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EXHIBIT 10.43
VESSEL CONSTRUCTION AGREEMENT.
HULL NAME: "KING OF THE RED"
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PRICE: $19,O39,904
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DELIVERY DATE: 328 Days after Receipt of Down Payment
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CONTRACT.
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This Agreement entered into as of the_____ day of ________, 1997
BETWEEN.
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LEEVAC Shipyards. Inc.
(hereinafter called "BUILDER")
AND
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HORSESHOE ENTERTAINMENT.
(hereinafter called "OWNER").
WITNESSETH:
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ARTICLE I - SCOPE.
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A. For the price and sum of Nineteen Million, Thirty-Nine Thousand, Nine
Hundred Four Dollars U.S. currency ($19,039,904) BUILDER agrees, at its
own risk and expense, subject to and as qualified by, the other terms
and conditions of this Agreement. complete and deliver to OWNER, afloat
at delivery point determined by Article II-C below, on or before above
Delivery Date, time being of the essence, as hereinafter provided one
riverboat casino (hereinafter called the "Vessel") constructed,
outfitted and tested in accordance with the attached Specifications and
Contract Drawings labeled as follows:
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Specifications.
"KING OF THE RED"
Xxxxxx X. Xxx Associates, Inc.
Project 3169
January 15, 1997, Revision 1
Including Addendum 1 dated January 28, 1997
Booklet of Gingerbread Details
3169-F50 (Rev O)
January 2, 1997
Contract Drawings
Per Page 5 and 6 of Specifications
References.
A. Letter to Horseshoe with Bid form dated February 3, 1997
B. Letter to Horseshoe dated February 12, 1997 with price
Revisions and Deletions to Specifications and
Contract Drawings
C. "KING Of THE RED" construction organization updated
4 January 1997
The Specifications. Contract Drawings and References have been identified by the
signatures of the parties hereto and are hereby made a part of this Agreement.
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B. OWNER agrees to furnish a suitable location for the construction of the
Vessel, in accordance with Reference A, 6.4. BUILDER agrees to furnish
all labor, tools, equipment, materials, services, and fees necessary for
the construction and completion of said vessel, except as otherwise
indicated herein or in said Specification or Contract Drawings.
C. BUILDER shall be responsible for the adequacy and accuracy of the
Specifications and Contract Drawings with regard to compliance with any
requirements or classifications mandated by USCG or any other
governmental or regulatory body for the intended or actual use of the
Vessel, in effect as of date of this Contract.
D. BUILDER will provide and/or install ready for use all parts, equipment
and appurtenances shown in the Specifications and Contract Drawings
(including OWNER Furnished items, except those Items to be installed by
OWNER or its Subcontractors). BUILDER shall store, safe keep and handle
OWNER'S equipment and supplies both prior to and after placement on
board. BUILDER shall allow sufficient working area and time to allow the
timely and safe installation of equipment and loading of supplies prior
to Vessel's departure voyage to its final mooring area.
E. BUILDER will allow OWNER and/or its representatives at all reasonable
times to examine the Vessel during construction.
F. BUILDER will provide OWNER with a production schedule updated every
fifteen (15) days.
G. BUILDER will do all work hereunder in a good and xxxxxxx-like manner in
accordance with the Specification and Contract Drawings. All material
and equipment shall be in accordance with the Specifications and
Contract Drawings.
ARTICLE II - DELIVERY.
A. BUILDER agrees, subject to the other provisions of this Agreement, to
complete and deliver said Vessel to aforesaid OWNER free and clear of
all liens, claims and encumbrances, except such as OWNER or its
subcontractors, their employees and/or agents and/or vendors
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shall cause to be placed on the Vessel, and OWNER agrees to accept
delivery upon completion of the Vessel at the agreed delivery point set
forth in Article II-C below.
B. BUILDER agrees to deliver (in accordance with Reference A) the Vessel to
OWNER (subject to the qualifications hereinafter stated), after
satisfactory completion as per Specifications at OWNER's shipyard
(herein referred to as Builder's Managed Shipyard) in accordance with
the Specifications and Contract Drawings on or before the Delivery Date
specified or such later date as may be required by reason of agreed
changes in the Vessel or by reason of Force Majeure delays as that term
is defined in Article V.
C. The Vessel after river trials, USCG approvals, delivery by OWNER of all
protrusions above the 4th deck, and reinstallation of all protrusions
above 4th deck, shall be inspected by OWNER safely afloat at Bossier
City. BUILDER shall execute a "Certificate of Completion and Acceptance"
in a form reasonably acceptable to OWNER at the time of delivery for
such Vessel. A form of the unsigned "Certificate of Completion and
Acceptance" is attached as Exhibit ___ to this Agreement.
D. In the event the contract work is not finished at the time BUILDER
tenders the "Certificate of Completion and Acceptance", OWNER shall have
the option, if it, in its sole discretion, deems the Vessel fit for
service, to take Acceptance of the Vessel and treat all "unfinished
work" as a Guarantee Defect as set forth in Article IX. In that event,
Builder's Certificate of Completion and Acceptance shall specify all
unfinished work. The parties shall agree as to the amount to be withheld
from the Acceptance Payment and the Vessel shall be delivered to OWNER
upon OWNER paying the undisputed amount to BUILDER and by withholding
the amount for "unfinished work" until such time that BUILDER completes
the "unfinished work" and OWNER accepts the "unfinished work" as
complete. BUILDER shall invoice OWNER for completion of "unfinished
work" and, provided the work meets the standards of Article II C. OWNER
shall, within ten (10) days of receipt of Invoice, pay BUILDER. If OWNER
does not exercise such option, BUILDER shell completely finish all
contract work.
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E. BUILDER shall furnish OWNER on delivery of the Vessel a Xxxx of Sale and
Builder's Certificate together with whatever other documents may be
required by law or by any other regulatory agency of the United States
having jurisdiction in the premises in order for OWNER to document the
Vessel; and will assist OWNER, or its agent, in acquiring all required
information to enable OWNER to obtain all certificates necessary to
operate the Vessel as intended. Any expense in connection with
documentation or Certification of the Vessel shall be paid by BUILDER.
ARTICLE III - DOWN PAYMENT.
Down Payment of 15% ($ ) shall be made upon Contract Signing.
ARTICLE IV - SUBSEQUENT PAYMENTS.
A. OWNER agrees to pay to BUILDER at address indicated on applicable
BUILDER's invoice the following "Interim Installment Payments" for such
Vessel:
12.5% 30 days after receipt of Down Payment 12.5% 60 days after
receipt of Down Payment 12.5% 90 days after receipt of Down
Payment 12.5% 120 days after receipt of Down Payment 72.5% 150
days after receipt of Down Payment 12.5% 180 days after receipt
of Down Payment
All Change Order work to be paid monthly based on mutually agreed
percent complete.
B. Upon completion of the Vessel by BUILDER and acceptance thereof by OWNER
in accordance with the Agreement, OWNER agrees to pay the BUILDER at
address indicated on applicable BUILDER's invoice the "Acceptance
Payment" consisting of:
1. The 10% balance due on Contract Price set out in Article 1-A
above
2. Any applicable State or Local Sales and/or Use Taxes.
3. Plus or less any changes in contract price resulting from agreed
changes in the specifications and Contract Drawings in
accordance with Article VII below not previously invoiced and/or
paid.
4. Less any liquidated damages for delay in accordance with Article
VI below.
C. BUILDER will give OWNER notice of intended date of issuance of each
"Interim Installment Payments" invoice not more than 10 nor less than 7
days before issuance. All
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"Interim Installment Payments" and the "Acceptance Payment" will be due
by wire transfer to First National Banker's Bank, Baton Rouge, LA
#000000000, to credit: FNB, Xxxxxxx #000000000, and final credit: LEEVAC
Shipyards, Inc. Acct. #0135942.
D. The "Interim Installment Payments" shall be payable within seven days
after presentation of BUILDER's invoice and the "Acceptance Payment"
shall be payable upon BUILDER'S lnvoice and the "Certificate of
Completion and Acceptance" of said Vessel signed by BUILDER and OWNER.
E. The BUILDER shall furnish an invoice for each "Interim Installment
Payment" which shall state (i) the month invoiced; (ii) that the
contract work completed complies with the Contract Drawings and
Specifications and this Agreement; and (iii) that there are no liens or
claims upon said Vessel for labor, materials or equipment for said
Vessel, except those created by the OWNER, its subcontractors, vendors,
or employees. The Interim Installment Invoice shall be executed and
certified by the President or Assistant Secretary/Treasurer of BUILDER.
If BUILDER has any outstanding lien on Vessel, OWNER shall not be
obligated to make payment until lien is resolved, unless such liens are
held by the OWNER or its vendors.
F. The Certificate of Completion end Acceptance shall state (i) that the
Vessel has been completed: (ii) that all trials and tests have been
satisfactorily completed; (iii) that the Vessel complies with the
Specifications and Contract Drawings and this Agreement, and is free
from defects in materials and workmanship; (iv) that there are no liens
or claims upon said Vessel for materials, equipment or labor for said
Vessel, except those created or incurred by the OWNER, its
subcontractors, vendors or employees.
G. The making of the Interim Installment Payments or Acceptance Payment
with respect to the Vessel shall not stop the OWNER from thereafter
asserting any right or remedy accruing to it because of the failure of
the BUILDER to construct and deliver the completed Vessel in accordance
with the terms thereof.
ARTICLE V - FORCE MAJEURE AND DELAYS.
A. All agreements of the BUILDER contained in this contract respecting the
Date of Delivery of the Vessel shall be subject to extension by reason
of "Force Majeure", which Term is
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hereby declared to be any delay caused by fire, explosion, lightning,
flood, windstorm, hurricane, tornado or extraordinary rains,
earthquakes, act of war, strikes, or civil riot which prevent work for
two (2) consecutive days and not caused, or contributed to, by BUILDER;
and including non-delivery and/or late delivery of all OWNER furnished
equipment subject to the further terms hereinafter set forth.
B. Delays in receiving supplies, materials and equipment shall not be
considered Force Majeure unless (a) caused by strikes or Lockouts of
workmen or (b) BUILDER establishes to the reasonable satisfaction of
OWNER that (1) BUILDER timely ordered such supplies, materials and
equipment and (2) BUILDER exercised due diligence to obtain delivery and
(3) no other source of supply was reasonably available (relative price
being a factor to be considered).
C. Delays caused by late receipt of OWNER furnished equipment shall not be
considered Force Majeure unless BUILDER has notified OWNER in writing of
date by which each such item of OWNER furnished equipment must be
delivered to BUILDER's Managed Yard in time to allow OWNER by utmost
diligence to cause timely delivery. BUILDER shall provide OWNER with a
schedule indicating latest on-sight arrival date for each OWNER
furnished component.
D. Failure of OWNER to remit Interim Payments, as per Article IV, D shall
be considered a delay and the delivery date of the vessel shall be
automatically extended by a period of time equal to total of said delay.
E. BUILDER shall have no responsibility for Force Majeure delays, other
than to inform the OWNER in writing of the occurrence of a Force Majeure
within three business days of its occurrence and to include with that
notice (i) a description of the event and (ii) its expected duration.
BUILDER shall inform OWNER of the end of a Force Majeure event within
three business days of its cessation and include an estimate of the
delay in Delivery Date, if any, caused by that event. Failing such
notices, BUILDER shall not have the benefit of the Force Majeure clause
for said event. The BUILDER shall maintain records of such delays and
allow OWNER to inspect same upon request at all reasonable times. The
Delivery Date for the Vessel shall automatically be extended by a period
of time equal to the total of said delays (Extended Delivery Date)
relating to the Vessel unless the OWNER, within
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ten (10) days after receiving the aforesaid notice of a Force Majeure
development, shall state its objections in writing to treating such
development as a Force Majeure event, in which event the rights of both
parties, with respect to treating such events as Force Majeure, shall be
preserved.
ARTICLE VI - LIQUIDATED DAMAGES PROVISIONS.
A. All work on the Vessel contemplated hereunder shall be completed and
delivery on the Vessel effected on or before the Delivery Date set forth
on the first page of this Agreement or such extensions of time as are
provided for herein. Both parties recognize that because during
construction OWNER will make contracts depending upon the use of the
Vessel and that delivery time is of the essence and that delivery delay
will result in substantial damages not susceptible of accurate
calculation. In the event the Vessel is not completed and delivered to
the OWNER on the Delivery Date or Extended Delivery Date by the
provisions of this Agreement, OWNER will deduct from Delivery Payment
for the Vessel the sum of One Thousand Dollars and no cents U.S.
Currency (US $5,000.00) per day for each day following the Delivery
Date, or the Extended Delivery Date until the Vessel is actually
completed and accepted by OWNER. This is in lieu of all other damages,
direct or consequential, which may result to OWNER from delay.
B. In the event the parties are unable to agree on the above reduction of
the Acceptance Payment, the Vessel shall nevertheless be accepted by
OWNER upon OWNER paying the undisputed amount to BUILDER and by placing
the disputed portion of the acceptance in a Certificate of Deposit with
a bank or in prime grade commercial paper of BUILDER'S choice,
withdrawable only upon signatures of both OWNER'S and BUILDER'S
attorneys, interest to be accumulated and payable in proportion to the
resolution of the dispute, and the certificate to be held by OWNER'S
attorneys.
ARTICLE VII - CHANGES IN SPECIFICATIONS AND CONTRACT DRAWINGS.
A. The right is reserved by OWNER to make any deductions for or additions
or substitutions to the said Specifications and Contract Drawings on
giving due notice in writing to BUILDER: the cost of any such changes to
be added to or deducted from the Contract
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price. If any such change will delay the completion of the work, BUILDER
will be allowed additional time sufficient to cover such delay. The
increased or reduced cost, or any additional time required, as
aforesaid, shall be submitted to OWNER by BUILDER within 3 business days
and shall be acted upon by OWNER in three (3) business days from receipt
in writing before such change is made.
B. Cost of any change considered an addition or a deletion shall be "labor"
and "materials" unless some other pricing has been previously agreed by
BUILDER and OWNER. Cost of any change considered a substitution shall be
difference between cost of addition and cost of deletion.
C. For purposes of Article VII-B above, see Reference A, Section 3.0.
D. Changes required by USCG or any other regulatory body shall be subject
to the same Change Order procedure, provided they are not based on laws,
rules or regulations, in force prior to date of execution of this
Agreement that were the responsibility of BUILDER.
ARTICLE VIII - RISKS AND INSURANCE.
A. All risks of damage to or destruction of the Vessel, all machinery,
materials and equipment provided by BUILDER and all liability, to or for
labor employed by the BUILDER and subcontracted effort arranged for by
the BUILDER on or about the Vessel during construction and prior to
delivery and acceptance, shall be the responsibility of the BUILDER.
Pre-keel and full form Builder's Risk Insurance acceptable to OWNER
(including loss or damage caused by strikes, locked-out workmen or
persons taking part in labor disturbances or riots, or civil commotions,
without deletions of protection and indemnity and collision clauses, and
including risks of earthquakes, with endorsements attached covering
losses or damage caused by vandalism and malicious mischief) will be
maintained by BUILDER at BUILDER's expense. Such insurance shall cover
the completed value of the Vessel and any agreed change orders. OWNER
shall reimburse BUILDER for providing Builder's Risk Insurance for the
term of the Contract per Article 11-0 by way of a Change Order to this
Contract in accordance with Article VII. The agreed starting value and
ending value of the Vessel shall be established by OWNER-BUILDER and
BUILDER's subcontractors shall maintain Workmen's Compensation,
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Longshoreman's and Harborworker's Compensation not less than minimum
required by statute, and Public Liability Insurance of $10,000,000.
BUILDER shall provide relevant copies of insurance policies prior to
signing of this Agreement. OWNER or OWNER's subcontractors as the case
may be, shall maintain xxxxxxx'x compensation, longshoreman's and harbor
worker's compensation insurance not less than the minimum required by
statute, and public liability insurance of $1,000,000. OWNER or OWNER's
subcontractors (if any) shall provide relevant copies of insurance
policies prior to commencing any work at BUILDER's Managed Shipyard or
on Vessel.
B. The said Builder's Risk Insurance and Public Liability Insurance shall
be taken out in the name of BUILDER, BUILDER's "subcontractors," OWNER
and "Construction Financing Entity", and all casualty losses under such
policies shall be payable to the BUILDER and OWNER and "Construction
Financing Entity", as their interests may appear. The policy shall
provide that there shall be no recourse against the OWNER for payment of
premiums or other charges and shall further provide that at least thirty
(30) days' prior written notice of any cancellation for the non-payment
of premiums or other charges shall be given to the OWNER by the
Insurance underwriters. The originals of all cover notes and policies
shall be delivered to the BUILDER, with duplicates thereof to OWNER.
Policies not in conformance herewith shall be conformed or surrendered
and canceled upon direction of the OWNER and new policies procured in
conformance herewith.
C. If, prior to Acceptance by OWNER, the Vessel, its machinery, equipment
or material shall be damaged, such damage shall be repaired by the
BUILDER or replacement shall be supplied by the BUILDER at its sole cost
and expense except for OWNER furnished material and equipment not
covered under Builder's Risk Insurance.
D. For actions prior to delivery and acceptance of the Vessel, the BUILDER
shall at its own cost and expense indemnify, protect and defend the
Vessel and the OWNER against any and all claims, suits, actions,
maritime liens, and other liens and costs and expenses incident thereto
(including reasonable attorney's fees and costs) arising from injury to,
or death of BUILDER's employees, workmen, BUILDER's subcontractors,
trespassers, licensees, invitees or all other persons; and, from
property damage whether in, or on, or about the Vessel and the work to
be performed hereunder due in whole or in part to the act, neglect,
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or default of BUILDER or BUILDER's subcontractors or their agents or
employees. It being expressly understood that the workmen other than
compensated employees or subcontractors of OWNER, engaged upon the work
on the Vessel, shall at all times be employees or subcontractors of the
BUILDER and not of the OWNER.
E. For actions prior to delivery and acceptance of the Vessel, the OWNER
shall at its own cost and expense indemnify, protect and defend the
Vessel and the BUILDER against any and all claims and costs and expenses
incident thereto (including reasonable attorney's fees and costs)
arising from injury to, or death of OWNER's employees, or OWNER's
subcontractors, or property damage whether in, or on, or about the
Vessel and the work to be performed hereunder, due in whole or in part
to the act, neglect, or default of the OWNER or OWNER's subcontractors
or their employees or agents.
F. In the event there is an actual total loss of constructive total loss of
the Vessel, this Contract shall be terminated upon receipt by OWNER and
BUILDER, and "Construction Financing Entity" as interest may appear, of
the proceeds of the insurance required pursuant to this Article VIII for
such actual loss or constructive total loss, or if such actual total
loss or constructive total loss shall occur through the operation of a
risk not covered by insurance for which the BUILDER assumes the risk as
herein set forth, upon receipt by OWNER of payment of the full amount as
interest may appear.
G. For purposes of this Article VIII-F, it is agreed that "as interest may
appear" shall be construed to mean that OWNER and "Construction Finance
Entity" are entitled to refund of amounts paid by OWNER as Down Payment
and Interim Installment Payments, and BUILDER for labor expanded and
material/equipment purchased but not yet reimbursed.
H. OWNER shall also hold harmless BUILDER as pertains any loss of OWNER
furnished equipment and material while in the care, custody and control
of BUILDER or Subcontractor of BUILDER.
ARTICLE IX - GUARANTEE
A. The Vessel will be built in accordance with the Specifications, Contract
Drawings and References in a good and workmanlike manner, free from
defects in material and workmanship and BUILDER agrees at BUILDER'S
expense including transporting labor
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and supplies, to repair or replace any defects discovered within 365
days of delivery and acceptance excepting machinery and equipment
manufactured by others and/or furnished by OWNER; however, BUILDER shall
assign and subrogate to OWNER all warranties by said manufacturers and
agrees to extend full cooperation to OWNER, as needed, to coordinate in
enforcing such warranties. This is in lieu of all other expressed or
implied warranties.
B. No warranty is made by BUILDER with respect to paint, regardless of
whether procured by BUILDER, except that same will be applied neatly in
accordance with the manufacturer's recommendations and in accordance
with Specifications.
C. In the event of any defect covered by BUILDER'S guarantee, BUILDER will
make repairs or replacements (at OWNERS's option) at the expense of
BUILDER at OWNER's Bossier City site.
1. OWNER shall give prompt notice and BUILDER shall have reasonable
time and opportunity (seven days) under the circumstances, to
inspect the Vessel before work is undertaken: and,
2. BUILDER shall have the right, reasonable time, and opportunity,
under the circumstances, to negotiate price with the shipyard or
repairman; and,
3. BUILDER's liability for repair or replacement costs shall not
exceed the expense which BUILDER would have been incurred as
determined using actual hours incurred and actual direct
material costs incurred by the OWNER with the BUILDER's then
current appropriate time and material rates applied. BUILDER, at
its sole option and expense, may have a representative present
during repairs.
D. BUILDER shall have no obligation under this guarantee unless such defect
becomes manifest within 365 days after Acceptance of the Vessel and
notice of claim is given within ten (10) days thereafter. The BUILDER
shall not be liable for any consequential or incidental damage
occasioned by any defect.
ARTICLE X - DEFAULT
A. BUILDER shall be considered in default under this Agreement in the event
(a) during a period of thirty (30) consecutive days (plus the number of
days from the beginning of such period when work has been prevented by
force majeure causes) no substantial progress has
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been made in the construction of the Vessel: or (b) that Vessel has not
been delivered within thirty-five (35) days after the later of the
Delivery Date or Extended Delivery Date.
B. OWNER shall be considered in default under this Agreement if (a) after a
period of 30 calendar days after receipt of an Interim Installment
Payment, the BUILDER has not been paid, or (b) after 5 calendar days
after Acceptance of Vessel, in accordance with Article VI-B, BUILDER has
not paid.
C. For any such default and any other default, OWNER and/or BUILDER shall
have all rights and remedies otherwise available to it, including
specifically (but not by way of limitation) any rights to specific
performance or mandatory injunction.
D. In the event that circumstances beyond the control of the OWNER occur
that would cause the OWNER to not have use of the Vessel, the OWNER
reserves the right to terminate this Agreement, understanding that all
monies owed to the BUILDER including overhead and profit up to that
point would become due and payable in full.
ARTICLE XI - ARBITRATION, JURISDICTION AND LAW
A. Any technical or design dispute or controversy arising under this
Agreement shall be submitted to binding arbitration before a single
arbitrator appointed jointly by the parties.
B. "Any other disputes or controversies shall be submitted to the United
States District Court for the Western District of Louisiana (Shreveport)
and BUILDER and OWNER each agree to submit to the jurisdiction of said
Court upon the filing of a complaint by either and service by certified
mail, return receipt to the other.
C. This Agreement shall be governed by and construed in accordance with the
laws of the State of Louisiana, USA.
ARTICLE XII - AGREEMENT CONTROLLING
A. This Agreement, which includes the Contract Drawings and Specifications
and References incorporated herein by reference, contains all the
agreements between the BUILDER and the OWNER, and there are no promises
or representations by either of them, other than those set forth herein.
This Agreement shall not be altered or modified except by an agreement
in writing signed by the parties hereto, and no officer, agent, or
employee of
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either the BUILDER or the OWNER shall have the power to waive any
provisions hereof, unless such waiver be in writing and signed by a duly
authorized representative of each of the parties hereto.
B. In the event of conflict between this Agreement and the Specifications
as adjusted by References and/or the Contract Drawings as adjusted by
References, this Agreement governs; and as between the Specifications
and the Contract Drawings, the Specifications govern.
ARTICLE XIII - INSPECTION, ACCESS, TESTS AND OFFICIAL CERTIFICATES
A. During construction, BUILDER shall provide OWNER, or its accredited
representative, access to inspect the Vessel, material, workmanship,
plans, tests and movements. OWNER shall provide a suitable office for
OWNER'S representative and OWNER shall provide access to suitable
facilities and conditions such as a telephone, fax, copy machine, heat
and air conditioning. BUILDER will perform all of the tests and trials
required of BUILDER in the contract documents. BUILDER will supply all
fuel, lubricants and stores for all such tests and trials and will give
OWNER at least three [3) business days notice of the date thereof. OWNER
shall provide the Captain and Crew.
B. All of the workmanship and material required under this Agreement, while
the same is in the process of fabrication, erection, construction,
installation and performance, shall be inspected promptly by the OWNER
and his agents and shall be accepted promptly in accordance with this
Agreement and the Contract Drawings and Specifications and all
References or rejected promptly in accordance therewith. Failure to
object will not stop OWNER from later complaining if OWNER establishes
that it used reasonable diligence, under the circumstances, to discover
defects promptly. Where the term "promptly" is used, a "reasonable"
standard shall be used.
C. OWNER shall have the right to appoint an "OWNER'S Representative" and
OWNER shall inform BUILDER in writing as to the extent of authority
OWNER has granted to said OWNER'S Representative. In the event of a
"working conflict" between OWNER'S Representative and BUILDER, BUILDER
shall promptly inform OWNER of the problem
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and OWNER shall make a due diligence effort to promptly resolve the
"working conflict" in a manner amenable to both parties.
D. BUILDER shall provide access to the Vessel while under construction to
Inspectors from any Gaming Commission or any other public authority
reasonably requested by OWNER.
E. BUILDER shall not allow access to the Vessel of the shipyard to any
companies, representatives, employees (including Horseshoe employees),
or visitors that are not specifically related to the construction of the
Vessel of the project. All other persons are to receive written approval
from the Horseshoe Vice President, Development prior to access to the
Vessel.
ARTICLE XIV - ASSIGNMENT OF THE AGREEMENT.
A. This Agreement shall inure to the benefit of the BUILDER and OWNER and
their successors and assigns and shall be binding upon the BUILDER and
OWNER and their successors and assigns; provided, however, that BUILDER
shall not assign this Agreement or any interest hereunder without the
prior written consent of OWNER, such consent to be given in OWNER's sole
discretion, and any assignment without said prior written consent shall
be null and void. OWNER may at any time sell the Vessel and/or assign
this Agreement, but shall at all times remain liable under the
Agreement. BUILDER and OWNER agree that such a sale and/or assignment
shall not be grounds for termination of this Agreement.
ARTICLE XV - COMPLIANCE WITH REGULATIONS.
A. The BUILDER shall comply with all laws, rules, regulations and
requirements of the departments or agencies of the United States
affecting the construction of works, plants and Vessels, in or on
navigable waters and the shores thereof, and all other waters subject to
the control of the United States. OWNER shall procure at its own expense
such permits from the United States and from state and local authorities
as may be necessary in connection with beginning or carrying on the
completion of the contract work, and shall at all times comply with all
United States, State and local laws in any way affecting the contract
work.
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ARTICLE XVI - PATENTS.
OWNER agrees to protect and hold harmless BUILDER against claims of
third persons for damages sustained by reason of the infringement of the
patent rights with respect to materials, processes, machinery, and
equipment selected, supplied or specifically acquired by OWNER or
required by any Plans or Specifications furnished by OWNER. BUILDER
agrees to protect and hold harmless OWNER against claims of third
persons for damages sustained by reason of infringement of patent rights
with respect to materials, processes, machinery and equipment supplied
or specifically acquired by BUILDER, or required by any Plans or
Specifications furnished by BUILDER.
ARTICLE XVII - USE OF THE DRAWINGS AND SPECIFICATIONS.
The Specifications and Contract Drawings and BUILDER's working drawings of the
Vessel are and shall remain property of the OWNER.
ARTICLE XVIII - NOTICES AND COMMUNICATIONS.
Communication and notices shall be in writing addressed to the OWNER under this
Agreement shall be addressed to the OWNER at the following address:
Xx. Xxxxx Xxxxxxx
Horseshoe Gaming
000 Xxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax: 000-000-0000
With a copy to: Xxxxx Xxxxxx, Esq.
Horseshoe Entertainment
000 X. Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Communications and notices shall be in writing addressed to the BUILDER under
this Agreement shall be addressed to the BUILDER at the following address:
LEEVAC SHIPYARDS, INC.
X.X. Xxx 0000, (Xxx 00 X.)
00
00
Xxxxxxxx, XX 00000
FAX: 000-000-0000
Notices shall be given by letter or by Fax. If by Fax, with a Fax Return
Confirmation of receipt of Fax.
ARTICLE XIX - TITLE
Title to the Vessel, to the extent completed, and title to all work and material
preformed upon or installed in the Vessel or placed on board the Vessel shall
vest in the OWNER. The risk of the loss or damage to such material and the
Vessel shall remain with the BUILDER and the OWNER shall not be deemed to have
waived its right to require the BUILDER to repair and replace, at the BUILDER's
expense, defective workmanship or damaged/defective material provided by
BUILDER, and to deliver the Vessel with the contract work completed, as herein
provided. The BUILDER shall have an equity in and lien on such material and
completed contract work in the shipyard and elsewhere to the extent that BUILDER
has not been paid for by the OWNER. Title to all scrap and title to any material
which is surplus to the requirements of this Agreement (except material
furnished by the OWNER of which under any adjustment of Agreement price under
the provisions of this Agreement remains the property of the OWNER) shall be
vested in the BUILDER. Without regard to the provisions of this Article XIX as
to title, the BUILDER shall be subject to the risk of loss of all material and
the Vessel until the completed Vessel is delivered to and accepted by the OWNER
as provided in this Agreement.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed by their proper authorized representatives, thereunto duly authorized
at ___________________.
WITNESSES: LEEVAC Shipyards, Inc.
_______________________ SIGNATURE:_____________________________
_______________________ NAME:__________________________________
TITLE:_________________________________
DATE:__________________________________
17
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WITNESSES: Horseshoe Entertainment
A Louisiana Limited Partnership
By: Horseshoe G.P. Inc.,
a Nevada Corporation
General Partner
_______________________ SIGNATURE:_____________________________
_______________________ NAME:__________________________________
TITLE:_________________________________
DATE:__________________________________
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