NOTICE
THIS CHARTER IS SUBJECT TO A SECURITY INTEREST GRANTED BY BIG HOOK, L.L.C. AS
OWNER OF THE VESSEL NAMED HEREIN TO NATIONSBANC LEASING CORPORATION
("MORTGAGEE") PURSUANT TO THE TERMS AND CONDITIONS OF THE MORTGAGE ON THE
VESSEL GRANTED BY OWNER TO MORTGAGEE AS DESCRIBED IN SECTION 7 OF THIS
CHARTER.
BAREBOAT CHARTER
Big Hook, L.L.C., a Washington limited liability company (Owner) and Horizon
Vessels, Inc., a Delaware corporation and a wholly owned subsidiary of Horizon
Offshore, Inc. (Xxxxxxxxx) agree in consideration of the covenants and
provisions herein as follows:
AGREEMENT
1. Owner agrees to let and Xxxxxxxxx agrees to hire, on a bareboat
basis, the Xxxxxxx Xxxxx XXXXXXXX, O.N. 652734, hereafter referred to as
Vessel, on the terms and under the conditions set forth below.
The Vessel is identified as follows:
a. Type and/or use : xxxxxxx barge
b. Length : 427'
c. Width : 98'
d. Depth : 25'
The term Vessel shall be deemed to include not only the Vessel
itself, but all of her machinery, cranes, equipment, spare parts, tools, fuel,
furnishings, gear and consumables, stores, and other inventory items, apparel,
appurtenances, and all other items belonging thereto as of the date thereof.
COMMENCEMENT
2. The charter term shall commence with delivery (as later herein
described) on a date selected by Charterer not earlier than May 15, 1998, nor
later than May 29, 1998.
TERM
3. Unless otherwise mutually agreed by parties, this charter shall be
for a term of eighteen (18) months, with the charter term deemed to commence
as of the date of delivery of the Vessel by Owner to Charterer. The charter
shall terminate eighteen (18) months after commencement or earlier at the time
of any actual or constructive or compromise total loss of the Vessel.
CHARTER HIRE
4. Charterer shall pay Owner US $200,000.00 per month during the
contract term.
The first month's hire (US $200,000.00) shall be payable in advance
upon the execution of this charter agreement, and all further hire shall be
payable in advance in monthly increments commencing on the date which is
thirty (30) days after the date of delivery. In the event a payment date
falls on a weekend or bank holiday, the payment shall be due on the next
banking day. In the event Charterer fails to pay monthly charter hire before
the inception of each month, the failure to pay shall be considered a material
breach of this charter agreement and Owner at its sole discretion can remove
the Vessel from the jobsite and Xxxxxxxxx's possession. Hire payments due but
unpaid shall bear interest at the rate of 12% per annum until fully paid. In
the event of a total loss or constructive or compromise total loss of the
Vessel, and upon receipt by Owner (or the Mortgagee if the Mortgage shall not
then be satisfied of record) of insurable interest in the hull insurance
proceeds, Xxxxxxxxx's obligation for hire shall cease.
SECURITY
5. Prior to delivery, Charterer shall post with Owner security in the
amount of US $5,000,000.00 in the form of a bond or other financial instrument
satisfactory to Owner, to guarantee Xxxxxxxxx's performance of the charter.
This amount shall be due and owing to Owner if this charter is cancelled (i)
for any reason by Charterer other than upon the actual, constructive, or
compromise total loss of the Vessel or (ii) if this charter is cancelled by
Owner for default ("cause") as defined herein.
OPERATION AND USE
6. Charterer shall, at its sole expense, man, fuel, victual, navigate,
operate, maintain and supply the Vessel, and shall pay all charges and
expenses of every kind and nature whatsoever relating to the use and operation
of the Vessel during this charter. It is expressly understood that this is
intended as a demise of the Vessel by Owner to Charterer for the term of this
agreement, and that Charterer shall have full, complete and exclusive
possession, command and control of the Vessel and of its navigation and
operation.
Charterer shall employ the Vessel only in lawful trades and activities,
and shall operate the Vessel within the trading limits and other conditions
imposed by the insurances on the Vessel. Charterer shall not take the Vessel
into foreign waters without prior written approval from Owner, which approval
shall not be unreasonably withheld.
Charterer covenants that it shall not knowingly cause or permit the
Vessel to be operated in any manner contrary to the laws of the United States
or of any state or country wherein the same is operated.
REPRESENTATIONS AND COVENANTS
7. Charterer shall have full opportunity to inspect the Vessel prior to
delivery to determine its condition and suitability for service, and may
additionally arrange for the pre-delivery inspection of the Vessel by a
surveyor or similar technical representative of its choice. Items of
deterioration or damages from the Vessel's condition as of the date of the
final inspection found at delivery are to be repaired by Owner. Otherwise,
the Vessel is chartered to Charterer on an "AS IS, WHERE IS" basis, and it is
specifically agreed that Owner makes no representation or warranty, express or
implied, regarding condition of the Vessel or its suitability for any purpose,
and Owner shall not be held to any warranty of seaworthiness, fitness for a
particular purpose or workmanlike service.
Owner represents and warrants as follows:
(a) Owner is the owner of the Vessel, and the Owner now has and
will have at delivery good and marketable title to the Vessel without the
consent or approval of any other person or entity, and no other person or
entity has any right, title or claim to the Vessel, or to lease or otherwise
use the Vessel, and there are no options outstanding to any other entity to
purchase, lease, or otherwise use the Vessel.
(b) Except for that certain Preferred Ship Mortgage (the
"Mortgage") granted to Nationsbanc Leasing Corporation ("Mortgagee"), as
previously provided to Charterer, the Vessel is free and clear of all liens,
claims, debts, and encumbrances and all other claims for possession or
otherwise, including but not limited to all maritime liens and all security
interests whatsoever, (collectively "Liens") and is charter and contract free,
and no equipment of any kind on the Vessel is leased. Charterer acknowledges
that the Vessel is mortgaged to Mortgagee pursuant to the Mortgage and that
Xxxxxxxxx has received a copy of the Mortgage, and Xxxxxxxxx agrees that any
claims and rights of Charterer in and to the Vessel which Charterer may have
against Owner or the Vessel arising under or as a result of this charter shall
be subordinate to the lien of the Mortgage, including any increases to the
Mortgage pursuant to the provisions of this Section 7.
(c) There are no suits, actions, proceedings, arbitrations, claims
or investigations pending or threatened against, that would affect the title
of the Vessel or which could give rise to a Lien, attachment, seizure,
forfeiture or other claim against the Vessel, or which otherwise materially
affect the Vessel.
(d) There are no facts or circumstances, past or present, that
would prevent the Vessel from operating legally under applicable federal law
and regulations of the United States of America.
(e) The Vessel has not been involved, in any way, in the violation
of the laws of the United States of America or the laws of any other country
in a manner which could result in the penalty of forfeiture being invoked
against the Vessel, or otherwise hinder Charterer from operation of the
Vessel.
(f) In addition to the foregoing representations and warranties,
Owner represents and warrants as follows:
1) Owner is a limited liability company duly organized, validly
existing, and in good standing under the laws of Washington.
2)
(i) Owner has all company power and authority necessary
to charter the Vessel pursuant to this Charter;
(ii) The officer or attorney-in-fact executing this
Charter on behalf of Owner has been duly authorized
by the Members and Managers of Seller to execute and
deliver this Charter and the other documents called
for herein to be executed and delivered at or prior
to Closing and to otherwise consummate the
transactions contemplated hereby;
(iii)All company action necessary for this Charter to
constitute the valid, binding, and legal obligation
of Owner, enforceable in accordance with its terms,
has been taken.
Owner unconditionally and without limitation agrees to indemnify,
defend and hold harmless the Charterer, and/or its successors and assigns and
each of them, from and against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies (including interest, penalties and actual attorneys' fees
incurred and the costs of litigation) that the Charterer shall incur or suffer
as a result of (i) any representation, beach of warranty or nonfulfillment of
any agreement, representation, warranty or covenant on the part of the Owner
hereunder, or (ii) any claim, demand, Xxxx, judgment, fine, penalty or
obligation which arise out of, result from or relate to the Vessel. In the
event that the Vessel is arrested, seized, or attached, or any arrest,
seizure, or attachment is threatened, as a result of any claim of Lien or
other adverse claim of any person or entity to any right, title, or interest
in the Vessel, Owner will promptly bond the claim thereby securing its release
or otherwise discharge the claim, or if so bonded or discharged by Charterer
or its successors or assigns then Owner shall pay to same upon demand all
costs, expenses, and attorneys fees incurred thereby together with interest
thereon at the rate of 12% per annum from demand until paid. Charterer shall
have the right to set off and deduct from any amounts owing to Owner under
this Agreement amounts due Charterer from Owner under the terms of this
Agreement including without limitation this Section 7.
Owner covenants and agrees that it shall not at any time incur Liens or
additional mortgages on the Vessel or increase the amount of the Mortgage to
more than $13,000,000.00 or cross-collateralize or cross-default the Vessel
with any other indebtedness. Owner covenants and agrees that it shall not sell
or otherwise dispose of the Vessel or any interest therein. Owner covenants
and agrees that it shall not at any time from the date hereof through the term
of this charter disturb the quiet enjoyment of Charterer to the Vessel.
Owner shall execute and deliver to Charterer on the date of execution of this
Charter and again on delivery of the Vessel to Charterer an officer's
certificate in the form attached hereto as Exhibit "A".
DELIVERY
8. The Vessel shall be delivered to Charterer in Houma, Louisiana, at a
safe berth with free and ready access and open to the sea, with any sales or
use taxes due to be solely for Charterer's account.
Acceptance of the Vessel by Charterer shall constitute the admission
by Charterer of Owner's full performance of its obligations under this
agreement, and Charterer shall not thereafter be entitled to claim against
Owner on any basis, including (without limitation) seaworthiness of the
Vessel, negligence of Owner, latent defect or condition, any condition or
fitness, or any representation or warranty, express or implied, with respect
to the Vessel, her furnishings and equipment, except that Owner warrants that
the Vessel is owned by Owner and is free and clear of liens, claims, and
encumbrances, including maritime liens, other than the Mortgage.
ON-HIRE SURVEY
9. On or before the date specified above for delivery of the Vessel to
Charterer, the Vessel shall be surveyed by a mutually acceptable surveyor to
determine its condition. Owner and Charterer shall agree upon the manner in
which the condition of the Vessel upon delivery, and at redelivery, shall be
established; the method which is agreed must involve written and/or
photographic documentation of the condition of the Vessel. The costs of such
method for establishing the condition of the Vessel for delivery shall be
divided equally and paid separately by each party.
INVENTORIES
10. Prior to delivery of the Vessel, Owner shall provide Charterer with
a written inventory of machinery, cranes, equipment, spare parts, tools, fuel,
furnishings, gear and consumables, stores, and other inventory items, apparel,
appurtenances, and all other items belonging thereto as of the date thereof,
which inventory shall be reviewed and verified by Charterer. The inventory
shall specifically identify those items, as well as their quantity and
condition.
Charterer shall return the Vessel to Owner unless otherwise mutually
agreed by the parties, at redelivery or otherwise, with the same machinery,
cranes, equipment, spare parts, tools, fuel, furnishings, gear and
consumables, stores, and other inventory items, apparel, appurtenances, and
all other items belonging thereto as of the date hereof. Any loss, damage or
deficiency with respect to such machinery, deck crane, equipment, consumables,
stores, furnishings and gear at redelivery shall be made up by Charterer or
Charterer shall pay to Owner the sums actually necessary to repair, replace or
replenish said items, in each case less ordinary wear and tear as defined in
Article 13, below.
The written inventory shall be conclusive between the parties with
respect to equipment and consumables.
MAINTENANCE
11. Charterer shall, at its own expense, maintain the Vessel in the same
good condition, repair and working order as when received less ordinary wear
and tear as defined in Article 13, below. Charterer's responsibility for
maintenance shall include all costs and expenses relating to Coast Guard,
American Bureau of Shipping and similar inspections arising during the term of
the charter, including the costs and expenses of compliance with the
requirements of such entities.
ALTERATIONS
12. Charterer may not modify the Vessel, or make structural alterations
or additions without the prior written consent of Owner, such consent not to
be unreasonably witheld. Any alterations, additions or modifications allowed
by Owner shall be removed by Charterer prior to redelivery, and the Vessel
shall be returned to the same condition as upon delivery (less ordinary wear
and tear as set forth in Article 13., below).
OFF-HIRE SURVEY
13. At the conclusion of the charter term (or sooner, at Owner's option
in the event of default by Xxxxxxxxx), an off-hire survey of the Vessel upon
the same method utilized pursuant to Article 7, above, to establish the
condition of the Vessel for delivery shall be conducted. This survey shall be
conclusive between the parties with respect to Xxxxxxxxx's obligation to
redeliver the Vessel to Owner in the same good working order, repair and
condition as when received, less ordinary wear and tear. The term "ordinary
wear and tear" shall not include such wear and tear as would have been
corrected with routine maintenance. The costs of such survey shall be divided
equally between Owner and Charterer and paid directly by each.
REDELIVERY
14. Charterer shall be obligated to redeliver the Vessel to Owner at the
place of delivery at the conclusion of the charter term or earlier (at Owner's
election in event of default) in the same good condition, repair and working
order as when received, less ordinary wear and tear as identified in Article
13., above. Redelivery shall not be deemed to have occurred until the Vessel
is restored to the same repair and condition, less ordinary wear and tear, as
upon initial delivery.
Charter hire shall continue at the rate specified in Article 4.
above, for every day after the date specified at the conclusion of the charter
term, until redelivery has occurred, i.e., the Vessel has been restored to the
required good order and condition, unless otherwise mutually agreed by the
parties.
Should Charterer fail to make required repairs, Owner shall have the
options of making the repairs itself, with Charterer to reimburse Owner fully
for such repairs, or, value such repairs and submit to Charterer an invoice
for the reasonable cost of such repairs. In any event, Charterer shall remain
liable for charter hire until payment upon the option selected by Owner has
been made.
At time of redelivery, charter hire will continue as above until the
Vessel shall be free of any claims, liabilities, liens or encumbrances created
or arising during the term of this charter (except such claims, liabilities,
liens or encumbrances which have been created solely by Owner.) Should any
such claims, liabilities, liens or encumbrances exist at redelivery and Owner
shall resolve or settle them, then Charterer shall pay Owner the full sums
expended by Owner as well as Owner's legal fees and costs, including such fees
or costs necessary to establish Owner's rights to collect such sums from
Charterer, as well as fees and costs necessary to resolve or settle such
claims, liabilities, liens or encumbrances.
In addition, interest on unpaid hire, repairs and those charges
identified in the foregoing paragraph shall run at the rate of one percent
(1%) per month until fully paid.
INSURANCE
15. Charterer shall, at its sole expense, procure and maintain the
following insurances during the full term of this charter including all
extensions thereof:
x. Xxxx and Machinery Insurance, including collision and tower's
liability coverage, pursuant to Pacific Coast Tug & Barge Form
(1979), or equivalent, with an insured amount of US $17,000,000.00.
The Hull and Machinery Insurance shall be extended to include War
risk and S.R. and C.C. coverage on forms approved by owner.
b. Full form Protection & Indemnity Liability Insurance, specifically
extended to include contractual liability of Charterer under this
agreement and all risk of legal liability for all property damage
and/or bodily injury which may occur with a limit of US
$50,000,000.00.
x. Xxxxx form Pollution & Environmental Liability Insurance, if not
included with the Protection & Indemnity Insurance identified above,
inclusive of a Certificate of Financial Responsibility pursuant to
Coast Guard Regulations including OPA 90 with limits of US
$50,000,000.00.
d. Standard Workers' Compensation and Employer's Liability Insurance,
extended to include coverage for the Xxxxxxxxx Act and the Outer
Continental Shelf Lands Act, for all employees of Charterer, all
Charterer's contractors and subcontractors and all employees of such
contractors and subcontractors. Such insurances shall be statutory
limits for compensation coverage, and with minimum limits of US
$5,000,000.00 in all other instances.
e. Commercial General Liability Insurance, specifically including
contractual liability coverage for this agreement, including the
addendum attached to this agreement, and deleting policy limitations
as to watercraft and items in the care, custody and control of an
insured, with limits of US $50,000,000.00.
ADDITIONAL INSURANCE REQUIREMENTS
16. The following additional conditions shall apply to each of the
insurances identified above:
a. The policies shall have trading limits encompassing the area of
operations of the Vessel.
b. All policy forms, insurers and insurance brokers shall be subject to
Owner's approval, such approval not to be unreasonably withheld.
c. Charterer shall be solely responsible for payment of all deductibles
of all policies, and for payment of premium for each policy. The
deductible for each policy shall not exceed US $50,000.00.
d. Each insurance to be provided (except for workers' compensation and
employer's liability insurance) shall name the Owner as an
additional insured, with waiver of subrogation. Each policy shall
also waive subrogation against associated, affiliated and/or
subsidiary companies, joint ventures or partnerships of Owner; each
policy shall be primary to Owner's insurances.
e. Prior to Vessel delivery, Charterer must provide to Owner
certificates of insurance evidencing the required coverages, and
Charterer shall thereafter provide updated current certificates of
insurance during the charter term.
f. Each policy shall be specifically endorsed to require that notice of
cancellation must be sent in writing to each insured at least thirty
(30) days in advance of such cancellation (ten (10) days in the
event of cancellation for non-payment of premiums); each policy
shall also be endorsed to require that all insureds, including
Owner, be given at least thirty (30) days advance written
notification of any material change in policy provisions or of any
non-renewal occurring during the term of this charter.
g. Xxxxxxxxx agrees to indemnify and hold harmless (including necessary
legal fees and costs) Owner of and from any loss, damage and/or
claim resulting from its failure to procure the specified
insurances, or the failure of a specified insurance, including
exposure to any loss, damage, claim, suit or liability which would
have been covered had the insurances been provided.
Xxxxxxxxx further agrees that it shall comply with all insurance
covenants and agreements of Owner to the Mortgagee under the terms
and conditions of Section 2.04 of the Mortgage.
LIABILITY, LIENS AND INDEMNITY
17. Charterer assumes all risk of liability for and to the Vessel and
for the use and operation thereof, and for injuries to, illnesses of or deaths
of any and all persons and/or loss of or damage to any and all property
arising from or incident to such use or operation, whether such injuries or
deaths involve Charterer's employees or others and whether such loss or damage
involves property of Charterer or of others. Xxxxxxxxx will indemnify and
hold harmless Owner and the Vessel against and from all loss, damage,
liability and expense, including attorneys' fees and legal costs, arising from
or in connection with such injury, death, loss or damage, howsoever caused and
whether resulting in whole or in part from the negligence or other fault of
either party or the Vessel.
18. Neither Charterer, Master, nor any other person shall have any
right, power or authority to create, incur or permit to be imposed upon the
Vessel any liens whatsoever other than (a) liens for salvage, (b) inchoate
liens for current crew's wages, (c) liens covered by valid policies of
insurance held by or otherwise in favor of Owner (and Mortgagee if the
Mortgage is then not satisfied of record) and meeting or exceeding the minimum
limits specified in Section 15 above, and (d) inchoate liens not covered by
insurance, incurred in the ordinary course of business and not more than
thirty (30) days past due. Xxxxxxxxx agrees to carry a properly certified
copy of this charter (and the Mortgage if it is then not satisfied of record)
with the Xxxxxx's papers, and to exhibit the same to any person having
business with the Vessel which might give rise to any lien thereon. Xxxxxxxxx
agrees to notify any persons furnishing repairs, supplies, towage or other
necessities to the Vessel, that neither Charterer nor the Master has any right
to incur, create or permit to be imposed upon the Vessel any liens whatsoever.
Such notice, as far as may be practicable, shall be in writing.
Charterer shall place and keep permanently in a conspicuous place on
the vessel, including in the wheel house or pilothouse, during the term of
this charter, the notice required by the Mortgage if it is then not satisfied
of record as well as a notice in the following form:
THIS VESSEL IS OWNED BY BIG HOOK, L.L.C., A WASHINGTON LIMITED
LIABILITY COMPANY, AND IS UNDER CHARTER TO HORIZON VESSELS, INC.
UNDER THE TERMS OF SAID CHARTER, NEITHER THE CHARTERER, ITS
OFFICERS, EMPLOYEES OR AGENTS, THE MASTER OR ANY OTHER OFFICER OR
MEMBER OF THE CREW OF THIS VESSEL, NOR ANY OTHER PERSON, SHALL HAVE
ANY RIGHT, POWER OR AUTHORITY TO CREATE, INCUR, OR PERMIT TO BE
IMPOSED UPON THIS VESSEL ANY LIENS WHATSOEVER, EXCEPT FOR SALVAGE.
If any libel should be filed against the Vessel, or if the Vessel be
otherwise levied against, arrested or taken into custody by virtue of any
legal proceedings in any court because of any lien or claim arising out of or
during the possession, use or operation of said Vessel by Charterer, Charterer
shall promptly, and in any event within fifteen (15) days thereof, cause the
Vessel to be released and the lien to be discharged; provided, however, that
this provision shall not in any way affect or impair any other obligation or
responsibility set forth in this agreement. If the Vessel shall be levied
against as set forth above due to any lien or claim arising out of any act or
omission by Owner, Owner shall promptly, and in any event within fifteen (15)
days thereof, cause the Vessel to be released.
Except to liens caused or created by Owner and not involving or
relating to Xxxxxxxxx's use or possession of the Vessel pursuant to this
agreement, Charterer shall indemnify and hold Owner harmless from, and at its
own cost defend Owner against, any liens of whatsoever nature upon said Xxxxxx
and any claims of whatsoever nature against Owner arising out of or in any way
related to any act or neglect of Charterer in relation to said Vessel, or
arising out or during, or related to, the possession, use or operation of the
Vessel by Charterer.
DEFAULT ("CAUSE")
19. The following shall, without limitation, constitute events of
default ("cause") under this charter:
a. Failure of the Charterer to pay charter hire in advance when due;
b. Should Charterer fail to maintain in full force and effect all
insurance required under Section 15 of this charter;
c. Failure of the Charterer to operate said Vessel pursuant to the
terms hereof or the failure to fully perform each and every covenant
contained herein to be done and performed by Charterer, in each case
which continues unremedied after twenty (20) days prior written
notice from Owner to Charterer;
d. The occurrence of any event causing the Charterer to be prohibited
by governmental or other action from chartering the Vessel;
e. The filing of a petition in bankruptcy by or against the Charterer
which remains undismissed or unstayed for thirty (30) days; the
entry of an order adjudicating the Charterer a bankrupt; the making
by Xxxxxxxxx of a general assignment for the benefit of creditors;
the appointment of a receiver of any kind, whether in admiralty,
bankruptcy, common law or equity proceedings which remains
undismissed or unstayed for thirty (30) days; the filing by
Charterer of a petition for reorganization under the Bankruptcy Act.
During occurrence and continuance of an event of default ("cause"), Owner
may do each of the following:
1. Require immediate payment to Owner of the US $5,000,000.00 security
provided for in Article 5 hereof, and upon payment the security
shall be returned to Charterer.
2. Personally or by agents or attorneys enter and retake the Vessel
without legal process wherever the same may be, and Xxxxxxxxx
forthwith upon demand of Owner shall surrender to the Owner
possession of the Vessel.
3. In the event that the Vessel shall be arrested or detained while in
possession of Charterer by any judicial or other officer of any
country or nation and shall not be released from detention within
thirty (30) days from the date of arrest or detention, Xxxxxxxxx
does hereby empower and authorize Owner, in the name of Charterer,
to apply for and receive possession thereof, or to take possession
thereof, and this power of attorney shall be irrevocable and may be
exercised not only by Owner but also by any appointee or appointees
of Owner with full power of substitution to the same extent and
effect as if such appointee or appointees had been named as one of
the attorneys above-named by express designation.
4. In its discretion do all acts and make all reasonable expenditures
necessary to retake or regain possession of the Vessel, including
without limitation, incur travel, towing and other expenses in
retaking and regaining, or attempting to retake and regain,
possession of the Vessel. Charterer covenants and agrees to
promptly reimburse Owner, with interest at the rate of 12% per annum
and an additional 10% administrative surcharge, for any and all
expenditures so made or incurred, and until Xxxxxxxxx has so
reimbursed Owner for such expenditures the amount thereof, together
with such interest, shall be an additional indebtedness due from
Charterer to Owner.
5. If any charter hire due under this charter from Charterer to Owner,
or any part thereof, shall be and remain unpaid when the Vessel
shall have been retaken and/or repossessed, then notwithstanding
such retaking and/or repossession by the Owner, the liability of the
Charterer for charter hire for the balance of the term of the
charter, as provided for herein, shall not be extinguished, and
Charterer covenants and agrees to make good to the Owner any
deficiency which may arise from a retaking and/or repossession of
the Vessel and/or the negotiation of a new charter with any other
party or parties at a lesser amount of charter hire than that herein
agreed to, or from its inability to secure any satisfactory party or
parties with whom to execute such reasonable charter agreements.
Charterer specifically covenants and agrees to pay such deficiency
each month as the amount thereof is ascertained by Owner.
INSPECTION
20. The Owner shall have the right to board and examine the Vessel and
its logs at any reasonable time. Charterer shall be given reasonable notice
of Owner's intent to inspect said Xxxxxx, and shall cooperate in providing
access.
CASUALTIES
21. Immediately after any casualty, accident, or damage to the Vessel,
Charterer shall furnish Owner full particulars thereof, including copies of
any survey reports available to Charterer. Also, Xxxxxxxxx shall notify Owner
as soon as practicable of any claim which may be asserted in writing by any
third party against the Vessel and shall send Owner a copy of such writing.
ASSIGNMENT
22. Charterer shall not have any right to assign this agreement without
the prior written consent of Owner, which consent shall not be unreasonably
withheld. Charterer shall not have the right to subcharter the Vessel on a
demise basis without the prior written approval of Owner, such approval not to
be unreasonably withheld, except to affiliated companies of Charterer.
LIMITATION OF LIABILITY
23. Nothing contained in this charter shall be deemed to prohibit or
deny to Owner the benefit of all limitations of, and exemptions from,
liability accorded to owners of vessels by any statute or rule of law for the
time being in force. This agreement shall not be deemed to be a personal
contract such as to deprive Owner of the rights and benefits of any law
limiting the liability of vessel owners.
PERMITS AND LICENSES
24. Charterer shall be required to obtain and maintain at its sole cost,
all permits, licenses and authorities required for its use or operation of the
Vessel by applicable national, state, local or foreign laws or regulations.
TAXES
25. Charterer shall be responsible for any transportation, use, charter
hire, sales, and all other taxes levied or assessed by any taxing entity in
connection with this charter, or with the Vessel or its operation during the
term of this charter or arising thereafter as a result of the use or operation
of the Vessel during this charter, and Charterer shall defend and indemnify
Owner with respect to any claims, assessments or notices that such or any
other taxes are due from Owner.
ADDITIONAL PROVISIONS
26. a. Name Change: Charterer shall have the right to change the name
of the Vessel at any time after posting the security required
under Section 5 above.
b. Owner represents that no brokers have been engaged in
connection with this charter, except X. X. XxXxxxxx. Xxxxxxxxx
agrees to pay X. X. XxXxxxxx or his designated company monthly
in arrears such commission as shall be agreed between Charterer
and X. X. XxXxxxxx, which commission shall be in addition to
the charter hire. Owner shall have no responsibility to X. X.
XxXxxxxx or to any other broker.
c. All obligations of the parties to insure, reimburse, indemnify,
defend, hold harmless or pay under this agreement shall survive
termination, cancellation or expiration of this agreement.
d. Charterer specifically warrants it is a citizen of the United
States as defined in Section 2 of the Shipping Act, 1916, as
amended, or alternatively, that this charter has been approved
by the Maritime Administration.
e. Any claim, suit or action arising out of or relating to this
charter, and involving Owner and Charterer, may be maintained
in the federal courts located in King County, Washington. The
prevailing party in any such suit shall be entitled to recover
its costs of suit and reasonable attorneys fees. The parties
agree that in the event of pending or threatened breach of the
terms and conditions of this charter, the other party will
suffer irreparable injury for which an award of money damages
will not be adequate. Accordingly, notwithstanding any
procedural or substantive law or rule to the contrary, all of
which are hereby waived, both parties agree to the granting of
injunctive relief, including mandatory injunction.
f. This constitutes the final agreement between the parties and
may not be modified or altered except by a writing signed by
both parties.
g. The headings utilized in this agreement are for reference only;
they are not substantive and may not be used to construe this
agreement.
h. This Charter shall be binding upon and shall inure to the
benefit of the parties and their respective heirs, successors
and assigns.
i. This Charter supersedes all prior agreements and undertakings,
oral and written with respect to the subject matter hereof.
This Charter may only be amended in writing, signed by both
parties.
j. All notices hereunder shall be in writing and delivered by
certified mail, return receipt requested, or by telefax
confirmed by mail to the addresses set forth below the
signatures of the parties below. Notices shall be effective on
receipt.
k. If any provision of this Charter is held to be invalid or
unenforceable, such unenforceability shall not effect or impair
the validity or enforceability of the remaining provisions of
this Charter.
l. This Charter may be executed in several counterparts all of
which shall constitute one and the same agreement.
The foregoing Standard Bareboat Charter is entered into by the
undersigned parties on this 15th day of May, 1998.
OWNER: CHARTERER:
BIG HOOK, L.L.C. HORIZON VESSELS, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx Xxx
Its: MEMBER Its: PRESIDENT
Address: Address:
0000 Xxxx Xxxxxxxx Xxx S. 0000 Xxxx Xxxx Xxxx
Seattle, Washington 98134 Suite 2200
P.O. Box 24067 Houston, Texas 77042
Seattle, Washington 00000-0000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
