EXHIBIT 10.1
VESSEL CONSTRUCTION CONTRACT
THIS CONTRACT entered into as of this September 6, 2005 by and
between
Trinity Marine Products, Inc., a corporation organized and existing
under the
laws of the state of Delaware (the "Builder"), and M/G Transport
Services, Inc.,
a corporation organized and existing under the laws of the state of
Ohio the
"Purchaser").
W I T N E S S E T H:
ARTICLE I - DESCRIPTION OF VESSEL:
Builder, in consideration of the obligations of Purchaser set forth
in this
Contract, agrees to build, equip, and complete, free and clear of
any liens,
claims and encumbrances, the barge(s) (hereinafter referred to as
the "Vessel",
whether one or more), described on the attached Exhibit "A" and
which shall be
constructed in accordance with the documents referred to in such
Exhibit
(hereinafter, the "Contract Documents"), all of which have
concurrently been
identified by the parties and made a part of this Contract as if
fully set forth
herein.
Except for any Purchaser furnished equipment as may be listed in
the
Contract Documents, Builder agrees to furnish all plant, labor,
tools, equipment
and material, consumable or direct, necessary for the construction
and delivery
of the Vessel.
The Vessel shall be constructed to meet the applicable requirements
of the
regulatory bodies as set forth in the Contract Documents and, to
the extent
required by the Contract Documents; certificates evidencing the
required
classifications shall be furnished by Builder to Purchaser.
If any changes in the rules and regulations of the American Bureau
of
Shipping or other applicable classification society or of any
governmental
agency are made subsequent to the date of execution of this
Contract
necessitating alterations or additions to the Vessel, the result of
which is the
cost of the Vessel is increased and/or the time required for
completion for the
Vessel is extended, Purchaser shall authorize, and pay for, as a
change order
under this Contract, any such alterations, additions, outfit and/or
equipment,
and shall grant Builder any extension of the Date of Delivery, as
defined in
this Contract, as may be required to comply with any such
regulatory change.
All provisions, conditions or requirements contained in the
Contract
Documents and any other provision, condition or requirement
inconsistent or in
conflict with the provisions of this Contract are superseded by
this Contract,
it being the intent of the parties that the provisions of this
Contract shall
prevail. If there is any conflict or inconsistency between the
Drawings and
Specifications, the Specifications shall control.
ARTICLE II - PRICE AND PAYMENT:
Purchaser agrees to pay Builder for each Vessel the sum(s) as set
forth in
Exhibit "A" in United States Dollars (hereinafter the "Contract
Price".) The
schedule of payments to be made by Purchaser for the Vessel is also
set forth in
Exhibit "A" to this Contract.
Builder shall submit invoices for each payment as set forth on
Exhibit "A",
except for any initial payment, with invoice(s) being due and
payable according
to the terms of Exhibit "A". Builder may, in its discretion, charge
Purchaser
interest on any amounts hereunder, if not paid when due, at the
rate of 2-1/2%
per annum above the prime rate of JPMorgan Chase Bank, Houston,
Texas, accruing
from the date such amount is due until paid in full. The full
Contract Price,
including any amounts or credits due for extras, change orders,
other additional
costs as provided in this Contract, and interest shall be paid in
immediately
available funds upon delivery of the Vessel. If any invoice is not
paid when
due, Builder may, at its discretion, withhold issuance and delivery
of the
Builder's Certificate until receipt of payment, including payment
of any accrued
interest.
Additionally, as security for the payment and fulfillment of its
obligations to Builder hereunder, Purchaser hereby grants to
Builder a first
priority security interest in the Vessel and the products, proceeds
and
accessions of and to the Vessel, together with all right, title and
interest of
Purchaser therein and all rights and remedies which Purchaser might
exercise
with respect thereto but for the execution of this Contract.
Purchaser
acknowledges that this Agreement shall constitute a security
agreement between
the parties, and Purchaser shall promptly take all action requested
by Builder
to create, establish, maintain and perfect such a security
interest, including,
but not limited to, executing security agreements and uniform code
financing
statements in forms approved by Builder in its sole and absolute
discretion.
Builder agrees to not record its security interest unless payment
is not
properly made when due hereunder and Builder gives Purchaser notice
of any such
filing. Upon Builder's receipt of payment of the Contract Price,
plus any
accrued interest, for the Vessel, the security interest as to each
paid Vessel
shall terminate.
If any invoice is not paid when due, Builder may, at its
discretion,
suspend or reschedule progress of the work (such right being in
addition to any
other right at law or in equity), and Purchaser shall then be
obligated to
Builder, in addition to other amounts becoming due hereunder, for
any direct
costs resulting from such suspension or rescheduling of the work.
In addition to
any other remedies available to Builder at law or in equity,
Builder shall be
entitled either to terminate this Contract or to sue Purchaser for
specific
performance of this Contract. If Builder elects to terminate this
Contract,
Builder shall have the option, in its sole discretion, to (i) sue
Purchaser for
damages as a result of its breach and apply any deposits or other
payments made
hereunder toward those damages, or (ii) retain title to the Vessel,
free of any
claim of Purchaser, and retain any deposits or other payments made
hereunder. In
any such event, Builder shall have no further obligation whatsoever
to
Purchaser.
ARTICLE III - TIME AND CONDITIONS OF DELIVERY:
The Vessel, after completion, in accordance with the Contract
Documents,
shall be delivered to Purchaser, on or before the date indicated on
the attached
Exhibit "A" (hereinafter called the "Date of Delivery") , or on
such later date
or dates as provided for in Articles I, IV, and VI hereof (the
"Extended Date of
Delivery").
Builder shall deliver the Vessel to Purchaser at a location as set
forth on
the attached Exhibit "A" (the "Place of Delivery"). All costs and
expenses of
transporting the Vessel to the Place of Delivery, if other than
Builder's yard,
shall be borne by and be the obligation of the Builder. All costs
and expenses
of operating and/or transporting the Vessel after it has reached
the Place of
Delivery shall be borne by and be the obligation of Purchaser.
Builder shall furnish Purchaser on delivery of the Vessel a
Builder's
Certificate, together with any other documents as may be required
by the
Contract Documents. Builder shall also furnish whatever other
documents that may
be required by any regulatory agency of the United States having
relevant
jurisdiction in order for Purchaser to document the Vessel in its
name. Any cost
or expense in connection with the documentation of the Vessel with
the U. S.
Coast Guard or other governmental agency shall be paid by Builder.
The Vessel shall be delivered by Builder to Purchaser with a clear
and
merchantable title, free and clear of all maritime and non-maritime
liens,
claims, encumbrances and charges of whatsoever kind and nature. In
addition to
and notwithstanding the foregoing, Builder agrees to indemnify
Purchaser and
hold it harmless from and against all liens and claims for labor,
material, or
the like arising solely out of, in connection with, or resulting
from the
operations or activities of Builder, its employees or agents or
subcontractors
and the employees or agents of their subcontractors, and agrees to
defend any
such claim asserted or suit brought against Purchaser and to pay
any judgment
rendered in any such action.
Purchaser shall execute a Delivery and Acceptance Certificate
immediately
prior to the time of delivery of the Vessel, substantially in the
form of
Exhibit "B".
Should Purchaser fail to take delivery of the Vessel within ten
(10) days
of receipt of written notice that the Vessel is complete and
available for
Delivery in accordance with the Contract Documents, Purchaser shall
be in
default of this Contract, and Builder shall have the right to
mitigate its
damages and protect its rights and interests, including, but not
limited to, the
right to sue for specific performance of this Contract, to retain
any deposits
or other payments made hereunder, to retain title to the Vessel
and/or to sell
the Vessel free of any claim of Purchaser at a price acceptable to
Builder.
Builder's exercise of the foregoing remedies, or any other remedies
or rights,
shall not be deemed a waiver or release by Builder of any other
rights or
remedies that Builder may have at law or in equity, including, but
not limited
to, the right to sue for any additional damages, costs, expenses or
attorneys'
fees incurred by Builder as a result of Purchaser's default.
ARTICLE IV - CHANGES IN THE DRAWINGS AND SPECIFICATIONS:
Subject to the requirements of other work and orders, both current
and
future, in Builder's yard, Purchaser has the right to request any
deletions from
or additions to the plans and specifications for the Vessels on
giving due
notice in writing to Builder, the dollar amount of any such changes
to be agreed
upon in advance by Purchaser and Builder, and added to, or deducted
from, the
total Contract Price for the Vessels. If any such change shall
delay the
completion of the Vessel, Builder shall be allowed a reasonable
extension of
time of the Date of Delivery for such Vessel sufficient to cover
such delay. A
statement of the increase or decrease of the Contract Price, and/or
any
additional contract time required, as aforesaid, shall be submitted
to Purchaser
by Builder, and shall be approved by Purchaser in writing (which
approval shall
not be unreasonably withheld) before any such change is made.
Notwithstanding
the foregoing, no change shall be made in the general dimensions
and/or
characteristics of the Vessel which would diminish the capacity of
the Vessel to
perform as originally intended by the Contract Documents, except by
mutual
consent of the parties.
ARTICLE V - INSPECTION BY PURCHASER'S REPRESENTATIVE(S):
Builder will furnish reasonable space at its yard for the duly
authorized
representative (s) of Purchaser who shall have reasonable access to
the work of
Builder during normal yard hours. Purchaser's representative (s)
shall promptly
inspect and accept all workmanship and material which is in
conformity with the
Contract Documents and shall, with equal promptness, reject all
workmanship and
material which does not comply with the Contract Documents,
provided that the
acceptance of such workmanship and material by Purchaser's
representative shall
not prejudice the rights of Purchaser under the provisions of
Article VII
hereof. Purchaser's representatives shall comply with all safety
procedures and
rules of Builder then in effect in Builder's yard.
ARTICLE VI - FORCE MAJEURE:
The Date of Delivery of the Vessel shall be subject to extension by
reason
of Force Majeure, which term is hereby defined to include all
causes whatsoever
beyond the reasonable control of Builder, including, but not be
limited to, the
following: strikes, lockouts or other industrial disturbances;
shortages or late
delivery of supplies, equipment or material (including steel,
tubing, piping,
wiring and all components); unavailability, interruptions or
inadequacy of fuel
supplies; acts of God; acts of the Purchaser, its officers,
directors,
employees, agents or contractors; war, preparation for war or the
acts or
interventions of naval or military executives or other agencies of
government;
blockade, sabotage, vandalism, malicious mischief, bomb scares,
insurrection or
threats thereof; landslides, floods, hurricanes and earthquakes;
collisions or
fires; delays of subcontractors or of carriers by land, sea or air;
non-delivery
and/or late delivery of any Purchaser-furnished supplies, material,
equipment or
labor, including plans, drawings or engineering; delays due to
changes in
drawings or specifications; and any delays in a previously
contracted Vessel,
which precede the Vessel, the subject of this Contract, in
Builder's production
schedule caused by one of the circumstances enumerated in this
Contract. Adverse
weather, including but not limited to, rain, temperature or high
humidity, shall
not be considered a Force Majeure event unless its occurrence
requires a shut
down of a substantial portion of Builder's yard and/or the
painting/coating area
of Builder's yard prior to 12:00 noon on a regularly scheduled work
day and, for
each such day, Builder shall be entitled to an extension of the
Delivery Date
equal to one (1) regularly scheduled work day of the Builder (which
is Monday
through Friday and excludes Saturdays, Sundays and holidays).
Delays in
receiving material, equipment or fuel, short deliveries thereof
(except
Purchaser-furnished material) or delays of subcontractors shall be
considered
Force Majeure events only if Builder shows that such materials,
equipment, fuel
or services were timely ordered, that due diligence was exercised
to obtain
timely delivery thereof and that no other alternate source of
supply was
reasonably available.
Shortages of skilled workers shall not be considered a Force
Majeure event
unless Builder shows that diligence has been used in recruiting,
hiring and
maintaining a sufficient work force and that Builder's wage scale
for each
classification of employee, during the pendency of this Contract,
retains the
same competitive relationship as exists as of the date of this
Contract between
Builder's labor force and that of comparable yards in the
geographic area of
Builder's yard in which the Vessel is being constructed.
If the completion of the Vessel is delayed by one or more events of
Force
Majeure, the Date of Delivery shall be extended by a period of time
as may be
reasonably necessary under the circumstances to complete the
Vessel, and at a
minimum, shall be equal to one (1) regularly scheduled work day of
the Builder
(which is Monday through Friday and excludes Saturdays, Sundays and
holidays)
for each day, or portion thereof, by which the delivery of the
Vessel was
delayed by such events of Force Majeure. However, the Date of
Delivery shall not
be extended unless Builder notifies Purchaser in writing within
twenty (20) days
of the beginning of a delay caused by a Force Majeure event,
describing the
circumstances and providing an estimate, if possible, of the extent
of the
probable delay.
ARTICLE VII - WARRANTY:
A. Warranty for Vessel
Builder warrants to Purchaser that the Vessel shall be free from
defects in
workmanship and shall conform to the requirements of the Contract
Documents.
B. Warran
