EXHIBIT 10(j)
CLIFFORD LIMITED LIABILITY PARTNERSHIP
CHANCE
SHIPBUILDING CONTRACT
BETWEEN
JOS. L. MEYER GMBH
AND
NEWBUILD HOLDING, LTD.
AND
NCL CORPORATION LTD.
IN RELATION TO HULL NO. S.670
FIRST ORIGINAL
CONTENTS
CLAUSE PAGE
Article 1: Subject Matter Of Contract....................................... 1
1. Agreement To Build, Sell And Purchase.............................. 1
2. Description Of The Ship............................................ 2
3. Specification And Plans............................................ 3
4. Classification.........,........................................... 4
5. Builder's Right To Subcontract..................................... 6
6. Buyer's Supplies................................................... 7
7. Builder's Tally Of Buyer's Supplies................................ 8
Article 2: Supervision...................................................... 9
1. Supervisor......................................................... 9
2. Plan Approval...................................................... 10
3. Work Approval...................................................... 11
4. Planned Programme.................................................. 12
5. Minor Alterations.................................................. 12
6. Technical Disputes................................................. 13
Article 3: Modifications.................................................... 14
1. Modifications...................................................... 14
2. Classification And Regulatory Changes.............................. 14
3. Substitution Of Parts.............................................. 15
Article 4: Title And Insurances............................................. 16
1. Title, Risk And Encumbrances....................................... 16
2. Insurances......................................................... 17
3. Loss Or Damage..................................................... 18
Article 5: Permissible Delays............................................... 20
1. Extension Of Time For Building Work................................ 20
2. Delay Notices...................................................... 22
Article 6: Tests And Liquidated Damages..................................... 23
1. Tests.............................................................. 23
2. Liquidated Damages................................................. 25
Article 7: Delivery And Guarantee........................................... 31
1. Delivery And Acceptance............................................ 31
2. Guarantee.......................................................... 34
FIRST ORIGINAL
Article 8: Contract Price And Payment Terms................................. 39
1. Contract Price..................................................... 39
2. Payments........................................................... 39
Article 9: Termination...................................................... 42
1. Termination By Builder............................................. 42
2. Termination By Buyer............................................... 43
3. Termination By Either Party........................................ 46
Article 10: Builder's Representations, Covenants And Indemnities............ 47
1. Representations, Warranties And Covenants.......................... 47
2. Indemnities........................................................ 47
Article 11: Intellectual Property Rights.................................... 49
1. Patents, Trade Marks And Copyrights................................ 49
2. Rights To Engineering And Design Data.............................. 50
Article 12: Taxes And Contract Expenses..................................... 51
1. Taxes.............................................................. 51
2. Contract Expenses.................................................. 51
Article 13: Disputes........................................................ 52
1. Technical Disputes................................................. 52
2. Jurisdiction....................................................... 53
3. Governing Law...................................................... 53
4. Notices............................................................ 54
Article 14: General Matters................................................. 56
1. Computation Of Time................................................ 56
2. Assignments........................................................ 56
3. Partial Illegality................................................. 56
4. Confidentiality.................................................... 57
5. Amendments......................................................... 57
6. No Waiver.......................................................... 57
7. Consents........................................................... 57
8. Language........................................................... 58
9. Models............................................................. 58
10. Counterparts....................................................... 58
11. Effective Date..................................................... 58
12. Protected Parties.................................................. 59
13. Guarantee.......................................................... 59
FIRST ORIGINAL
14. Un Convention...................................................... 60
Schedule 1.................................................................. 61
1. Definition Of Certain Terms........................................ 61
2. Interpretation Of Certain References............................... 64
3. Priority Of Contract, Plans And Specification...................... 65
Schedule 2.................................................................. 67
1. Form Of Guarantee- See Article 8, Clause 2.3(Ii)................... 67
FIRST ORIGINAL
THIS SHIPBUILDING CONTRACT is dated as of 3 May 2005 and made between:
(1) JOS.L.MEYER GMBH, a company organised and existing under the laws of
Germany, and having its principal office at Industriegebiet Sud, D-26871
Papenburg, Germany (the "BUILDER"); and
(2) NEWBUILD HOLDING, LTD., a company incorporated in Bermuda and having its
registered office at Milner House, 18 Parliament Street, Hamilton HM12,
Bermuda (the "BUYER"); and
(3) NCL CORPORATION LTD., a company incorporated in Bermuda having its
registered office at Milner House, 18 Parliament Street, Hamilton HM12,
Bermuda ("NCLC").
NOW IT IS HEREBY AGREED as follows:
ARTICLE 1: SUBJECT MATTER OF CONTRACT
1. AGREEMENT TO BUILD, SELL AND PURCHASE
1.1 On and subject to the provisions of this Contract, the Plans and the
Specification:-
(i) the Builder shall:
(a) design, engineer, build, launch, equip and outfit the Ship at
the Shipyard, and
(b) provide all components, equipment, gear, fittings, machinery,
materials, parts, plant, outfit, spares and supplies which are
necessary to achieve the objects and purposes described in
Clause 1.1 (i) (a) (the "PARTS") other than the specified
supplies to be provided by the Buyer (the "BUYER'S SUPPLIES"),
and
(c) complete, finish, sell and deliver the Ship to the Buyer at a
North European sea port (the "DELIVERY PORT") selected by the
Builder and approved by the Buyer (such approval not to be
unreasonably withheld or delayed) after successful performance
and completion of the tests relating to the Ship; and
(ii) the Buyer shall purchase and accept delivery of the duly completed
Ship at the Delivery Port.
1.2 The Builder, as a first class shipbuilder with a reputation for excellence
and with knowledge of the Buyer's performance and quality requirements and
standards shall ensure that all building work shall be carried out in a
good and workmanlike manner and in accordance with the highest
shipbuilding and marine engineering practices and standards for new
passenger cruise ships, and so that (unless specified to the contrary in
the Specification) the quality of workmanship, quality of Parts, function
and performance of systems, and aesthetic design of the passenger cabins
and public areas shall not be lower than the highest of the corresponding
quality standards on the reference ships, as built by the Builder and
accepted by the respective buyers of the reference ships.
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FIRST ORIGINAL
2. DESCRIPTION OF THE SHIP
2.1 The Ship shall be a luxury passenger cruise ship suitable for continuous
year-round worldwide cruising and capable of transiting the Panama Canal,
with the following main dimensions and characteristics:
(i) DIMENSIONS
Length overall about* - 294.13 metres
Length between perpendiculars: - 264.80 meters
Breadth moulded - 32.20 metres
Depth bulkhead deck -11.50 metres
Design draft - 8.30 metres
*The Builder is allowed a tolerance of+/-1 metre provided always
that the Ship's overall length must not exceed the maximum overall
length required to enable the Ship to transit the Panama Canal.
(ii) DEADWEIGHT
The guaranteed deadweight at a design draft of 8.30 metres will be
7,500 metric tons in seawater of 1.025 t/m3 density (and under the
conditions further described in section G.2.3 of the Specification).
The deadweight is the difference between the loaded displacement and
the contractual lightweight. The contractual lightweight is the
weight of the Ship clean, empty, equipped ready for sea in
accordance with the Specification and adjusted by any weight (and
related ballast) added or subtracted by reason of any agreements on
modification (a) made at any time under Article 3 of this Contract,
(b) made at any time up to the date of this Contract under Article 3
of the contract for Hull S.669 "Norwegian Pearl", and (c) made at
any time up to the date of the contract for Hull S.669 "Norwegian
Pearl" under Article 3 of the contract for Hull S.667 "Norwegian
Jewel".
(iii) PASSENGER AND CREW CABINS
Garden Villas-2
Executive suites - 4
Junior suites - 20
Studio - 20
Deluxe - 132
Standard outside with balcony - 352
Standard outside - 235
Standard inside - 398
Handicapped - 25
(iv) CREW CABINS
Captain class - 7
Officer, single occupancy - 54
Petty officers - 54
Crew, two (2) berth - 71
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FIRST ORIGINAL
Crew, three (3) berth -13
Crew, four (4) berth - 217
(v) LIFE SAVING EQUIPMENT
Total number of persons on board for the purposes of long
international voyages - 4,000.
(vi) MACHINERY
Diesel engines 5 x MAN B&W 12V 48/60 B each capable of a maximum
continuous rating of 14,400 kW at 514 rpm
(or equivalent)
Pod units 2 pod units each developing 19,500 kW at
approximately 150 rpm
(vii) SPEED
The trial speed of the Ship at a draft of [***] [Confidential
Treatment] shall be at least [***] [Confidential Treatment] under
the conditions specified in Section G .2.5 of the Specification.
2.2 The details of the dimensions and characteristics referred to in Clause
2.1 above, as well as the definitions and method of measurements and
calculations, are as indicated in the Specification and no changes shall
be made to such dimensions and characteristics without the Buyer's prior
written approval.
2.3 The hull number of the Ship will be S.670 and that number shall in
accordance with Clause 1.1 and 1.2 in Article 4 be placed upon the Ship
and the Parts during construction.
3. SPECIFICATION AND PLANS
3.1 The Specification and the Plans describe in detail building work
standards, the features of the building work and the general scope of the
building work but, although the contents of the Specification and the
Plans are believed by the Builder and the Buyer to be accurate, all
dimensions and other details shall be independently verified and checked
by the Builder and, if there are any errors or omissions in the
Specification or Plans which may adversely affect the safety,
seaworthiness or technical performance of the Ship, the Builder shall
correct the same, after first notifying the Buyer in writing and obtaining
the Buyer's written approval (which is not to be unreasonably withheld),
without any increase in the Contract Price.
3.2 The Builder shall be solely and directly responsible for all aspects of
the design, performance and quality of the building work, and the fact
that any calculations, measurements, drawings, plans, test results or any
other documents and data relating to the building work shall have been
made, prepared or supplied by the Buyer or shown to the Buyer or approved
by the Buyer and/or any Regulatory Authority and/or the Classification
Society and/or any other specified person(s) or that modifications or
alterations shall have been carried out in accordance with the Buyer's
requirements shall not in any manner or to any extent relieve the Builder
from (or otherwise reduce) any of the Builder's obligations and/or
liabilities under this Contract.
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FIRST ORIGINAL
3.3 All Parts shall be new or (with the Supervisor's prior written approval
which shall not be unreasonably withheld) unused, of high quality, and in
strict and full accordance and compliance with this Contract, the Plans
and the Specification and shall otherwise be in strict and full accordance
and compliance with the Builder's usual high standards and practices of
construction for similar passenger ships.
3.4 The Builder shall pay for all Parts promptly on or before delivery of the
ship or in accordance with usual commercial credit terms.
3.5 The Builder shall furnish: spare parts in accordance with the
Specification; and maintenance tools of the kind and in at least the
quantities required by the Specification, the Classification Society, and
the makers' standards, for items furnished by the Builder. The cost of
such spares and tools are included in the Contract Price. The Builder at
its own cost and risk shall be responsible for the handling, storing and
bringing on board the Ship of all spares and tools. Spares and tools
furnished by the Builder shall be properly protected against physical
decay, corrosion and mechanical damage and shall be properly listed so
that replacements may be readily ordered by the Buyer.
4. CLASSIFICATION
4.1 The Builder shall design and build the Ship under the supervision and
special survey of Det Norske Veritas (the "CLASSIFICATION SOCIETY"), in
accordance with the regulations, requirements, resolutions and rules of
the Classification Society (the "CLASS RULES") that are (i) in force as of
the Effective Date and (ii) announced as of the Effective Date as intended
at any time thereafter to come into force or to be implemented. On
delivery the Ship shall achieve the class notation + 1AI Passenger Vessel,
ECO, CLEAN free of all conditions, notations, qualifications,
recommendations, reservations and restrictions.
4.2 The Classification Society's decision as to compliance or non-compliance
of the building work with the Class Rules shall be final and binding on
the parties but this provision shall not in any manner or to any extent
relieve the Builder from (or otherwise reduce) any of the Builder's
obligations to comply with this Contract, the Plans and the Specification
in respect of requirements that exceed the Class Rules.
4.3 The Builder shall also design and build the Ship under the supervision and
in accordance with the regulations, requirements, resolutions and rules of
the Regulatory Authorities (the "REGULATORY RULES") as well as all other
specified regulations, requirements, resolutions and rules that, are (i)
in force as of the Effective Date and (ii) announced as of the Effective
Date as intended at any time thereafter to come into force or to be
implemented.
4.4 The decision of any Regulatory Authority which is to issue specified
certificates shall be final and binding on the parties as to compliance or
non-compliance of the building work with the relevant Regulatory Rules but
this provision shall not in any manner or to any extent relieve the
Builder from (or otherwise reduce) any of the Builder's obligations to
comply with this Contract, the Plans or the Specification in respect of
requirements which exceed the Regulatory Rules.
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FIRST ORIGINAL
4.5 All classification, certification, testing, survey and other fees and
charges payable to the Classification Society and other third parties in
relation to the building work shall be for the account of the Builder.
4.6 Although the Classification Society will be appointed and paid for by the
Builder, and although the Builder will be exclusively responsible for the
correct interpretation and application of the Class Rules:
(i) the parties intend that, in performing its role in relation to the
building work, the Classification Society shall be acting for, and
shall owe identical duties to, both of the parties to this Contract;
and
(ii) the Builder will ensure that the provisions of this Clause 4.6 are
communicated to, and accepted by, the Classification Society prior
to its appointment under this Contract.
4.7 All fees and charges incidental to the registration of the Ship under the
flag and laws of the Flag State shall be for the account of the Buyer.
4.8 In relation to the building work, the Buyer has the right:
(i) to inspect all correspondence, minutes of meetings and other
documents passing between the Builder and the Classification Society
or the Regulatory Authorities and to have copies thereof upon
request of the Supervisor or the Buyer; and
(ii) to attend all scheduled meetings between the Builder and the
Classification Society or the Regulatory Authorities,
and the Builder shall provide (or procure that the Classification Society
or Regulatory Authorities provide) copies of all documents requested under
paragraph (i) above and shall keep the Buyer well informed (in advance) of
all of the meetings referred to in paragraph (ii) above. The Builder will
promptly inform the Supervisor of any unscheduled meetings between the
Builder and the Classification Society or the Regulatory Authorities and,
if the Supervisor does not attend any of such meetings, the Builder will
give the Supervisor a reasonably detailed account of the matters discussed
and decisions taken at the meeting.
4.9 The Builder and its subcontractors shall comply with all laws, rules and
regulations applicable to the building work, and the Builder shall obtain
all licenses, permits, certificates and permissions required for the
execution and completion of the building work, including those required by
the Classification Society and the Regulatory Authorities.
4.10 The Builder shall be responsible for obtaining the approval of all
drawings, calculations and other necessary matters by the Classification
Society and the Regulatory Authorities, and shall arrange for all
applicable certificates and approvals to be issued.
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FIRST ORIGINAL
5. BUILDER'S RIGHT TO SUBCONTRACT
5.1 The Builder shall not subcontract the whole of the building work but it
may subcontract the performance of certain parts of the building work to
reputable and suitably qualified and experienced subcontractors provided
that for any major subcontracting the Builder shall obtain the prior
written consent of the Buyer (which consent shall not be unreasonably
withheld), it being agreed that "MAJOR SUBCONTRACTING" shall mean any
construction or assembly of the Ship's volume sections or installation of
the Ship's machinery and other main Parts, or any other major building
work, to be done outside the Shipyard unless customarily done outside the
builders' yards in connection with the construction of luxury passenger
ships within the North/Northwest European shipbuilding industry.
5.2 The Builder's appointment, contracting, employment or use of any workmen,
subcontractors, agents and other representatives (including, without
limitation, any such persons appointed or employed or contracted by the
Builder with the Buyer's approval) shall not in any manner or to any
extent relieve the Builder from (or otherwise reduce) any of the Builder's
obligations and/or liabilities under or in connection with this Contract
nor diminish the Builder's responsibility adequately to manage and
supervise such persons and to ensure that they conduct themselves in an
efficient and workmanlike manner and in accordance with the practices and
standards referred to in Clauses 1.2.
5.3 The Builder covenants with the Buyer that;
(i) it shall ensure that there is not and will not be created by the
Builder any direct or indirect contractual or other legal
relationship between the Buyer and any subcontractors appointed or
otherwise used by the Builder (save for such relationships as may be
created by reason of the warranty and guarantee assignments to be
made by the Builder under Clause 2.10 of Article 7);
(ii) it shall take reasonable care in the selection, employment,
appointment and supervision of all subcontractors, and shall use its
best endeavours to procure their employment or appointment on the
best possible terms consistent with the Buyer's rights, and the
Builder's obligations and liabilities, under this Contract
including, without limitation, such matters as (a) the best possible
guarantees and warranties and liberty for the Builder to assign all
or any part(s) of such guarantees and warranties to the Buyer, (b)
the safety of passengers and crew, (c) good service, (d) reliability
of subcontractors, and (c) availability of spares and post-delivery
service support;
(iii) it shall prevent its subcontractors from exercising any rights
(including without limitation, any German Law Encumbrance Rights) to
arrest, attach, detain or encumber the Ship, the Parts or any of the
Buyer's Supplies;
(iv) it shall promptly provide the Buyer with such information and access
as it may require from time to time in order to verify the
performance of the supply and building work carried out by the
Builder's subcontractors;
(v) it shall promptly (a) deal with the Buyer's reasonable complaints
regarding the terms of engagement or contract of any of its
subcontractors, and/or (b) take
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FIRST ORIGINAL
necessary steps to ensure the proper performance of any such
subcontractors, and/or (c) comply with any reasonable requests by
the Buyer to terminate any such engagement or contract and appoint a
substitute subcontractor; and
(vi) it shall be fully, directly and solely responsible (as between the
Builder, the Buyer and the other protected parties) for the acts,
omissions and defaults of the Builder's subcontractors (including,
without limitation, any persons appointed, employed or contracted by
the Builder with the approval of the Buyer) and for the acts,
omissions and defaults of the respective officers, employees,
workmen, agents and other representatives of the Builder and its
subcontractors.
5.4 The Buyer shall have the right to approve the identity of all main
subcontractors other than those specified in the List of Suppliers, such
approval not to be unreasonably withheld.
5.5 All labour costs (including overtime costs) of the Builder and of the
workmen, subcontractors, and others used by the Builder shall be for the
account of the Builder.
6. BUYER'S SUPPLIES
6.1 The Buyer, at its own risk and expense, shall contract for, supply and
deliver the Buyer's Supplies to the Shipyard and, in the case of certain
materials, to the Builder's facility at the base port for trials in proper
condition for installation or incorporation in, or stowage on board, the
Ship in precise accordance with a delivery schedule to be agreed between
the Buyer and the Builder within one hundred and eighty (180) days after
the Effective Date.
6.2 The Builder shall, at its own risk and expense, receive, check as to
agreement with transport documents, insure (in accordance with Clause 2 of
Article 4), safely store and keep well protected, and properly inspect,
put on board and thereafter install or incorporate in or Stow on the Ship,
all of the Buyer's Supplies from time to time delivered to the Shipyard,
and (whenever so requested by the Supervisor) the Builder shall also
assist the Buyer to clear any Buyer's Supplies through German customs and
(in relation to the materials which are to be delivered at the base port
for trials) through the relevant customs. Upon request by the Builder, the
Buyer's available personnel at the Shipyard will assist in the
installation of the Buyer's Supplies.
6.3 In order to facilitate the inspection, installation and incorporation of
the Buyer's Supplies by the Builder, the Buyer shall furnish the Builder
with all plans, instruction books, test reports and certificates provided
to the Buyer by its suppliers and, if so requested by the Builder, the
Buyer shall without charge to the Builder cause the relevant suppliers to
assist the Builder in the installation and incorporation of such Buyer's
Supplies at the Shipyard. If any Buyer's Supplies (including any Buyer's
Supplies to be replaced by the Buyer pursuant to this Clause 6) have not
been delivered within five (5) working days after the Supervisor's receipt
of a notice from the Builder under Clause 6.4(ii), the Builder shall be
entitled to proceed with the construction of the Ship without installing
or incorporating such Supplies in or on the Ship and the lack of any such
installation or incorporation shall not be treated as a Defect in the Ship
provided that if, having regard to the nature and/or expected delivery
date(s) of the relevant Buyer's Supplies and/or the Builder's programme
for the building work, it is reasonable for the Buyer to request the
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FIRST ORIGINAL
Builder to arrange the building work so that the relevant Supplies can be
installed or incorporated in or on the Ship at a later date then, in each,
such case, the Builder will use its best efforts to accommodate any such
reasonable request.
6.4 The Builder:
(i) shall be liable to the Buyer for any damage to or loss of any
Buyer's Supplies occurring or arising after their delivery by (or on
behalf of) the Buyer under Clause 6.1 unless such damage or loss is
caused by the inadequate packing or inherent vice of such Buyer's
Supplies; and
(ii) shall notify the Supervisor as soon as practicable of any loss of,
damage to, or deficiency in the supply or performance of, any of the
Buyer's Supplies or any late delivery thereof in accordance with
Clause 6.3.
6.5 Where the Builder is liable to the Buyer (under Clause 6.4) for any damage
to or loss of any Buyer's Supplies, the Builder will promptly replace the
relevant Supplies with identical items at its risk and expense; in all
other cases where the Builder gives notice to the Buyer under Clause
6.4(ii), the Buyer will promptly replace the relevant Supplies at its risk
and expense.
6.6 Within fifteen (15) days after the Ship has been delivered by the Builder
and accepted by the Buyer in accordance with the provisions of this
Contract, the Buyer will remove from the Shipyard any of the Buyer's
Supplies which have not been used in the construction of, or otherwise
delivered with, the Ship.
7. BUILDER'S TALLY OF BUYER'S SUPPLIES
7.1 The Builder shall make and keep fully itemised and up-to-date records of
all Buyer's Supplies from time to time delivered to the Shipyard and/or
other premises of the Builder (and/or its subcontractors) and, without
prejudice to the generality of the foregoing, the Builder shall ensure
that such records are made and kept in the form used by the Builder for
its own stocks and show:
(i) the date of delivery to the Builder (or its subcontractors) of each
batch or consignment of Buyer's Supplies;
(ii) where and how such Buyer's Supplies are stored;
(iii) when such Buyer's Supplies are incorporated or installed in, or
stowed on, the Ship; and
(iv) the balance (in units) of any unused Buyer's Supplies.
7.2 The Builder shall provide the Supervisor, on a monthly basis, with a
complete set of the records described in Clause 7.1 and all amendments of,
or supplements to, such records.
(END OF ARTICLE 1)
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FIRST ORIGINAL
ARTICLE 2: SUPERVISION
1. SUPERVISOR
1.1 The Buyer may retain a supervisor (the "SUPERVISOR") and a supervision
team at the Shipyard to maintain close contact with the Builder and, on
behalf of the Buyer, to supervise the building work, and the Builder will
assist the Buyer to obtain any necessary German permissions and
authorisations for the Supervisor and his team to carry out their duties.
1.2 The Supervisor and his team shall at all times be deemed to be the
employees of the Buyer and the Builder shall be under no liability
whatsoever for personal injuries or other harm to, or death of, the
Supervisor or any of his team, or for damage to, or loss or destruction
of, their property, unless such injury, harm, death, damage, loss or
destruction is caused by the negligence and/or wilful default of the
Builder and/or any of the Builder's subcontractors.
1.3 The Supervisor and his team shall carry out their inspections and
supervision in an efficient manner and in such a way as to avoid any
increase in the building costs or delays to the building work.
1.4 All salaries and, subject to Clause 1.5, costs and expenses of the
Supervisor and his team shall be for the Buyer's account.
1.5 The Builder shall provide, free of charge to the Buyer, the Supervisor and
the Supervisor's team:
(i) adequately equipped, maintained and serviced changing rooms and
offices in reasonable numbers (including, without limitation,
tables, chairs, filing cabinets, direct call national and
international telephones and telefaxes, word processing workstations
with laser printers in each office all in reasonable numbers, and
one (1) full time secretary) conveniently located in the Shipyard
and in close proximity to the Ship, and
(ii) lodgings in Papenburg (or vicinity) and meals at the Shipyard (as
far as available),
provided that the Builder may charge the Buyer at cost for such lodgings
and meals, for the secretary and for the use by the Supervisor and his
team of the national and international postage, telephone and telefax
services provided by the Builder under this Clause 1.5.
1.6 A written statement confirming the Supervisor's appointment and the scope
of his actual authority shall be given by the Buyer to the Builder within
thirty (30) days after the Effective Date. Written notice of revocation of
appointment of the Supervisor and/or any change in the scope of his actual
authority shall be given by the Buyer to the Builder immediately after any
such revocation and/or change has been decided upon by the Buyer.
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1.7 The Supervisor and his team shall be deemed to have notice of and shall
observe the safety, security and other rules and precautions in force from
time to time at the Shipyard and at the premises of the Builder's
sub-contractors.
2. PLAN APPROVAL
2.1 Each of the Builder and the Buyer acknowledges and agrees that the
construction of the Ship requires co-operation and flexibility on the part
of both parties, especially during the design phase. The plan approval
arrangements referred to in this Clause 2 shall be limited to such plans,
drawings and other documents as are described in section G.4.3 of the
Specification.
2.2 Notwithstanding the generality of Clause 2.1, the building work shall be
carried out in strict accordance with the provisions of this Contract, the
Specification and the Plans, and prior to commencement of the building
work (and from time to time thereafter as and when the Buyer may request)
the Builder will provide the Supervisor with a work schedule containing a
critical path treatment of the major and significant elements of the
building work, in their proper sequence, which must be completed to ensure
delivery of the Ship by the Delivery Date.
2.3 All plans, drawings and other documents required to be developed and
supplied by the Builder to the Buyer for approval shall be hand-delivered
by the Builder in their proposed final form in three (3) copies two of
which shall be delivered to the Supervisor (or, if the Supervisor is not
at the Shipyard at the relevant time, to any member of the Supervisor's
team at the Shipyard unless a specified member of the team has been
nominated by the Supervisor for this purpose by notice to the Builder and
is available at the Shipyard) and the other to the Buyer's UK newbuilding
office, and the Builder agrees to use its best endeavours to submit all
such plans, drawings and documents in such a manner that the Buyer may
reasonably review and approve or comment on the same within the periods
provided for in Clauses 2.4 and 2.5.
2.4 Within five (5) working days after the Supervisor's receipt of the plans,
drawings and other documents referred to in Clause 2.3, the Supervisor
will notify the Builder in writing whether or not such plans, drawings and
other documents are sufficient to enable the Buyer to review them pursuant
to this Clause 2; and if any of the plans, drawings or other documents are
deficient in any way, the Supervisor must specify the deficiency and give
his reasons in such notice.
2.5 Any plans, drawings and other documents submitted to the Supervisor and
accepted by him as being sufficient for the Buyer's review must be
returned to the Builder as soon as practicable and, at the latest, within
fifteen (15) days after the Supervisor's receipt of those plans, drawings
and other documents which the Supervisor has authority to approve on
behalf of the Buyer.
2.6 One copy of all plans, drawing and other documents submitted to the
Supervisor and accepted by him as being sufficient for the Buyer's review
shall be returned to the Builder (in accordance with the timetable laid
down in Clause 2.5) either as approved or as rejected by the Buyer
provided that all rejections shall specify with reasons all aspects of the
rejected plans, drawings or documents which do not, at which provide for
building
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work which does not, conform to the requirements of this Contract, the
Plans or the Specification.
2.7 If a plan, drawing or other document is approved, the Builder shall
proceed with the building work shown therein.
2.8 If a plan, drawing or other document is not accepted by the Supervisor as
being sufficient for the Buyer's review in accordance with Clause 2.4, the
Builder shall promptly alter the relevant plan, drawing or document
without charge to the Buyer and resubmit it as altered for approval by the
Buyer in accordance with Clauses 2.3 to 2.6.
2.9 All building work performed by the Builder prior to approval by the Buyer
of all plans, drawings or documents relating to such work shall be at the
sole risk and expense of the Builder.
2.10 If the Buyer (or the Supervisor on the Buyer's behalf) fails to return to
the Builder, in accordance with the timetable laid down in Clause 2.5, any
plan or drawing or other document and this failure is not remedied within
two (2) working days after the Supervisor's receipt of a written notice
from the Builder specifying such failure, such plan or drawing or other
document shall be deemed to have been automatically approved by the Buyer
without any comments.
2.11 If the Builder discovers any feature in the Plans or the Specification
which appears to be inconsistent with the general scheme of the building
work or which might (in the reasonable opinion of the Builder) expose the
Builder or the Buyer to any product liabilities, the Builder shall
promptly notify the Supervisor and submit a proposal to the Supervisor for
the Buyer's approval (such approval not to be unreasonably withheld) for
the removal of the inconsistency or risk of product liability at the
Builder's cost and in the Builder's time.
3. WORK APPROVAL
3.1 Throughout the period during which the Ship is being built the Builder
will conduct its usual quality control programme of inspections, testing
and supervision by a team of the Builder's staff specially designated for
this purpose but the building work and all Parts, as the same may at any
time and at any place be completed or be in progress, shall also be
subject to inspection by and the approval of the Buyer (acting through the
Supervisor and his team) and the Classification Society.
3.2 The Builder shall at all times during normal working hours give the
Supervisor and the Supervisor's team free and ready access to (and a free
right to inspect) the Ship and Parts at any place where building work is
being done or tests are being carried out or Parts are being processed or
stored in connection with the building of the Ship including, without
limitation, the Shipyard and other yards, workshops and stores of the
Builder, and the premises of the Builder's subcontractors who are doing
work in connection with the building of the Ship or processing or storing
Parts, and the Builder shall ensure that the provisions of this Clause 3.2
are inserted into all subcontracts from time to time made by it in
connection with the building work.
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3.3 The Buyer shall be entitled (but not obliged) to reject all building work
and Parts which do not comply with the requirements of this Contract, the
Plans and the Specification unless and to the extent that such
non-compliance is the direct result of the Builder seeking to avoid (in a
manner approved by the Buyer, such approval not to be unreasonably
withheld) the product liabilities described in Clause 2.11 provided that
all rejections shall be made in writing, and shall specify with reasons
those aspects of the building work or Parts inspected which do not comply
with the requirements of this Contract, the Plans or the Specification.
3.4 If any building work or Parts shall be duly rejected by the Buyer as not
complying with the Contract, the Plans or the Specification, the Builder
shall promptly correct or replace such work or Parts at the Builder's cost
and in the Builder's time.
4. PLANNED PROGRAMME
4.1 The Ship shall be constructed in accordance with the planned milestones
programme in Appendix 4 of the Specification defining certain stages of
the construction process ("MILESTONES") which must be completed by the
dates therein specified.
4.2 The Builder shall submit to the Buyer each month, commencing on the date
falling one month after the Effective Date, until delivery, the following
documentation (the accuracy of which the Builder hereby warrants):
(i) a status report on the building work as compared with the planned
programme, including the critical path;
(ii) a report setting out the actual progress of the building work during
the previous month as compared with the planned programme;
(iii) a list of modifications (if any) agreed during the previous month,
including Contract adjustments, if any, agreed during that month;
(iv) a report on the delivery of subcontracted materials during the
previous month (the precise nature and form of which report shall be
agreed, from time to time, between the Buyer and the Builder).
4.3 Without prejudice to the Builder's obligations under this Contract, if the
construction of the Ship should, for any reason whatsoever, be delayed
beyond the time-frame indicated in the planned programme, the Builder
shall immediately notify the Buyer. If the delay which has occurred is not
a permissible delay, the Builder shall within fourteen (14) working days
after provision of such notification provide to the Buyer a written
schedule describing the steps (including any appropriate increase in
manpower and material resources) the Builder intends to take to recover
the time lost. The Builder and the Buyer shall meet at the earliest
opportunity to discuss the proposal and the Builder's detailed plans for
implementation of the same.
5. MINOR ALTERATIONS
5.1 Subject to Clause 3.2 in Article 1 and to Article 3, approvals and other
decisions of the Buyer in relation to the design and performance of the
building work shall be final and may not be revised or revoked without the
prior written approval of the Builder provided
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that the Builder shall not withhold its approval for any minor alterations
or revisions requested by the Buyer which (in the reasonable opinion of
the Builder) would not:
(i) delay or increase the cost of the building work or have a material
adverse affect on the Builder's planning or programme for the
building work; Or
(ii) otherwise constitute a material modification of this Contract, the
Plans or the Specification; or
(iii) require the Builder to jeopardise its contracted building
schedule(s) for other ships.
6. TECHNICAL DISPUTES
6.1 If, at any time during the design phase or any other stage of the building
work, there is a difference of opinion between the Builder and the Buyer
in relation to any technical matter, then either party may give a notice
to the other party and if the parties do not resolve the difference of
opinion within five (5) working days after the date of service of such a
notice, the Builder or the Buyer may require that the difference of
opinion be treated as a Dispute of a technical nature to be resolved in
accordance with Clause 1 of Article 13.
(END OF ARTICLE 2)
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ARTICLE 3: MODIFICATIONS
1. MODIFICATIONS
1.1 This Contract, the Plans and the Specification may be modified from time
to time by agreement of the parties provided that any reasonable and
timely modifications requested by the Buyer, and/or any modifications
required to be made under Clause 2 which are occasioned by any changes in
the Class Rules or in any of the Regulatory Rules after the Effective
Date, shall be implemented by the Builder if the Buyer assents to
necessary modifications to the Contract Price, the Delivery Date and any
other relevant provisions of this Contract, the Builder agreeing to act in
good faith and use its best efforts to accommodate any such reasonable
requests by the Buyer so that any such modifications shall be made:
(i) at the lowest cost reasonably possible;
(ii) within the shortest period of time reasonably possible; and
(iii) without any loss in the relative priority of the building work for
the Ship compared to other construction work in the Shipyard,
provided that nothing in this Clause 1.1 shall require the Builder to
jeopardise its contracted building schedule(s) for other ships.
1.2 Any agreement on a modification of this Contract, the Plans or the
Specification shall include:
(i) any increase or decrease in the Contract Price;
(ii) any change in the Delivery Date, and
(iii) any other adjustment to or amendment of any relevant provisions of
this Contract, the Plans or the Specification,
which is directly, necessarily and reasonably occasioned by such
modification.
1.3 Any agreement on a modification of this Contract, the Plans or the
Specification shall be recorded and evidenced by an exchange of letters or
telefaxes which shall constitute an amendment to this Contract and/or the
Plans and/or the Specification and shall be sequentially numbered, marked
"Contract modification under Clause 3" and signed by the parties duly
authorised representatives, and following any such agreement the Builder
shall modify the building of the Ship in accordance therewith.
1.4 If there is any Dispute between the parties as to any of the matters
referred to in Clause 1.2 then, if the Buyer so requires, the Builder will
make the requested modification before the Dispute has been resolved
provided the Buyer confirms its willingness to pay the amount found due to
the Builder in respect of such modification.
2. CLASSIFICATION AND REGULATORY CHANGES
2.1 If, after the Effective Date, any Class Rules and/or any Regulatory Rules
are changed by the Classification Society or any Regulatory Authority, the
Builder shall promptly notify
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the Buyer in writing of the relevant change(s) and of the necessary
modifications to be made to this Contract, the Plans and the
Specification.
2.2 If, following its receipt of a notice under Clause 2.1, the Buyer
reasonably considers that the operation of the Ship in its intended
service would permit of a dispensation or waiver, the Builder will at the
request of the Buyer apply for a dispensation from, or waiver of
compliance with, the relevant change(s).
2.3 If the Buyer does not require the Builder to apply for a dispensation or
waiver (or it has not been possible to obtain a dispensation or waiver)
within a period of fifteen (15) days after the Buyer's receipt of a notice
under Clause 2.1 (or such longer period of time as the parties may agree
to be reasonable in the light of all the circumstances then prevailing),
the parties shall make an agreement to modify this Contract in accordance
with Clause 1 and thereafter the Builder shall make the relevant change(s)
in the design or building of the Ship.
3. SUBSTITUTION OF PARTS
3.1 If (notwithstanding all reasonable efforts on the part of the Builder and
provided that orders for the same were placed in good time by the Builder)
any Parts are not available at the time required for their installation or
incorporation in the Ship, the Builder may (with the prior written
approval of the Buyer) use suitable substitute Parts which are at least
equal to the standard and quality of the Parts which were not available
and which are capable of meeting all of the requirements of:
(i) this Contract, the Plans and the Specification; and
(ii) the Classification Society and the Regulatory Authorities.
3.2 Where a proposed substitution of Parts is approved by the Buyer, the
Builder shall:
(i) bear all additional costs and expenses whatsoever in relation to
such substitution; and
(ii) credit the Buyer with any cost savings occasioned by such
substitution.
(END OF ARTICLE 3)
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ARTICLE 4: TITLE AND INSURANCES
1. TITLE, RISK AND ENCUMBRANCES
1.1 Title to the Ship and all Parts (but not Buyer's Supplies, title to which
will at all times be and remain with the Buyer) shall pass to the Buyer
upon the Ship's delivery to, and acceptance by, the Buyer in accordance
with Clause 1 in Article 7 and until such delivery and acceptance shall
have occurred all risks connected with the building work - including,
without limitation, all risks in relation to the Ship, all Parts and all
Buyer's Supplies from the time when they are taken into the custody of the
Builder or any of its subcontractors - shall lie exclusively with the
Builder.
1.2 Immediately upon:
(i) the receipt by the Builder (or any of its subcontractors) of any
Buyer's Supplies; and
(ii) the delivery to, or fabrication by, the Builder (or any of its
subcontractors) of all other Parts,
the Builder shall mark (or cause its relevant subcontractors to mark) the
same and the Ship (as it is from time to time built) with hull number
S.670.
1.3 The Builder shall have no authority to create (and waives all rights to
create) any encumbrances whatsoever over any of the Buyer's Supplies, nor
shall it permit any encumbrances of any kind (other than permitted
encumbrances) to be imposed on or asserted against any of the Buyer's
Supplies.
1.4 At any time when a payment is due to the Builder under this Contract, and
at all other reasonable times, the Buyer may require the Builder to
provide a written statement satisfactory to the Buyer showing what, if
any, encumbrances of any kind (other than permitted encumbrances) have
been or are liable to be imposed on or asserted against any of the Buyer's
Supplies.
1.5 If any encumbrance of any kind (other than any permitted encumbrance) is
imposed on or asserted against any of the Buyer's Supplies, the Builder
shall promptly notify the Buyer and shall, not later than ten (10) days
thereafter, secure the discharge or release of such encumbrance provided
that if the Builder desires to contest any such encumbrance and such
discharge or release is not available under law during such contest
(including, without limitation, through the filing of a bond or other
security), the Builder shall immediately take such steps as in the
opinion of the Buyer shall prevent such encumbrance from delaying
or otherwise adversely affecting the building work and shall indemnify
fully, hold harmless and defend the Buyer and all other protected parties
from and against all Losses which any of them may sustain or incur as a
result of the imposition of any such encumbrance.
1.6 Notwithstanding the provisions of Clause 1.5, the Buyer may secure the
removal of any such encumbrance in which event the Builder shall reimburse
the Buyer in full for its costs (including legal fees) of securing such
discharge or release by deducting such sum from any payments due or to
become due to the Builder under this Contract save that if
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any such cost is in excess of the amount of any such reimbursement by
deductions, the Builder shall pay the amount of such excess to the Buyer
promptly upon demand.
1.7 Notwithstanding the provisions of Clause 1.5, the Buyer, without securing
the discharge or release of any such encumbrance, may nevertheless
withhold from any payments due or to become due to the Builder, unless and
until such encumbrance is discharged or released by the Builder, a sum
equal to the amount reasonably determined by the Buyer to be required to
secure the discharge or release of such encumbrance (which amount shall
include the estimated amount of all expenses which might be incurred in
connection therewith, including legal fees).
1.8 Prior to the installation of any of the Buyer's Supplies:
(i) the Builder may require the Buyer to state in writing whether any
permitted encumbrances have been imposed on or asserted against the
relevant Buyer's Supplies and to discharge any such permitted
encumbrances prior to the installation of such Buyer's Supplies, and
if the Buyer fails to discharge any such permitted encumbrances, the
Builder may withhold the installation of the relevant Buyer's
Supplies in which case any resulting delays will be the Buyer's
responsibility; and
(ii) the Buyer may require the Builder to confirm in writing that the
representations made by it in Article 10, Clause 1.2(ii) remain in
all respects true and accurate and to procure that the Builder's
financiers confirm in writing to the Buyer that they have no grounds
for making (nor any expectation of acquiring grounds for making) any
claims against the Builder or the Ship, and if the Builder or its
financiers fails to deliver any such statement, the Buyer may
require the Builder to withhold the installation of the relevant
Buyer's Supplies in which case any resulting delays will be the
Builder's responsibility.
2. INSURANCES
2.1 During the currency of this Contract and until her delivery to the Buyer
the Ship, all Parts, and all Buyers' Supplies (up to a maximum aggregate
value of (euro)25,000,000 (twenty five million euros) taken into the
custody of the Builder (or any of its subcontractors) and whether or not
built into or installed on or in the Ship, shall be at the exclusive risk
of the Builder which shall at its own expense keep the same insured on
policy terms, and with brokers and underwriters, approved by the Buyer and
its financiers in respect of and against all usual marine and builder's
risks, including protection and indemnity risks, tests risks and war
risks. All premiums and deductibles shall be for the sole account of the
Builder. Neither the brokers nor the underwriters shall have any rights of
recourse against the Ship or any of the protected parties, or any rights
to make any deduction, set-off or other withholding from or against any
sum payable to the Buyer or its assignees in connection with the
Insurances.
2.2 The amount of the insurances (the "INSURANCES") to be arranged by the
Builder under this Article shall be not less than the Contract Price.
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2.3 All Insurances shall be taken out by the Builder naming the Builder as the
assured party and the Buyer as the co-insured party for their respective
interests. The Insurances shall contain loss payable provisions reasonably
acceptable to the Buyer and to financiers.
2.4 All Insurances shall provide that there shall be no recourse against the
Ship, any of the protected parties or Buyer's assignees for the payment of
any premiums or commissions and that no cancellation of the Insurances,
for any reason whatsoever, shall become effective unless and until
fourteen (14) days - or seven (7) days, in the case of war cover - prior
written notice has been given by the relevant brokers or insurers to the
Buyer.
2.5 The Builder shall supply the Buyer prior to the commencement of
construction of the Ship with an original cover note and all related
documents specifying the terms of the Insurances and security (which shall
be as usual for the London insurance market) for the Ship.
2.6 If at any time there is:
(i) any lapse in the insurance coverage which the Builder is required to
arrange under this Clause 2, the Buyer may effect replacement
coverage at the Builder's expense, or
(ii) any failure by the Builder to pay any premiums due in respect of the
Insurances, the Buyer may pay the same and recover the relevant
payment(s) from the Builder.
3. LOSS OR DAMAGE
3.1 In the event of any partial loss of the Ship before delivery:
(i) the loss shall be made good by the Builder as soon as reasonably
possible, the Delivery Date shall be extended in accordance with
Clause 1 in Article 5 (provided that the cause of the partial loss
is excused under that Clause) and the partial loss proceeds
referable to the Ship and/or Parts (other than Buyer's Supplies)
subject to the partial loss shall be applied by the Builder in
making good the partial loss to the approval of the Buyer, the
Classification Society and the Regulatory Authorities; and
(ii) the partial loss proceeds referable to any Buyer's Supplies subject
to the partial loss shall be paid to the Buyer.
3.2 In the event of the total loss of the Ship before delivery, either the
Builder or the Buyer shall be entitled to terminate this Contract by
written notice to the other, such notice to be delivered within thirty
(30) days after the date (the "DETERMINATION DATE") on which it is
determined that the Ship has become a total loss pursuant to Clause 3.6
below.
3.3 If, following the total loss of the Ship, neither party terminates this
Contract pursuant to Clause 3.2, the Builder shall proceed with the
building of the Ship in accordance with this Contract and the Delivery
Date shall be extended in accordance with Clause 1 in Article 5 provided
that the cause of the total loss is excused under that Clause.
3.4 If there is a total loss of the Ship before delivery, then:-
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(i) if either party elects to terminate this Contract pursuant to Clause
3.2, the Builder shall within ninety (90) days from (and including)
the Determination Date pay to the Buyer an amount equal to the sum
of:
(a) all payments previously made by the Buyer to the Builder under
this Contract together with interest thereof at the relevant
rate calculated from the date on which the Builder received
each such payment to the date on which the reimbursement is
received by the Buyer, and
(b) the Buyer's Supply Costs in respect of any Buyer's Supplies
which are subject to the total loss or which cannot be removed
in sound condition from the Ship, the Shipyard or other
place(s) where they are stored and returned to the Buyer,
and in addition the Builder will return to the Buyer all
Buyer's Supplies which have not been lost or damaged and which
can be removed in sound condition from the Ship, the Shipyard
and other place(s) where they are stored; or
(ii) if neither party terminates this Contract pursuant to Clause 3.2,
the Builder shall within ninety (90) days from (and including) the
Determination Date pay to the Buyer the Buyer's Supply Costs in
respect of any Buyer's Supplies which are subject to the total loss.
3.5 To the extent that any amounts are paid by the Builder to the Buyer under
Clause 3.4 and the Bayer also receives any proceeds of the Insurances in
respect of the same loss, the Buyer will account to the Builder for the
relevant excess amount.
3.6 A total loss shall be deemed to have occurred:
(i) if it consists of an actual loss, at noon Papenburg tune on the
actual date of loss; or
(ii) if it consists of a constructive or compromised or arranged or
agreed total loss, at noon Papenburg time on the date on which
notice of abandonment of the Ship is given to her insurers or (if
her insurers do not admit the claim for a total loss) at the time on
the date at which a total loss is subsequently adjudged to have
occurred by a competent court or arbitration tribunal or liability
in respect thereof as a total loss is admitted by underwriters.
(END OF ARTICLE 4)
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ARTICLE 5: PERMISSIBLE DELAYS
1. EXTENSION OF TIME FOR BUILDING WORK
1.1 If the Builder gives notice as provided in Clauses 2.1, 2.2 and 2.3 the
Builder shall be entitled to an extension of the Delivery Date but only
if:
(i) there is a specific cause of delay which the Builder can prove will
solely and directly delay delivery of the Ship beyond the Delivery
Date and which cause is delaying or will delay building work which
is in the critical path of delivery of the Ship for more than one
working day;
(ii) such cause of delay is one of the excusable causes set out in Clause
1.3;
(iii) the Builder proves that it has used and is continuing to use all
reasonable efforts to avoid, prevent, minimise and overcome the
actual delay in delivery of the Ship including, without limitation,
by the performance of other or additional building work provided
that such other or additional building work does not jeopardise the
Builder's contracted obligations for the construction of other
ships; and
(iv) but for such cause of delay the Ship would have been delivered on
time,
provided that the length of any such extension shall be the number of days
by which the Builder can prove that the Delivery Date for the Ship
actually will be delayed solely and directly by each such cause of delay.
1.2 The Builder shall at all times have the burden of proving each of the
matters required to be established by this Clause 1 and in the event that
it is not possible for it to prove whether, or to what extent, any delay
in delivery is directly and solely attributable to a cause which is
excused by the provisions of this Clause 1, the Builder shall not be
entitled to any extension of the Delivery Date.
1.3 The Builder shall be entitled to an extension of the Delivery Date, as
provided in Clause 1.1, for any delay caused:
(i) by the Buyer (other than such delays, if any, as are caused by the
Buyer in the proper and timely exercise of any of its rights or
obligations under this Contract);
(ii) by legislation or other formal action by or on behalf of the German
government (or any agency or other authority of such government)
prohibiting or otherwise preventing the Builder from proceeding with
the building work;
(iii) by war or warlike events involving any country which is directly
relevant to the building of the Ship;
(iv) by extraordinary weather conditions not included in normal planning;
(v) by such Strikes, lockouts and Other labour disturbances of the
Builder or those of its subcontractors who supply important parts
(such as engines, major castings or major forgings) as are beyond
the Builder's control;
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FIRST ORIGINAL
(vi) by such accidents, explosions, fires, disruptions of power supplies
and other similar occurrences as are beyond the Builder's control;
(vii) by the short, late or non-delivery to the Builder of any Parts, or
the late performance of the Builder's subcontractors provided that
the late, short or nondelivery or late performance resulted from
causes which would entitle the Builder to an extension of the
Delivery Date under this Clause 1 and provided that the Builder
proves that it has exercised due diligence (a) in contracting for
such Parts and with such subcontractors, (b) in the performance of
any acts required of it with respect to such Parts or
subcontractors, (c) in monitoring the acts and circumstances of
such subcontractors, and (d) in expediting deliveries or
performance under the Builder's purchase or subcontracts or
procuring equivalent substitute performance in the event of the
late delivery of such Parts or the under-performance in such
purchase or subcontracts; or
(viii) by unfavourable weather conditions if commencement of the sea
trials tests is postponed or such tests are discontinued pursuant
to Clause 1.4 in Article 6 by reason of such conditions and the
number of days thereafter during which such tests cannot be
undertaken exceed three (3) in total, then any further days during
which the weather conditions remain unfavourable may be claimed
(subject to the other provisions of this Clause 1) as a permissible
delay.
1.4 Notwithstanding anything to the contrary in this Clause 1, the Builder
shall not be entitled to any extension of the Delivery Date for:
(i) any delay resulting from a cause of delay which has itself been
caused or contributed to by the negligence or other default of the
Builder;
(ii) any delay resulting from a cause of delay in existence as of the
Effective Date; or
(iii) any delay resulting from a cause of delay, which was or reasonably
should have been foreseen or anticipated by the Builder by reason
of facts which were, or after reasonable enquiry should have
become, known to the Builder as of the Effective Date; or
(iv) any delay resulting from a cause of delay which reasonably could
have been avoided by the Builder;
(v) any delay resulting from the late performance or default of a
subcontractor, if such delay results from a cause of delay in
effect published and announced as of the date of the award of the
relevant purchase contract or subcontract;
(vi) any delay resulting from any Dispute or legal proceeding under this
Contract, provided that in the case of any building work under
Dispute which would otherwise be commenced prior to the resolution
thereof the Builder shall not be required to proceed therewith (and
a corresponding extension of the Delivery Date shall be allowed)
if, after written request by the Builder, the Buyer fails to
confirm forthwith its willingness to pay the amount found due in
respect of such work;or
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(vii) any delay in moving the Ship from the Shipyard to the Delivery Port
due to extraordinary weather conditions not included in normal
planning.
2. DELAY NOTICES
2.1 The Builder shall give written notice to the Buyer of a cause of delay
pursuant to Clause 1.3 as soon as practicable and no later than five (5)
days after the date on which the Builder first has knowledge of such cause
of delay and in such notice the Builder shall describe the cause of the
delay, the date of commencement (or first occurrence) of the cause, its
expected duration and its expected effect on the Builder's ability to
carry on with the building work.
2.2 The Builder will provide the Buyer with regular written status reports (at
such reasonable intervals as the Buyer may request) with respect to any
delay in respect of which the Builder has given notice pursuant to Clause
2.1 and as to the steps being taken (and planned) by the Builder to
minimise and overcome any actual delay in delivery of the Ship.
2.3 Within five (5) days after any cause of delay set forth in Clause 1.3 has
ceased to exist, the Builder shall notify the Buyer of such cessation and
give the Buyer a written statement of the actual or estimated delay in the
completion of the building work resulting from such cause together with
such detailed documentation as is then available to it justifying such
extension, and any such detailed documentation thereafter becoming
available to the Builder shall be promptly be given to the Buyer.
2.4 On the basis of the notices, reports, statements and information given to
the Buyer by the Builder relating to any actual or estimated delay in
delivery (and such further information and documentation as the Buyer may
reasonably request), the Buyer and the Builder shall confer and attempt to
agree upon the number of days by which the Delivery Date shall be extended
provided that if the Buyer and the Builder cannot so agree within thirty
(30) days after the completion of any such conference, the extension of
the Delivery Date (if any) shall be determined as a Dispute pursuant to
the provisions of Article 13.
2.5 The extension of the Delivery Date provided for in this Article shall be
the only remedy for delay to which fee Builder shall be entitled and, by
way of illustration but not limitation, the Builder shall not be entitled
to damages or any adjustment in the Contract Price.
(END OF ARTICLE 5)
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ARTICLE 6: TESTS AND LIQUIDATED DAMAGES
1. TESTS
1.1 At its sole and direct risk and expense, the Builder shall subject the
Ship and specified Parts to the tests in order to ascertain whether the
Ship and such Parts have been completed in full accordance with this
Contract, the Plans and Specification.
1.2 The Buyer shall be entitled to have the Supervisor and his team present at
all tests and the Builder shall give the Supervisor:
(i) two (2) days prior written notice of all tests (except sea trials
tests) (a) designated for such notice by the Buyer after its receipt
from the Builder of an agreed schedule of tests and (b) scheduled to
take place on week-ends or other non-working days; and
(ii) twenty four (24) hours prior written notice of all other tests
(except sea trials tests).
1.3 The Builder shall give the Supervisor fifteen (15) days' estimated, and
seven (7) days' definite, prior written notice of the time and the place
for the sea trials tests provided that only one (1) day's prior written
notice need be given to the Supervisor with respect to retrials at sea
conducted within three (3) days after completion of a previous sea trial
at or upon which the need for such retrial was determined.
1.4 If the weather conditions on the date specified for the sea trials tests
are (in the reasonable opinion of the Builder) so unfavourable that they
would prevent the Builder from carrying out such tests then the same shall
take place on the first available day thereafter that weather conditions
permit. If, during the sea trials tests sadden and unexpected changes in
the weather occur which, in the reasonable opinion of the Builder, are
such as to prevent the continuation of such tests then the Builder shall
have the option of continuing such tests or of postponing them until the
next following favourable day unless the Buyer shall (in its option) agree
to accept the Ship on the basis of the tests made.
1.5 The failure of the Supervisor to be present at any test, after due notice,
shall (unless such failure is due an event or combination of events
outside the Supervisor's control) be deemed to be a waiver of the
Supervisor's right to be present at the relevant test and the Buyer shall
be obliged to accept the results of such test on the basis of acceptance
by the Builder and the Classification Society.
1.6 All tests conducted without notice to the Supervisor shall be reconducted
by the Builder on due notice to the Supervisor at the sole risk and
expense of the Builder.
1.7 If a Defect is discovered during any test the Builder shall, after
correcting such Defect, be required to make such further tests as may be
necessary in extent and number to demonstrate and confirm the complete
correction thereof provided that additional sea trials tests will not be
required if the correction of any such Defect can be verified in shop or
dock tests, and the sole and direct risk and expense of all such further
or additional tests shall be borne by the Builder.
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1.8 The term "DEFECT" means:
(i) any defect in the Ship or in any Part installed or incorporated in,
stowed on or otherwise delivered with the Ship (including work
relating to the installation of Buyer's Supplies installed by the
Builder or its subcontractors) which is due to incomplete or
defective materials, workmanship, construction or design or any
failure to comply with the relevant recommendations of any
subcontractors or other parties,
(ii) any inherent vice, breakdown, incompleteness, omission or other
deficiency of the Ship or any Part,
(iii) any failure of the Ship or any Part or any aspect of the building
work to comply with any of the requirements of this Contract, the
Specification or the Plans, or the requirements of any of the
subcontractors used in connection with this Contract, or
(iv) the existence of any condition, notation, qualification,
recommendation, reservation or restriction in relation to any
certificate issued by the Classification Society or any Regulatory
Authority,
provided that the term "DEFECT" shall not include any fault in any of the
Buyer's Supplies which were properly received, handled, installed or
incorporated in, stowed on or otherwise delivered with, the Ship by the
Builder in accordance with the requirements of this Contract, the
Specification and the Plans.
1.9 After all tests have been satisfactorily performed and completed, the
Builder shall:
(i) take the Ship to the sea port referred to in Article 1, Clause
1.l(i)(c) and open up such machinery as (a) the Classification
Society and/or the Regulatory Authorities may require and/or (b) the
Buyer may reasonably require, for post-tests inspection and
examination;
(ii) correct any Defects then appearing in such machinery; and
(iii) close, connect, retry and retest the machinery, as appropriate, and
then make the Ship ready for service, and
thereafter the Buyer may require a final post-tests examination and
inspection at which the Builder shall demonstrate and confirm to the Buyer
the complete correction of any and all Defects in such machinery.
1.10 Not later than two (2) weeks before the anticipated Delivery Date, the
Builder and the Buyer shall prepare and agree a final punch list of items
which the Buyer considers defective from the perspective of first class
shipping and/or shipbuilding practice and, subject always to Article 7
Clauses 1.5 and 1.6, the Builder shall be obliged to rectify such items
before delivery.
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2. LIQUIDATED DAMAGES
2.1 The Builder agrees that certain Defects and certain delays in the delivery
of the Ship shall result in the reduction of the Contract Price by way of
the liquidated damages provided for in this Clause 2.
2.2 The guaranteed trial speed ("GTS") of the Ship at a draft of [***]
[Confidential Treatment] shall be [***] [Confidential Treatment] and shall
be demonstrated by the Builder during the sea trials tests under the
conditions described in section G.2.5 of the Specification.
2.3 If the Builder fails to remedy any deficiency in the Ship's speed before
delivery, the Builder shall have no liability to the Buyer if the actual
speed of the Ship as determined during the final sea trials tests is up to
[***] [Confidential Treatment] of a knot below GTS but commencing with a
deficiency of more than [***] [Confidential Treatment] of a knot in actual
speed below the GTS the Contract Price shall be reduced by way of
liquidated damages as follows:
(i) for [***] [Confidential Treatment], a total sum of [***]
[Confidential Treatment];
(ii) for [***] [Confidential Treatment], a total sum of [***]
[Confidential Treatment];
(iii) for [***] [Confidential Treatment], a total sum of [***]
[Confidential Treatment];
(iv) for [***] [Confidential Treatment], a total sum of [***]
[Confidential Treatment];
(v) for [***] [Confidential Treatment], a total sum of [***]
[Confidential Treatment];
(vi) for [***] [Confidential Treatment], a total sum of [***]
[Confidential Treatment];
(vii) for [***] [Confidential Treatment], a total sum of [***]
[Confidential Treatment];
(viii) for [***] [Confidential Treatment], a total sum of [***]
[Confidential Treatment];
with fractions of a knot being calculated in proportion provided that if
the Defect in the actual speed of the Ship is more than [***]
[Confidential Treatment] below the GTS, then (subject to the following
proviso to this Clause 2,3) the Buyer may, at its option, accept the Ship
at a reduction in the Contract Price for such Defect of [***]
[Confidential Treatment] or reject the Ship and terminate this Contract
pursuant to Clause 2 in Article 9
2.4 The guaranteed fuel consumption ("GFC") of each of the diesel engines of
the Ship at [***] [Confidential Treatment] power of MCR without attached
pumps shall be [***] [Confidential Treatment] in ISO
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FIRST ORIGINAL
conditions and shall be demonstrated by the Builder in tests conducted at
the engine manufacturers' testbed.
2.5 If the Builder fails to remedy any deficiency in the fuel consumption of
the Ship's diesel engines before delivery, the Builder shall have no
liability to the Buyer if such fuel consumption as determined during the
final tests is more than the GFC provided such excess is not more than,
[***] [Confidential Treatment] over the GFC but commencing with an excess
of more than [***] [Confidential Treatment] in actual fuel consumption the
Contract Price shall be reduced by way of liquidated damages by the sum of
[***] [Confidential Treatment] for each [***] [Confidential Treatment]
increase in fuel consumption above such [***] [Confidential Treatment]
level up to a maximum of [***] [Confidential Treatment] over the GFC with
fractions of every [***] [Confidential Treatment] being calculated in
proportion provided that if the fuel consumption, is more than [***]
[Confidential Treatment] above the GFC, the Buyer may, at its option,
accept the Ship at a reduction in the Contract Price for such Defect of
[***] [Confidential Treatment] or reject the relevant engine(s) (without
prejudice to its other rights with respect to the Ship).
2.6 The guaranteed deadweight capacity of the Ship shall be [***]
[Confidential Treatment] under the conditions defined in sections G.2.3
and G.2.4 of the Specification and shall be demonstrated by the Builder in
the specified deadweight capacity test.
2.7 If the Builder fails to remedy any deficiency in the Ship's deadweight
capacity before delivery, the Builder shall have no liability to the Buyer
if the actual deadweight capacity Of the Ship as determined in accordance
with the Specification is less than [***] [Confidential Treatment] below
the guaranteed deadweight capacity but the Contract Price for the Ship
shall be reduced by way of liquidated damages by the sum of [***]
[Confidential Treatment] of such deficiency being more than [***]
[Confidential Treatment] up to a maximum deficiency of [***] [Confidential
Treatment] at a draft of not more than [***] [Confidential Treatment] even
keel with fractions of each metric ton being calculated in proportion
provided that if the actual deadweight deficiency at a draft of not more
than [***] [Confidential Treatment] even keel is more than [***]
[Confidential Treatment], the Buyer may, at its option, accept the Ship at
a reduction in the Contract Price of [***] [Confidential Treatment] for
such Defect or reject the Ship and terminate this Contract pursuant to
Clause 2 in Article 9.
2.8 The guaranteed cabin capacity of the Ship shall be as defined in sections
G.2.2.1 and G.2.2.2 of the Specification and no change shall be made to
such cabin capacity without the Buyer's prior written consent.
2.9 If the number of completed and fully habitable cabins of any of the
passenger and crew grades referred to in Clause 2.1 (iii) and (iv) of
Article 1 is lower than the number of cabins specified for any such grade,
the Buyer may, at its option, accept the Ship subject to a to be agreed
reduction in the Contract Price for the Ship or reject the Ship and
terminate this Contract pursuant to Clause 2 in Article 9.
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FIRST ORIGINAL
2.10 In the cabins and in the public rooms and spaces of the Ship, the
guaranteed maximum vibration levels ("GVL") shall be the single peak
values defined in section G.5.2.3. of the Specification.
2.11 If, in any cabin or in any area of the public rooms and spaces of the
Ship, the measured vibration levels ("MVL"), measured as provided for in
section G.5.2.3 of the Specification, exceeds the GVL, the Builder shall
make the necessary changes before delivery to reduce such levels to the
GVL figures.
2.12 If, after the changes made by the Builder pursuant to Clause 2.11, the
final MVL measured as provided for in the Specification exceeds the GVL,
the Builder shall have no liability to the Buyer for an excess of up to
[***] [Confidential Treatment] but commencing with an excess of more than
[***] [Confidential Treatment] over GVL, the Contract Price shall be
reduced by way of liquidated damages by [***] [Confidential Treatment] for
each cabin and/or for each area of public rooms or spaces of [***]
[Confidential Treatment] provided that if in more than [***] [Confidential
Treatment] of the cabins and/or if in more than [***] [Confidential
Treatment] of the aggregate area of public rooms or spaces the final MVL
exceeds the GVL by more than [***] [Confidential Treatment], the Buyer
may, at its option, accept the Ship at a reduction in the Contract Price
of:
(i) [***] [Confidential Treatment], in respect of the cabins; and/or
(ii) [***] [Confidential Treatment], in respect of the public rooms or
spaces,
or the Buyer may reject the Ship and terminate this Contract pursuant to
Clause 2 in Article 9.
2.13 la the cabins and in the public rooms and spaces of the Ship, the
guaranteed maximum sound levels ("GSL") shall be the upper limits of the
sound levels defined in section G.5.2.2. of the Specification.
2.14 If, in any cabin or in any area of the public rooms and spaces of the
Ship, the measured sound levels ("MSL"), measured as provided for in
section G.5.2.2 of the Specification, exceeds the GSL, the Builder shall
make the necessary changes before delivery to reduce such levels to the
GSL figures.
2.15 If, after the changes made by the Builder pursuant to Clause 2.14, the
final MSL measured as provided for in the Specification exceeds the GSL,
the Builder shall have no liability to the Buyer for an excess of up to
[***] [Confidential Treatment] but commencing with an excess of more than
[***] [Confidential Treatment] over GSL, the Contract Price shall be
reduced by way of liquidated damages as follows:
(i) from [***] [Confidential Treatment] above GSL, a total sum of [***]
[Confidential Treatment] for each cabin and/or for each area of
public rooms or spaces of [***] [Confidential Treatment]; and
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FIRST ORIGINAL
(ii) from [***] [Confidential Treatment] above GSL, a total sum of [***]
[Confidential Treatment] for each cabin and/or for each area of
public rooms or spaces of [***] [Confidential Treatment],
with fractions of a decibel calculated in proportion provided that if in
more than [***] [Confidential Treatment] of the cabins the final MSL
exceeds the GSL by more than [***] [Confidential Treatment] and/or if the
average value of MSL in more than [***] [Confidential Treatment] of the
aggregate area of public rooms and spaces exceeds the GSL by more than
[***] [Confidential Treatment], the Buyer may, at its option, accept the
Ship at a reduction in the Contract Price of:
(i) [***] [Confidential Treatment], in respect of the cabins; and/or
(ii) [***] [Confidential Treatment], in respect of the public rooms and
spaces,
or the Buyer may reject the Ship and terminate this Contract pursuant to
Clause 2 in Article 9.
2.16 All reductions in the Contract Price provided for under any of Clauses
2.3, 2.5, 2.7, 2.9, 2.12 and/or 2.15 shall be determined on delivery of
the Ship and made by means of set-off and deduction from the payments to
be made by the Buyer on delivery of the Ship.
2.17 The Buyer intends to arrange for the Ship's maiden cruise with fare paying
passengers to be held on the Ship's relocation voyage from the port of
delivery referred to in Article 1, Clause 1.1(i)(c) above. The Builder:
(i) acknowledges that it is imperative for the Ship to be ready at the
time, and in the condition, provided for in this Contract so as to
enable the Buyer to fulfil its commitments in relation to the Ship's
maiden cruise; and
(ii) agrees to do all it can to assist the Buyer to fulfil its
commitments in relation to the Ship's maiden cruise.
2.18 If delivery of the Ship is not made on the Compensation Date, the Buyer
will suffer loss and damage (including reputational damage) in amounts
which are extremely difficult to quantify in advance but it is agreed that
the per day sums set out in paragraphs (i) to (iv) below represent a
genuine and reasonable pre-estimate of the Buyer's loss and damage for
each day of delay in delivery of the Ship beyond the Compensation Date. If
delivery of the Ship is delayed beyond the Compensation Date, the Contract
Price shall be reduced by the way of liquidated damages for each calendar
day (or pro-rata for each part of a calendar day) by the per day sums set
out at paragraphs (i) to (iv) below from (and including) the Compensation
Date until delivery of the Ship is actually made or this Contract is
terminated:-
(i) if the Builder shall have given to the Buyer less than thirty one
(31) days notice of the delay in delivery prior to the Delivery
Date: for the [***] [Confidential Treatment] the rate of reduction
shall be [***] [Confidential Treatment] per day; for the [***]
[Confidential Treatment] the rate of reduction shall be [***]
[Confidential Treatment]
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FIRST ORIGINAL
[***] [Confidential Treatment] per day; and thereafter the rate of
reduction shall be [***] [Confidential Treatment] per day;
(ii) if the Builder shall have given to the Buyer more than thirty (30)
days but less than ninety one (91) days notice of the delay in
delivery prior to the Delivery Date: for the first [***]
[Confidential Treatment] the rate of reduction shall be [***]
[Confidential Treatment] per day; for the next [***] [Confidential
Treatment] the rate of reduction shall be [***] [Confidential
Treatment] per day; and thereafter the rate of reduction shall be
[***] [Confidential Treatment] per day;
(iii) if the Builder shall have given to the Buyer more than ninety (90)
days but less than one hundred and eighty three (183) days notice of
the delay in delivery prior to the Delivery Date: for the [***]
[Confidential Treatment] days the rate of reduction shall be [***]
[Confidential Treatment] per day; for the [***] [Confidential
Treatment] the rate of reduction shall be [***] [Confidential
Treatment] per day, and thereafter the rate of reduction shall be
[***] [Confidential Treatment] per day; and
(iv) if the Builder shall have given to the Buyer more than one hundred
and eighty two (182) days notice of the delay in delivery prior to
the Delivery Date: for the [***] [Confidential Treatment] the rate
of reduction shall be [***] [Confidential Treatment] per day; for
the next [***] [Confidential Treatment] the rate of reduction shall
be [***] [Confidential Treatment] per day; and thereafter the rate
of reduction shall be [***] [Confidential Treatment] per day.
If the delay in delivery of the Ship continues for [***] [Confidential
Treatment] after the Compensation Date then, in such event, the Buyer may
at any time thereafter terminate this Contract pursuant to Clause 2 in
Article 9. If the delay in delivery of the Ship continues for [***]
[Confidential Treatment] after the Compensation Date, and provided the
Buyer has not by then elected to terminate this Contract, the Builder may
(by written notice) require the Buyer to make an election in which case
the Buyer shall-within 15 (fifteen) days after its receipt of the
Builder's notice - notify the Builder in writing of its intention either
to terminate this Contract or to consent to the acceptance of the Ship at
an agreed future date on the basis that the Buyer shall remain entitled to
all liquidated damages which would otherwise have been payable or
allowable by the Builder; it being further understood that, if the Ship is
not delivered by such agreed future date, the Buyer shall have the same
right of termination upon the same terms and conditions as set out above.
If the Buyer fails to make an election as specified above within the
relevant 15 (fifteen) day period, the Buyer shall be deemed to have
consented to the Ship being delivered at the future date proposed by the
Builder.
2.19 All reductions in the Contract Price provided for in Clause 2.18 shall be
made in the form of payments by the Builder to the Buyer as follows:
(i) the Builder's first payment shall be made on the earlier of (a) the
thirtieth (30th) day after delivery of the Ship has been delayed
beyond the Compensation Date and (b) the date on which actual
delivery of the Ship is made; and
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FIRST ORIGINAL
(ii) thereafter the payments shall be made every ten (10) days commencing
on the tenth (10th) day after the end of the thirty (30) day period
mentioned in Clause 2.19(i)(a),
and continuing on the last day of each succeeding ten (10) day period
thereafter until the day on which delivery of the Ship is actually made
or this Contract is terminated at which time the Builder shall pay the
entire remaining amount due under Clauses 2.18 and 2.19.
2.20 The parties acknowledge and agree that:
(i) the Contract Price reductions and payments provided for in this
Clause 2 are cumulative; and
(ii) subject always to the guarantee provisions in Article 7 Clause 2 and
to the termination provisions in Article 9 Clause 2, the Contract
Price reductions and payments provided for in this Clause 2 shall be
the only compensation recoverable by the Buyer in respect of the
Defects and the delay in delivery to which they relate and, in
particular, the Builder shall not be liable for any consequential
losses resulting from such Defects or such delay in delivery
(END OF ARTICLE 6)
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FIRST ORIGINAL
ARTICLE 7: DELIVERY AND GUARANTEE
1. DELIVERY AND ACCEPTANCE
1.1 The date on which the Ship shall be ready for delivery is 1 October 2007
(the "DELIVERY DATE"). The Ship shall not be delivered before this date
without the express written approval of the Buyer. When:
(i) the Builder has completed the building work in conformity with this
Contract, the Plans and the Specification;
(ii) all tests have been performed and completed in a manner satisfactory
to the Buyer;
(iii) the Ship has been freed from all Defects (apart from Defects which
qualify as minor and insignificant Defects, as defined in Clause
1.6, and Defects for which there will be a reduction in the Contract
Price in accordance with Article 6 Clause 2); and
(iv) the Ship (a) has been cleaned and prepared (in accordance with the
Builder's usual practices and to their usual standards for ships of
this type) to take on a full complement of passengers, officers,
crew and staff, and (b) is in all other respects ready to commence
operations as a luxury cruise ship,
the Builder shall tender the Ship for delivery to the Buyer safely afloat
alongside a safe and accessible quay at the Delivery Port where there must
be sufficient water for the Ship always to remain afloat and from where
there must be direct, free, unimpeded, safe and lawful access to
international waters provided that (a) the Builder shall have given to the
Buyer not less than 180 (one hundred and eighty) days and ninety (90) days
estimated, followed by 15 (fifteen) days definite, prior written notice of
delivery, and (b) with effect from service of the 90 (ninety) day
estimated notice referred to above, the Builder shall have allowed
designated representatives of the Buyer to attend the Shipyard and to be
present during tests and for familiarisation purposes.
1.2 The Builder shall deliver the Ship to the Buyer free and clear of all
encumbrances whatsoever.
1.3 On delivery of the Ship the Builder shall also deliver the following
documents (together, the "DELIVERY DOCUMENTS"):
(i) a protocol of delivery and acceptance in a mutually agreed form
confirming delivery of the Ship to, and acceptance and taking
possession of the Ship by, the Buyer pursuant to this Contract,
executed in duplicate by the Builder and stating the date and
(local) time of such delivery and acceptance;
(ii) a declaration of warranty by the Builder in a mutually agreed form
confirming that the Ship is delivered to the Buyer free and clear of
all encumbrances whatsoever (including, without limitation, all
liabilities of the Builder to the Refund Guarantors, the Builder's
financiers and its subcontractors, and all liabilities arising from
the construction of the Ship or the operation of the Ship for the
purposes of the tests or otherwise before delivery) and that the
Ship is
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FIRST ORIGINAL
absolutely free of all burdens in the nature of imposts, taxes or
other charges imposed by the national, provincial, local or port
authorities of the country where the Ship was built and (if
different) the country in which the Ship is delivered to the Buyer,
executed in triplicate and notarised and legalised in accordance
with the Buyer's instructions;
(iii) a detailed inventory showing the machinery and equipment installed
on the Ship and the spares, stores and other consumable items
delivered with the Ship;
(iv) the makers' certificates, subcontractors' instruction books, and
all of the Classification Society, trading and other certificates
(each free of conditions, qualifications, recommendations,
reservations and restrictions) required to be supplied upon
delivery of the Ship pursuant to this Contract and the
Specification;
(v) a protocol showing the results of the tests;
(vi) a non-registration or deletion certificate issued by the District
Court of Emden, Germany;
(vii) a commercial invoice For the Ship and all other amounts payable by
the Buyer on delivery;
(viii) a builder's certificate and a bill of sale, each in a form
acceptable to the Buyer, each executed in quadruplicate and
notarised and legalised in accordance with the Buyer's
instructions, and such Other written instruments (each notarised
and legalised in accordance with the Buyer's instructions) as may
be necessary or desirable, in the reasonable opinion of the Buyer,
to confirm that full and clean title in the Ship has been vested in
the Buyer;
(ix) a full set of the specified construction documents (each in three
(3) white prints, one of each of which will be on board the Ship at
delivery);
(x) one CD-ROM of the principal delivery drawings and plans relating to
the Ship approved by the Classification Society;
(xi) such further certificates and/or other documents as may be
necessary or desirable, in the reasonable opinion of the Buyer, in
connection with the Buyer's ownership, registration and/or
financing of the Ship;
(xii) such documents as may be necessary or desirable, in the reasonable
opinion of the Buyer, to prove the authority of the Builder's
representatives below senior management to sign the documents to be
executed on behalf of the Builder in connection with delivery of
the Ship.
1.4 If, at the time when the Builder tenders delivery of the Ship to the
Buyer, the Ship is complete (meaning that she has been designed,
engineered, built, launched, equipped, outfitted, finished and tested in
accordance with this Contract and the Specification), and if such tender
is accompanied by a tender of delivery of a complete and proper set of the
Delivery Documents, the Ship and the Delivery Documents shall thereupon be
accepted by the Buyer but if, at such time, the Ship and/or the Delivery
Documents are not
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FIRST ORIGINAL
complete, the Buyer shall be entitled to refuse acceptance of the same by
delivering to the Builder, within two (2) working days from (and
including) the date of such tender, a written notice describing those
aspects of the Ship and/or the Delivery Documents which are not complete.
1.5 Notwithstanding any provision to the contrary in this Clause 1, if the
Ship is complete but for minor and insignificant Defects, the Buyer shall
accept delivery subject to:
(i) an agreed reduction in the Contract Price; or
(ii) in the Buyer's option, the Builder undertaking to correct (at the
Builder's entire risk and expense, and with all convenient speed)
minor and insignificant Defects described in a list to be prepared
by the Buyer and agreed with the Builder at or before delivery.
1.6 The expression "MINOR AND INSIGNIFICANT DEFECTS" means those Defects
which:
(i) do not and will not adversely affect the seaworthiness of the Ship;
or
(ii) do not and will not prevent the unrestricted use of the Ship in its
intended service and purpose; or
(iii) do not and will not (a) prevent the use of any of the Ship's cabins
and public areas, or (b) in any other way adversely affect the
comfort and safety of the Ship's passengers; or
(iv) do not and will not adversely affect the operational efficiency of
the Ship; or
(v) do not and will not involve any condition, qualification,
recommendation, reservation or restriction in relation to any
certificate issued (or to be issued) by the Classification Society
or any Regulatory Authority or any other specified person which in
the opinion of the Buyer (acting in good faith) is or could be
material in a commercial or technical sense.
1.7 Acceptance of the Ship by the Buyer shall be accomplished by:
(i) the delivery to the Builder of a counterpart of the protocol of
delivery and acceptance duly executed by the Buyer; and
(ii) payment by the Buyer to the Builder of that part of the Contract
Price which the Buyer is required to pay upon delivery of the Ship
pursuant to Clause 2.1(vi) in Article 8.
1.8 The Buyer may (but shall not be obliged to) identify in the list described
in Clause 1.5(ii) any Defects which are known by the Buyer to exist in
the Ship at the time that the Ship is accepted, and all such Defects
(whether or not identified or otherwise noted), shall thereafter be deemed
to be, and shall be treated as, Defects arising and reported during the
Guarantee Period.
1.9 The Buyer shall be afforded five (5) days free of any wharfage or any
other charge, and up to three (3) further days at the usual wharfage fee
charged by the relevant port authority, within which to remove the Ship
from her point of delivery.
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FIRST ORIGINAL
1.10 Lubricating oil left in storage tanks, and diesel and fuel oil remaining
on board, at delivery of the Ship shall be inventoried by the Builder and
the Buyer shall pay for them at the Builder's actual cost price provided
that the Builder shall remove all waste-oil and sludge from the Ship at
the Builder's risk and expense prior to delivery.
1.11 In every instance in which a right or obligation or the computation of any
period of time under this Contract is in any manner or to any extent
dependent upon delivery of the Ship, delivery shall not be deemed to have
occurred unless and until the Ship and the related Delivery Documents have
been accepted by the Buyer under this Clause 1.
1.12 Acceptance of the Ship and the related Delivery Documents by the Buyer
under this Clause 1:
(i) shall signify that the Buyer has taken possession and the risk of
loss of the Ship and the related Delivery Documents as of the time
and date set out in the protocol of delivery and acceptance and that
the Builder may terminate the Insurances; and
(ii) shall not be deemed to constitute a waiver of or otherwise prejudice
any of the Buyer's rights under Clause 2 with respect to any Defect,
whether known or unknown, and whether or not noted in any document
delivered in connection with delivery and acceptance of the Ship,
which may exist in the Ship at the time it is accepted by the Buyer,
and any such Defect may be reported to, and shall be corrected at
the sole and direct risk and expense of, the Builder as provided in
Clause 2.
2. GUARANTEE
2.1 Subject to the provisions of this Clause 2, the Builder guarantees:
(i) the Ship's main engines and certain components of the azipod system
(namely; the pod, the converter, trafo and main switchboard parts)
against all Defects for the period of seven hundred and thirty (730)
days; and
(ii) the Ship and all other Parts against all Defects for the period of
three hundred and sixty five (365) days,
(subject to any extension thereof as provided for in this Clause 2) from
the date of the Ship's actual delivery to the Buyer under Article 6 (the
"GUARANTEE PERIOD").
2.2 In calculating the length of the Guarantee Period there shall be excluded
any day(s) during which the Ship is prevented from entering or is taken
out of service solely on account of any Defect in the Ship or in any Part
for which the Builder is responsible under this Clause 2.
2.3 Where any Defect in the Ship or any Part (including the main engines or
azipod system as defined in subclause 2.1(i) above) is corrected during or
after the Guarantee Period, the Builder's guarantee under this Clause 2
shall apply to such correction for the longer of three hundred and sixty
five (365) days from the date on which the correction was completed and
the end of the relevant period specified in subclause 2.1(i) and 2.1(ii)
above so that the Guarantee Period for the items referred to in subclause
2.1(i) shall not
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FIRST ORIGINAL
exceed one thousand and ninety five (1095) days and the Guaranteed Period
for the items referred to in subclause 2.1(ii) shall not exceed seven
hundred and thirty (730) days.
2.4 If any corrective works made or agreed to be made during or after the
Guarantee Period (or any extension thereof under Clause 2.3) indicate any
recurring Defect, the Builder shall:
(i) investigate the same on the basis of a potential design Defect; and
(ii) ascertain the source of such recurring Defect and notify the Buyer
thereof; and
(iii) correct such recurring Defect, and the source thereof, in order to
avoid a continuation or repetition of such recurring Defect.
2.5 The Builder shall not be responsible for the correction of any Defect if
it is due to:
(i) perils of the sea, accident (but excluding any accident caused by
any Defect), negligence (but excluding negligence on the part of the
Builder), or improper maintenance or handling (including, without
limitation, overloading) of the Ship or any Parts; or
(ii) use of fuels or lubricants not recommended by the relevant
manufacturer; or
(iii) ordinary wear and tear; or
(iv) any fault in (or caused by) any Buyer's Supplies which were properly
(a) received, (b) handled, (c) installed or incorporated in, (d)
stowed on, or (e) otherwise delivered with the Ship by the Builder
in accordance with all of the requirements of this Contract, the
Plans and the Specification.
2.6 The Buyer shall give written notice to the Builder as soon as possible and
in any event within fourteen (14) days after the discovery of any Defect
for which a claim is made under this Clause 2 and, a copy of each such
notice shall also be given to the guarantee engineer, who shall
acknowledge receipt by his signature thereof. The Buyer's notice shall
give full details (so far as possible) as to the nature of the Defect and
the extent of any damage caused thereby.
2.7 Within thirty (30) days after the end of the Guarantee Period, the Buyer
(in consultation with the guarantee engineer) will draw up, and send to
the Builder, a list identifying every Defect for which a claim is to be
made under this Clause 2 provided that this Clause 2.7 will not preclude
the Buyer from giving notice to the Builder of, and making claims in
respect of, any Defect which is covered by the Builder's guarantee under
Clause 2.3.
2.8 Each Defect will be corrected by the Builder as soon as reasonably
practicable (and shall be scheduled so as to minimise disruption to the
Ship's service and the availability of cabins, public rooms and areas, and
other passenger facilities) or, at the Buyer's option, under the
instruction or supervision of the Builder at a suitably qualified shipyard
or workshop selected by the Buyer and approved by the Builder (such
approval not to be unreasonably withheld or delayed), and in each case the
Builder shall bear and pay:
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(i) the cost of all equipment, parts and materials required to correct
the Defect (including, without limitation, the cost of delivering
the same to the selected shipyard or workshop by airfreight if the
Buyer reasonably so requires, and the cost of returning any
defective equipment, parts and materials);
(ii) the cost of all labour required to correct the Defect including,
without limitation, the expenses of independent contractors in
travelling to the Ship;
(iii) the cost of any necessary underwater inspection of the Ship by
divers; and
(iv) where the Ship is drydocked solely on account of the need to
investigate or correct any Defect in the Ship's external underwater
parts at any time before the Ship's first scheduled drydocking after
delivery, the fuel costs of taking the Ship from her berth to the
nearest available dry-dock and vice versa, the drydocking costs and
the costs of correcting any such Defect.
For the avoidance of doubt, in view of the intended area of the Ship's
operation during the Guarantee Period, the Builder will not be entitled to
require the Ship to be returned to any of the Builder's facilities for the
correction of any Defects.
2.9 Where the Buyer discovers any Defect which (in the reasonable opinion of
the Buyer) requires correction on an urgent basis, the Buyer will (acting
in good faith) give such notice to the Builder as is practicable in the
circumstances then prevailing (the intention being that the Builder shall
have a reasonable opportunity to obtain necessary remedial instructions
from the relevant sub-contractor(s) and to relay such instructions to the
Buyer) and thereafter the necessary corrective works may be carried out by
the Ship's crew or, if practicable having regard to the degree of urgency,
by the nearest suitably qualified shipyard or workshop selected by the
Buyer, and in each such case the Builder shall reimburse the Buyer for the
costs described in Clause 2.8(i), (ii), (iii) and (iv) above.
2.10 At the Buyer's request from time to time within the period commencing on
delivery of the Ship and ending with final completion of all corrective
works to be made by the Builder under this Clause 2, the Builder will;
(i) assign to the Buyer, to the fullest extent possible and without any
charge to the Buyer, that part of every warranty or guarantee made
or given by any sub-contractor with respect to any design,
workmanship or Part which extends beyond the Guarantee Period or
which is otherwise more favourable to the Buyer than the guarantee
of the Builder under this Clause 2; or
(ii) if it is not possible fully and effectively to assign the relevant
part of any such warranty or guarantee, hold and enforce the
relevant warranty and guarantee as trustee and agent for the Buyer
and promptly account to the Buyer for all monies received in or,
pursuant to the holding or enforcement of any such warranty or
guarantee.
2.11 The Builder shall, at its sole risk and expense (except for the cost of
suitable accommodation and food on board the Ship which shall be supplied
free of charge by the Buyer), employ and place a suitably qualified and
experienced English-speaking
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guarantee engineer acceptable to the Buyer on board the Ship throughout
the Guarantee Period and thereafter until the Builder has corrected every
Defect to which this Clause 2 applies. If the Builder should so request at
delivery, the Buyer will also make one double cabin available for a second
guarantee engineer and/or fitters for up to three (3) months after
delivery.
2.12 If:
(i) any Defect in the Ship's external underwater parts is discovered
during the Guarantee Period or the period of thirty (30) days
referred to in Clause 2.7; or
(ii) any Defect in the Ship's external underwater parts is discovered
during the Ship's first scheduled drydocking after delivery (which
is to commence not later than thirty six (36) months after delivery
provided that if the Ship is not drydocked within twenty four (24)
months after delivery, the Buyer and the Builder will jointly make
an in-water inspection of the Ship's underwater parts within twenty
four (24) months after delivery) and either the Builder accepts that
the Defect arose during the Guarantee Period or the Builder is
unable to prove that the Defect arose after the end of the Guarantee
Period,
the Builder shall be responsible for such Defect and the correction
thereof in accordance with this Clause 2 provided that the Buyer shall
bear and pay for the haul day and any drydocking costs incurred in the
ordinary course of the Ship's normal drydocking maintenance and the
Builder, in addition to the costs of all necessary corrective works, shall
bear and pay for such additional drydocking day(s) as may be required to
correct such Defect.
2.13 Without prejudice to the Builder's obligations and liabilities under the
other provisions of this Clause 2, the Builder shall not be responsible
for any loss or damage caused by any Defect except:
(i) that, in addition to the other guarantee obligations specified in
this Clause 2, the Builder shall be obliged to correct (or, as
provided for in the preceding paragraphs of this Clause 2, pay for
the correction of) any equipment or part of the Ship that is damaged
as a direct result of any Defect covered by the Builder's guarantee
under this Clause 2;
(ii) for any loss or damage directly caused by the Builder's correction
of any Defect;
(iii) for any loss or damage directly caused by the wrongful refusal or
failure of the Builder or its subcontractors to correct (or
authorise the correction) of any Defect, and
(iv) for any increase; in premium or any loss of rebate incurred by the
Buyer as a result of any claims being made on the Buyer's insurance
policies for the Ship in respect of any loss or damage referred to
in this Clause 2.13
provided always that the Builder's maximum liability in respect of any
claim made against it by the Buyer under this Clause 2.13 shall not exceed
the sum of [***] [Confidential Treatment] per Defect.
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2.14 The Builder further guarantees the Ship against any latent Defects which
the Buyer can demonstrate existed at the time of the Ship's delivery to
the Buyer but which were not apparent during the Guarantee Period. If the
Buyer discovers any latent Defects after the expiry of the Guarantee
Period, the Guarantee Period shall be deemed to be extended in respect of
such Defects and the Builder shall be obliged to correct (or pay for the
correction of) such Defects in accordance with the foregoing provisions of
this Clause 2 provided always that:
(i) the Buyer shall give written notice to the Builder as soon as
possible (and in any event within fourteen (14) days) after the
discovery of any latent Defect for which a claim is made under this
Clause 2.14, and such notice shall give full details (so far as
possible) of the nature of the latent Defect and the extent of any
damage cause thereby;
(ii) the Buyer shall have the burden of establishing that the Defect is a
latent Defect within the meaning set out above, failing which the
Builder shall have no liability in respect thereof;
(iii) the Builder shall be under no obligation in respect of any latent
Defect unless written notice thereof has been received by the
Builder by midday (Papenburg time) on the day falling [***]
[Confidential Treatment] from the date of the Ship's actual delivery
to the Buyer; and
(iv) the provisions of this sub Clause relating to latent Defects do not
apply to paintings or coatings.
2.15 Subject to the other express provisions of this Contract, the Builder
shall not be responsible for any loss of profit or other consequential
losses suffered by the Buyer.
(END OF ARTICLE 7)
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ARTICLE 8: CONTRACT PRICE AND PAYMENT TERMS
1. CONTRACT PRICE
1.1 The Contract Price for the Ship:
(i) shall be (euro)391,000,000 (three hundred and ninety one million
euros);
(ii) is a fixed price and may be adjusted only in strict accordance with,
and subject to, the express provisions of this Contract; and
(iii) includes a lump sum allowance in the amount of (euro)25,000,000
(twenty five million euros) in respect of (a) Buyer's Supplies from
time to time purchased by or at the direction of the Buyer and (b)
other costs from time to time expended by or at the direction of the
Buyer in connection with construction of the Ship, which amount
shall be paid by the Builder to the Buyer immediately after receipt
of the balance of the Contract Price (see Clause 2.1(v) below).
1.2 For the avoidance of doubt, the Contract Price includes:
(i) the cost of the Ship, completed in accordance with the requirements
of this Contract;
(ii) the cost of all building work and the cost of all tests and trials
of the Ship to be performed by, or on behalf of, the Builder;
(iii) the cost of procuring the classification notation for the Ship, and
of obtaining all certificates and other documents which are required
to be delivered pursuant to this Contract; and
(iv) all other costs and expenses of the Builder as provided for herein
or otherwise incurred by the Builder unless expressly provided for
in this Contract as being for the Buyer's account.
1.3 No commission of any kind whatsoever is or will be payable (whether
directly or indirectly) by or to any person in relation to or in
connection with this Contract or any of the business transactions
described in or contemplated by this Contract.
2. PAYMENTS
2.1 Payment of the Contract Price shall be made to the Builder as follows:
(i) [***] [Confidential Treatment], within [***] [Confidential
Treatment] after the Effective Date;
(ii) [***] [Confidential Treatment], on the date falling [***]
[Confidential Treatment] before the Delivery Date;
(iii) [***] [Confidential Treatment], on the date falling [***]
[Confidential Treatment] before the Delivery Date;
(iv) [***] [Confidential Treatment], on the date falling [***]
[Confidential Treatment] before the Delivery Date or
(if later) the
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date determined by the Buyer (acting reasonably and in good faith)
to be the date on which the Ship is expected to be ready for
delivery in accordance with this Contract; and
(v) the balance of the Contact Price, on delivery of the Ship and the
Delivery Documents to, and their acceptance by, the Buyer in
accordance with the provisions of this Contract.
2.2 The Builder shall by not less than fourteen (14) days advance written
notice advise the Buyer of the date upon which each of the payments
referred to sub-clauses 2.1(ii) to (iv) shall become due and payable and,
in addition, the notice given in relation to sub-clause 2.1(v) will show
(in reasonable detail and on an open-book basis) the Builder's calculation
of the balance of the Contract Price payable on delivery of the Ship and,
in particular, the amounts of any reductions in or additions to the
Contract Price occasioned by the terms and conditions of this Contract.
2.3 The Buyer's obligations to make the payments referred to in sub-clauses
2.1(i) to (iv) shall, in the case of each such payment, be subject to and
conditional upon the Buyer's receipt of
(i) the Builder's invoice for the relevant payment; and
(ii) an irrevocable guarantee issued in favour of the Buyer by a first
class German bank or insurance company ("REFUND GUARANTOR")
acceptable to the Buyer (such acceptance not to be unreasonably
withheld) securing the refund to the Buyer of the relevant payment
together with interest thereon at the relevant rate calculated from
the date of the Builder's receipt of such payment to the date of the
Buyer's receipt of the refund, such guarantee to be in the terms of
the draft set out in the Second Schedule or in such other terms as
the Buyer, acting reasonably, may approve.
The Buyer's obligation to make the payment referred to in sub-clause 2.2
(v) shall be subject to and conditional upon the Buyer's receipt of the
Builder's invoice for the relevant payment and the Builder's performance
of the other delivery-related obligations provided for in this Contract.
2.4 The other payments from time to time due under this Contract shall be made
as follows:
(i) payment or credits for any modification(s) pursuant to Article 3
and/or any other amount(s) accruing prior to delivery (but for which
no specific date is stipulated in this Contract) shall be made
simultaneously with delivery of the Ship, and the amount(s) thereof
shall be shown in the invoice to be issued and delivered by the
Builder in respect of the Contract Price payment referred to in
Clause 2.1(v);
(ii) any amount for which a specific payment date is stipulated in this
Contract shall be paid on such date; and
(iii) for any amount accruing after delivery in respect of a defect,
payment shall be made as follows:
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FIRST ORIGINAL
(a) if the parties agree that the defect in question is a Defect,
not later than fifteen (15) days after the Builder's receipt
of an invoice for the Defect remedied pursuant to Clause 2 in
Article 7; or
(c) if there is a Dispute as to whether the defect is a Defect on
the date on which it is finally determined or adjudged to be a
Defect under Article 13, together with interest thereon at
the relevant rate calculated from the date of the Builder's
receipt of an invoice for the Defect remedied pursuant to
Clause 2 in Article 7 up to and including the date of the
Buyer's receipt of the relevant amount.
2.5 Every amount from time to time due under this Contract but unpaid for
longer than seven (7) days from (and excluding) the due date shall bear
interest at the relevant rate from the due date up to and including the
date of receipt by the party to which the amount is owed.
2.6 All amounts payable to the Builder under this Contract shall be paid
direct to the Builder's Account, and the Builder and the Buyer shall
consult with each other about the mode of payment with a view to reducing
the amount of any applicable bank transfer charges.
2.7 All payments made by the Buyer to the Builder before delivery and
acceptance of the Ship shall be in the nature of advances to the Builder.
Payments made by the Buyer shall not be construed as a waiver of the
Buyer's rights subsequently to object to any of such payments or the
underlying invoices issued by the Builder.
2.8 All fees, costs and other charges whatsoever arising in connection with:
(i) each guarantee issued under Clause 2.3 (including, without
limitation, fees and other costs or charges payable to the relevant
bank(s) and/or insurance company(ies) in respect of the issuance and
maintenance thereof shall be borne and paid by the Builder; and
(ii) any payment made under this Contract shall be borne and paid by the
paying party provided that any fees, costs or other charges levied
by the receiving party's bank(s) (including correspondent banks,
whether in Germany or elsewhere) shall be borne and paid by that
party.
2.9 The euro is the currency of account and payment for each land every sum at
any time due from either party to the other under or in connection with
this Contract.
(END OF ARTICLE 8)
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ARTICLE 9: TERMINATION
1. TERMINATION BY BUILDER
1.1 Each of the following events shall be a "BUILDER TERMINATION EVENT" for
the purposes of this Contract:
(i) if, without due cause, the Buyer fails to pay any part of the
Contract Price under any of Clauses 2.1 (i), (ii), (iii), or (iv) in
Article 8 on the due date for such payment and such failure is not
remedied within fifteen (15) working days after the receipt by the
Buyer of a written notice from the Builder notifying the Buyer of
such failure and requesting remedial action; or
(ii) if, without due cause, the Buyer fails to accept delivery of (and
pay the balance of the Contract Price for) the Ship within three (3)
working days after the Ship and the related Delivery Documents have
been duly tendered for delivery by the Builder in conformity with
this Contract; or
(iii) if any of the following events or circumstances shall occur before
the Buyer has accepted delivery of the Ship and paid the balance of
the Contract Price (a) a final order shall be made or an effective
resolution shall be passed for the winding up of the Buyer
(otherwise than by a members' voluntary winding up for the purpose
of an amalgamation or reconstruction on terms previously approved by
the Builder, which approval shall not be unreasonably withheld) or
(b) a receiver shall be appointed in respect of the whole or any
substantial part of the undertaking of the Buyer or (c) the Buyer
shall suspend the payment of its debts or (d) the Buyer shall make
an arrangement or composition with its creditors generally or (e)
the Buyer shall apply to any court for protection from its creditors
generally or (f) the Buyer shall be unable, or shall admit its
inability, to pay its debts as they fall due or it shall become or
shall be declared insolvent under any applicable law or (g) any
distress, execution, attachment or other process shall affect the
whole or any substantial part of the Buyer's business and assets and
shall remain undischarged for a period exceeding 21 (twenty one)
days or (h) the whole or any substantial part of the Buyer's
business and assets shall be subject to Compulsory Acquisition by
the Bermudian government or any agency thereof for a period
exceeding 30 (thirty) days or (i) anything analogous to or having a
substantially similar effect to any of the events specified in (a)
to (h) shall occur under the laws of any applicable jurisdiction.
1.2 At any time after a Builder Termination Event shall have occurred and be
continuing, the Builder may, by notice to the Buyer, terminate this
Contract whereupon:
(i) title in the Buyer's Supplies owned by the Buyer which have been
installed or incorporated in the Ship before termination, shall pass
to the Builder; and
(ii) the Builder shall retain and apply (in the manner provided for in
Clause 1.3) all payments previously made by the Buyer to the Builder
under this Contract.
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1.3 If the Builder terminates this Contract under Clause 1.2, the Builder
shall endeavour to obtain the best market price reasonably obtainable for
the Ship, the Parts and the Buyer's Supplies referred to in Clause 1.2 (i)
by sale at public auction or tender or private sale, and shall apply the
proceeds of sale (after deducting the necessary expenses of sale including
the reasonable costs of completing the Ship for sale) and all amounts
retained by the Builder under Clause 1.2 (ii) plus a credit for the value
of Buyer's Supplies previously delivered by the Buyer and either retained
by the Builder or its subcontractors or sold by any of them, as follows:
(i) firstly, in satisfaction of the balance due to the Builder under
this Contract being (a) where the Ship is completed in accordance
with this Contract and then sold, the unpaid parts of the Contract
Price, or (b) where the Ship is sold in an uncompleted state, that
proportion of the unpaid parts of the Contract Price which is
required to reimburse the Builder's costs of the building work up to
the cessation of such work, and (c) all other amounts payable by the
Buyer to the Builder under the provisions of this Contract as at the
date of termination; and
(ii) secondly, in payment of the Builder's proved loss directly resulting
from the Buyer's default; and
(iii) thirdly, in payment of any remaining balance to the Buyer,
provided that if the total of such proceeds of sale, such retained amounts
and such credit shall be less than the balance due to the Builder under
paragraphs (i) and (ii) of this Clause 1.3, the difference shall be paid
by the Buyer to the Builder.
2. TERMINATION BY BUYER
2.1 Each of the following events shall BE a "BUYER TERMINATION EVENT" for the
purposes of this Contract:
(i) if (a) at any time the construction of the Ship is suspended for a
period of more than thirty (30) days in circumstances where the
Builder would not be entitled to claim an extension of the Delivery
Date under Clause 1 of Article 5 and the Buyer reasonably believes
that the Builder will not be able to recover the lost time or (b)
delivery has not been made, or it can with reasonable certainty be
anticipated that delivery will not be made, for whatever reason or
combination of reasons (excepting only one or more independent
defaults by the Buyer), by the date falling [***] [Confidential
Treatment];
(ii) if the Buyer becomes entitled to terminate this Contract under any
of Clauses 2.3, 2.7, 2.9, 2.12, 2.15 or 2.18 in Article 6;
(iii) if the Builder commits a material breach of any of its obligations
under this Contract (including, without limitation, its obligations
with respect to the achievement of Milestones), and fails to remedy
any such breach within 30 (thirty) days after receipt of written
notice from the Buyer requesting remedial action;
(iv) if the Builder removes the Ship from the Shipyard, or if it assigns
or transfers any of its rights or obligations under this Contract,
or if it subcontracts the
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FIRST ORIGINAL
whole or any major part of the building work, except as expressly
permitted by this Contract;
(v) if any guarantee issued in favour of the Buyer under this Contract,
or the security thereby given, is or becomes wholly or partially
invalid, ineffective or unenforceable unless the Builder replaces
any such guarantee with a new guarantee complying with Clause
2.3(ii) of Article 8 within 7 (seven) days after receipt of written
notice from the Buyer requiring such replacement; or
(vi) if either (a) the Builder shall fail at any time to effect or
maintain the Insurances, or any insurer shall avoid or cancel the
Insurances or the Builder shall commit any breach of or make any
misrepresentation in respect of the Insurances the result of which
is to entitle the insurers to avoid the cover or otherwise to be
excused or released from any or all of their liabilities thereunder,
or (b) any of the Insurances shall cease for any reason whatsoever
to be in full force and effect, unless the Insurances are
re-instated or reconstituted in a manner meeting the requirements of
this Contract within seven (7) days; or
(vii) if (a) a final order shall be made or an effective resolution shall
be passed for the winding up of the Builder (otherwise than by a
members' voluntary winding up for the purposes of amalgamation or
reconstruction on terms previously approved by the Buyer, which
approval shall not be unreasonably withheld) or (b) a receiver shall
be appointed in respect of the whole or any substantial part of the
undertaking of the Builder or (c) the Builder shall suspend the
payment of its debts or (d) the Builder shall make an arrangement
or composition with its creditors generally or (e) the Builder shall
apply to any court for protection from its creditors generally or
(f) the Builder shall be unable, or shall admit its inability, to
pay its debts as they fall due or it shall become or shall be
declared insolvent under any applicable law or (g) any distress,
execution, attachment or other process shall affect the whole or any
substantial part of the Builder's business or assets and shall
remain undischarged for a period exceeding 21 (twenty one) days or
(h) the Ship or the whole or any substantial part of the Builder's
business or assets shall be subject to Compulsory Acquisition by the
German government or any agency thereof for a period exceeding 30
(thirty) days or (i) anything analogous to or having a substantially
similar effect to any of the events specified in (a) to (h) above
shall occur under the laws of any applicable jurisdiction.
2.2 At any time after a Buyer Termination Event shall have occurred and be
continuing the Buyer may, by notice to the Builder, terminate this
Contract and thereafter:
(i) the Buyer may retain and/or claim from the Builder (which shall
immediately pay to the Buyer) all liquidated damages paid or payable
by the Builder to the Buyer under Clauses 2.17 to 2.19 in Article 6;
and
(ii) the Buyer may also claim from the Builder (which shall immediately
refund to the Buyer) the aggregate of (a) all payments previously
made by the Buyer to the Builder under this Contract together with
interest thereon at the relevant rate calculated from the date upon
which the Builder received each such payment to
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FIRST ORIGINAL
the date on which the refund is received by the Buyer, (b) the
return of any Buyer's Supplies which have not been built into or
installed on or in the Ship or which may be removed from the Ship,
the Shipyard or other place(s) where they are stored and the Buyer's
Supply Costs for all other Buyer's Supplies, and (c) all other
amounts payable by the Builder to the Buyer under the provisions of
this Contract at the date of termination; and
(iii) if the Buyer's right to terminate this Contract (whether under
Articles 4 and/or 9 or otherwise) becomes exercisable as a result of
any negligence or wilful misconduct on the part of the Builder the
Buyer shall, in addition to the payments referred to in sub-clauses
2.2(i) and (ii), be entitled to the proved loss directly resulting
from the Builder's default.
2.3 If the Buyer elects to terminate this Contract under Clause 2.2 the Buyer
may (at any time thereafter) elect to take title and possession of the
Ship in its then state together with the Buyer's Supplies and all plans,
machinery, equipment and other Parts appropriated or allocated to the
Ship, and to complete the Ship at the Shipyard (without being liable to
the Builder for rent or other claims) or, in the Buyer's option, at
another shipyard.
2.4 If the Buyer elects to take title and possession of the Ship under Clause
2.3 it may enter into one or more contracts with other parties to complete
the Ship at the Shipyard or elsewhere and for such purposes the Buyer may
remove the Ship together with the Buyer's Supplies and all equipment and
other Parts appropriated or allocated to, or ordered for the Ship or,
alternatively, it may use (to the extent it sees fit) any of the Shipyard
facilities, plant, machinery, tools and all equipment and other Parts
appropriated or allocated to, or ordered for, the Ship and in either case
the Builder shall release (and, as necessary, procure the release of) the
same to the Buyer free from all claims (including claims for rent) and
encumbrances whatsoever against payment to the Builder of the unpaid
balance of the Contract Price less the aggregate of:
(i) the payments, refunds and other amounts referred to in Clause 2.2
(i), (ii) and (iii); and
(ii) the Buyer's good faith estimate of the costs that it will incur in
(a) moving the Ship (and the Buyer's Supplies and all related
equipment and other Parts) to another shipyard and in having the
Ship completed at such other shipyard or (b) in completing the Ship
at the Shipyard.
2.5 If the Buyer elects to take title and possession in the Ship under Clauses
2.3 and 2.4 the Builder will, at the Buyer's direction from time to time,
arrange for the following steps to be taken as soon as may be practicable:
(i) the execution of all works and other steps required to permit the
Ship, the Parts and the Buyer's supplies to be removed by the Buyer
in an orderly and safe manner;
(ii) the removal from the Ship of all employees and other representatives
of the Builder and its subcontractors;
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(iii) the delivery to the Buyer of the Ship, the Parts, the Buyer's
Supplies, all completed and partially completed portions of the
building work, and all documents and other data required by the
Buyer in connection with the building work previously done or the
work to be done in order to complete the construction of the Ship;
(iv) the vesting in the Buyer of all rights of the Builder under and in
connection with the subcontracts and supply contracts made by the
Builder in relation to the construction of the Ship; and
(v) the provision to the Buyer and its contractors of all such other
assistance as may be required to enable the Buyer to remove the
Ship, the Parts and the Buyer's Supplies.
3. TERMINATION BY EITHER PARTY
3.1 Any event entitling a party to terminate this Contract in accordance with
its express provisions shall constitute (as the case may be) either a
repudiatory breach of, or breach of condition by the other party under,
this Contract or an agreed terminating event the occurrence of which will
(in any such case) entitle the relevant party to terminate this Contract
and recover the amounts provided for in this Contract either as liquidated
damages or as agreed sums deductible or payable on the occurrence of such
event.
3.2 The Builder's receipt of all payments to be made by the Buyer under Clause
1.3 or, as the case may be, the Buyer's receipt of all payments to be made
by the Builder under Clause 2.2 and Clause 2.3 shall discharge all
obligations and liabilities of each of the parties to the other under this
Contract save for any obligations and liabilities of either party arising
under the other provisions of this Contract.
(END OF ARTICLE 9)
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ARTICLE 10: BUILDER'S REPRESENTATIONS, COVENANTS AND INDEMNITIES
1. REPRESENTATIONS, WARRANTIES AND COVENANTS
1.1 The Builder acknowledges that the Buyer has entered into this Contract in
full reliance on the representations set out in Clauses 1.2 and 1.3 and
the Builder warrants that the statements contained in those Clauses are in
all respects true and accurate.
1.2 Each party (in either case, the "WARRANTOR") represents and warrants to
the other party that:
(i) all acts, conditions and things required to be done, fulfilled and
performed in order (a) to enable it lawfully to enter into, exercise
its rights under and perform and comply will the obligations
expressed to be assumed by it in this Contract and (b) to ensure
that the obligations expressed to be assumed by it in this Contract
are legal, valid and binding have been done, fulfilled and
performed; and
(ii) no legal proceedings have been started or (to the best of the
warrantor's knowledge and belief) threatened which might have a
material adverse effect on the warrantor's ability to perform its
obligations under this Contract.
1.3 The Builder further represents and warrants to the Buyer:
(i) that neither the execution of this Contract nor the exercise by the
Builder of its rights and performance of its obligations under this
Contract will result in any breach of any German or European
Community law, regulation, rule, directive or treaty;
(ii) neither the Builder nor (to the best of the Builder's knowledge,
information or belief) any other person has (whether directly or
indirectly) offered or paid or agreed to pay or give commission of
any kind whatsoever in relation to or in connection with this
Contract or any of the business transactions described in or
contemplated by this Contract; and
(iii) that it shall obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all authorisations,
approvals, licences and consents required in or by the laws,
regulations, rules, directives and treaties of Germany and the
European Community to enable it lawfully to enter into and perform
its obligations under this Contract.
2. INDEMNITIES
2.1 The Builder shall indemnify fully, bold harmless and defend the Buyer and
the other protected parties from and against all Losses which any of them
may sustain or incur in respect of any personal injuries or other harm to
or death of any person(s) or any damage to or loss or destruction of, any
property of any person(s), and which arise out of:
(i) any acts, omissions or defaults on the part of (a) the Builder
and/or (b) any of the Builder's subcontractors and/or (c) any of the
respective officers, employees, Workmen, agents or other
representatives of the Builder or its subcontractors
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provided that this indemnity shall not (aa) extend to any Losses to
the extent they are caused by the negligence or wilful misconduct of
the Buyer or any other of the protected parties or (bb) apply to any
claim arising out of injury, harm, death, damage, loss or
destruction sustained after delivery of the Ship unless any such
claim arises out of injury, harm, death, damage, loss or destruction
sustained before delivery for which the Builder is responsible; and
(ii) any representation made by the Builder in Clause 1.3 proving (at any
time before or after the date hereof) to be untrue, inaccurate or
misleading in any material respect.
(END OF ARTICLE 10)
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FIRST ORIGINAL
ARTICLE 11: INTELLECTUAL PROPERTY RIGHTS
1. PATENTS, TRADE MARKS AND COPYRIGHTS
1.1 The Builder shall procure all such approvals and licenses, and pay all
such royalties, licence fees or other similar charges, on or in connection
with:
(i) the Ship;
(ii) any Parts (other than Buyer's Supplies) installed or incorporated
in, stowed on or otherwise delivered with the Ship;
(iii) any part of the building work,
as may be necessary to ensure that the same are delivered to the Buyer and
may be owned and operated by the Buyer (and its successors, assignees and
counterparties) without infringement of any patent, patent right,
copyright, trademark, trade secret or other intellectual property right.
1.2 The Builder shall indemnify fully, hold harmless and defend the Buyer and
the other protected parties from and against all Losses which any of them
may suffer or incur as a result of any actual or alleged infringement of
any patents, patent rights, copyrights, trademarks, trade secrets or other
intellectual property rights of any kind or nature on or in connection
with the Ship, the Parts (other than Buyer's Supplies) or any part of the
building work or the ownership or the proper use thereof by the Buyer
provided that this indemnity shall not apply to any such infringement if
the management of the Buyer or the management of any other protected party
knew of the relevant infringement (at any time between the Effective Date
and the date of actual delivery of the Ship) but failed to notify the
Builder.
1.3 If by reason of any claim for which the Builder is responsible under this
Clause 1:
(i) the Ship or any Part (other than Buyer's Supplies) shall be held to
constitute an infringement of any patent, patent right, copyright,
trademark, trade secret or other intellectual property right; or
(ii) the Buyer's free use and possession or quiet enjoyment of the Ship
or any such Part shall be in any manner or to any extent disturbed,
interfered with, limited, restricted or restrained (whether by
reason of an actual or threatened arrest, detention or claim or as a
result of any other encumbrance or for any other reasons
whatsoever),
the Builder shall, at its own expense, either promptly take all such steps
as may be necessary fully to restore to the Buyer the free use and
possession and quiet enjoyment of the Ship or such Part or, if the same
can be done without material adverse affect on or delay to the Ship's
schedule, replace any infringing Part with a non-infringing Part which is
satisfactory to the Buyer and/or the Classification Society and/or the
Regulatory Authorities.
1.4 The Buyer shall indemnify fully, hold harmless and defend the Builder from
and against all Losses which it may suffer or incur as a result of any
actual or alleged infringement of
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FIRST ORIGINAL
any patents, patent rights, copyrights, trademarks, trade secrets or other
intellectual property rights of any kind or nature on or in connection
with any Buyer's Supplies, plans, designs and engineering and design data
supplied by the Buyer to the Builder under or in connection with this
Contract provided that this indemnity shall not apply to any such
infringement if the management of the Builder knew of the relevant
infringement (at any time between the Effective Date and the date of
actual delivery of the Ship) but failed to notify the Buyer.
2. RIGHTS TO ENGINEERING AND DESIGN DATA
2.1 All plans, designs and engineering and design data supplied by the Buyer
to the Builder which are the property of the Buyer shall remain the
property of the Buyer and such plans, designs and engineering and design
data may be used by the Builder only in such manner as is permitted by
this Clause 2.
2.2 All plans, designs and engineering and design data supplied by the Builder
to the Buyer which are the property of the Builder shall remain the
property of the Builder and such plans, designs and engineering and design
data may be used by the Buyer only in such manner as is permitted by this
Clause 2.
2.3 Each party shall take all reasonable precautions to maintain in
confidence, and will not use or permit the use of (except as may be
necessary for the purposes of the building work), any of the designs,
plans and engineering and design data owned by the other party.
2.4 Nothing contained in this Contract shall be construed as transferring any
patent, patent right, copyright, trademark, trade secret or other
intellectual property right created or used in the performance of this
Contract, all of which are hereby expressly reserved to the true and
lawful owners thereof.
(END OF ARTICLE 11)
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ARTICLE 12: TAXES AND CONTRACT EXPENSES
1. TAXES
1.1 All taxes of any kind whatsoever and levied by whatsoever taxing authority
arising out of or in connection with the making and execution of this
Contract, the building of the Ship, the importation of any Parts (other
than Buyer's Supplies) into Germany or (if different) the country of any
subcontractor or of the Delivery Port, the classification and delivery of
the Ship, the sale and delivery of the Ship, payment of the Contract Price
in Germany and the export of the Ship or any Parts from Germany or (if
different) the country of any subcontractor or of the Delivery Port which
is payable in Germany or (if different) in the country of any
subcontractor or of the Delivery Port shall be borne and paid by the
Builder and the Builder shall indemnify fully; hold harmless and defend
the Buyer and all other protected parties from and against any Losses
which any of them may suffer or incur in relation to any such tax.
1.2 All taxes of any kind whatsoever and levied by whatsoever taxing authority
arising out of or in connection with the importation of any Buyer's
Supplies into Germany or (if different) the country of any subcontractor
or of the Port of Delivery or the importation of the Ship or any Parts
into the country of the Buyer shall be borne by the Buyer and the Buyer
shall indemnify fully, hold harmless and defend the Builder from and
against any Losses which the Builder may suffer or incur in relation to
any such tax.
2. CONTRACT EXPENSES
2.1 Each party shall bear and pay all costs and expenses incurred by it in
connection with the negotiation, preparation and execution of this
Contract.
2.2 Each party shall from time to time reimburse the other on demand for all
costs and expenses (including fees of legal and other professional
advisors) reasonably incurred by such other party in connection with the
enforcement of any of the rights of that party under this Agreement.
(END OF ARTICLE 12)
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ARTICLE 13: DISPUTES
1. TECHNICAL DISPUTES
1.1 Except where a Dispute of a technical nature is determined by the
Classification Society under Clause 4.2 in Article 1 or, as appropriate,
by a Regulatory Authority under Clause 4.4 in Article 1, any Dispute of a
technical nature arising before delivery of the Ship and which gives rise
to issues purely of fact (including, without limitation, any dispute or
difference of opinion relating to questions as to the existence, degree or
extent of any alleged non-conformity of the Ship or any Part to the
Contract, the Plans, the Specification, or the Rules) shall be referred to
the Head Office of the Classification Society for its final decision
provided that if the Head Office of the Classification Society declines to
accept any such referral, or if either party reasonably considers that it
is not appropriate to refer the Dispute in question to the Head Office of
the Classification Society, the Dispute shall be referred to a mutually
acceptable technical expert for his final decision.
1.2 The procedure applicable to the resolution of any Dispute of a technical
nature (whether by the Classification Society or by a mutually agreed
technical expert) shall be as follows:
(i) the person or body to whom the Dispute is referred (the "EXPERT",
which term shall also apply to any substitute appointed by mutual
agreement of the parties) shall be requested to make a final
decision within 21 (twenty one) working days after it has accepted
the appointment;
(ii) within 10 (ten) working days after the Expert has confirmed to both
parties that it has accepted the appointment, each party will send
to the Expert (and simultaneously to the other party), by telefax or
registered courier, its submissions and supporting evidence in
relation to the Dispute;
(iii) if a party fails to submit its submissions and supporting evidence
within the time limit laid down in paragraph (ii), it shall be
deemed to have admitted the correctness of the other party's
submissions;
(iv) the Expert shall act as an expert and not as an arbitrator;
(v) the decision of the Expert shall be final and binding on both
parties; and
(vi) the parties shall bear the Expert's costs equally.
1.3 If within 10 (ten) working days after receipt by a party of a notice of a
Dispute from the other party:
(i) the Head Office of the Classification Society has failed to accept a
referral pursuant to Clause 1.1; or
(ii) a party reasonably considers that it is not appropriate to refer any
Dispute of a technical nature to the Head Office of the
Classification Society; or
(iii) the parties have failed to agree upon the identity of a mutually
acceptable technical expert and obtain written acceptance of its
appointment,
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FIRST ORIGINAL
the Dispute shall be determined in accordance with Clause 2.
2. JURISDICTION
2.1 Except where a Dispute is determined under Clause 1.1 and subject to the
Buyer's rights under Clause 3.4, the English courts shall have exclusive
jurisdiction to settle and determine all Disputes.
2.2 Each party agrees that the English courts are the most appropriate and
convenient courts to settle and determine Disputes and that accordingly no
party will argue to the contrary; and each party hereby irrevocably
submits itself to the jurisdiction of the English courts for the purposes
of this Contract.
2.3 A judgment relating to this Contract that is given or enforceable by the
English courts may be enforced without review in any other jurisdiction
and each party waives all of its rights to apply for or require any such
review.
2.4 Subject to Clause 1.4(vi) in Article 5, no Dispute shall entitle the
Builder to cease or suspend any part of the building work or to withhold
delivery of the Ship, nor shall any Dispute entitle the Buyer to withhold
the payment of any part of the Contract Price due under any of Clauses
2.1(i), (ii), (iii), (iv) or (v) in Article, 8 beyond the relevant due
date for payment provided that nothing in this provision shall prejudice
any right which:
(i) the Builder may have to retain possession of the Ship on account of
nonpayment of the Contract Price; or
(ii) the Buyer may have to dispute the due date for payment of any part
of the Contract Price under Clause 2.1(v) in Article 8.
2.5 For the avoidance of doubt, if any Dispute arises before delivery of the
Ship and is referred for determination under any of the provisions of
Clauses 1 or 2 hereof, the Builder shall not he entitled to dispose of the
Ship pending the final determination of such Dispute.
3. GOVERNING LAW
3.1 This Contract is governed by and shall be construed in accordance with
English law.
3.2 Each party irrevocably agrees to appoint, and to maintain an agent for
service of process in London in relation to any proceedings before the
English courts in connection with this Contract. In addition, each party
agrees that no neglect or default buy its agent, including any failure by
it to notify the relevant party of any proceedings or process, will
invalidate the proceedings or process concerned or any judgment.
3.3 Without prejudice to any other mode of service allowed under any relevant
law, service of any proceedings or process or judgment issued out of, or
made or granted by, the English courts may be served by being delivered to
the last known address in London of the agent for service of process of
the relevant party or to the relevant party itself at the address for such
party set out in Clause 4.
3.4 The Buyer reserves the right to proceed under this Contract against the
Builder in the German state courts for interlocutory relief (einstweiliger
Rechtsschutz).
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FIRST ORIGINAL
4. NOTICES
4.1 Any notice or other communication made under or in connection with this
Contract shall be in writing in the English language and shall be given to
the addressee at the address set out below or sent by telefax to the
telefax number given below, marked for the attention of the relevant
individual listed in the "Attention" lines set out below provided that all
notices and communications relating to technical matters (including,
without limitation, those concerning the approval of Plans and tests)
shall be given to the Supervisor and the Buyer's UK newbuilding office at
the addresses set out in paragraphs (ii) and (iii) below or sent by
telefax to the telefax numbers specified in paragraphs (ii) and (iii)
below, and all notices and communications relating to invoices shall be
sent to the persons at the address and telefax number set out in paragraph
(iv) below.
(i) if to the Buyer, to: Newbuild Holding,Ltd.
c/o 7665 Corporate Centre Drive
Miami, Florida 33126
Telefax: +1305 4364113
Attention: Mr Colin Veitch, President & CEO
with a copy to telefax: +1 305 436 4117
Attention: Mr Mark Warren
Sr. Vice President & General Counsel
(ii) if to the Supervisor, to: THE SUPERVISOR
c/o the Supervisor's designated office
at the Shipyard
Telefax: +49-4961-814330
Attention: Mr Christer Karlsson
(iii) if to the Buyer's UK newbuilding office, to:
NCL (Bahamas) Ltd.
1 Derry street
Street
London
W8 5NN
Telefax: +44 207 938 4515
Attention: Mr. Trond Sorensen
(iv) if in relation to invoices, to:
Newbuild Holding, Ltd.
c/o 7665 Corporation Centre Drive
Miami
Florida
33126
Telefax: +1 305 436 4140
Attention: Mr Lamarr Cooler/Mr Yusuf
Ibrahim
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FIRST ORIGINAL
(v) if to the Builder, to: JOS. L. MEYER GMBH
Postfach 1555
D26855 Papenburg
Germany
Telefax: +49-4961-814300
Attention: Mr B. Meyer
or to such other person, address or telefax number as either party may (by
not less than five (5) working days' notice in writing) specify to the
other.
4.2 In the absence of evidence of earlier receipt, any notice or other
communication shall be deemed to have been duly given:
(i) if correctly addressed and marked for the attention of the
appropriate individual and delivered personally, when left at the
appropriate address of the addressee;
(ii) if correctly addressed and marked for the attention of the
appropriate individual and sent by pre-paid registered mail (or
registered airmail if international) or courier, upon
acknowledgement of receipt by return telefax; and
(iii) if correctly addressed and marked for the attention of the
appropriate individual and sent by telefax to the correct number,
upon acknowledgement of receipt by return telefax.
(END OF ARTICLE 13)
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ARTICLE 14: GENERAL MATTERS
1. COMPUTATION OF TIME
1.1 Except as otherwise provided in this Contract, all periods of time shall
be computed by including Saturdays, Sundays and holidays except that if
any period terminates on:
(i) any day which is not a working day in London or Papenburg (in the
case of periods applicable to action by the Buyer); or
(ii) any day which is not a working day in Papenburg (in the case of
periods applicable to action by the Builder),
such period shall be deemed to be extended to the next following working
day in such place.
2. ASSIGNMENTS
2.1 The Buyer may:
(i) grant to its financiers of the Ship, or the other financiers of the
Star Cruises Group, assignments of (or other security interests in)
this Contract, the Insurances, and the guarantees issued by the
Refund Guarantors;
(ii) assign, novate or transfer this Contract to any member of the Star
Cruises Group or (with the prior approval of the Builder, which is
not to he unreasonably withheld) to any other person whatsoever; and
(iii) assign its rights under this Contract to any purchaser, lessee or
bareboat charterer of the Ship.
Subject to Clause 13.3, the guarantee provided for in Clause 13.1 shall
remain in full force and effect notwithstanding any such assignment
novation or transfer.
2.2 As and when so requested by the Buyer, the Builder will provide the
Buyer's financiers and permitted assignees with all such information and
documentation as they may reasonably request without depriving the Builder
of its rights and interest under this Contract.
2.3 The Builder shall not assign or novate or transfer, or purport to assign
or novate or transfer, any of its rights or obligations under this Contact
save that the Builder may assign its rights hereunder to its financiers
for the Builder's pre-delivery construction financing of the Ship.
3. PARTIAL ILLEGALITY
3.1 If any provision of this Contract or the application thereof to any person
or in any circumstances shall to any extent be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall not
prejudice the effectiveness of the remainder of this Contract or the
application of such provision to other persons or in other circumstances
and each other provision of this Contract shall be legal, valid and
enforceable to the fullest extent permitted by law.
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FIRST ORIGINAL
4. CONFIDENTIALITY
4.1 After the date of this Contract, the parties will agree the terms and
publication date(s) of press announcements in relation to the construction
of the Ship.
4.2 Save as provided in Clause 4.1, the parties shall treat as confidential
and use all reasonable efforts to ensure that their respective agents,
officers, employees, workmen, subcontractors, and other representatives
treat as confidential, the provisions of this Contract provided that:
(i) each party may, with the prior written consent of the Other,
disclose to any third party information relating to the matters
referred to in this Clause 4.2; and
(ii) each party shall be entitled to disclose any such information to
their shareholders, bankers, auditors and/or legal advisors or to
such extent as may from time to time be required by law or the rules
or regulations of any applicable stock exchange or similar body.
5. AMENDMENTS
5.1 No amendment, modification, supplement or other variation of this
Contract, the Plans or the Specification shall be of any effect unless
made in writing and signed by the Builder and the Buyer or their
respective duly authorised representatives.
6. NO WAIVER
6.1 No failure or delay on the part of either party in exercising any right,
power or remedy under this Contract shall operate as a waiver thereof or a
waiver of any other rights, powers or remedies nor shall any single or
partial exercise of any such right power or remedy preclude any other or
further exercise of any such right, power or remedy or the exercise any
other right, power or remedy.
6.2 The respective rights, powers and remedies conferred on the parties by
this Contract are cumulative and (save where the contrary is expressly
stated) are in addition to (and not exclusive of) any rights, powers and
remedies provided by law.
7. CONSENTS
7.1 Subject to Clause 1.6 in Article 2, where any matter:
(i) requires an instruction from the Buyer, a waiver by the Buyer or the
approval, authority or consent of the Buyer any such instruction,
waiver, approval, authority or consent shall not be deemed to have
been given or to any extent effective unless it is given in writing
by a duly authorised representative of the Buyer; and
(ii) is required to be acceptable or satisfactory to the Buyer, the Buyer
shall not be deemed to have accepted, or to be satisfied with such
matter, unless its acceptance or satisfaction is communicated in
writing to the Builder by a duly authorised representative of the
Buyer.
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FIRST ORIGINAL
8. LANGUAGE
8.1 The official text of this Contract (and all plans, drawings, test and work
schedules, reports, protocols, certificates, instruction booklets,
notices, Communications and other materials or documents to be drawn up,
developed or supplied under this Contract) shall be in the English
language.
9. MODELS
9.1 The Builder shall build and supply free of charge to the Buyer (and place
on board the Ship at or before delivery) the models of the Ship described
in section G6.2 of the Specification.
10. COUNTERPARTS
10.1 This Contract may be executed in up to three (3) counterparts each of
which when dated and signed by (or on behalf of) both parties shall be an
original, but all counterparts together shall constitute one and the same
instrument.
11. EFFECTIVE DATE
11.1 This Contract shall not have any legal effect whatsoever until the time on
the date (the "EFFECTIVE DATE") when all of the following conditions have
been satisfied:
(viii) each party shall have received an original counterpart of this
Contract, duly signed by the other party;
(ix) the Buyer shall have confirmed in writing to the Builder that it
has approved: the final version of the Specification, the Plans and
the List of Suppliers; the form and terms of the Insurances; the
identity of the brokers and insurers; and the identity of the first
Refund Guarantor;
(x) Star Cruises Limited shall have received the approval of its board
of directors and its shareholders for the transactions contemplated
by this Contract and shall have complied with the requirements of
all relevant regulatory authorities in relation to this Contract
including, without limitation, The Rules Governing the Listing of
Securities on The Stock Exchange of Hong Kong Limited and the rules
applicable to the trading of the shares of Star Cruises Limited on
the Central Limit Order Book International of the Singapore
Exchange Securities Trading Limited;
(vi) the Buyer shall have confirmed by written notice to the Builder
that it has obtained binding written commitments (in terms
reasonably satisfactory to the Buyer) for the pre and post delivery
loan financings that will be required to enable the Buyer to part
fund certain of the payments referred to in Clause 2 of Article 8;
and
(vii) each party shall have (a) irrevocably appointed a process agent in
London and (b) notified the other party in writing of the name and
address of such agent.
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FIRST ORIGINAL
11.2 If this Contract has not come into effect by 4pm (Papenburg time) on 9
May 2005 either party may, by written notice given to the other within ten
(10) days thereafter, cancel this Contract.
11.3 In the event of the exercise by either party of its right to cancel this
Contract under Clause 11.2, this Contract shall, with effect from such
cancellation, be null and void without any liability whatsoever on the
part of either party.
11.4 Notwithstanding any provision to the contrary in this Contract, the Buyer
shall not be obliged to make any payment to the Builder hereunder until
such time as all of the conditions set out in Clause 11.1 have been
fulfilled or expressly waived in writing by both parties.
12. PROTECTED PARTIES
12.1 Any of the protected parties may enforce the terms of any provision of
this Contract which purports to confer any rights on them, subject to and
in accordance with the Contracts (Rights of Third Parties) Act 1999.
12.2 The Builder and the Buyer may at any time, by agreement between them,
rescind this Contract or vary it without the consent of the protected
parties.
12.3 If any protected party becomes entitled to bring a claim against the
Builder under or in respect of this Contract, the Buyer shall bring such
claim against the Builder on behalf of the relevant protected party.
12.4 If any claim is made against the Builder by the Buyer on behalf of a
protected party under Clause 12.3, the Builder shall only have available
to it by way of defence any matter that would have been available to it by
way of defence if the relevant protected party had been a party to this
Contract.
12.5 Save as provided above the operation of the Contracts (Rights of Third
Parties) Act 1999 is hereby excluded.
13. GUARANTEE
13.1 NCLC hereby guarantees to the Builder the due and punctual performance of
all the terms, conditions and covenants to be performed by the Buyer and
agrees to pay to the Builder each sum of money which the Buyer is at any
time liable to pay to the Builder under or pursuant to this Contract and
which has become due and payable but has not been paid.
13.2 Neither the obligations of NCLC under the guarantee provided for in Clause
13.1 nor the rights, powers and remedies conferred on the Builder in
respect of such guarantee shall be discharged or impaired by any act,
circumstance, event or omission which (but for this Clause 13.2) might
operate to discharge or impair any of the obligations, rights or remedies
referred to above.
13.3 With the prior written approval of the Builder (which is not to be
unreasonably withheld) NCLC may at any time be replaced as guarantor under
this Contract by any person(s) inside or outside the Star Cruises Group.
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14. UN CONVENTION
14.1 The United Nations Convention on Contracts for the International Sale of
Goods shall not govern this Contract or the performance of any of the
parties' obligations hereunder.
(END OF ARTICLE 14)
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FIRST ORIGINAL
SCHEDULE I
1. DEFINITION OF CERTAIN TERMS
1.1 In this Contract:
"BUILDER'S ACCOUNT" means the euro account numbered 101027555 and held by
the Builder's Bank at its office in Hanover;
"BUILDER'S BANK" means Norddeutsche Landesbank Girozentrale;
"BUILDING WORK" means all of the Parts to be provided and all of the work
to be done by the Builder under and in connection with this Contract, as
more particularly described in the Specification and the Plans, and
includes all Parts to be provided and all work to be done by the Builder's
subcontractors;
"BUYER'S SUPPLIES" has the meaning given in Article 1, Clause 1.1(i)(b);
"BUYER'S SUPPLY COSTS" means at any given time the aggregate of (i) the
costs incurred by the Buyer in relation to the carriage, pre-delivery
insurance and delivery of all Buyer's Supplies and (ii) the cost to the
Buyer of obtaining replacements for such Supplies at such time;
"CLASS RULES" has the meaning given in Article 1, Clause 4.1;
"CLASSIFICATION SOCIETY" has the meaning given in Article 1, Clause 4.1;
"COMMISSION" means any advantage or benefit (whether monetary or not),
brokerage, commission, consideration, gift, gratuity, inducement,
introduction fee, payment, promise, reward or success fee of any kind
whatsoever payable to any broker, agent, intermediary or other person in
relation to or in connection with the placing and/or performance of any
activities connected with this Contract;
"COMPENSATION DATE" means (i) the 5th (fifth) day from (and including) the
Delivery Date or (ii) the 3rd (third) day from (and including) the
Delivery Date if the Ship has not been delivered by the intended delivery
date mentioned in the 15 (fifteen) days definite notice given by the
Builder under Clause 1.1 in Article 7;
"COMPULSORY ACQUISITION" means a requisition or other compulsory
acquisition (including seizure, detention, confiscation or appropriation)
by or on behalf of any government or governmental agency or by any persons
acting or purporting to act on behalf of any government or governmental
agency;
"CONTRACT" means this shipbuilding contract and includes the Plans, the
Specification and the schedules, each of which forms an integral part of
this Contract;
"CONTRACT PRICE" means the fixed price for the Ship specified in Clause
1.1 of Article 8;
"CORRECT" shall be construed (in Article 8, Clause 2) so as to mean and
include rectify, remedy, repair and replace with the intent that the
Builder's duty under Article 8, Clause 2 shall be to take all necessary
corrective action by (as may be appropriate) correcting or
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FIRST ORIGINAL
rectifying or remedying or repairing or replacing, or paying for the
correction or rectification or remedy or repair or replacement of, every
Defect and any other physical damage for which the Builder is liable under
Article 7, Clause 2;
"DEFECT" has the meaning given in Article 6, Clause 1.8;
"DELIVERY DATE" means the fixed delivery date for the Ship specified in
Clause 1.1 of Article 7, it being acknowledged and agreed by the parties
that such date may be reset only in strict accordance with, and subject
to, the express provisions this Contract;
"DELIVERY PORT" has the meaning given in Article 1, Clause 1.1 (c);
"DISPUTE" means any dispute or difference whatsoever arising at any time
out of or in connection with this Contract including a dispute regarding
the existence, validity or termination of this Contract, and "DISPUTES"
shall be construed accordingly;
"EFFECTIVE DATE" has the meaning given In Article 14, Clause 11.1;
"ENCUMBRANCE" means (i) any claim or demand (whether in personam or in rem
and including any arrest or other detention in connection with any claim)
and any debt, and/or (ii) any mortgage, charge, pledge, maritime or
possessory or other lien, assignment, hypothecation, trust arrangement,
encumbrance, or other security interest securing any obligation of any
person or any other type of preferential arrangement (including, without
limitation, title transfer and retention arrangements) having a similar
effect and or (iii) any of the German Law Encumbrance Rights, but does not
include any permitted encumbrance;
"FLAG STATE" means the Bahamas;
"EURIBOR" means the percentage rate per annum determined by the Banking
Federation for Europe for the relevant period displayed on the appropriate
page of the Telerate or the Reuters screen from time to time or, if such
display is not available at any time, as certified by the head office of
the Builder's Bank;
"GERMAN LAW ENCUMBRANCE RIGHTS" means any retention of title
(Eignetumsvorbehalt, ouch erweitert, verlangert, weitergeleitet,
nachgeschaltet, nachtraglich, als Kontokorrentvorbehalt, als
Konzernvorbehalt u.s.w), right of retention (Zunickbehaltungsgrecht),
pledge, lien (Pfandrechl) and any other encumbrance (sonstige Belastung)
or other similar rights under German law;
"INSURANCES" has the meaning given in Article 4, Clause 2.2;
"List OF SUPPLIERS" means the agreed list of approved subcontractors dated
as of 3 May 2005 and initialled by the parties for the purposes of
identification;
"LOSSES" means any and all causes of action, charges (including interest
charges), costs, claims (in contract, tort or otherwise), controls,
liquidated or unliquidated damages, demands, expenses, fees (including
legal fees) fines, liabilities (civil, criminal or otherwise), losses
(other than consequential losses), payments, penalties, proceedings,
restrictions, suits and any and all other sanctions of a monetary nature
other than taxes;
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"MILESTONES" has the meaning given in Article 2, Clause 4.1;
"PARTS" has the meaning given in Article 1, Clause 1.1(i)(b);
"PARTIAL LOSS" means any loss of or damage to the Ship (including Buyer's
Supplies and other Parts) which does not constitute a total loss and
"partial loss proceeds" means any insurance proceeds paid and/or payable
in respect of any partial loss;
"PERMITTED ENCUMBRANCE" means any encumbrance (i) created by the Buyer or
(ii) arising by operation of law in connection with claims against the
Buyer for which the Buyer would not be entitled to compensation or
indemnification from the Builder under this Contract;
"PLANS" means the GA Plan S.670 dated as of 3 May 2005 and initialled by
the parties for the purposes of identification, and the technical system
and other plans and drawings described or referred to in the
Specification;
"PROTECTED PARTIES" means (i) every member of the Star Cruises Group from
time to time (as certified by the Buyer), and (ii) all of the respective
agents, officers, employees, workmen, suppliers 'and other representatives
of (a) the Buyer and (b) each other protected party;
"REFUND GUARANTOR" has the meaning given in Article 8, Clause 2.3;
"REFERENCE SHIPS" means Hull No. S.667 to be named m.v. Norwegian Jewel
and Hull No. S.669 to be named Norwegian Pearl;
"REGULATORY AUTHORITIES" means those authorities, bodies and entities
having regulatory responsibility and authority in respect of the Ship or
specific areas or parts of the Ship, whether before or after delivery
under this Contract, including (i) the International Maritime
Organisation, (ii) the World Health Organisation, (iii) the United States'
Coast Guard and Public Health Services authorities, (iv) the maritime
authorities of the Flag State, and (v) all other specified national or
international regulatory authorities;
"REGULATORY RULES" has the meaning given in Article 1, Clause 4.3;
"RELEVANT RATE" means the aggregate of (i) one per cent (1% and (ii)
EURIBOR for the relevant period;
"SHIP" means the ship which is the subject of this Contract and all Parts
(including all delivered Buyer's Supplies);
"SHIPYARD" means the Builder's shipyard at Papenburg, Germany;
"SPECIFICATION" means Specification Hull No. S.670 dated as of 3 May 2005
and the Appendices marked 1, 2, 3 and 4 thereto (the "APPENDICES") and,
unless the context otherwise requires, "SPECIFIED" means stipulated in the
Specification or in the Appendices;
"STAR CRUISES GROUP" means (i) Star Cruises Limited and its subsidiaries
and (ii) all other associated or affiliated companies;
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"SUBCONTRACTOR(S)" shall include each of the Builder's makers and
suppliers, and any Other person, company or other entity under contract to
the Builder or used by the Builder in connection with the design,
construction, manufacture or supply of any materials, machinery,
equipment, other parts or services for the Ship;
"TESTS" means (i) the shop, dock, sea and other tests, trials and
inspections described in the Specification and the Plans and (ii) such
other tests, trials and inspections (or retests, retrials and
reinspections) as the Buyer and/or the Classification Society and/or the
Regulatory Authorities may reasonably require in order to demonstrate and
confirm the complete correction of any Defects;
"TOTAL LOSS" means any actual, constructive, compromised or arranged or
agreed total loss of the Ship (including Buyer's Supplies or other Parts);
"WORKING DAY" means any day, other than a Saturday or Sunday, on which
banks are generally open for business in each of London and Papenburg; and
"(euro)" and "EURO" mean the lawful currency of the Federal Republic of
Germany, and "euros" shall be construed accordingly.
2. INTERPRETATION OF CERTAIN REFERENCES
2.1 Save where the contrary is expressly stated, any reference in this
Contract to:
(i) this Contract, the Specification, the Appendices, the Plans or any
other agreements or documents shall be construed as a reference
to this Contract, the Specification, the Appendices, the Plans or,
as the case may be, such other agreements or documents as the same
may have been, or may from time to time be, amended, modified,
varied, novated or supplemented;
(ii) an Article or the schedule shall be construed as a reference to an
Article or the schedule of this Contract;
(iii) an award shall be construed as a reference to any award, decision,
declaration, injunction, judgement, order or other relief;
(iv) a claim shall be construed as a reference to any action, claim,
demand, proceeding, process or suit, whether in arbitration or court
or otherwise;
(v) a clause shall be construed as a reference to a clause of the
Article in which the reference appears;
(vi) a person shall be construed as a reference to any individual, firm,
company, corporation, unincorporated body of persons, or any state
or state agency,
(vii) a party to this Contract shall include a reference to such party's
successors and permitted assigns;
(viii) a tax shall be construed as a reference to any tax, assessment,
levy, impost, duty or other charge of a similar nature (including,
without limitation, any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same),
whether national, provincial or local;
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(ix) a judgment shall be construed so as to include any court Order,
injunction, declaration, decision and any other form of judicial
relief;
(x) a receiver shall be construed so as to include any liquidator,
trustee, administrator, receiver, administrative receiver, manager
or similar officer; and
(xi) the winding up of a party to this Contract shall be construed so as
to include the bankruptcy or liquidation of the party or any
equivalent or analogous proceedings under the law of the
jurisdiction in which such party is incorporated or any other
jurisdiction in which such party carries on business.
2.2 The Index, Article, Clause and schedule headings and sub-headings are
inserted for convenience only and shall not affect the interpretation of
this Contract.
3. PRIORITY OF CONTRACT, PLANS AND SPECIFICATION
3.1 This Contract, the Plans, the Specification and the Appendices are
intended to complement and supplement one another. All general language or
requirements embodied in the Specification are intended to amplify,
explain and implement the requirements of this Contract. The Specification
and the Plans are also intended to explain each other, and anything shown
in the Plans but not stipulated in the Specification or stipulated in the
Specification and not shown in the Plans shall be deemed and considered as
if embodied in both. The Appendices are intended to clarify, amplify and
supplement the Specification.
3.2 If any conflict is found to exist between:
(i) the provisions of this Contract, on the one hand, and the
Specification and/or the Plans on the other hand, then to the extent
of such conflict only, the Specification and the Plans shall be
ineffectual, and the provisions of this Contract shall prevail, and
in all other respects the Specification and the Plans shall be and
remain in full force and effect provided that to the extent such
conflict arises solely because this Contract, on the one hand, and
the Specification and/or the Plans, on the other hand, contain
requirements that are in addition to the requirements of the other,
then all of such additional requirements shall be fully complied
with by the Builder; or
(ii) the provisions of the Specification, on the one hand and the Plans,
on the other hand, then to the extent of such conflict only, the
Plans shall be ineffectual, and the provisions of the Specification
shall prevail, and in all other respects the Plans shall be and
remain in full force and effect provided that to the extent such
conflict arises solely because the Specification, on the one hand,
and the Plans, on the other hand, contain requirements that are in
addition to the requirements of the other, then all of such
additional requirements shall be fully complied with by the Builder;
or
(iii) the provisions of the Appendices, on the one hand, and the
Specification and/or Plans on the other hand, then to the extent of
such conflict only, the Specification and the Plans shall be
ineffectual, and the relevant provisions of the Appendices shall
prevail, and in all other respects the Specification and the
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FIRST ORIGINAL
Plans shall be and remain in full force and effect provided that to
the extent such conflict arises solely because the Appendices, on
the one hand, and the Specification and/or Plans on the other hand
contain requirements that are in addition to the requirements of the
other, then all of such additional requirements shall be fully
complied with by the Builder; or
(iv) a Plan, on the one hand, and another Plan on the other hand, then to
the extent of such conflict only, the Plan with the earlier date
shall be ineffectual, and the other Plan shall prevail, and in all
other respects the Plans shall be and remain in full force and
effect provided that to the extent such conflict arises solely
because a Plan, on the one hand, and another Plan on the other hand,
contain requirements that are in addition to the requirements of the
other, then all of such additional requirements shall be fully
complied with by the Builder.
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FIRST ORIGINAL
SCHEDULE 2
1. FORM OF GUARANTEE - SEE ARTICLE 8, CLAUSE 2.3(II)
LETTERHEAD OF REFUND GUARANTOR
To: Newbuild Holding, Ltd. c/o Paul Turner, Clifford Chance LLP, 10 Upper Bank
Street, London E14 5JJ, United Kingdom.
Date:[ ]
REFUND GUARANTEE NO. [INSERT NUMBER/REFERENCE] (THE "GUARANTEE")
1. We refer to the shipbuilding contract dated as of [insert date] 2005 (as
amended or supplemented at any time, the "CONTRACT") and made between
Newbuild Holding, Ltd. (the "BUYER") and Jos. L. Meyer GmbH (the
"BUILDER") in relation to the construction of the Builder's .Hull S.670
(the "SHIP"). ,
2. In consideration of the Buyer agreeing to accept this Guarantee under
Article 8, Clause 2.3 of the Contract as a security for the refund of the
contract price instalment of (euro) [insert amount of instalment in
numbers / words] euros) (the "INSTALMENT") payable under Article 8, Clause
2.1 [(i)] / [(ii)] / [(iii)] / [(iv)] of the Contract, at the request of
the Builder we, [insert name of Refund Guarantor], hereby unconditionally
and irrevocably: (i) guarantee to the Buyer to refund the Instalment to
the Buyer and to pay interest thereon at the relevant rate (as defined in
the Contract) from the date of the Builder's receipt of the Instalment to
the date of the Buyer's receipt of the refund against the Buyer's simple
written demand (a) specifying the amount claimed by the Buyer in respect
of the Instalment together with interest thereon at the relevant rate (as
defined in the Contract), and (b) specifying the account to which the
amount demanded should be paid; and (ii) undertake to the Buyer that (a)
payment will be made by us forthwith upon our receipt of such simple
written demand, without any counterclaim, deductions, set-off,
withholdings or any objection whatsoever, and (b) if we are required by
law to make any deduction or withholding from any payment to the Buyer
under this Guarantee, our payment to the Buyer will be increased by such
amount as may be necessary to ensure that, after all of the required
deductions and withholdings have been made, the Buyer receives a payment
equal to the amount it would have received had no such deductions or
withholdings been made.
3. Notwithstanding paragraph 2 above, if, within fifteen (15) running days
following our receipt of a written demand from the Buyer, the Builder has
(i) confirmed to us in writing that the Builder is disputing the Buyer's
entitlement to make a claim under this Guarantee and (ii) delivered to us
a copy of a written notice served on the Buyer stating in reasonable
detail the grounds upon which the Builder is disputing the Buyer's
entitlement to make a claim under this Guarantee, we shall be entitled to
withhold payment under this Guarantee pending settlement of the dispute
between the parties or determination of the dispute in accordance with the
Contract. If the Builder subsequently accepts all or any part of the
Buyer's claim, or if the Buyer obtains a final order from the English
courts adjudging that all or any part of the claim is payable to the
Buyer, we will pay the relevant amount to the Buyer (together with
interest thereon as provided in Clause 2(i) above) upon our receipt of a
certified true copy of a settlement agreement signed on
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behalf of the Builder and the Buyer or (as the case may be) upon our
receipt of a certified true copy of the relevant court order.
4. This Guarantee shall become effective upon the Builder's receipt of the
Instalment and shall expire upon the first to occur of (i) the Buyer's
acceptance of the Ship in accordance with the Contract, and (ii) the date
when we have received a written notice from the Buyer stating that it has
received, from another guarantor acceptable to the Buyer, a substitute
guarantee securing the refund of the Instalment which, is in form and
substance satisfactory to the Buyer PROVIDED ALWAYS that if any written
demand for payment is made by the Buyer or its assignees under this
Guarantee prior to the termination of this Guarantee (but payment in
satisfaction of such demand has not been made by us prior to termination
hereof) this Guarantee shall remain in full force until payment of the
amount demanded has been received by the Buyer or its assignees.
5. Our obligations under this Guarantee are those of a sole primary obligor
(as and for our own debt and independent from any obligations of the
Builder) and not merely as surety, and we agree that the Buyer is not
obliged to make any prior demand of the Builder under the Contract or to
seek to enforce any remedies against the Builder before making a claim
under this Guarantee.
6. Our obligations under this Guarantee shall not be in any respect
discharged, impaired or otherwise affected by reason of any events or
circumstances whatsoever including without limitation (i) any invalidity,
irregularity or unenforceability of any of the Builder's obligations under
or in connection with the Contract, (ii) the granting to the Builder of
any time, waiver, consent, indulgence or Other forbearance in relation to
the Contract, (iii) any bankruptcy, insolvency or similar proceedings
related to any party to the Contract, (iv) any amendments or supplements
to the Contract, or (v) any other events or circumstances that might
otherwise constitute a legal or equitable discharge of or defence to a
surety or guarantor under applicable law, and we hereby irrevocably and
unconditionally waive any and all defences at law or in equity that may be
available to us by reason of any such events or circumstances.
7. This Guarantee shall be in addition to any other security granted by the
Builder in favour of the Buyer under the Contract, and shall not be
affected by any action taken by the Buyer under any such other security.
8. This Guarantee may be assigned by the Buyer to any of the banks and
financial institutions from time to time providing the Buyer with
financial support for its payment obligations under the Contract.
9. We unconditionally and irrevocably (i) agree that this Guarantee shall be
governed by and construed in accordance with English law, (ii) agree that
the English courts shall have exclusive jurisdiction to hear and determine
any suit, action or proceeding, and to settle any disputes, that may arise
out of or in connection with this Guarantee, and (iii) submit to the
jurisdiction of the English courts for the purposes of any proceedings
under or in connection with this Guarantee.
10. All correspondence, claims and demands under or in connection with this
Guarantee shall be marked for the attention of [insert name] and delivered
to us at [insert address]. Any legal process issued out of the English
courts may be served on us by being
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10. All correspondence, claims and demands under or in connection with this
Guarantee shall be marked for the attention of [insert name] and delivered
to us at [insert address]. Any legal process issued out of the English
courts may be served on us by being delivered to our agent for service of
process in London, [insert name] at [insert London address].
Yours faithfully
For and on behalf of [insert name of Refund Guarantor]
Authorised SIGNATURES
SIGNED by: /s/ [ILLEGIBLE]
for and behalf of
NEWBUILD HOLDING, LTD.
.
SIGNED by: /s/ [ILLEGIBLE]
for and on behalf of
NCL CORPORATION LTD.
SIGNED by: /s/ [ILLEGIBLE]
for and on behalf of
JOS. L MEYER GMBH
(END OF CONTRACT)