AGREEMENT ON CONTRACT
FOR
TECHNICAL MATTERS
THIS AGREEMENT, made and entered into as of this 28th day of
February 1997, by and among GEBAB Gesellschaft fur Konzeption, Beratung,
Vermittlung und Betreuung privater Investitionen mbH (hereinafter called
"Supervisor"), Navigator Holdings, PLC on behalf of each of the shipowning
companies identified on Schedule 1 hereto (each hereinafter called "Owner" and
collectively the "Owners") and Jiangnan Shipyard and China Shipbuilding Trading
Company (hereinafter collectively called "Contractor"):
WITNESSETH:
WHEREAS, each Owner (as assignee of Navigator Holdings PLC)
and Contractor entered into a Shipbuilding Contract for construction
(hereinafter called the "Shipbuilding Contract") as of the 4th day of February,
1997, covering the construction of a total of five (5) 22,000 cubic meters
liquified/ethylene gas carriers identified on Schedule 1 hereto (each a "Vessel"
and collectively the "Vessels").
WHEREAS, all defined terms contained herein shall have the
meaning set forth in the Shipbuilding Contract.
WHEREAS, Owner desires Supervisor, as agent for Owner, to act
as Owner's technical representative with respect to technical matters related to
the construction of the Vessel, including the guarantee after delivery of the
Vessel under the Shipbuilding Contract.
WHEREAS, Owner agrees to employ Supervisor with respect to the
technical matters above mentioned under the Shipbuilding Contract.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, it is mutually understood and agreed upon by and among the
parties hereto as follows:
1. (a) Owner hereby appoints Supervisor as authorized technical representative
to perform any and all of Owner's rights, duties, obligations and
responsibilities under the provisions of Articles IV, V, VI, IX of the
Shipbuilding Contract (hereinafter called "Articles") except those rights,
duties, obligations and responsibilities which are specifically otherwise agreed
upon in this Agreement. For purposes of this Agreement, the term Owner means
each Owner who is a signatory to this Agreement to the extent that such Owner's
Vessel is subject to this Agreement.
(b) Supervisor hereby accepts such appointment by Owner, and
undertakes to perform in good faith for and on behalf of Owner any and all of
Owner's rights, duties,
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obligations and responsibilities under the Articles, solely in its capacity as
agent for the Owners.
(c) Supervisor further undertakes to perform such appointment
with due care so as to protect the rights and interests of Owner under the
Shipbuilding Contract. Owner hereby acknowledges that Supervisor's performance
of this appointment and any liabilities associated with it or arising out of
such appointment shall terminate upon delivery of the Vessel to the Owner;
provided, however, to the extent any loss, claim or damage is not discovered by
Owner at the time of the delivery of the Vessel, Supervisor's liability
therefore shall continue.
(d) Contractor hereby acknowledges Owner's appointment of
Supervisor and agrees to direct all correspondence and communications under
Articles directly to Supervisor. Notwithstanding the above, prior to making any
changes to the specification which materially effect the terms and conditions of
the Shipbuilding Contract, Contractor shall advise the Owner.
2. Notwithstanding anything contained in the Shipbuilding
Contract the following is agreed by the parties hereto:
(a) Owner shall have the right, at its request, to be informed
of anything under this Agreement, to observe the Vessel during the
construction and attend the trial runs of the Vessel as observer(s)
whose comment, if any, shall always be made through Supervisor to
Contractor. The approval and/or decisions given to Contractor by
Supervisor shall be deemed as those of Owner and shall bind Owner.
Notwithstanding the above, acceptance or rejection of the Vessel under
Article VI and Section 7 of Article VII of the Shipbuilding Contract
shall always be notified by Owner to Contractor and Supervisor shall,
prior to delivery of the Vessel, give Owner their advice on whether the
Vessel conforms to the requirements of the Shipbuilding Contract and
the Specifications.
(b) Supervisor shall check contents of the documents specified
in Section 3 of Article VII of the Shipbuilding Contract and confirm to
Owner whether the contents are acceptable or not.
(c) Contractor shall also furnish Owner and Supervisor with
the list mentioned in Article IV of the Shipbuilding Contract.
(d) Notwithstanding Item 1 above, for practical reasons
Supervisor and Contractor may not agree on the changes pursuant to
Article V of the Shipbuilding Contract without obtaining Owner's prior
consent if the value for such Changes is more than US$5,000 per change
or in the aggregate more than US$50,000 for such Vessel.
(e) Owner shall not be responsible whatsoever for personal
injuries, including death, of the Supervisor and Inspectors, or other
employees or agents of Supervisor during the time they or any of them
are on the Vessel, or within the premises of the
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Contractor or its subcontractors, or, are otherwise engaged in
and about the construction of the Vessel unless such personal injuries,
including death, were caused by the negligence of Owner.
(f) Any adjustment of Contract Price, except for delayed
delivery, in accordance with the provisions of the Shipbuilding
Contract shall be settled between Supervisor and Contractor through
Owner at the Delivery of the Vessel.
(g) Contractor shall also furnish Owner and Supervisor with
the design and construction schedules with respect to any modifications
or changes (as defined in the Building Contract) permitted by Article V
of the Building Contract.
(h) Supervisor shall assist Owner in case of Arbitration under
Article XIII of the Shipbuilding Contract.
(i) Supervisor shall (i) appoint Superintendents in accordance
with the Shipbuilding Contract who shall be in attendance at the Yard
and (to the extent to which Owner would be entitled under the
Shipbuilding Contract) shall have free access to the Vessel and to the
Contractor's shipyard and workshops and the Contractor's
sub-contractors' premises as may be necessary for the proper
performance of the Supervisor's duties hereunder until the Vessel has
been delivered to Owner in accordance with the provisions of the
Shipbuilding Contract and (ii) attend to any claim by Owner that may
constitute a breach by the Contractor of the warranty of quality
incorporated in the Shipbuilding Contract and supervise the remedy of
any defects in the Vessels which constitute such breach and the
recovery from the Contractor of any loss, damages or expenses
occasioned by or connected with any such breach.
(j) the Supervisor shall use reasonable efforts to ensure
that, prior to a Vessel's Delivery under the Shipbuilding Contract,
such Vessel is classed with Germanischer Lloyds as +100 A5 E "Liquified
Gas Carrier Type 2G" +MC E, AUT INERT clean and free of any and all
recommendations, reservations and qualifications and otherwise as
stated in the relevant Shipbuilding Contract and is otherwise fully
documented and classified in accordance with the provisions of that
Shipbuilding Contract and its Specifications;
(k) Supervisor shall, along with Owner, sign each Protocol of
Delivery and Acceptance referred to in the Shipbuilding Contract;
(l) Supervisor shall on the Delivery Date of the Vessel, use
reasonable efforts to produce to or ensure the production to Owner of
any and all documentation which the Contractor is required to deliver
pursuant to the Shipbuilding Contract;
(m) Each finished plan including the instruction books of
the Vessel shall be distributed as follows:
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Finished Plans Instruction Books
1 set for the Vessel 2 sets for the Vessel
2 sets for Supervisor 2 sets for Supervisor
1 set for Owner 1 set for Owner
(n) Neither the Owners nor the Supervisor shall be under any
liability for any failure to perform any of their obligations hereunder
by reason of any cause whatsoever or any nature or kind beyond their
reasonable control; and
(o) Supervisor shall not sub-contract any of its obligations
hereunder to a third party other than an affiliate without the consent
of the Owners. Supervisor as contracting party has the right to assign
this agreement to any other company forming part of the GEBAB group of
companies or any affiliate of such GEBAB group through a novation
agreement replacing GEBAB as contracting party by such other company.
(p) Affiliated Companies shall include the following
organizations:
Martime Asia Limited
Martime-Gesellschaft fur maritime Dienstleistungen mbH
MarLink Schiffahrtskontor GmbH
GasChem Services GmbH & Co. KG
3. Notwithstanding what has been stipulated elsewhere in this
Agreement, Supervisor shall perform the following duties on behalf of the Owner,
solely in its capacity as agent.
(a) Supervisor will examine all Hull and Engineering plans
submitted by the builder to ensure compliance with the Shipbuilding
Contract, including compliance with applicable shipbuilding standards
and approve or comment upon plans accordingly.
(b) The Supervisor's responsibilities will include the
following:
(i) Examine and inspect the construction of the
designated Vessel and equipment to ensure compliance with the
Specifications, approved plans and regulatory authority
requirements. Examine and inspect the Vessel to ensure that
all workmanship is in accordance with the best currently
established practice and to bring to the Contractor's notice,
any deviation from such practice and to ensure rectification.
(ii) Examine and inspect all equipment in the Vessel
within the jurisdiction of the Supervisor to ensure adequate
facilities exist for ease of maintenance of that equipment.
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(iii) Render monthly progress reports.
(iv) Bring to Owner's attention any modification
or improvements which, in the Supervisor's opinion, may
enhance the viability of the project and/or reduce the
running costs. No modification is to be put in hand unless
it meets with the criteria specified in Section 2(d) or
until specifically authorized by the Owner.
(v) Examine all records produced by the
Contractor and to confirm their correctness.
(vi) Oversee any work performed in drydock prior
to delivery of the Vessel.
(c) The number of personnel required in the supervision team
will vary during the construction period however it is expected that a
team of 5 will be required at peek periods consisting of:
Project Manager
Engineering Superintendent #1
Engineering Superintendent #2
Electronics Superintendent
Gas Engineer
4. (a) This section refers to the obligations of the
Owners collectively to the Supervisor as to all of the Vessels subject to this
Agreement and not as to each Vessel.
(b) The contract price for Plan Approval is US$100,000 plus
any travel expenses to the Yard which will be charged at cost. Owner to pay
Supervisor Plan Approval cost in 4 payments of US$25,000 plus invoiced out of
pocket travel expenses which shall be payable in March, June, September and
December 1997.
(c) Commencing in December 1997, the contract supervision cost
is US$72,000 per month payable in advance based on a maximum construction period
of 30 months for the series of 5 vessels.
(d) Should the construction of the vessels exceed 30 months
(from and including December 1997) in the aggregate, Owners will pay Supervisors
US$72,000 per month for each month that the building program is extended.
(e) Should the vessels not be delivered Owners will pay
Supervisors the remainder of their actual out of pocket expenses on presentation
of audited accounts.
(f) All costs for the guarantee engineer(s) shall be borne by
the Owners.
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5. Supervisor shall perform its obligations under this
Agreement in all respects in accordance with the highest standards of practice
and degree of care regularly observed in the shipping industry. In addition,
Supervisor shall obtain errors and omissions coverage from an insurance carrier
acceptable to Owner. If any work or services under this Agreement are
negligently performed or omitted, then so far as may be reasonably practicable.
All costs incurred to Owners as a result of said negligence or omission will be
settled as provided for by the aforementioned insurance cover.
If Supervisor does incur third party liability of any nature whatsoever
arising out of or connected with performance of this Agreement, then Supervisor
shall indemnify Owner against such third party liability and costs and expenses
relating thereto; provided, however, that Supervisor shall not be required to
indemnify Owner for loss or liability (A) resulting from the willful misconduct
or gross negligence of Owner; or (B) directly and proximately caused by breach
of a material representation or warranty made by Owner, in any agreement
relating to such Vessel to which it is a party. Notwithstanding the foregoing,
Supervisor shall not be responsible whatsoever for personal injuries, including
death, of Owner, Contractor or other Owner, Contractor authorized personnel
during the time they or any of them are on the Vessel, or within the premises of
Contractor or its subcontractors, or, are otherwise engaged in and about the
construction of the Vessel unless such personal injuries, including death, were
caused by the negligence of Supervisor.
6. Unless specifically directed in writing to the contrary,
all of the correspondences between Supervisor, Owner and Contractor as above
shall be addressed as follows:
To Supervisor:
GEBAB Gesellschaft fur Konzeption, Beratung, Vermittlung und
Betreuung privater
Investitionen mbH
Xxxxxx-Xxxxxx-Xxxxxx 00
00000 Xxxxxxxxx
Telefax No.: 011-21-59-91-53-53
Telephone No.: 000-00-00-00-00-0
To Owner:
Navigator Holdings PLC
c/o Cambridge Partners LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 00-000-000-0000
Telefax No.: 00-000-000-0000
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To Contractor:
Xxxxxxxx Xxxxxxxx
0, Xxx Xxxxx Xxxx
Xxxxxxxx 000000
the People's Republic of China
Telex No.: 33027 JINAS CN
Telefax No.: 00-00-00000000 or 63140128
China Shipbuilding Trading Company, Limited
10 Xxx Xxx Bei Xxxx Xxx
Beijing 100861
the People's Republic of China
Telex No.: 22029 CSSC CN
Telefax No.: 00-00-00000000 or 68582420
7. Owner shall have the right to assign its rights and
obligations hereunder to (i) its wholly owned subsidiary company permitted in
accordance with the Shipbuilding Contract, (ii) an affiliate company and (iii)
any indenture trustee providing the Trustee Commitment Letter in accordance with
the Shipbuilding Contract.
8. No representative of either party shall have authority to
make, and neither party shall be bound by, nor liable for, any statement,
representation, promise or agreement not set forth herein. No changes,
amendments or modifications shall be valid unless reduced to writing and signed
by the parties.
9. The validity, enforcement and interpretation of this
Agreement shall be governed by the Laws of the State of New York.
10. Should any dispute arise out of this Agreement, the matter
in dispute shall be referred to three persons at New York, one to be appointed
by each of the parties hereto, and the third by the two so chosen; their
decision or that of any two of them shall be final, and for purpose of enforcing
any award, this agreement may be made a rule of the Court. The arbitrators shall
be members of the Society of Maritime Arbitrators, Inc. of New York and the
proceedings shall be conducted in accordance with the rules of the Society.
11. Any other terms and conditions under the Shipbuilding
Contract shall remain unchanged and unaltered.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on the day and year as first above written.
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GEBAB Gesellschaft fuer Konzeption,
Beratung, Vermittlung und Betreuung
privater Investitionen
mbH
/s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: Director of Shipping
Navigator Holdings PLC on behalf of each
individual shipowning company
/s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Jiangnan Shipyard
/s/ Gong Jingen
-----------------------------------------
Name: Gong Jingen
China Shipbuilding Trading Company
/s/ Shen Yeping
-----------------------------------------
Name: Shen Yeping
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SCHEDULE 1
Name of Owner Hull No. for Vessel
Navigator Gas (IOM I-A) Limited Hull No. 2245
Navigator Gas (IOM I-B) Limited Hull No. 2246
Navigator Gas (IOM I-C) Limited Hull No. 2247
Navigator Gas (IOM I-D) Limited Hull No. 2248
Navigator Gas (IOM I-E) Limited Hull No. 2249
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