial) Purchaser: ________________(Initial)
