Shipbuilding Contract for the supply of one A.H.T.S. Vessel Fincantieri no. 6162 between FINCANTIERI Cantieri Navali Italiani S.p.A.
Shipbuilding Contract
for the supply of
one A.H.T.S. Vessel
Fincantieri no. 6162
between
FINCANTIERI Cantieri Navali Italiani S.p.A.
and
|
ATL Offshore GmbH
& Co
ISLE
OF BALTRUM KG
Page 1 /
24
TABLE OF CONTENTS
article
1
|
Object
of the contract
|
3
|
article
2
|
Ship’s
classification – Rules and regulations - Certificates
|
3
|
article
3
|
Ship
characteristics
|
4
|
article
4
|
Exclusions
from Fincantieri’s supply - ATL-BALT’s supply
|
5
|
article
5
|
Work
preparation – Supplies by third parties
|
5
|
article
6
|
Shipyard
number
|
5
|
article
7
|
Inspection
during construction
|
6
|
article
8
|
Delivery
– Liquidated damages
|
6
|
article
9
|
Price
|
7
|
article
10
|
Payment
procedures
|
7
|
article
11
|
Defaults
|
9
|
article
12
|
Trials
|
10
|
article
13
|
Performances
– Liquidated damages
|
10
|
article
14
|
Maximum
amount of liquidated damages
|
11
|
article
15
|
Termination
of the contract
|
11
|
article
16
|
Insurance
|
12
|
article
17
|
Modifications
to plans and Technical specifications
|
12
|
article
18
|
Events
of force majeure
|
13
|
article
19
|
Patents
|
13
|
article
20
|
Intellectual
property rights
|
13
|
article
21
|
Assignment
of the contract
|
14
|
article
22
|
Property
rights of the Ship
|
14
|
article
23
|
Responsibility
after delivery
|
14
|
article
24
|
Technical
guarantee
|
14
|
article
25
|
Taxes
– Duties and other charges
|
16
|
article
26
|
Confidentiality
|
16
|
article
27
|
Contract
effective date
|
16
|
article
28
|
Law
and disputes
|
16
|
article
29
|
Miscellaneous
|
17
|
article
30
|
Election
of domicile
|
18
|
|
||
Enclosure
"A" - Protocol of delivery and acceptance of the
Ship (Art. 8)
|
19
|
|
Enclosure
“B” - Model of Bank Guarantee for Advance
Payment (Art. 10)
|
20
|
|
Enclosure
“C” - Model of Bank Guarantee for Progress
Payment (Art. 10)
|
22
|
|
Enclosure
“D” - Model of Bank Guarantee for Technical
Guarantee Period
|
24
|
Page 2 /
24
CONTRACT
between
— The
ATL Offshore GmbH & “ISLE OF BALTRUM”, located at Xxxxxxxxxx. 00, 00000
Xxxx, Xxxxxxx, hereinafter referred to as "ATL- BALT" (or “the Customer”),
represented by Xx. Xxxxx Xxxxxxxx
on one
part
and
— FINCANTIERI
Cantieri Navali Italiani S.p.A., a Company organised and existing under the laws
of the Republic of Italy, with Naval Vessel Business Unit located at Xxx Xxxxx,
00, 00000 Xxxxx, Xxxxx, hereinafter referred to as "FINC",
represented by Xx. Xxxxxx Xxxxxxxxx,
on the
other part
hereinafter
defined Party and/or Parties.
WHEREBY
IT IS AGREED AS FOLLOWS:
ARTICLE
1. OBJECT OF THE CONTRACT
1.1. FINC’s
obligations shall consist in supplying one “Anchor Handling, Towing and Supply“
Vessel (hereinafter referred to as the "Ship"), to be built at FINC’s Shipyards and delivered to
ATL-BALT, which agrees
to accept delivery from FINC, and built in accordance with the conditions and
stipulations stated herein, and as specified in the following technical
documents:
Specification
:
BS
8000000M rev. 0 dated 20/09/06 – Technical Specifications
Drawings
:
2000-100
rev. 02 – General Arrangement (Xxxx Maritime)
2000-101
rev. 02 – Tankplan (Xxxx Maritime)
which,
signed by both Parties, are an integral part hereof, although not attached
hereto.
1.2. In
the event of conflict between this Contract and the Specification of Art.1.1 and
/ or the Plans, the provisions of this Contract shall prevail. In the event of
conflict between the Specification and the Plans of Art.1.1, the provisions of
the Specification shall prevail.
1.3
|
The main characteristic of the Ship is in moving the anchors of off-shore
platforms and in rendering services to the
platforms.
|
ARTICLE
2. SHIP’s CLASSIFICATION - RULES AND REGULATIONS -
CERTIFICATES
2.1. The Ship
shall be built :
(a) under
the survey of the classification society American Bureau of Shipping (hereafter
“ABS” or the “Classification Society”) in accordance with the rules and
regulations in force at the date of this Contract in order to
obtain the Class as stated in the Technical Specifications: the
Vessel will be built as if she will fly Italian flag.
Page 3 /
24
(b) in
compliance with the Main Groups of the Technical Specifications.
Should it
so happen there be a conflict, the Main Groups of the Technical Specifications
will prevail over the Main Group 1 – General.
In the
event of conflict between the Technical Specifications and/or the Plans, the provisions of the
Technical Specifications shall
prevail.
2.2 The
Ship will comply with the provisions of the Laws, Rules, Regulations and
Recommendations mentioned in the Technical Specifications, published and in force at
the signature of this Contract . For provisions of Laws,
Rules and Regulations which could enter in force in the period
between the signature of the Contract and the delivery of the Ship, the
disposals contained in Art 17.2. will apply.
On Ship’s
delivery, FINC shall hand over to ATL-BALT the certificates and documents
mentioned in the foregoing Technical Specifications.
Classification,
testing and survey charges to be paid to the foregoing Classification
Society for the
items supplied by FINC shall be for the
account of FINC.
The
decisions by the Classification Society as to the Ship’s compliance
or non-compliance with the rules and regulations whose observance is compulsory
shall be binding on both Parties hereto.
ARTICLE
3. SHIP CHARACTERISTICS
3.1. The Ship
shall have the following main dimensions and characteristics:
Length,
overall
|
abt. 76,50
m
|
Length
between perpendiculars
|
67,40
m
|
Breadth,
moulded
|
17,50
m
|
Depth,
moulded
|
8,00
m
|
Full
Load Displacement (890 t of fuel)
|
abt.
6.320 t
|
Corresponding
moulded draught
|
abt. 6,80
m
|
Sea
Trial Draught
|
5,00
m
|
Corresponding
Displacement
|
abt. 4.275
t
|
Maximum
Deadweight
|
not
less than 3.000 t
|
Corresponding
moulded draught
|
abt.
6,80 m
|
Maximum
speed at 5,00 m draught
|
16,3 xx
|
Xxxxxxx
Pull
|
188
t
|
The
foregoing main dimensions may be slightly modified, to the sole judgement of
FINC, should FINC deem such modifications necessary to fulfil the draft,
deadweight and speed contract conditions.
3.2. Cargo
capacity:
The
Vessel’s deadweight shall be 2.210 tons (of 1000 kg each) at a mean draft in
saltwater (specific gravity 1.025) of 6,00 metres above base line. The specified
deadweight shall include fuel, provisions, carried chains, cables for AH
activities, stores, freshwater, crew and passengers in addition to spare parts
in excess of the requirements of Class.
In case
some options, with respect to the basic configuration, are agreed, then deriving
reduction in contractual deadweight shall be duly taken into
account.
Page 4 /
24
3.3. Speed:
The
Vessel’s average speed at sea trials undertaken as per Technical Specification
shall be at least 16,3 knots at 100% of max. continuous power, with the gear box
driven alternator developing zero output.
3.4. Fuel
consumption:
The fuel
consumption of each main engine on test
bed, including four driven pumps, shall not exceed 186,2 grams per kW per hour
at 100% of max. continuous power using grade MDO fuel with an
effective calorific value of at least 42,7 MJ/kg.
3.5. Propulsion
machinery:
Type : 4
Diesel Engines (see Technical Specification).
Max.
continuous power = 4 x 3.000 kW each.
3.6. Ship’s
design and building will be in accordance with the rules and regulations
indicated at Para. 112 of the Technical Specification, and with ISO 9001:2000
concerning the Quality Assurance System to be activated for the Contract
duration.
ARTICLE
4. EXCLUSIONS FROM FINC'S SUPPLY - ATL-BALT'S
SUPPLY
FINC's
supply shall exclude any item, piece of equipment and/or machinery not expressly
indicated as included in the Technical Specification.
The
ATL-BALT’s supplies shall reach FINC’s Shipyard, delivered free to FINC’s
Shipyard, according to FINC’s instructions.
Fuel-oil
and lubricants for the set-up of the on-board plants and for all the trials of
the Ship afloat shall be paid by FINC ; the residue fuel-oil and lubricants
existing on-board on date of delivery will be paid by ATL-BALT.
ARTICLE
5. WORK PREPARATION - SUPPLIES BY THIRD PARTIES
5.1. Transmission
of technical documentation: with reference to plans and drawings listed in Annex
D of the Technical Specifications,
the procedure “121.a Work preparation” of the
Technical Specification, shall apply.
5.2. The
major sub-contractors / sub-suppliers are listed in the Vendor List attached to
BS 8000000M rev. 0, dated 20/09/06 – Technical Specifications,
and FINC will be free to choose among the names listed sending
information in writing to ATL-BALT in advance before placing the orders. The
sub-contractors / sub-supplier of other items will be designated by FINC during
construction who will take in consideration possible requests of
ATL-BALT.
Any
contact with FINC's Suppliers in connection with the supplies intended for the
Ship object of this Contract shall, in any case, be carried out through
FINC.
FINC shall guarantee ATL-BALT
for all the supplies from third parties as set forth in Article 24.
hereof.
ARTICLE
6. SHIPYARD NUMBER
The Ship
object of this Contract shall be identified with the Shipyard Number
6162.
Page 5 /
24
ARTICLE
7. INSPECTION DURING CONSTRUCTION
During
the Ship's construction, ATL-BALT shall have the right to have the Ship and all
engines, auxiliary machinery, outfit, furnishings, etc. inspected by its
authorised Representatives. To this purpose, ATL-BALT’s authorised
Representatives shall be granted by
FINC free access -
during working hours - to the Ship, FINC's premises and plants and, in case that
parts intended for the Ship object of this Contract may have been sub-contracted
by FINC, free access shall be granted also to subcontractors’
plants.
ATL-BALT and/or its authorised
Representatives shall promptly notify in writing FINC of the non-compliance
with the contractual conditions of materials, works, machinery and manufactures.
Failure to serve prompt notification of such defects and/or deviations shall be
considered to all effects as an acceptance of whatever inspected.
FINC shall take into due
account reasonable remarks, if any, by ATL-BALT or by its Representatives,
within the limits of the contractual obligations.
ATL-BALT’s
authorised Representatives shall comply with the work rules prevailing at FINC's
premises as far as they may be concerned. They shall also address their remarks
exclusively to FINC's appointed Representatives.
Should
ATL-BALT elect to entrust the inspection to persons outside its organisation,
such persons shall be subject to FINC's prior approval.
FINC shall give to ATL-BALT
reasonable advance notice about the dates of the tests of the main
machinery.
On
completion of test operations for major items, Protocols of Acceptance shall be
drawn up and undersigned by ATL-BALT’s and FINC's Representatives and, wherever
required, by the Classification Society.
FINC shall provide within its
Shipyard suitably furnished office spaces for ATL-BALT’s Representatives, for
the proper performance of their duties.
ARTICLE
8. DELIVERY - LIQUIDATED DAMAGES
8.1. The Ship
will be delivered within 30th September 2009.
The
delivery of the Ship means the presentation of the Ship afloat at FINC shipyard
in Italy, moored at quay, free from encumbrances or liens, upon satisfactory
trial completion .
A
Protocol of Delivery and Acceptance, according to Enclosure "A", will be signed
by FINC and ATL-BALT and the following documents will be handed over to
ATL-BALT:
(A) Invoice
for the total final price.
(B) Declaration
of Warranty of FINC that the Ship is delivered to ATL-BALT free and clear of any
all liens, claims or other encumbrances upon the Ship, and in particular that
the Ship is absolutely free from all burdens, in the nature of imposts, taxes or
charges imposed by the city, state or county of the port of delivery, as well as
from all liabilities arising from the construction or operation of the Ship on
trial runs or otherwise, prior to delivery and acceptance.
(C) Documents
provided in the Technical Specifications, in the usual form they are issued on
delivery.
8.2. The Ship shall be
delivered to ATL-BALT pursuant to the terms of this Contract and provided the
payments hereinafter specified are made within the terms set forth, upon
completion of trials, in the Italian harbour where the Ship is moored at that
time, at the date established in previous 8.1., subject to the extension due to
events of Force Majeure as set forth in Article 18. hereof, to modifications set
forth in Article 17. hereof and to delay in payment as below.
Page 6 /
24
FINC shall be entitled to one
(1) day extension in delivery time for each day of delay in the payment of any
instalment.
8.3. Should
the Ship not be delivered within the contract term for causes for which
FINC is liable,
FINC shall pay to
ATL-BALT, as final liquidated damages, an amount of EURO for each calendar day
of delay as follows :
1st - 15th day
|
No liquidated damages
|
|
16th -30th day
|
Euro 5.000,00 (fivethousand)
|
|
31st -60th day
|
Euro 10.000,00 (tenthousand)
|
|
61st – 120th day
|
Euro 15.000,00 (fifteenthousand)
|
Should
the delay in the delivery of the Ship, for causes for which FINC is liable, exceeds by
120 (onehundredtwenty) calendar days the foregoing delivery date - as extended
according to this Article and Articles 17. and 18. hereof – ATL-BALT, as an
alternative to continue in receiving the foregoing liquidated damages, shall
have the right to resolve this Contract with the consequences set forth in
Article 15. hereof.
8.4. In the event
that defects and/or deviations, which could be easily eliminated, should emerge
on Ship delivery, FINC undertakes to eliminate
them at its own expense.
However,
should such an elimination entail costs and work time disproportionate to the
benefit ensuing for ATL-BALT, ATL-BALT shall be entitled to a price reduction,
if any, but shall not have the right to refuse to take delivery of the
Ship.
However,
should the Ship present defects and deviations such as to make same unsuited to
the service for which she has been ordered, ATL-BALT shall have the right to
resolve this Contract with the consequences provided for in Article 15.
hereof.
ARTICLE
9. PRICE
ATL-BALT shall pay to FINC the price, fixed and not
subject to adjustment, of:
Euro 36.573.000,00 (thirtysixmillionfivehundredseventythreethousand
Euro).
ARTICLE
10. PAYMENT PROCEDURES
10.1. ATL-BALT will proceed
as follows :
— the
first (10.2.a ) and second (10.2.b) instalment will be paid directly
by ATL-BALT;
— the
third (10.2.c ) and fourth (10.2.d) instalment will be
paid directly by ATL-BALT but supported by a Comfort Letter issued by the Bank
of ATL-BALT, which will be delivered to FINC within three months from
Contract Effective Date;
— the
fifth (10.2.e) instalment will be paid through a Letter of Credit
opened by ATL-BALT through its bank and confirmed by ATL-BALT in a
bank indicated by FINC , which will be opened and confirmed one year before the
Contract Delivery Date indicate in Art. 8.1.; or as an alternative
this instalment shall be granted by a Guarantee Letter issued by the Mother
Company of ATL-BALT.
Page 7 /
24
10.2. The
price referred to in Article 9 hereof shall be paid by ATL-BALT to FINC as below :
a) The sum of Euro
1.828.650,00 (onemillionheighthundred twentyeightthous
sixhundredfifty Euro) representing five per cent (5 %) of the contract price
stated under foregoing Article 9., to be paid upon signature of the Contract and
as a condition for the Contract Effective Date, upon presentation by FINC to
ATL-BALT of:
·
|
the
relevant invoice;
|
·
|
a
guarantee issued as per model in Enclosure
B.
|
b) The sum of Euro
1.828.650,00 (onemillion heighthundred twentyeightthous
sixhundredfifty hundred Euro) representing five per cent (5%) of the contract
price stated under foregoing Article 9., to be paid upon presentation by FINC to
ATL-BALT of:
·
|
the
relevant invoice;
|
·
|
a
certificate issued by the Classification Society stating the beginning of
steel cutting;
|
·
|
the guarantee
issued as per model in Enclosure
C.
|
c) The sum of Euro
3.657.300,00 (threemillion sixhundredfiftyseventhousand threehundred Euro)
representing ten per cent (10 %) of the contract price stated under foregoing
Article 9., to be paid upon presentation by FINC to ATL-BALT of:
·
|
the
relevant invoice;
|
·
|
a
certificate issued by the Classification Society stating the installation
of the Main
Engines;
|
·
|
the
guarantee issued as per model in Enclosure
C.
|
d) The sum of Euro
3.657.300,00 (threemillion sixhundredfiftyseventhousand threehundred
Euro) representing 10 per cent (10%) of the contract price stated
under foregoing Article 9., to be paid upon presentation by FINC to ATL-BALT
of:
·
|
the
relevant invoice;
|
·
|
a
certificate issued by the Classification Society stating that the Ship has
been launched;
|
·
|
the guarantee
issued as per model in Enclosure
C.
|
e) The sum of Euro
25.601.100,00 (twentyfivemillion sixhundredonefourthousand onethundred Euro)
representing seventy per cent (70%) of the contract price stated under foregoing
Article 9., to be paid as follows:
e1) On
presentation by FINC to the bank in which the Letter of Credit has been
confirmed of:
·
|
an
original of the relevant invoice;
|
·
|
an
original of the Protocol of Delivery and Acceptance of the Ship as per
Enclosure
A;
|
·
|
the guarantee
issued as per model in Enclosure
D.
|
Page 8 /
24
e2) or, in
case of payment guaranted by Guarantee Letter from the Mother Company, upon
signature of the Protocol of Delivery and Acceptance of the Ship as per Enclosure A and
contemporaneous presentation to ATL-BALT, of:
·
|
an
original of the relevant invoice;
|
·
|
the guarantee
issued as per model in Enclosure
D.
|
e3)
or, in case of payment guaranted by Engagement Letter
from ATL-BALT’s Bank, upon signature of the Protocol of Delivery and Acceptance
of the Ship as per Enclosure
A and contemporaneous presentation to ATL-BALT, of:
·
|
an
original of the relevant invoice;
|
·
|
the guarantee
issued as per model in Enclosure
D.
|
10.3. All payments
to FINC are to be made in Italy in EURO at a bank to be designated by FINC,
without any deduction whatsoever, on the dates the payments are
due.
Any
possible expenses connected with payments, opening and confirming of
the Letter of Credit, will be at ATL-BALT’s account, except those incurred by
FINC's Bank for the account of FINC.
The
amounts due by ATL-BALT or by FINC for the modifications,
if any, to the Technical Specification and to the Plans shall be paid up to
fifty per cent (50%) on ordering of such modifications, and the balance upon
Ship delivery.
Liquidated
damages, if any, for delivery and minor performances shall be determined on Ship
delivery and the relevant amount shall be paid to the Party entitled thereto on
same date.
ATL-BALT
shall not delay or discontinue any payment foreseen in this Contract for any
reason whatsoever. Exceptions and/or claims, if any, by ATL-BALT against FINC,
shall be asserted separately according to the provisions set forth in Article
28. hereof.
10.4 The above
mentioned Bank Guarantees will be issued by one of the following Italian primary
banks, chosen by FINC : Deutsche Bank, Banca Intesa, Banca di Roma, B.N.L. Banca
Nazionale del Lavoro, Unicredit Banca.
ARTICLE
11. DEFAULTS
Should
ATL-BALT be in default in the payment of any contractual instalment and/or other
amounts due whatsoever, then ATL-BALT shall pay to FINC - as from the due date -
an interest at the rate of two per cent (2%) per annum over EURIBOR at 6
months.
Should
the aforesaid delay exceed thirty (30) days from the due date, then FINC shall be entitled to
discontinue any further work on the Ship until payment of the outstanding amount
and interest thereon has been made, serving relevant notice to
ATL-BALT.
Should
the aforesaid delay exceed three (3) months from the due date, then FINC shall be free to act
according to its rights, including the resolution of the present Contract or, in
case of payments granted by the Guarantee Letter issued by the Mother Company of
ATL-BALT, claiming the due payments from the “mother company”. Should ATL-BALT
fail to take delivery of the completed Ship in accordance with the conditions of
this Contract, and this not even within the term notified by registered letter
sent to its address, as set forth in Article 8.1. hereof, then the delivery of
the Ship shall be regarded as occurred both to the effects of the expiration of
payments contractually due on Ship delivery, and to the effects of the guarantee
period running.
Page 9 /
24
ARTICLE
12. TRIALS
The
Ship shall run the following test and trials:
(1) Harbour
Acceptance Tests, including setting to work of the various
equipment;
(2) Sea
Acceptance Trials.
The sea
trial schedule shall be timely agreed upon between ATL-BALT, FINC and the Classification
society.
The sea
trial under para. (2) above shall be conducted as indicated in the Technical
Specification.
Should
the weather conditions (no wind, no waves or swell) not occur on the days
scheduled for trials, FINC shall have the right to
postpone it. In such a case, FINC shall be entitled to an
extension of Ship delivery term equal to the whole postponement time
period.
FINC shall have the option to
carry out preliminary sea-trials for the adjustment of the propulsion machinery
starting and operation as FINC may deem
fit.
FINC shall have the right to
repeat any trial whatsoever.
Should
any breakdowns occur during sea-trials, entailing their interruption or
irregular performance, the trial so affected shall be cancelled and shall be
repeated by and at the expense of FINC. The time period required for
repairs shall produce an extension in the delivery term to be agreed upon
between ATL-BALT and FINC.
However,
if such breakdowns could be repaired by the normal means available on board, the
trial, by previous agreement between ATL-BALT and Builder, shall be continued
and considered as valid in all respects.
ARTICLE
13. PERFORMANCES - LIQUIDATED DAMAGES
13.1. Speed
Should
the Ship's speed at trial displacement and under the conditions stated in the
Technical Specification be lower than the value stated in Art 3.3.,
FINC shall pay to
ATL-BALT, as final liquidated damages, the following amounts:
— for
the first 0.5.knot of less speed: nothing;
— for
further 0.5 knot of
less speed up to 1 knot: Euro 15.000,00 (fifteenthousand) per
tenth of knot;
— for
further 0.5 knot of less speed up to 1.5 knots: Euro 25.000,00
(twentyfivethousand) per tenth of
knot;
Should
the Ship's speed be lower than 1,5 knots of the speed
as per Art. 3.3 above, then ATL-BALT, as an alternative to receiving the above
liquidated damages, shall have the option to resolve this Contract with the
consequences provided for in Art. 15. hereof.
13.2. Deficiency
in Fuel Consumption
(a) If
the fuel consumption on the test bed trials exceeds the figure
stipulated in Article 3.4. by more than 5% but below 8%, FINC will pay as
liquidated damages Euro 50.000,00 (fiftythousand) for each
full percentage between the two figures per gram per kW per hour.
(b) If
the fuel consumption on the test bed exceeds the figure stipulated in Article
3.4. by more than 8%, ATL-BALT may, at its option, (1) reject the main engine or
(2) accept the main engine by cashing the maximum amount referred to above. If
ATL-BALT rejects the main engine and FINC as a consequence is unable to deliver
the Ship within the contractual delivery time, ATL-BALT may
resolve the Contract.
Page 10 /
24
13.3. Deficiency
in Bollard Pull
If the
Vessel Bollard Pull as per Art 3.1., to be obtained in correspondence
to 100% of max. continuous power on each propeller contemporarily, is not achieved, FINC will
pay as liquidated damages to ATL-BALT as follows:
— for
each full ton reduction up to 184 tons: no damages;
— for
each full ton reduction in the bollard pull from 184 to 180 achieved tons, a
liquidated damages of Euro 30.000,00 (thirtythousand).
If the
deficiency in bollard pull is more than 8 tons, ATL-BALT may
resolve the Contract.
13.4.
Deficiency in Deadweight
If the
deadweight as per Art 3.1 is not attained and the reduction exceeds 5% of the
stipulated deadweight, FINC will pay as liquidated damages to ATL-BALT Euro
3.000,00 (threethousand) per ton of reduction.
If the
reduction in deadweight is more than 10 % of the stipulated deadweight, ATL-BALT
may resolve the Contract.
ARTICLE
14. MAXIMUM AMOUNT OF LIQUIDATED DAMAGES
The
maximum amount of liquidated damages referred to in Articles 8. (Delivery) and
13. (Performances) hereof, shall in no case whatsoever exceed ten per cent (10%)
of the Ship price set forth in Articles 9., but should said amount exceed it,
then ATL-BALT waives as from now its entitlement to any higher amount: ATL-BALT,
as an alternative to receiving the above liquidated damages, shall have the
option to resolve this Contract with the consequences provided for in Article
15. hereof.
ARTICLE
15. RESOLUTION OF THE CONTRACT
15.1. In the
event of resolution of this Contract by default of FINC, to which ATL-BALT has
to send a warning notice to fulfil the Contract within three (3) months,
ATL-BALT shall be entitled to:
(a)
|
the
refund of all the sums paid to FINC for the Ship,
increased by the an interest at the rate of two per cent ( 2%)
per annum over EURIBOR at 6
months;
|
(b)
|
the
payment, as compensation of final liquidated damages of any
kindwhatsoever,
of the amount of Euro 300.000,00
(threehundredthousand).
|
The
foregoing warning to fulfil the Contract shall conversely not be necessary in
the events set forth in Articles 8.3 and 13.
15.2. In the
event that the cause of resolution of this Contract shall be a default of
ATL-BALT, FINC will
be entitled to be paid in proportion to the work done, the materials bought and
the engagements undertaken, plus 10 % conventional profit on the value
of the works which will not be done and will put at disposal of
ATL-BALT the materials and/or parts of the Ship which ATL-BALT will be obliged
to remove from FINC's Shipyard within six months from resolution, failing which
removal FINC will
have the right to consider all parts / materials abandoned and will have the
right to fully dispose of them.
Page 11 /
24
ARTICLE
16. INSURANCE
The Ship
under construction must be insured with leading Insurance Companies up to the
time of delivery by and at the expenses of FINC against:
a) all
risks covered by "Institute Clauses for Builders' Risks" and usual supplementary
conditions;
b) all
risks covered by "Institute War Clauses / Builders' Risks" and "Institute Strikes Clauses /
Builders' Risks".
The
insurance shall cover the contract value of the Ship.
The
insured amounts shall be allocated to the repair of damages and/or to the
reconstruction of the Ship.
In the
event of a total constructive loss, arranged or compromised, and/or abandonment,
FINC shall be
entitled to withdraw from this Contract or to fulfil it but with the right to an
adequate extension in the delivery term. Should FINC exercise its withdrawal
right, ATL-BALT shall only be entitled to the reimbursement of the amounts
already paid to FINC .
To
guarantee such reimbursements, the insurance policies stipulated by FINC shall be bound in favour
of ATL-BALT to the extent of payments made by ATL-BALT.
The
covering of the aforementioned insurance and the due fulfilment by FINC of its obligations set
forth herein, exempt FINC from any other whatsoever responsibility, both legal
and contractual, in connection with the risk and damages of the Ship under
construction.
ARTICLE
17. MODIFICATIONS TO PLANS AND SPECIFICATION
17.1. FINC shall make the
modifications, if any, to the Specification and Plans referred to in Article 1.
hereof as may be requested by ATL-BALT provided that, in the unobjectionable
opinion of FINC, such modifications or accumulation of modifications do not
adversely affect the Ship's building programme and the production programmes of
FINC and its
Sub-contractors.
Both the
requests by ATL-BALT and the relevant acceptance by FINC, shall be made in
writing.
FINC shall notify in writing
ATL-BALT of the variations in price and other contract conditions which the
accepted modifications may entail and shall execute such modifications only upon
written acceptance of the foregoing variations by ATL-BALT.
ATL-BALT’s written acceptance shall
have to reach FINC within ten (10) days
from the date of receipt of FINC's notice or within fifteen (15) days from the
notice despatch by FINC, whichever is the shorter term.
Should
such an acceptance not be received within the term set forth, FINC shall have the right to
continue the Ship's construction as if no request for modification were made by
ATL-BALT.
In case
of disagreement on the price and/or consequent variations of the contract
conditions concerning modifications accepted by FINC, ATL-BALT shall have the
right to have such modifications performed, but it shall undertake, by written
notice to FINC, to pay the price requested by FINC according to the terms
of Article 10. hereof: ATL-BALT keep on its title to exercise its rights
deriving from Art 28.
17.2. In the event
that, subsequent to the date of signature of this Contract, variations should be
made to the provisions whose fulfilment is compulsory, FINC shall notify in
writing ATL-BALT of the consequent modifications and price
thereof.
Page 12 /
24
ATL-BALT’s
written acceptance shall have to reach FINC within ten (10) days
from the date of receipt of FINC's notice or within fifteen (15) days from the
notice despatch by FINC, whichever is the shorter term. Failing such acceptance,
FINC shall carry
out the notified modifications, which shall be considered to all effects as
though they had been confirmed by ATL-BALT.
ATL-BALT
shall pay the price requested by FINC according to the terms
of Article 10. hereof, while keeps on its title to exercise its
rights deriving from art 28.
ARTICLE
18. EVENTS OF FORCE MAJEURE
Any event
not caused by FINC and preventing FINC from the fulfilment of
its obligations, shall be regarded as an event of force majeure.
Among the
foregoing events are in any case included strikes, lockouts, plants occupation,
non-co-operation and, in general, any work disturbance, delays in delivery of
ferrous/light-alloy materials or of important finished or semi-finished items
ordered to sub-suppliers (except late delivery due to late order by FINC),
casting and machinery rejects and similar, as well as the effects that the
foregoing facts may directly or indirectly have on the whole of FINC's
engagements.
Should
such events occur, the Ship's delivery term shall be extended by the period of
time lost by FINC as a consequence of such
events, provided that FINC timely notifies in
writing ATL-BALT of that occurrence.
ARTICLE
19. PATENTS
FINC, for
the items of its own supply, shall hold ATL-BALT harmless against any claim made
by third parties for patent rights and for any other relevant reason, and
FINC undertakes for
its account every liability or indemnity whatsoever.
ARTICLE
20. INTELLECTUAL PROPERTY RIGHTS
The Ship
will be built based on the Design property of XXXX a.s. (Norway) under License
for use of FINC for the Ship object of this Contract.
The
technical information related to the Ship and furnished to ATL-BALT under this
Contract, including reports, drawings and other data, are to be
protected.
A
dedicated “Non Disclosure Agreement” between FINC and ATL-BALT has been signed
on 15.08.2006 and the Parties make reference to the disposal here contained for
all effects.
None of
the said information may be reproduced by ATL-BALT, unless with written consent
of FINC which shall
not be unreasonably withheld.
Notwithstanding
the above, ATL-BALT shall have the right to use the information only for
maintenance and repairs, and for commercial purposes .
FINC guarantees that the Ship
shall not infringe any patent, copyright, registered design, trademark or trade
name.
In the
event of any action, claim or demand for the infringement of an Intellectual
Property right by the use of the Ship, ATL-BALT shall inform FINC of such claim without
delay.
FINC shall indemnify ATL-BALT
in respect of any liability arising thereof and bear all
expenses relating to the said action, claim or demand , provided FINC has been given the
opportunity to conduct the action and / or proceedings at its own
convenience.
Page 13 /
24
ARTICLE
21. ASSIGNMENT OF THE CONTRACT
Neither
of the Parties hereto shall assign this Contract to a third party unless prior
consent of the other Party is given in writing, such consent not to be
unreasonably withheld.
One,
among others, conditions for consent is that the Assignee will maintain all
guarantees received by FINC (Comfort Letter, Letter of Credit,
etc.), or in case of renewal by the Assignee such guarantees will be
renewed in a manner not decreasing the level of guarantee of FINC.
In case
of payments granted by Guarantee Letter issued by the mother company of
ATL-BALT, then the mother company will in any case remain liable toward FINC of
all obligations of the Assignee deriving from the Contract , and
these engagements will be contained in a separate documents to be agreed and
delivered to FINC before the signature of the assignment.
The deed
of assignment will be subject to the same legal formalities of this
Contract.
For
financing purposes ATL-BALT can assign some rights hereof (agreed
with FINC but in any case excluding mortgage or any lien on the
ship under progress) in order to obtain means for the
payment of the third (10.2.c ) and fourth
(10.2.d) instalment.
ARTICLE
22. PROPERTY RIGHTS OF THE
VESSEL
During
the construction, FINC and ATL-BALT undertake not to dispose of the hull and /
or parts thereof, the engine and / or parts thereof, the machinery, equipment
and / or outfitting materials and in general anything else intended for the
construction of the Ship, and not to allow any mortgage or lien being registered
on the Ship or part of the same .
The
property of the Ship will pass on to ATL-BALT upon Ship delivery.
ARTICLE
23. RESPONSIBILITY AFTER DELIVERY
On
delivery of the Ship to ATL-BALT, every responsibility for the safety and for
the use of the Ship is transferred to ATL-BALT, remaining on FINC only the guarantee
obligations set forth in Article 24. hereof.
ARTICLE
24. TECHNICAL GUARANTEE
24.1. The technical
guarantee of the Ship shall have the not extendable validity of twelve (12)
calendar months (except for those equipments for which the supplier grants a
longer period ) commencing on the date of the Ship's delivery to
ATL-BALT.
On
ATL-BALT’s request, FINC shall, at its own expense, repair and/or replace at one
of its Shipyards any part of its own supply (including the supply of its
Sub-contractors and suppliers) for which ATL-BALT notifies on delivery defects
or deviations or which, during the foregoing guarantee period, show defects and
deviations not remarkable on delivery, chargeable either to design, materials or
workmanship, provided that such defects and deviations are notified in writing
to FINC on delivery or, at the latest, within one (1) month from the
date of their discovery and provided that ATL-BALT can prove that such defects
and deviations are attributable to FINC.
Page 14 /
24
Repairs
and replacements carried out by FINC in accordance with this Article shall be
covered
by a prolongation of guarantee governed by all the provisions of this Article
but the extent of the guarantee shall in no case exceed the time period of
twentyfour (24) months from the date of Ship's delivery.
In the
event that the Ship should need to be dry-docked, solely for repairs or for
replacements made necessary by defects or deviations attributable to FINC,
pursuant to the provisions of this Article, the relevant expenses shall be borne
by FINC exclusively.
24.2. Should it be
necessary, owing to the conditions and location of the Ship or to avoid delays
in carrying out urgent repairs or replacements, ATL-BALT may have the repair
and/or replacement work covered by FINC's guarantee carried out elsewhere from
FINC's Shipyards, provided that ATL-BALT previously notifies FINC, by letter or
facsimile, about the type and extent of the defects or deviations to be
remedied, stating the reason for necessity to have the work carried out
elsewhere and provided the relevant approval from FINC is received by
ATL-BALT.
In such a
case, FINC shall reimburse to ATL-BALT the documented expenses incurred by
ATL-BALT for such repairs and/or replacements.
Such a
reimbursement, however, shall not exceed the cost which FINC would have borne by
carrying out the repairs and/or replacements at its Shipyards.
If
requested by FINC, ATL-BALT shall return, at its care and expense, the parts
replaced.
FINC
shall not have to make any reimbursement for works, repairs and/or replacements
carried out by ATL-BALT without the prior approval
of FINC.
In any
case, any guarantee and/or liability by FINC for repairs and/or replacement work
carried out outside FINC's Shipyards is excluded.
24.3. End-guarantee
works , if any, will be done at Muggiano Shipyard, where ATL-BALT will
make the Ship available at the end of the 12 months period at its care and
cost.
If, in
accordance with ATL-BALT, repairs and/or replacements will be done due to use
and/or maintenance activities, ATL-BALT shall be charged with the relevant
expenses.
24.4. FINC's
liability shall be limited to the foregoing obligation, and FINC and its
sub-contractors and suppliers shall have no liability whatsoever for damages in
any way deriving from or consequential to the foregoing defects or connected
with deviations or with the repair and replacement processes; likewise is
excluded any other liability deriving from or in any way connected with any
other cause not included in the foregoing guarantee obligation, which covers
solely repair and/or replacement.
FINC
shall not be liable for defects or deviations due to normal wear and tear of the
materials and for any damage whatsoever due to use of the Ship, to accidents
occurred with the Ship moored and/or at sea, or to fires, mismanagement or
negligence in the use of the Ship by ATL-BALT or by persons which, at the time
of the damage, were in possession of or governing the Ship, and FINC will not
bear any responsibility for repair and/or replacement consequent to the above
..
24.5. FINC shall
have the right during the first six months of the guarantee period to put on
board of the Ship, at its costs, an engineer to follow the operations of the
Ship. ATL-BALT will recognise to the engineer a treatment on board of
the same level of the chief engineer: during the stay on board of the guarantee
engineer, all communications related to guarantee problems will be presented to
him.
Page 15 /
24
ARTICLE 25. TAXES – DUTIES AND OTHER CHARGES
All
taxes, including income taxes , duties, dues and fees or similar charges levied
by the Republic of Italy for the implementation of this Contract shall be borne
by FINC.
All
taxes, including income taxes, whether for persons and/or Companies, duties dues
and fees or similar charges levied by Germany in connection with the
implementation of this Contract shall be borne by ATL-BALT.
ARTICLE 26. CONFIDENTIALITY
No
advertisement or statement in respect of the terms and conditions of this
Contract shall be
published or made by FINC or by ATL-BALT in
any newspaper, magazine or in any other form of media without the prior written
agreement of both parties.
ARTICLE
27. CONTRACT EFFECTIVE DATE
This
Contract shall
become effective when the first payment instalment as per Art 10.2 letter
a) has been cashed by FINC.
In the
event that the first payment will not be made for whatever reason, within 30
calendar days from the signature of this Contract, FINC will have the right to
update Terms and Conditions of this Contract.
ARTICLE 28. LAW AND DISPUTES
The
present Contract is ruled by the laws of Switzerland.
Any
disputes, conflicts or differences of any kind, which shall arise between the
Parties with regard to the interpretation of this Contract, or relating to the
performance of any of the agreed obligations, under this Contract shall, if
possible, be amicably settled.
Failing
such amicable settlement the Parties have elected to have the dispute referred
to an arbitration tribunal of three arbitrators, who will judge in Geneva
(Switzerland) in accordance with the provisions of the Rules of Conciliation and
Arbitration of the International Chamber of Commerce, to which the Parties
declare to adhere.
The two
Parties shall pay fees and expenses of the arbitration proceeding in accordance
with the award passed by the Arbitration Tribunal.
The award
passed by the Arbitration Tribunal shall be final and binding on both Parties
and shall be enforceable before any court of competent
jurisdiction.
The
commencement of any arbitration proceeding under this Clause shall in no way
affect the continual performance of the obligations of the Parties under this
Contract, except insofar as such obligation relate to the subject matter of such
proceedings.
Page 16 /
24
ARTICLE 29. MISCELLANEOUS
This
Contract constitutes the entire agreement between ATL-BALT and FINC and
supersedes and cancels all prior representations, negotiations, letters,
acceptances, agreements and understandings, whether verbal or written, between
ATL-BALT and FINC, with respect to or in connection with any of the matters or
things to which this Contract applies or refers.
Any
amendment to this Contract shall be made in the form of a written amendment,
fully agreed and signed by ATL-BALT and FINC.
Page 17 /
24
ARTICLE 30. ELECTION
OF DOMICILE
For all
the purposes of this Contract, ATL-BALT elects its domicile in Xxxxxxxxxxxxx 00,
00000 Xxxx, Xxxxxxx , and FINC in Xxx Xxxxx 00, 00000
Xxxxx, Xxxxx.
SIGNATURE
This
Contract is signed in three (3) identical originals, one for FINC, one for
ATL-BALT and the third copy (with signatures authenticated by a Notary Public in
the place of signature) for the registration in the Italian Coast Guard of the
territory in which the Ship is built.
SIGNED
by Xx. Xxxxx Xxxxxxxx & Capt.
Xxxxxxxx Xxxxxxx
who
hereby declare to act on behalf of
and be
duly authorised by ATL-BALT
/S/
|
/S/
|
SIGNED by
Xx. Xxxxxxx Xxxxxxxxx
who
hereby declares to act on behalf of
and be
duly authorised by FINC
/S/
|
DATE
|
3.11.2006
|
PLACE
|
Genove
|
Page 18 /
24
ENCLOSURE
“A”
PROTOCOL
of
DELIVERY
AND ACCEPTANCE OF THE SHIP
SHIP ________________________
Date and place
:_________________________
With
reference to Art. 8 of the Contract signed in ___________
on ___________ between ATL Offshore GmbH &
Co and FINCANTIERI Cantieri Navali Italiani S.p.A.,
Today
between Mr. _________ on behalf of and duly
authorised by ATL Offshore GmbH& Co, and Mr. ________ on behalf of and
duly authorised by
FINCANTIERI Cantieri Navali Italiani S.p.A., it is hereby certified
on ________ in _________ the acceptance of and delivery of the said
Ship .
Authorised
Representative of
|
Authorised
Representatives of
|
|
FINCANTIERI
Cantieri Navali Italiani S.p.A.
|
ATL
Offshore GmbH
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
*
Issued in three originals, of which:
- two
for FINCANTIERI
- one
for the OWNER
Page 19 /
24
ENCLOSURE “B”
Model of Bank Guarantee for Advance Payment
In
accordance with the conditions of Contract dated ___________ (hereinafter
called the “Contract”) for the construction of one Ship for ATL Offshore GmbH
(hereinafter called “the OWNER”), FINCANTIERI Cantieri Navali Italiani S.p.A. -
Naval Vessel Business Unit, (hereinafter called “FINC”), shall deliver a
guarantee issued by a bank in favour of the OWNER to guarantee the advance
payment as per Art 10.2.a) under the said Contract for an amount of
EURO __________________ == (______________ thousand
Euro).
We (name
of the Bank) have agreed to give to OWNER such
guarantee.
NOW
THEREFORE, we ___(bank)___having office at___________, agree unconditionally and
irrevocably to guarantee the re-payment to the OWNER, on its first written
demand without whatsoever right of objection on our part and without his first
claim to FINC, in the amount not exceeding EURO ______________.== (__________________
thousand ) until delivery of the Ship
Above
written demand shall indicate the violations of FINC under the terms of the said
Contract.
We,
_________, further agree that no change or addition to or other modification of
the terms of the Contract or of Works to be performed thereunder, shall in any
way release us from any liability under this guarantee, and we hereby waive
notice of any such change, addition or modification.
This
guarantee shall be a continuing guarantee from the date of the payment to FINC
of said advance payment and shall remain into force and effect or until all sums
of money guaranteed hereby have been paid, or if earlier until the date of
signature (which event is expected to happen on ___________) of the
“Protocol of delivery and acceptance“ of the Ship, as per model attached hereto,
upon presentation to us of an original of the same, and in any case this
guarantee will automatically expire on ___date ______save for any claim
made on or prior to such date or prior to above event, such expiration taking
place even if the present guarantee is not returned to us
The
present guarantee is governed by the “I.C.C. Uniform rules for demand
guarantees“ – Publication 458 of International Chamber of Commerce - and for
matters not governed by such Uniform Rules, the provisions of the Contract shall
apply.
Page 20 /
24
Attachment to the Bank
Guarantee for Advance Payment
PROTOCOL
of
DELIVERY AND ACCEPTANCE OF THE SHIP
SHIP ______________________
Date and place
:_________________________
With
reference to Art. 8 of the Contract signed in __________
on ___________ between ATL Offshore GmbH &
Co and FINCANTIERI
– Cantieri Navali
Italiani S.p.A.,
Today
between Mr. _________ on behalf of and
duly authorised
by ATL Offshore GmbH, and Mr. _________ on behalf of and
duly authorised
by FINCANTIERI, it is hereby certified on __________
in _________ the acceptance of and delivery of the said Ship
..
Authorised
Representative of
|
Authorised
Representatives of
|
|
FINCANTIERI
Cantieri Navali Italiani S.p.A.
|
ATL
Offshore GmbH
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
Page 21 /
24
ENCLOSURE “C”
Model of Bank Guarantee for Progress Payment
In
accordance with the conditions of Contract dated __________ (hereinafter
called the Contract ) for the construction of one Ship for ATL
Offshore GmbH (hereinafter called the OWNER), FINCANTIERI Cantieri Navali
Italiani S.p.A. - Naval Vessel Business Unit (hereinafter called FINC ) shall
deliver a guarantee issued by a bank in favour of the OWNER to guarantee the
advance payment as per Art 10.2___) under the said Contract for an
amount of EURO _______________.==
(______________________ thousand Euro)
We (name
of the Bank)… have agreed to give to the OWNER such guarantee
NOW
THEREFORE, we ____ (bank)___having office at_____ , agree unconditionally
and irrevocably to guarantee the re-payment to the OWNER, on its first written
demand without whatsoever right of objection on our part and without his first
claim to FINC in the amount not exceeding EURO ____________________== (____________________
thousand ) until delivery of the Ship.
Above
written demand shall indicate the violations of FINC under the terms of the said
Contract.
We,
___________, further agree that no change or addition to or other modification
of the terms of the Contract or of Works to be performed thereunder, shall in
any way release us from any liability under this guarantee, and we hereby waive
notice of any such change, addition or modification.
This
guarantee shall be a continuing guarantee from the date of the payment to FINC
of said progress payment and shall remain into force and effect, or
untill all sums of money guaranteed hereby have been paid , or if earlier until
the date of signature (which event is expected to happen on
__________), of the “Protocol of delivery and acceptance“ of the Ship, as per
model attached hereto, upon presentation to us of an original of the same, and
in any case this guarantee will automatically expire on ___date _____except for any
claim made on or prior to such date or prior to above event, such expiration
taking place even if the present guarantee is not returned to us.
The
present guarantee is governed by the “I.C.C. Uniform rules for demand
guarantees“ – Publication 458 of International Chamber of Commerce - and for
matters not governed by such Uniform Rules, the provisions of the Contract shall
apply.
Page 22 /
24
Attachment to the Bank
Guarantee for Progress Payment
PROTOCOL
of
DELIVERY
AND ACCEPTANCE OF THE SHIP
SHIP _____________________
Date and place
:_________________________
With
reference to Art. 8 of the Contract signed in ___________
on ___________ between ATL Offshore GmbH& Co and FINCANTIERI
Cantieri Navali Italiani S.p.A., today between Mr. _________ on behalf of and
duly authorised
by ATL Offshore GmbH, and Mr. _______ on behalf of and duly
authorised by FINCANTIERI, it is hereby certified on _________
in _________ the acceptance of and delivery of the
said Ship.
Authorised
Representative of
|
Authorised
Representatives of
|
|
FINCANTIERI
Cantieri Navali Italiani S.p.A.
|
ATL
Offshore GmbH
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
*
Issued in three originals, of which:
- two
for FINC
- one
for the OWNER
Page 23 /
24
ENCLOSURE
“D”
Model
of Bank Guarantee for Technical Guarantee Period
In
accordance with the conditions of Contract dated ___________ (hereinafter
called the Contract) for the construction of one Ship for ATL Offshore GmbH
(hereinafter called the OWNER), FINCANTIERI Cantieri Navali Italiani S.p.A. -
Naval Vessel Business Unit (hereinafter called FINC ) shall deliver a guarantee
issued by a bank in favour of the OWNER to guarantee the obligations during the
technical guarantee period as per Art. 24 under the said Contract, for an amount
equal to ten per cent (10%), that is EURO ____________________.== (______________________
thousand Euro) for twelve (12) months starting from the delivery date of the
Ship.
We (name
of the Bank)…have agreed to give to OWNER such guarantee.
NOW
THEREFORE, we ___ (bank)___having office at____, agree unconditionally and
irrevocably to guarantee the re-payment to OWNER, on its first written demand
without whatsoever right of objection on our part and without his first claim to
FINC in the amount not exceeding EURO _____________.== (_________________
thousand).
Above
written demand shall indicate the violations of FINC under the terms of the said
Contract.
We,
__________, further agree that no change or addition to or other modification of
the terms of the Contract or of Works to be performed thereunder, shall in any
way release us from any liability under this guarantee, and we hereby waive
notice of any such change, addition or modification.
This
guarantee shall be a continuing guarantee from the date of the “Protocol of
delivery and acceptance“ of the Ship and shall remain into force and effect, or
until all sums of money guaranteed hereby have been paid , or until
the end of the guarantee period, and in any case this guarantee will
automatically expire on ____date ______save for any claim
made during the guarantee period, such expiration taking place even if the
present guarantee is not returned to us.
The
present guarantee is governed by the “I.C.C. Uniform rules for demand
guarantees“ – Publication 458 of International Chamber of Commerce - and for
matters not governed by such Uniform Rules, the provisions of the Contract shall
apply.
Page 24 /
24
Addendum
to the Shipbuilding Contract for the construction of one
AHTS
Vessel Fincantieri Hull No
6162
This
Addendum is made and entered into on this 18th of June 2009
between:
|
1.
|
FINCANTIERI - Cantieri
Navali Italiani, S.p.A,
|
a company
organized and existing under the laws of the Republic of Italy, with Naval
Vessel Business Unit located at Xxx Xxxxx 00, 00000 Xxxxx, Xxxxx,
hereinafter
referred to as “FINC”
and
|
2.
|
ATL
Offshore GmbH & Co. “ISLE OF BALTRUM”
KG,
|
a company
organized and existing under the laws of the Federal Republic of Germany and
having their principal place of business at Xxxx Xxxxxxx 00, Xxxx,
Xxxxxxx,
hereinafter
called “the Buyer”
and
together
referred as “the Parties”
WHEREAS
|
A)
|
the
Parties have entered into a Shipbuilding Contract dated 3/11/06 regarding
the construction of ANTS Vessel bearing FINC Hull Nos. 6162 (hereinafter
called the Vessel”)
|
|
B)
|
Due
to several reasons, inter alia force majeure, the delivery dates according
to the Shipbuilding Contract shall be
re-scheduled.
|
|
C)
|
FINC
proposed re-scheduled delivery dates in a letter dd. 25th March 2009
(MM-PMA MNZ 137).
|
|
D)
|
In
the spirit of cooperation the Buyer is prepared to accept the delivery
date proposed by FINC, while FINC is prepared to bear the respective risk
for non-compliance of the Vessel to the IMO
regulations.
|
|
E)
|
At
the same time the Parties wish to settle various outstanding items in
respect of the Shipbuilding Contract specified
herein.
|
|
F)
|
The
above has been subject to an Agreement on an Addendum to 10 Shipbuilding
Contracts for the construction of (one) AHTS-Vessel each FINCANTIERI Hull
No’s.: 6174, 6162, 6163, 6168, 6171, 6172, 6169, 6173, 6175 and 6176 dd.
3June 2009 (in the following: the Agreement”). For good order’s
sake the Parties agreed to enter into separate addenda with identical
wording (safe for logical alterations) for each Shipbuilding Contract
between FINC and each respective Buyer. The Agreement shall
prevail in case of any inconsistencies and deviations of any
Addendum.
|
The
Parties therefore now agree as follows:
|
1.
|
The
warranty period in respect of FINC’s own works, i.e. hull material and
relevant workmanship but excluding third party supplies and/or
subcontractor’s works/supplies, shall be extended to 24 months always
subject to Article 24 of the Shipbuilding
Contract.
|
The Buyer
undertake to pay to FINC the amount of EUR 40.000 if the bollard pull test for
such Vessel reaches a peak bollard pull above 200 tons and continuous bollard
pull above 195 tons.
|
2.
|
The
Parties acknowledge that additional costs have arisen/will arise in
respect of the assistance to the spooling of the wires and the
installation of the DP-II which are to be borne by Buyer. In
consideration of clause (1) and the above the Buyer will pay to FINC a
total amount of EUR 600.000,00 for the Vessel if the bollard pull test is
successful. Otherwise the Buyer will pay to FINC the amount of
€ 560.000,00 for the extension of warranty, the implementation of the
DP-II according to the letter MM-GCO 214/BC dd. 17th
March 2009 and the assistance to spooling of the wires. All
amounts shall be payable latest 6 months after delivery of the
Vessel. For the avoidance of any doubt payment under this
Addendum shall also qualify as payment under the Agreement dd. 3rd
June 2009.
|
|
3.
|
With
the payment of this amount any claims FINC may have against the Buyer
shall be fully and finally settled. FINC has no further claim
against the Buyer under the Shipbuilding Contract, unless explicitly
agreed between the Parties in
writing.
|
In any
case, the above is without prejudice to the Xxxxxxxx XX letter dated May 28,
2009, and relevant attachments.
|
4.
|
The
Hull No. 6162 shall be delivered to ATL Offshore GmbH & Co. “ISLE OF
BALTRUM” KG within the new contractual delivery date of 30/09/2009 +1-7
business days and the Refundment Guarantees for the vessel shall be
extended for at least 10 months after the new delivery date, as set out in
accordance with the Side Letter dd. 3rd
June, 2009.
|
|
5.
|
The
Shipbuilding Contract is amended as
follows:
|
Art. 8.3.
to be deleted and replaced as follows:
Should the Ship not be delivered on
or before the contractual delivery date (30/09/2009) for causes for which F/NC
is liable, FINC shall pay to the Buyers, as final liquidated damages, an amount
of EURO for each calendar day of delay as follows:
1st –
15th
day
|
No
liquidated damages
|
16th –
30th
day
|
EURO
5.000,00 (five thousand)
|
31st –
60th
day
|
EURO
10.000,00 (ten thousand)
|
61st –
120th
day
|
EURO
15.000,00 (fifteen thousand
|
Should the delay in the delivery of
the Ship, for causes for which FINC is liable, exceed by 120 (one hundred
twenty) calendar days the foregoing delivery date as extended — according to the Agreement dd.
03.06.2009 and Articles 17. and 18. hereof - the Buyer, as an alternative to
continue in receiving the foregoing liquidated damages, shall have the right to
resolve this Contract with the consequences set forth in Article 15
hereof.
Art
8.3.bis
The
Buyer and FINC will use their best effort to cooperate in order to solve any
problem arising during the construction of the Vessel to speed-up the delivery
before the date written below, and /or to find an alternative agreement which
resolve the matter of the Deadline (i.e.31/07/2010), granting the suitability of
the Ship under the MARPOL/IMO rules.
Should
the Vessel not be delivered on or before 29/07/2010 latest, Buyer will
have the right to reject the vessel and resolve the contract
unless:
|
a.
|
it
is either fitted to comply with IMO-Resolution MEPC 141 (54) at no further
costs to the Buyer
|
|
b.
|
or
alternatively classification society and flag state grant an exemption
from the new applicable MARPOUIMO regulations in this respect, or an
extension of the Deadline.
|
This
date shall be absolute and not be affected and for extended for any reason
whatsoever, including but not limited to force majeure, unless for reason under
letter a. and b. above.
Should
the Buyers not exercise their option to resolve the contract the liquidated
damages as per art 8.3 shall apply.
|
6.
|
All
force majeure notices served by FINC until 3rd
June 2009 in respect of the original delivery date shall be ineffective
between FINC and the Buyer being incorporated in the new delivery dates as
per art 4.
|
|
7.
|
The
Buyer acknowledges that he will have no claim under Article 8.3 of the
Shipbuilding Contract for any delay having occurred prior to the date of
3rd
June 2009 in respect of the previous delivery
date.
|
|
8.
|
All
other provisions of the Shipbuilding Contract remain
unchanged. Save as explicitly provided for herein this Addendum
is not to be construed to be any extension waiver or otherwise on part of
each party and shall not preclude the Parties from any other or further
exercise of any rights under the Shipbuilding Contract as from time to
time amended. In case of any inconsistencies or deviations the
Agreement dd. 3rd
June 2009 shall prevail.
|
on
behalf of the Buyer:
|
|
/s/
|
|
Xx.
Xxxxx Xxxxxxxx
|
|
/s/
|
|
Xxxxx
Xxxxxxxxx
|
|
on
behalf of FINCANTIERI Cantieri Navali S.p.A.
|
|
/s/
|