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Exhibit
10.17
SHIPBUILDING
CONTRACT
FOR
THE CONSTRUCTION
OF
ONE (1)
180,000 DWT CLASS BULK
CARRIER
HULL NO. 0006
BETWEEN
QUINTANA MARITIME
LIMITED
(AS BUYER)
AND
KOREA SHIPYARD CO.,
LTD.
(AS BUILDER)
SHIPBUILDING
CONTRACT
THIS CONTRACT is made as of
3rd December, 2006 by and between QUINTANA MARITIME LIMITED, a
company incorporated and existing under the laws of the Republic of
the Marshall Islands having its registered office at Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro, the Republic of
the Marshall Islands MH96960 (hereinafter called “QML”)
or a company to be nominated by QML pursuant to Article XV hereof
(hereinafter called the “NOMINEE”)(QML until such
nomination takes place and the NOMINEE following such nomination
having taken place, in either case hereinafter called the
“BUYER”), the party of the first part and KOREA
SHIPYARD CO ., LTD ., a company organized and existing under the
laws of the Republic of Korea, having its registered office at
1243-1, Yonsan-bong, Mokpo-City, Jeollanam-Do, Korea (hereinafter
called the ‘BUILDER”), the party of the second
part,
WITNESSETH:
In consideration of the mutual covenants
contained herein, the BUILDER agrees to design, build, launch,
equip and complete one (1) 180,000 DWT Class Bulk Carrier as
described in Article 1 hereof (hereinafter called the
“VESSEL”) at the BUILDER’S shipyard in Jindo,
Korea (hereinafter called the “SHIPYARD”) and to
deliver and sell the VESSEL to the BUYER, and the BUYER agrees to
accept delivery of and purchase from the BUILDER the VESSEL,
according to the terms and conditions hereinafter set
forth:
2
INDEX
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ARTICLE I
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DESCRIPTION AND CLASS |
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4 |
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ARTICLE II
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CONTRACT
PRICE |
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7 |
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ARTICLE III
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ADJUSTMENT OF THE CONTRACT PRICE |
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8 |
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ARTICLE IV
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INSPECTION AND APPROVAL |
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13 |
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ARTICLE V
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MODIFICATIONS CHANGES AND EXTRAS |
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19 |
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ARTICLE VI
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TRIALS
AND COMPLETION |
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22 |
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ARTICLE VII
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DELIVERY |
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27 |
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ARTICLE VIII
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DELAYS
AND EXTENSIONS OF TIME (FORCE MAJEURE) |
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31 |
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ARTICLE IX
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WARRANTY
OF QUALITY |
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34 |
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ARTICLE X
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PAYMENT |
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39 |
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ARTICLE XI
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BUYER’S DEFAULT |
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45 |
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ARTICLE XII
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BUYER’S SUPPLIES |
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48 |
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ARTICLE XIII
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INSURANCE |
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50 |
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ARTICLE XIV
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DISPUTES
AND ARBITRATION |
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52 |
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ARTICLE XV
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SUCCESSORS AND ASSIGNS |
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54 |
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ARTICLE XVI
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TAXES AND
DUTIES |
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56 |
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ARTICLE XVII
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PATENTS,
TRADEMARKS AND COPYRIGHTS |
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57 |
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ARTICLE XVIII
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INTERPRETATION AND GOVERNING LAW |
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58 |
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ARTICLE XIX
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NOTICES |
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59 |
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ARTICLE XX
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EFFECTIVENESS OF THIS CONTRACT |
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60 |
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ARTICLE XXI
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EXCLUSIVENESS |
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61 |
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EXHIBIT A
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LETTER OF
GUARANTEE |
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63 |
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EXHIBIT B
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PERFORMANCE GUARANTEE |
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66 |
3
ARTICLE I
DESCRIPTION AND CLASS
The VESSEL shall have the
BUILDER’S Hull No. 0006 and shall be constructed,
equipped and completed in accordance with the specifications (Ref.
No. KSB-FS-002R0 dated 3 rd December, 2006) and the maker list (Ref. No. KSB-ML-002R0 dated
3 rd
Dec., 2006) (hereinafter
collectively called the “SPECIFICATIONS”) and the
general arrangement plan (Ref. No. KSB-GA-002R0 dated 3 rd Dec., 2006) (hereinafter called the
“PLAN”), which shall constitute an integral part of
this CONTRACT.
The SPECIFICATIONS and the
PLAN are intended to explain each other and anything shown on the
PLAN and not stipulated in the SPECIFICATIONS or anything
stipulated in the SPECIFICATIONS and not shown on the PLAN shall be
deemed and considered as if included in both. Should there be any
inconsistencies or contradictions between the SPECIFICATIONS and
the PLAN, the SPECIFICATIONS shall prevail. Should there be any
inconsistencies or contradictions between this CONTRACT and the
SPECIFICATIONS, this CONTRACT shall prevail.
| 2. |
Basic Dimensions and Principal Particulars of the
VESSEL |
The basic dimensions anti
principal particulars of the VESSEL shall be
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| Length, overall |
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maximum 292.0 M |
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| Length, between perpendiculars |
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283.0 M |
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| Breadth,
moulded |
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45.0 M |
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| Depth to Upper Deck, moulded |
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24.7 M |
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Design draft, moulded, in seawater
of
specific gravity of 1.025
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16.5 M |
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Scantling draft, moulded, in seawater
of
specific gravity of 1.025
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18.2 M |
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| Deadweight
on the above moulded |
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4
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design draft of 16.5 M
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about 159,000 M/T
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Deadweight on the above moulded
scantling draft of 18.2 M, guaranteed
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179,700 M/T
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Main propelling machinery
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MAN-B&W 6S70 MC-C (Mark 7) |
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MCR :
18,660 KW X 91.0 RPM |
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NCR :
16,790 KW X 87.9 RPM |
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Service speed at 16.5 meters
design draft at the condition of clean bottom and in calm and deep
sea with main engine developing a NCR of 16,790 KW with fifteen per
cent
(15 %) sea margin,
guaranteed
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15.4 Knots
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Fuel consumption of the main engine applying I.S.O. reference
conditions to the result of official shop test at a NCR of 16,790
KW using marine diesel oil having lower calorific value of 42,700
KJ per Kg, guaranteed
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166.7 gr/KW.HR
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The details of the above
particulars as well as the definitions and method of measurements
and calculations are as indicated in the SPECIFICATIONS.
| 3. |
Classification, Rules and Regulations |
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(a)
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The VESSEL shall be built in
compliance with the current rules and regulations of American
Bureau of Shipping (hereinafter called the “CLASSIFICATION
SOCIETY”), to be classed and registered as +A1(E), +AMS, Bulk
Carrier CSR, SafeShip-CM, BC-A (holds 2, 4, 6 and 8 may be empty
with maximum cargo density: 3.0t/m 3 ), ESP, +ACCU, TCM, GRAB(20), UWILD, POT and also to comply
with the rules, regulations and requirements of the other
regulatory bodies described in the
SPECIFICATIONS.
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5
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(b) |
The rules, regulations and requirements of the CLASSIFICATION
SOCIETY and the regulatory bodies and the other relevant,
regulations and requirement, if any, are to include their current
ones that have been issued and are effective as of the date of
signing this CONTRACT. |
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(c) |
The BUILDER shall arrange with the CLASSIFICATION SOCIETY for
the assignment by the CLASSIFICATION SOCIETY of representative(s)
to the VESSEL during construction. All fees and charges incidental
to classification of the VESSEL in compliance with the above
specified rules, regulations and requirements of this CONTRACT
shall be for the account of the BUILDER. |
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(d) |
The decision of the CLASSIFICATION SOCIETY as to whether the
VESSEL complies with the regulations of the CLASSIFICATION SOCIETY
shall be final and binding upon the BUILDER and the
BUYER. |
| 4. |
Nationality of the VESSEL |
The VESSEL shall be built and
completed by the BUILDER for registration in the Marshall Islands
and shall be registered by the BUYER at its own cost and expense
under the laws of the Marshall Islands with its home port of Majuro
at the time of its delivery and acceptance hereunder.
6
ARTICLE II
CONTRACT PRICE
The contract price of the
VESSEL delivered to the BUYER at the SHIPYARD shall be United
States Dollars Seventy Seven Million Seven Hundred Thousand (US
$77,700,000) (hereinafter called the “CONTRACT PRICE”)
which shall be paid plus any increases or less any decreases due to
adjustment or modifications, if any, as set forth in this CONTRACT
. The CONTRACT PRICE shall include payment for services in the
inspection, tests, survey and classification of the VESSEL which
will be rendered by the CLASSIFICATION SOCIETY and shall not
include the cost of the BUYER’s SUPPLIES as stipulated in
Article XII.
The CONTRACT PRICE also
includes all costs and expenses for supplying all necessary
drawings as stipulated in the SPECIFICATIONS except those to be
furnished by the BUYER for the VESSEL in accordance with the
SPECIFICATIONS.
7
ARTICLE III
ADJUSTMENT OF THE CONTRACT PRICE
The CONTRACT PRICE of the VESSEL shall
be adjusted as hereinafter set forth in the event of the following
contingencies. It is hereby understood by both parties that any
adjustment of the CONTRACT PRICE as provided for in this Article is
by way of liquidated damages and not by way of penalty, the
calculation of damage being deemed final.
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(a) |
No adjustment shall be made and the CONTRACT PRICE shall remain
unchanged for the first thirty (30) days of the delay in
delivery of the VESSEL [ending as of 12 o’clock midnight
Korean Standard Time on the thirtieth (30th) day of delay]
beyond the Delivery Date calculated as provided in Article VII.1.
hereof. |
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(b) |
If delivery of the VESSEL is delayed more than thirty
(30) days beyond the date upon which the delivery is due from
the BUILDER under the terms of this CONTRACT, then, beginning at
midnight of the thirtieth (30th) day after such due date, the
CONTRACT PRICE of the VESSEL shall be reduced by United States
Dollars Twenty Thousand (US $20,000) for each full day of
delay. |
However, unless the parties
agree otherwise, the total amount of deduction from the CONTRACT
PRICE shall not exceed the amount due to cover the delay of two
hundred and forty (240) days after thirty (30) days of
the delay in delivery of the VESSEL at the rate of deduction as
specified hereinabove.
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(c) |
But, if the
delay in delivery of the VESSEL continues for a period of more than
two hundred and seventy (270) days beyond the date upon which
the delivery is due from the BUILDER under the terms of this
CONTRACT then, in such event, and after such period has expired,
the BUYER may, at its option, cancel this CONTRACT by serving upon
the BUILDER a notice of cancellation by telegram, or facsimile to
be confirmed by a
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8
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registered letter via
airmail directed to the BUILDER at the address given in this
CONTRACT. Such cancellation shall be effective as of the date the
notice thereof is received by the BUILDER. If the BUYER has not
served the notice of cancellation after the aforementioned two
hundred and seventy (270) days delay in delivery, the BUILDER
may demand the BUYER to make an election in accordance with Article
VIII.3. hereof.
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(d) |
For the purpose of this Article, the delivery of the VESSEL
shall be deemed to be delayed when and if the VESSEL, after taking
into full account extension of the Delivery Date or permissible
delays as provided in Article V, VI, VIII, XI, XII or elsewhere in
this CONTRACT, is delivered beyond the date upon which delivery
would then be due under the terms of this CONTRACT. |
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(a) |
The CONTRACT PRICE of the VESSEL shall not be affected or
changed, if the actual speed, as determined by trial runs more
fully described in Article VI hereof, is less than the speed
guaranteed under the terms of this CONTRACT and the SPECIFICATIONS
provided such deficiency in actual speed is not more than
three-tenths (3/10ths) of one (1) knot below the
guaranteed speed. |
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(b) |
However, as for the deficiency of more than three-tenths
(3/10ths) of one (1) knot in actual speed below the speed
guaranteed under this CONTRACT, the CONTRACT PRICE shall be reduced
as follows [Fractions of less than one-tenth (1/10th) of a
knot shall be prorated]: |
For the three-tenths
(3/10ths) of a knot — a total sum of US
$100,000
For the four-tenths
(4/10ths) of a knot ——a total sum of US
$175,000
For the five-tenths
(5/10ths) of a knot —— a total sum of US
$390,000
For the six-tenths
(6/10ths) of a knot ——– a total sum of US
$520,000
For the seven-tenths
(7/10ths) of a knot —— a total sum of US
$650,000
For the eight-tenths
(8/10ths) of a knot —— a total sum of US
$780,000
| * |
The above figures are not cumulative. |
9
However, unless the parties
agree otherwise, the total amount of reduction from the CONTRACT
PRICE shall not exceed the amount due to cover the deficiency of
eight-tenths (8/10ths) of one (1) knot below the
guaranteed speed at the rate of reduction as specified
above.
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(c) |
If the deficiency in actual speed of the VESSEL is more than
eight-tenths (8/10ths) of one (1) knot below the speed
guaranteed under this CONTRACT, then the BUYER, at its option, may,
subject to the BUILDER’s right to effect alterations or
corrections as provided in Article VI 5 . hereof, cancel this
CONTRACT or may accept the VESSEL at a reduction in the CONTRACT
PRICE as above provided for eight-tenths (8/10ths) of one
(1) knot of deficiency only. |
| 3. |
Excessive Fuel Consumption |
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(a) |
The CONTRACT PRICE shall not be affected or changed by reason
of the fuel consumption of the VESSEL’s main engine, as
determined by the engine manufacturer’s shop trial as per the
SPECIFICATIONS being more than the guaranteed fuel consumption of
the VESSEL’s main engine, if such excess is not more than
five per cent (5%) over the fuel consumption guaranteed in
Article I. 2 hereof. |
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(b) |
However, as for the excess of more than five per cent
(5%) in the actual fuel consumption over the guaranteed fuel
consumption of the VESSEL’s main engine the CONTRACT PRICE
shall be reduced by United States Dollars Ninety Thousand (US
$90,000), for each full one per cent (1%) increase in fuel
consumption in excess of the said five per cent (5%) increase
in fuel consumption [fractions of less than one per cent (1%) shall
be prorated] . However, unless the parties agree otherwise, the
total amount of reduction from the CONTRACT PRICE shall not exceed
the amount due to cover the excess of ten per cent (10%) over
the guaranteed fuel consumption of the VESSEL’s main engine
at the rate of reduction as specified above. |
10
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(c) |
If such actual fuel consumption exceeds the guaranteed fuel
consumption of the VESSEL’s main engine by more than ten per
cent (10%), the BUYER, at its option, may, subject to the
BUILDER’s right to effect alterations or corrections as
specified in Article VI . hereof, cancel this CONTRACT or may
accept the VESSEL at a reduction in the CONTRACT PRICE as above
provided for the ten per cent (10%) increase only. |
| 4. |
Deadweight below Contract Requirements |
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(a) |
The CONTRACT PRICE of the VESSEL shall not be affected or
changed, if actual deadweight, determined as provided in this
CONTRACT and the SPECIFICATIONS, is below the guaranteed deadweight
of 179,700 metric tons on the moulded design draft of 18.2 meters
required by this CONTRACT and the SPECIFICATIONS by an amount of
2,000 metric tons or less. |
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(b) |
However, should the deficiency in the actual deadweight of the
VESSEL be in excess of 2,000 metric tons below the said guaranteed
deadweight, then the CONTRACT PRICE of the VESSEL shall be reduced
for each full one (1) metric ton [fractions of less than one
(1) metric ton shall be disregarded] of decreased deadweight
in excess of 2,000 metric tons by the sum of United States Dollars
Seven Hundred (US $700) per metric ton. However, unless the
parties agree otherwise, the total amount of deduction from the
CONTRACT PRICE shall not exceed the amount due to cover the
deficiency of 4,500 metric tons below the guaranteed deadweight
hereinabove. |
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(c) |
If the deficiency in the deadweight of the VESSEL is more than
4,500 metric tons below the said guaranteed deadweight, then the
BUYER, at its option, may, subject to the BUILDER’s right to
effect alterations or corrections without the BUYER’s prior
consent as specified in Article VI.5 . hereof, cancel this CONTRACT
or may accept the VESSEL at a reduction in the CONTRACT PRICE as
above provided for 4,500 metric tons of deficiency
only. |
11
| 5. |
EFFECT OF CANCELLATION |
It is expressly understood
and agreed by the parties hereto that in any case, if the BUYER
cancels this CONTRACT under this Article, the BUYER shall not be
entitled to any liquidated damages.
12
ARTICLE IV
INSPECTION AND APPROVAL
| 1. |
Appointment of BUYER’s Representative |
The BUYER shall timely
despatch to and maintain at the SHIPYARD, at its own cost, expense
and risk, one or more representatives (hereinafter each called the
“BUYER’S REPRESENTATIVE”), who shall be duly
accredited in writing by the BUYER to supervise adequately the
construction by the BUILDER of the VESSEL, her equipment and all
accessories. Before the commencement of any item of work under this
CONTRACT, the BUILDER shall, whenever reasonably required,
previously exhibit, furnish to, and within the limits of the
BUYER’S REPRESENTATIVE’s authority, secure the approval
from the BUYER’S REPRESENTATIVE of any and all plans and
drawings prepared in connection therewith . Upon appointment of the
BUYER’S REPRESENTATIVE, the BUYER shall notify the BUILDER in
writing of the name and the scope of the authority of the
BUYER’S REPRESENTATIVE.
| 2. |
Authority of the BUYER’s Representative |
Such BUYER’S
REPRESENTATIVE shall, at all times during working hours of the
construction until delivery of the VESSEL, have the right to
inspect the VESSEL, her equipment and all accessories, and work in
progress, or materials utilized in connection with the construction
of the VESSEL, wherever such work is being done or such materials
are stored, for the purpose of determining that the VESSEL, her
equipment and accessories are being constructed in accordance with
the terms of this CONTRACT and/or the SPECIFICATIONS and the
PLAN.
The BUYER’S
REPRESENTATIVE shall, within the limits of the authority conferred
upon him by the BUYER, make decisions or give advice to the BUILDER
on behalf of the BUYER promptly on all problems arising out of, or
in connection with, the construction of the VESSEL and generally
act in a reasonable manner with a view to cooperating to the utmost
with the BUILDER in the construction process of the
VESSEL.
13
The decision, approval or
advice of the BUYER’S REPRESENTATIVE shall be deemed to have
been given by the BUYER and once given shall not be withdrawn,
revoked or modified except with consent of the BUILDER. Provided
that the BUYER’S REPRESENTATIVE or his assistants shall
comply with the foregoing obligations, no act or omission of the
BUYER’S REPRESENTATIVE or his assistants shall, in any way,
diminish the liability of the BUILDER under Article IX (WARRANTY OF
QUALITY). The BUYER’S REPRESENTATIVE shall notify the BUILDER
promptly in writing of his discovery of any construction or
materials, which he believes do not or will not conform to the
requirements of the CONTRACT, the SPECIFICATIONS and the PLAN and
likewise advise and consult with the BUILDER on all matters
pertaining to the construction of the VESSEL, as may be required by
the BUILDER, or as he may deem necessary.
However, if the BUYER’S
REPRESENTATIVE fails to submit to the BUILDER without delay any
such demand concerning alterations or changes with respect to the
construction, arrangement or outfit of the VESSEL, which the
BUYER’S REPRESENTATIVE has examined, inspected or attended at
the test thereof under this CONTRACT or the SPECIFICATIONS and the
PLAN, the BUYER’S REPRESENTATIVE shall be deemed to have
approved the same and shall be precluded from making any demand for
alterations, changes, or complaints with respect thereto at a later
date.
The BUILDER shall comply with
any such demand which is not contradictory to this CONTRACT, the
SPECIFICATIONS or the PLAN, provided that any and all such demands
by the BUYER’S REPRESENTATIVE with regard to construction,
arrangement and outfit of the VESSEL shall be submitted in writing
to the authorized representative of the BUILDER. The BUILDER shall
notify the BUYER’S REPRESENTATIVE of the names of the persons
who are from time to time authorized by the BUILDER for this
purpose .
It is agreed upon between the
BUYER and the BUILDER that the modifications, alterations or
changer and other measures necessary to comply with such demand may
be effected at a convenient time and place at the BUILDER’s
reasonable discretion in view of the construction schedule of the
VESSEL.
14
In the event that the
BUYER’S REPRESENTATIVE shall advise the BUILDER that he has
discovered or believes the construction or materials do not or will
not conform to the requirements of this CONTRACT and the
SPECIFICATIONS or the PLAN, and the BUILDER shall not agree with
the views of the BUYER’S REPRESENTATIVE in such respect,
either the BUYER or the BUILDER may, with the agreement of the
other party, seek an opinion of the CLASSIFICATION SOCIETY or
failing such agreement, request an arbitration in accordance with
the provisions of Article XIV hereof. The Principal Surveyor of the
CLASSIFICATION SOCIETY or the arbitration tribunal, as the case may
be, shall determine whether or not a nonconformity with the
provisions of this CONTRACT, the SPECIFICATIONS and the PLAN
exists.
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(a) |
The BUILDER shall submit to the BUYER three (3) copies of
each of the plans and drawings to be submitted to the BUYER for its
approval at its address as set forth in Article XIX hereof. The
BUYER shall, within twenty one (21) calendar days after
receipt thereof return to the BUILDER one (1) copy of such
plans and drawings with the approval or comments, if any, of the
BUYER. A list of the plans and drawings to be so submitted to the
BUYER shall be mutually agreed upon between the parties
hereto. |
| |
(b) |
When and if the BUYER’S REPRESENTATIVE shall have been
sent by the BUYER to the SHIPYARD in accordance with Paragraph 1 of
this Article, the BUILDER may submit the remainder, if any, of the
plans and drawings in the agreed list, to the BUYER’S
REPRESENTATIVE for his approval, unless otherwise agreed upon
between the parties hereto. |
The BUYER’S
REPRESENTATIVE shall, within seven (7) days after receipt
thereof, return to the BUILDER one (1) copy of such plans and
drawings with his approval or comments written thereon, if any.
Approval by the BUYER’S REPRESENTATIVE of the plans and
drawings duly submitted to him shall be deemed to be the approval
by the BUYER for all purposes of this CONTRACT.
15
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(c) |
In the event that the BUYER or the BUYER’S REPRESENTATIVE
shall fail to return the plans and drawings to the BUILDER within
the time limit as hereinabove provided, such plans and drawings
shall be deemed to have been automatically approved without any
comment. In the event the plans and drawings submitted by the
BUILDER to the BUYER or the BUYER’S REPRESENTATIVE in
accordance with this Article do not meet with the BUYER’s or
the BUYER’S REPRESENTATIVE’s approval, the matter may
be submitted by either party hereto for determination pursuant to
Article XIV hereof. If the BUYER’s comments on the plans and
drawings that are returned to the BUILDER by the BUYER within the
said time limit are not clearly specified or detailed, the BUILDER
shall be entitled to place its own interpretation on such comments
in implementing them. |
All salaries and expenses of
the BUYER’S REPRESENTATIVE or any other person or persons
employed by the BUYER hereunder shall be for the BUYER’s
account.
| 5. |
Responsibility of the BUILDER |
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(a) |
The BUILDER shall provide the BUYER’S REPRESENTATIVE and
his assistants free of charge with suitably furnished office space
equipped with air conditioning at, or in the vicinity of, the
SHIPYARD together with access to telephone and facsimile facilities
as may be necessary to enable the BUYER’S REPRESENTATIVE and
his assistants to carry out their work under this CONTRACT.
However, the BUYER shall pay for the telephone or facsimile
facilities used by the BUYER’S REPRESENTATIVE or his
assistants. |
The BUILDER, its employees,
agents and subcontractors, during its working hours until delivery
of the VESSEL, shall arrange for them to have free and ready access
to the VESSEL, her equipment and accessories, and to any other
place (except the areas controlled for the purpose of national
security) where work is being done, or materials are being
processed or stored in connection with the construction of the
VESSEL including the premises of sub-contractors.
16
The BUYER’S
REPRESENTATIVE or his assistants or employees shall observe the
work’s rules and regulations prevailing at the
BUILDER’s and its sub-contractor’s premises. The
BUILDER shall promptly provide to the BUYER’S REPRESENTATIVE
and/or his assistants and shall ensure that its sub-contractors
shall promptly provide all such information as he or they may
reasonably request in connection with the construction of the
VESSEL and her engines, equipment and machinery.
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(c) |
The BUYER’S REPRESENTATIVE and his assistants shall at
all times remain the employees of the BUYER. The BUILDER shall not
be liable to the BUYER or the BUYER’S REPRESENTATIVE or to
his assistants or to the BUYER’s employees or agents for
personal injuries, including death, during the time they, or any of
them, are on the VESSEL, or within the premises of either the
BUILDER or its sub-contractors, or are otherwise engaged in and
about the construction of the VESSEL, unless, however, such
personal injuries, including death, are caused by the gross
negligence of the BUILDER, its sub-contractors, or its or their
employees or agents. The BUILDER shall not be liable to the BUYER
for damages to, or destruction of property of the BUYER or of the
BUYER’S REPRESENTATIVE or his assistants or the BUYER’s
employees or agents, unless such damages, loss or destruction is
caused by the gross negligence of the BUILDER, its sub-contractors,
or its or their employees or agents. |
| 6. |
RESPONSIBILITY OF THE BUYER |
The BUYER shall undertake and
assure that the BUYER’S REPRESENTATIVE shall carry out his
duties, hereunder in accordance with the normal international
shipbuilding practice and in such way so as to avoid any
unnecessary increase in building cost, delay in the construction of
the VESSEL and/or any disturbance in the construction schedule of
the BUILDER.
17
The BUILDER has the right to
request the BUYER to replace the Representative who is deemed
unsuitable and unsatisfactory for the proper progress of the
VESSEL’s construction. The BUYER shall investigate the
situation by sending its representative(s) to the SHIPYARD if
necessary, and if the BUYER consider that such BUILDER’s
request is justified, the BUYER shall effect such replacement as
soon as conveniently arrangeable.
18
ARTICLE V
MODIFICATIONS, CHANGES AND EXTRAS
Minor modifications or
changes to the SPECIFICATIONS and the PLAN under which the VESSEL
is to be constructed may be made at any time hereafter by written
agreement of the parties hereto. Any modification or change
requested by the BUYER which does not affect the frame-work of the
SPECIFICATIONS shall be agreed to by the BUILDER if the BUYER
agrees to adjustment of the CONTRACT PRICE, deadweight and/or cubic
capacity, speed requirements, the DELIVERY DATE and other terms and
conditions of this CONTRACT reasonably required as a result of such
modification or change. The BUILDER has the right to continue
construction of the VESSEL on the basis of the SPECIFICATIONS and
the PLAN until the BUYER has agreed to such adjustments. The
BUILDER shall be entitled to refuse: to make any alteration, change
or modification of the SPECIFICATIONS and/or the PLAN requested by
the BUYER, if the BUYER does not agree to the aforesaid adjustments
within fourteen (14) days of the BUILDER’s notification
of the same to the BUYER, or, if, in the BUILDER’s judgement,
the compliance with such request of the BUYER would cause an
unreasonable disruption of the normal working schedule of the
SHIPYARD.
The BUILDER, however, agrees
to exert its efforts to accommodate such reasonable request by the
BUYER so that the said change and modification shall be made at a
reasonable cost and within the shortest period of time reasonably
possible. The aforementioned agreement to modify and change the
SPECIFICATIONS and the PLAN may be effected by exchange of letters
or facsimiles manifesting the agreement.
The letters and facsimiles
exchanged by the parties pursuant to the foregoing shall constitute
an amendment to this CONTRACT, the SPECIFICATIONS or the PLAN under
which the VESSEL shall be built. Upon consummation of such an
agreement to modify and change the SPECIFICATIONS or the PLAN, the
BUILDER shall alter the construction of the VESSEL in accordance
therewith including any addition to, or deduction from, the work to
be performed in connection with such construction.
19
| 2. |
Substitution of Material |
If any materials, machinery
of equipment required for the construction of the VESSEL by the
SPECIFICATIONS and the PLAN or otherwise under this CONTRACT cannot
be procured in time to meet the BUILDER’S construction
schedule for the VESSEL, or are in short supply, or are
unreasonably high in price compared with the prevailing
international market price, the BUILDER may supply, subject to the
BUYER’S prior written approval, other materials, machinery or
equipment of equal and effect capable of meeting the Rules and
Regulations of the CLASSIFICATION SOCIETY and other regulatory
bodies. The BUILDER shall not, however, be relieved of its
obligations if such non-availability could have been for seen or
occasioned by forward planning. In this case, the BUILDER shall not
be entitled to an extension of the DELIVERY DATE or to increase in
the CONTRACT PRICE by reason of such non-availability.
| 3. |
Changes in Rules and Regulations |
If the specified rules and
regulations with which the construction of the VESSEL is required
to comply are altered or changed after the date of this CONTRACT by
the CLASSIFICATION SOCIETY or bodies authorized to make such
alterations or changes, either the BUYER or the BUILDER, upon
receipt of due notice thereof, shall forthwith give notice thereof
to the other party in writing. Thereupon, within ten (10) days
after giving the notice to the BUILDER or receiving the notice from
the BUILDER, the BUYER shall advise the BUILDER as to the
alterations and changes, if any, to be made on the VESSEL which the
BUYER, in its sole discretion, shall decide. The BUILDER shall not
be obliged to comply with such alterations and/or changes if the
BUYER fails to notify the BUILDER of its decision within the time
limit stated above.
The BUILDER shall comply
promptly with the said request of the BUYER, provided that the
BUILDER and the BUYER shall first agree to:
| |
(a) |
any increase or decrease in the CONTRACT PRICE of the VESSEL
that is occasioned by such compliance; |
20
| |
(b) |
any extension or advancement in the DELIVERY DATE of the VESSEL
that is occasioned by such compliance; |
| |
(c) |
any increase or decrease in the deadweight and/or cubic
capacity of the VESSEL, if such compliance results in any increase
or reduction in the deadweight and/or cubic capacity; |
| |
(d) |
adjustment of the speed requirements if such compliance results
in any increase or reduction in the speed; and |
| |
(e) |
any other alterations in the terms of this CONTRACT or of the
SPECIFICATIONS and the PLAN or both, if such compliance makes such
alterations of the terms necessary. |
Any delay in the construction
of the VESSEL caused by the BUYER’s delay in making a
decision or agreement as above shall constitute a permissible delay
under this CONTRACT. Such agreement by the BUYER shall be effected
in the same manner as provided above for modification and change of
the SPECIFICATIONS and the PLAN.
This paragraph does not refer
to alterations or changes of rules and regulations of the
CLASSIFICATION SOCIETY which were announced to the BUILDER in
writing by the CLASSIFICATION SOCIETY on or before the date of
signing of this CONTRACT.
The BUILDER may, at its sole
discretion and responsibility, subcontract any part of the
construction work of the VESSEL. The BUYER shall be informed by the
BUILDER accordingly about the place where the subcontracting work
is to be carried out in advance so that supervision can be
performed properly.
21
ARTICLE VI
TRIALS AND COMPLETION
The BUILDER shall notify the
BUYER in writing or by facsimile at least fourteen (14) days
in advance of the time and place of the trial run of the VESSEL.
Such notice shall specify the place from which the VESSEL will
commence her trial run and approximate date upon which the trial
run is expected to take place. Such date shall be further confirmed
by the BUILDER five (5) days in advance of the trial run by
facsimile. The BUYER shall confirm in writing to the BUILDER that
the VESSEL is ready for sea trials. In case of dispute between the
parties whether the VESSEL is ready for sea trials the decision of
the representative of the CLASSIFICATION SOCIETY is
binding.
The BUYER’S
REPRESENTATIVE, who is to witness the performance of the VESSEL
during such trial run, shall be present at such place on the date
specified in such notice. Should the BUYER’S REPRESENTATIVE
fail to be present after the BUILDER’s due notice to the
BUYER as provided above, the BUILDER shall be entitled to conduct
such trial run with the presence of the representative(s) of the
CLASSIFICATION SOCIETY only without the BUYER’S
REPRESENTATIVE being present. In such case, the BUYER shall be
obliged to accept the VESSEL on the basis of a certificate issued
by the BUILDER that the VESSEL, after the trial run, subject to
alterations and corrections, if necessary, has been found to
conform with the SPECIFICATIONS and this CONTRACT and is
satisfactory in all respects, provided the BUILDER first makes such
corrections and alterations promptly.
In the event of unfavorable
weather on the date specified for the trial run, the trial run
shall take place on the first available day that weather conditions
permit. The parties hereto recognize that the weather conditions in
Korean waters, in which the trial run is to take place, are such
that great changes in weather may arise momentarily and without
warning and therefore, it is agreed that if, during the
trial
22
runs, the weather should
become so unfavorable that the trial run cannot be continued, then
the trial run shall be discontinued and postponed until the first
favorable day next following, unless the BUYER shall assent to the
acceptance of the VESSEL by notification in writing on the basis of
such trial run so far made prior to such change in weather
conditions. Any delay of the trial run caused by such unfavorable
weather conditions shall also operate to extend the DELIVERY DATE
of the VESSEL for the period of delay occasioned by such
unfavorable weather conditions.
All expenses in connection
with the trials of the VESSEL are to be for the account of the
BUILDER, which, during the trials, is to provide at its own expense
the necessary crew to comply with conditions of safe navigation.
The trials shall be conducted in the manner prescribed in this
CONTRACT and the SPECIFICATIONS, and shall prove fulfilment of the
performance requirements for the trials as set forth in the
SPECIFICATIONS.
The BUILDER shall be entitled
to conduct preliminary sea trials, during which the propulsion
plant and/or its appurtenance shall be adjusted according to the
BUILDER’s judgement. The BUILDER shall have the right to
repeat any trial whatsoever as it deems necessary. Furthermore the
BUYER’s REPRESENTATIVE is entitled to participate in any
preliminary sea trials conducted by the BUILDER.
The BUILDER shall load the
VESSEL with the required quantity of fuel oil, lubricating oil and
greases, fresh water, and other stores necessary to conduct the
trials as set forth in the SPECIFICATIONS. The necessary ballast
(fuel oil, fresh water and such other ballast as may be required)
to bring the VESSEL to the trial load draft, as specified in the
SPECIFICATIONS, shall be supplied and paid for by the BUILDER
whilst lubricating oil and greases shall be supplied and paid for
by the BUYER within the time advised by the BUILDER for the conduct
of sea trials as well as for use before the delivery of the VESSEL
to the BUYER. The fuel oil as well as lubricating oil and greases
shall be in accordance with the
23
engine specifications and the
BUYER shall decide and advise the BUILDER of the supplier’s
name for lubricating oil and greases before the work-commencement
of the VESSEL, provided that the supplier shall be acceptable to
the BUYER and/or the makers of all the machinery.
Any fuel oil, fresh water or
other consumable stores furnished and paid for by the BUILDER for
trial runs remaining on board the VESSEL, at the time of acceptance
of the VESSEL by the BUYER, shall be bought by the BUYER from the
BUILDER at the BUILDER’s purchase price for such supply in
Korea and payment by the BUYER thereof shall be made at the time of
delivery of the VESSEL. The BUILDER shall pay the BUYER at the time
of delivery of the VESSEL for the consumed quantity of any
lubricating oil and greases which were furnished and paid for by
the BUYER at the BUYER’s purchase price thereof. The consumed
quantity of lubricating oils and greases shall be calculated on the
basis of the difference between the remaining amount, including the
same remaining in the main engine, other machinery and their pipes,
stern tube and the like, and the supplied amount.
| 5. |
Acceptance or Rejection |
| |
(a) |
If, during any sea trial, any breakdown occurs entailing
interruption or irregular performance which can be repaired on
board, the trial shall be continued after such repairs and be valid
in all respects. |
| |
(b) |
However, if, during or after the trial run, it becomes apparent
that the VESSEL or any part of her equipment requires alterations
or corrections which but for this provision would or might entitle
the BUYER to cancel this CONTRACT, the BUILDER shall notify the
BUYER promptly in writing or by facsimile to such effect and shall
simultaneously advise the BUYER of the estimated additional time
required for the necessary alterations or corrections to be
made. |
The BUYER shall, within two
(2) days of receipt from the BUILDER of notice of completion
of such alterations or corrections and after such further trials or
tests as necessary, notify the BUILDER in writing or by
24
facsimile confirmed in
writing of its acceptance, qualified acceptance or rejection of the
VESSEL, all in accordance with the SPECIFICATIONS and the PLAN and
this CONTRACT, and shall not be entitled to reject the VESSEL on
such grounds until such time.
| |
(c) |
Save as above provided, the BUYER shall, within two
(2) days after completion of the trial run, notify the BUILDER
in writing or by facsimile confirmed in writing of its acceptance
of the VESSEL or of the details in respect of which the VESSEL does
not conform to the SPECIFICATIONS and the PLAN or this
CONTRACT. |
If the BUILDER is in
agreement with the BUYER’s determinations as to
non-conformity, the BUILDER shall make such alterations or changes
as may be necessary to correct such non-conformity and shall prove
the fulfilment of this CONTRACT and the SPECIFICATIONS by such
tests or trials as may be necessary.
The BUYER shall, within two
(2) days after completion of such tests and/or trials, notify
the BUILDER in writing or by facsimile confirmed in writing of its
acceptance or rejection of the VESSEL.
| |
(d) |
However, the BUYER shall not be entitled to reject the VESSEL
by reason of any minor or insubstantial items judged from the point
of view of standard shipbuilding and shipping practice as not being
in conformity |
|