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Exhibit 10(iv)a(9)
AMENDED AND RESTATED AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is entered into as of December 22,
1999, by and between Cascade General, Inc. ("SHIPYARD") and The Delta Queen
Steamboat Co. ("OWNER"), a wholly owned subsidiary of American Classic Voyages
Co.
The parties entered into that certain Letter Agreement dated December
17, 1999, pursuant to which the parties agreed to certain terms, conditions and
covenants regarding the conversion of the m/v Columbia Queen (the "VESSEL") and
pursuant to which the parties agreed to amend and supercede the Letter Agreement
by this Amended and Restated Agreement (as so amended and restated, this
"CONTRACT").
Accordingly, the parties agree as follows:
1. Restatement. This Amended and Restated Agreement supercedes and
replaces the Letter Agreement.
2. Contract Documents. The following documents shall be deemed the
"CONTRACT DOCUMENTS": (a) drawings approved by the United States Coast Guard
("USCG") and listed on Exhibit A hereto; (b) preliminary ship construction
specifications dated August 16, 1999 (the "INITIAL SPECIFICATIONS") prepared by
▇▇▇▇▇▇ ▇. ▇▇▇ & Associates ("ARCHITECT"), or the Revised Specifications (as such
term is herein after defined) when available; (c) interior arrangements of the
Vessel prepared by Hopeman Brothers, Inc. ("HBI") listed on Exhibit A hereto;
and (d) guidance drawings prepared by Architect listed on Exhibit A hereto. In
the event of any inconsistency between this Contract and the Contract Documents,
this Contract shall take precedence and in the event of any inconsistency among
two or more Contract Documents, the Contract Documents shall take precedence in
descending order above.
The parties acknowledge that certain work has been performed to the
Vessel by ▇▇▇▇▇▇▇ Brothers Boat Builders ("▇▇▇▇▇▇▇") and that the Initial
Specifications will need to be revised to reflect properly the Conversion Work.
Therefore, the parties agree to work together in good faith to update and revise
the Initial Specifications to reflect properly the Conversion Work, at all times
consistent with the Contract Price (as hereinafter defined). The parties shall
be reasonable and attempt to reach a mutual agreement regarding revised
specifications within 14 calendar days after execution of this Contract (the
"REVISED SPECIFICATIONS"), at which time the Revised Specifications shall
replace and supercede the Initial Specifications.
3. Conversion Work. Shipyard shall perform the Conversion Work (as
such term is hereinafter defined) in accordance with this Contract and the
Contract Documents. The "CONVERSION WORK" shall mean all engineering,
renovation, ▇▇▇▇▇▇ work and outfitting of the Vessel, as described in the
Contract Documents, to convert, outfit and document the Vessel as a U.S.-Flag
overnight passenger vessel accommodating 161 passengers and 57 crew, and
satisfactorily complete all test and trials on or before the date in accordance
with Section 7 of this Contract. In addition, as part of the Conversion Work,
Shipyard shall (a) contract to have the Vessel transported from its current
location at the ▇▇▇▇▇▇▇' Langley, Washington facility to Shipyard's facility in
Portland, Oregon (it being acknowledged that the responsibility for preparing
the Vessel for transit shall be Owner's), (b) contract with and provide
management of
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the ▇▇▇▇▇▇ contractor, HBI, which shall perform the ▇▇▇▇▇▇ work for the Vessel
(provided, that all of HBI's fees shall be paid by Owner either directly or
through Shipyard at Shipyard's option), (c) provide proper storage and handling
of all materials, including those owned by Owner, HBI and other subcontractors,
called for in the Contract Documents, and (d) provide Owner's representatives
with reasonable field service offices and support. Notwithstanding anything to
the contrary in the Contract Documents regarding allocation of fees and expenses
incurred in connection with USCG or other regulatory body approvals (including
inspections and inspection fees), Owner shall be responsible for the design of
the Vessel and for all USCG and other regulatory body approvals of drawings and
design (but, specifically excluding workmanship of Shipyard) and all fees and
costs associated therewith. Shipyard shall perform the Conversion Work in
accordance with USCG or other regulatory body requirements, if applicable, and
consistent with good marine practice.
4. Contract Price.
(a) The price of the Conversion Work (the "CONTRACT PRICE") shall
be determined as follows: (i) for those category items on Exhibit B hereto shown
as a "Not to Exceed" item, the work shall be performed on a time and materials
basis but the price of such item shall not exceed the total amount shown for
such item and, in total, this work will not exceed $____________; (ii) for those
category items on Exhibit B hereto shown as an "Allowance" item, the work shall
be performed on a time and materials basis, and the amount reflected for such
items is an estimate of, and not a fixed price for, the cost for such work;
(iii) within no later than 30 calendar days after the Vessel arrives at
Shipyard's facility, as Shipyard's engineering becomes available, Shipyard shall
propose a Condition Field Report to provide for a fixed price basis for the
categories reflected on Exhibit B hereto as being "Fixed at 30 Days;" and (iv)
HBI's cost for the ▇▇▇▇▇▇ work will be priced separately pursuant to the ▇▇▇▇▇▇
agreement as approved by Owner.
With respect to Section 4(a)(ii) above, the parties acknowledge
that the estimate for each Allowance item was made by Owner and, that unless and
until the parties agree on a fixed price any such Allowance item, the work to be
performed for such item will be on a time and materials basis and that the
amount owed by Owner for such work will not be limited by an Allowance estimate.
(b) If the parties cannot agree on fixed pricing for a particular
category as described above, Conversion Work will be performed on a time and
materials basis. Any Conversion Work priced on a time and materials basis shall
apply a labor rate of $_______ per hour for standard time and $________ per hour
for overtime and holidays and shall include a ______% markup on subcontractor
work and materials. Notwithstanding anything contained in this Section to the
contrary, (i) any materials ordered by Owner (or ▇▇▇▇▇▇▇ on Owner's behalf) and
delivered to Shipyard shall not be marked-up by Shipyard, (ii) for managing HBI,
Shipyard shall be entitled only to a fee equal to _____% of the ▇▇▇▇▇▇ work
performed at Shipyard's facility, but in no event shall this fee exceed
$___________, and (iii) any materials included in change order work required by
the USCG or any other regulatory body will be priced at Shipyard's cost.
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5. Payment. Within 2 business days after the effective date of this
Contract, Owner shall make an initial down payment on the Contract Price equal
to $500,000. Progress payment invoices shall include a 10% retention until the
aggregate of the retention amounts equal $500,000. Shipyard shall invoice Owner
no more frequently than every 14 calendar days for work performed. Any invoice
for Conversion Work being performed on a time and materials basis shall include
detailed man hour and materials information consistent with Shipyard's customary
billing practices (which shall be subject to Owner's reasonable review of
underlying invoices and labor reports). Any invoice for Conversion Work being
performed on a fixed price basis shall be based on the percentage of work
completed in accordance with a schedule and payment percentages mutually agreed
to by Shipyard and Owner. Owner shall pay approved invoices within 5 business
days and such invoices and the down payment by wire transfer of immediately
available funds to an account designated by Shipyard.
6. Schedule. Within 14 calendar days of the effective date of this
Contract, Shipyard shall deliver to Owner an integrated construction schedule
showing the Conversion Work to be performed by Shipyard and all of its
subcontractors. Shipyard shall update such schedule and deliver to Owner every
14 calendar days thereafter.
7. Completion Date; Bonus; Liquidated Damages. Shipyard shall complete
the Conversion Work (including tests and trials) and the Vessel shall be ready
to depart Shipyard's facility on or before May 22, 2000 at 8:00 a.m. (Pacific
Time) (the "CONTRACT COMPLETION DATE"). Shipyard shall have the right to notify
Owner on or before February 15, 2000 that it intends to complete the Conversion
Work before the Contract Completion Date and shall notify Owner of the projected
completion date, which in no event shall be earlier than May 1, 2000 (such date
shall be deemed the "MODIFIED COMPLETION DATE"). Provided Shipyard notifies
Owner as described in the preceding sentence, Owner shall pay to Shipyard an
early delivery incentive equal to $__________ per day for each day the Vessel is
actually delivered earlier than the Contract Completion Date. In the event
Shipyard does not complete the Conversion Work on or before the Contract
Completion Date (or the Modified Completion Date, if applicable), Shipyard shall
pay Owner, as liquidated damages, the amount of $_________ per day for each day
the Vessel is actually delivered after the Contract Completion Date (or the
Modified Completion Date, if applicable). Subject to the limited warranty set
forth in Section 8 of this Contract, the liquidated damages set forth in this
Section shall be Owner's exclusive remedy for delay or other damages.
8. Warranty.
(a) Conditioned upon full and final payment of all amounts due from
Owner to Shipyard, Shipyard warrants for a period of 180 calendar days from
delivery, that all of the Conversion Work performed by Shipyard under this
Contract has been performed in a good and workmanlike manner, conforms to the
Contract Documents, consists of new materials (unless used or reconditioned
materials are specifically authorized by Owner) and is free from defects in
materials and/or workmanship. In the event a vendor warrants its product for a
period longer than 180 calendar days, Owner shall be entitled to such longer
warranty period. This warranty applies only to workmanship by Shipyard and the
materials fabricated and supplied by Shipyard and its subcontractors and
suppliers; this warranty does not cover defects in the work by ▇▇▇▇▇▇▇ or in the
design of the Vessel by others, nor defects in materials or equipment supplied
by Owner, or by others for the account of Owner, which are incorporated into the
Conversion Work (except that Shipyard's warranty does include a warranty that
Shipyard has installed, in a workmanlike manner, the materials and equipment
supplied by
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Owner, or by others for the account of Owner, for installation by Shipyard). In
addition to the warranty being provided by Shipyard hereunder on all Conversion
Work, but not in lieu thereof, Shipyard shall use all reasonable efforts to
obtain warranties from vendors, suppliers and subcontractors equivalent in scope
and duration to the warranties being provided by Shipyard. All such third-party
warranties shall be made for the benefit of Shipyard and Owner.
(b) In the event written notice of a warranty claim is received by
Shipyard within the warranty term, the obligation of Shipyard shall be to repair
or to replace (whichever Shipyard elects) the defective portion of the work. The
following conditions apply:
(i) Shipyard shall be afforded a reasonable opportunity to
inspect and confirm that the original work was not workmanlike;
(ii) Owner shall cooperate fully in the efforts of Shipyard to
enforce any applicable third party warranty and shall fully pursue all
such third party warranties;
(iii) the cost and responsibility for returning the Vessel or
any parts to Shipyard shall be the responsibility and cost of Owner;
(iv) warranty work shall be done only at the same location as
the original work, or at a different location designated by Shipyard;
and
(v) All items or work repaired or replaced by Shipyard under
this warranty shall be guaranteed by Shipyard for an additional ninety
90 calendar days beyond the date of the repair or replacement.
(c) If, in the opinion of Owner, immediate repairs or replacements
are essential to keep the Vessel on its scheduled operations, such repairs or
replacements will be made by Owner or a contractor, including a shipyard
("REPAIR CONTRACTOR"), of its choice and for the account of Shipyard. If
immediate repairs are not necessary, Shipyard will be notified and be given 5
calendar days within which to examine and correct the defects. If the defects
are not corrected within this period, Owner shall be entitled to have the
defects corrected by a Repair Contractor of Owner's choice for the account of
Shipyard at Repair Contractor's then prevailing rates. However, in no event
shall Owner have a right to be reimbursed by Shipyard for any cost or expense
which is incurred prior to Shipyard (i) being given written notice of the
alleged defect within the warranty period, (ii) Shipyard being given a
reasonable opportunity to inspect the work to verify the existence of the
defect, and (iii) Shipyard being offered a reasonable opportunity to effect
repairs with its own forces.
(d) The foregoing limited warranty is in lieu of all other
warranties on the part of Shipyard. Shipyard expressly disclaims any other
express or implied warranties, including but not limited to any express or
implied warranty of merchantability or of fitness for a particular purpose.
Without limiting the foregoing, in no event shall Shipyard be liable for any
incidental or consequential damages, including, without limitation, loss of
profits or market, loss of use of property, delay damages (except agreed
liquidated damages set forth in Section 7 of the this
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Contract) or consequential damages of any other type, whether arising from the
breach of this Contract or the negligence of Shipyard or any agent of Shipyard,
regardless of whether or not such incidental or consequential damages may have
been foreseeable by the parties.
(e) Under no circumstances shall Shipyard be liable for any claim
arising out of the design of the Vessel or the design of the Conversion Work,
and Owner shall defend, indemnify and hold Shipyard harmless regarding any such
claim.
9. Shipyard Records. Shipyard shall maintain accurate management and
financial records of actual costs incurred during the course of the Conversion
Work. Shipyard will, upon reasonable notice, allow Owner to review records
(except general or operating overhead or its components or profits) kept by
Shipyard relating to the portions of the Conversion Work which are on a time and
materials basis. Shipyard shall maintain books and records during the
performance of this Contract and retain such documents for a period of three
years after the Contract Completion Date (or Modified Completion Date, if
applicable). Such records shall include, but not be limited to labor hours by
craft and by individual, specifying all work done pursuant to change orders, all
invoices, purchase orders, working drawings, and other documents pertaining to
the Conversion Work, including those records relating to equipment furnished by
Shipyard's vendors and subcontractors. Shipyard will make such books and records
available to Owner upon request. Owner may audit the books and records of
Shipyard or its subcontractors to the extent that the books and records relate
to the performance of the Conversion Work or claim.
10. Change Orders. Owner and Shipyard shall each designate in writing
one or more representatives who are authorized to agree to written change
orders. Shipyard may make alterations or changes to the Conversion Work only
upon written approval of Owner and upon arriving at a change order agreement in
writing as to changes in Contract Price and/or delivery schedule. Owner may make
alterations or changes in the Conversion Work only upon written notice to
Shipyard and upon arriving at a change order agreement in writing as to changes
in contract price and/or delivery schedule. The parties shall expedite their
responses to change order requests. To this end, the parties shall establish a
procedure designed to allow the approval of change orders within 48 hours or as
soon as practicable thereafter if adequate information is not presented by the
party requesting approval. Any adjustment to a fixed price portion of Conversion
Work will be based upon estimated time and materials basis in accordance with
the second sentence of Section 4(b) of this Contract, and will reflect loss of
sequence and delay, if any. Any changes in the scope of work, specifications or
drawings required by the USCG or any other regulatory body shall be treated as
alterations under this Section, with materials at cost in accordance with this
Contract. To be effective, all change orders must be made in writing, signed by
the authorized representatives of each party. Disputes as to change orders are
subject to technical arbitration under Section 13 of this Contract.
11. Risk of Loss, Insurance and Indemnification.
(a) Risk of Loss and Shipyard's Risk Insurance. From the time the
Vessel arrives at Shipyard's facility until delivery of the Vessel to Owner,
Shipyard shall have the charge and care of the Vessel and all portions of the
Conversion Work (including materials furnished by Owner after delivery to
Shipyard's facility) and shall take all reasonable precautions against injury or
damage thereto. Shipyard shall rebuild, repair, restore and make
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good all injuries or damages to any portion of the Conversion Work or Vessel. In
the event of a partial loss of the Vessel during the transit to Shipyard's
facility, any repair work shall be performed by Shipyard in accordance with
Section 10 of this Contract. In the event of a complete or constructive total
loss of the Vessel, Owner may terminate this Contract but shall pay Shipyard's
work performed until such termination on a time and materials basis in
accordance with the second sentence of Section 4(b) of this Contract.
(b) Builder's Risk Insurance. As part of the Conversion Work,
Shipyard shall provide builder's risk insurance under the latest full American
Institute Shipyard's Risk form, or broader form, including SRCC clauses, and
protection and indemnity endorsements for the whole of the Vessel and all
machinery, materials, equipment, appurtenances and outfit, including
owner-furnished equipment upon delivery to Shipyard. Such insurance shall be
with insurers acceptable to Owner and shall name each party as their interests
may appear. In the event Owner can obtain the builder's risk insurance on more
competitive terms Owner, at its option, may place the insurance and tender same
to Shipyard. Shipyard's responsibility for the cost of the Builder's Risk
insurance premium as part of the Conversion Work shall not exceed $50,000.
(c) Other Insurance.
(i) Owner shall maintain its existing Comprehensive General
Liability and Worker's Compensation Insurance during the performance of
the Conversion Work.
(ii) Shipyard shall purchase, at its own expense, and maintain
in force at all times during the performance of services under this
Contract, the policies of insurance listed below in such form and with
such underwriters as are acceptable to Owner. Where specific limits are
shown, it is understood that they shall be the minimum acceptable
limits. Acceptance by Owner of deficient evidence does not constitute a
waiver of this requirement. Evidence of the following coverage is
required:
(A) Worker's Compensation Insurance. Shipyard shall
maintain for all employees of Shipyard engaged in work under this
Contract, Worker's Compensation insurance which shall include
coverage for up to statutory limits of the United States
Longshoremen's and Harbor Worker's Act, the statutory limits of the
applicable State Compensation Insurance and in the instance of the
▇▇▇▇▇ Act, employer's liability protection of not less than
$5,000,000 per person.
(B) Comprehensive Commercial General Liability Insurance.
Coverage limits shall be not less than $5,000,000 combined single
limit per occurrence and annual aggregates where generally
applicable and shall include, to the extent not included in the
builders risk insurance described above, premises-operations,
independent contractors, products/completed operations, broad form
property damage with the watercraft exclusion deleted, blanket
contractual and personal injury endorsements.
(C) Comprehensive Automobile Liability Insurance. Such
insurance shall cover all owned, hired and non-owned vehicles with
coverage limits not less than $1,000,000 combined single limit.
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(D) Excess Liability Insurance. Excess of the policies
enumerated in (A), (B) and
(C) above, in an amount serving to increase primary limits
to $10,000,000 for any one occurrence.
(iii) The cost of any deductibles for the above-stated insurance
provided by the parties shall be the responsibility of the party
obtaining said insurance.
(iv) Broker's Certificates of Insurance for coverage required
hereunder must be furnished to the parties within 7 calendar days of
the coverage being bound. Such evidence, executed by the carrier's
representative and issued to Owner, shall consist of a certificate of
insurance naming the parties as the insured, or additional insured
(including the subcontractor contemplated in Section 3(a) of this
Contract, if required by such party), as indicated above, and include
waivers of subrogation in favor of the additional insured (and their
affiliates, subcontractors and lenders) without liability for the
payment of premiums or deductibles and shall further provide for a
30-day prior written notice of cancellation, non-renewal or material
change.
12. Indemnification. The rights of indemnity between the parties
shall be as follows:
(a) Liability for Shipyard's Personnel. Shipyard releases Owner and
Owners officers, directors, shareholders, agents, employees, independent
contractors, subcontractors, and representatives (collectively, "OWNER
INDEMNITIES") from any liability to Shipyard for, and Shipyard will defend,
indemnify and hold Owner and Owner Indemnities harmless from and against, all
suits, actions, claims and demands, by whomever brought, based on personal
injury or death, whenever occurring, suffered or incurred by Shipyard, its
contractors and subcontractors and the officers, employees, agents and
representatives of any of them arising from or related in any way to performance
of the Conversion Work, regardless of how such personal injury or death is
caused and even if caused by the negligence, whether sole or concurrent or
active or passive, or other legal fault, including strict liability, of Owner
and Owner Indemnities.
(b) Liability for Owner's Personnel. Owner releases Shipyard and
Shipyard's officers, directors, shareholders, agents, employees, independent
contractors, subcontractors, and representatives (collectively, "SHIPYARD
INDEMNITIES") from any liability to Owner for, and Owner will defend, indemnify
and hold Shipyard and Shipyard Indemnities harmless from and against, all suits,
actions, claims and demands, by whomever brought, based on personal injury or
death, whenever occurring, suffered or incurred by Owner, its officers,
employees or subcontractors arising from or related in any way to performance of
the Conversion Work, regardless of how such personal injury or death is caused
and even if caused by the negligence, whether sole or concurrent or active or
passive, or other legal fault, including strict liability, of Shipyard or
Shipyard Indemnities.
(c) Liability for Shipyard's Property. Shipyard releases Owner and
Owner Indemnities from any liability to Shipyard for, and Shipyard will defend,
indemnify and hold Owner Indemnities harmless from and against, all suits,
actions, claims and demands, by whomever brought, based on property damage or
loss, whenever occurring, suffered or incurred by Shipyard, its contractors and
subcontractors and the officers, employees, agents and
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representatives of any of them, arising from or related in any way to
performance of the Conversion Work, regardless of how such damage or loss is
caused and even if caused by the negligence, whether sole or concurrent or
active or passive, or other legal fault, including strict liability, of Owner
and Owner Indemnities.
Except as otherwise provided in this Section or in Section 14 below,
Owner and Shipyard shall look exclusively to the applicable insurance maintained
by the parties and to the provisions of the limited warranty for the payment of
all claims and damages arising out of or related to the Conversion Work.
13. Disputes.
(a) Technical disputes (which shall include disputes arising under
the Contract Documents and Sections 2, 8, 10 and 15 of this Contract, but not
under any other Section of this Contract) will be referred to the ABS Technical
Services (or its successor entity). The fees and expenses of the arbitrators
shall be borne equally by the parties. Any other costs and expenses incurred by
the parties, including attorneys fees, shall be borne by the respective parties.
(b) All disputes other than technical disputes will be referred to
panel of three arbitrators. One arbitrator to be selected by each of Shipyard
and Owner, and the third to be selected by the other two arbitrators.
Arbitrators shall be commercial businessmen with ship construction experience
sitting in Portland Oregon. Arbitration shall be conducted under the rules of
the American Arbitration Association. The fees and expenses of the arbitrators
shall be apportioned between the parties by the arbitrators in accordance with
the findings and results of the arbitrators. Any other costs and expenses
incurred by the parties, including attorneys fees, shall be borne by the
respective parties.
14. Patent Infringement; Indemnification.
(a) Owner shall hold harmless, indemnify, and defend Shipyard and
Shipyard Indemnities from, for, and against all claims, demands, actions, suits,
liabilities, damages, costs, and expenses, including attorney fees, arising out
of or in connection with any claims for alleged infringement of any patents or
intellectual property or proprietary rights of any person arising out of the
design or construction of the Vessel or any component thereof based on the
plans, specifications, material or equipment provided by Owner.
(b) Shipyard shall hold harmless, indemnify and defend Owner and
Owner Indemnities from, for and against all claims, demands, actions, suits,
liabilities, damages, costs, and expenses, including attorney fees, arising out
of or in connection with any claims for alleged infringement of any patents or
intellectual property or proprietary rights of any person arising out of the
design or construction of any component of the Vessel constructed by Shipyard
based upon plans and specifications provided by Shipyard. In the event that
Owner shall be enjoined by a court of competent jurisdiction because of such
patent infringement from using the Vessel for its intended purpose, at its
option, Shipyard may either: (a) procure for Owner a license to continue using
the infringing component, (b) modify the component so as to make it
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noninfringing without seriously impairing its performance, or (c) replace the
component with noninfringing equipment substantially equal in performance.
(c) Defense of any claim, action or suit shall be by counsel
approved by the party entitled to defense under this Section. Such party shall
have the right, at its own expense, to retain separate counsel to participate
in, or monitor the proceedings with respect to, any such claim, action, or suit
for which a defense is provided by the other party pursuant to this Section.
15. Inspection and Acceptance. The detailed manner and method of
performing the Conversion Work shall be under the control of Shipyard, Owner
being interested only in the result obtained. Not withstanding the foregoing,
Owner and its designated representatives shall be given a reasonable opportunity
to inspect the Conversion Work. Inspection by Owner shall be at Owner's risk,
and any testing desired by Owner that is in addition to tests required under the
Contract Documents shall be at Owner's expense and risk. Owner is required to
provide written acceptances of portions of the work as requested by Shipyard
where acceptance or approval by an outside classification society or regulatory
body is not available or applicable. Any such acceptance by Owner shall be
deemed an agreement that the accepted work is in compliance with the Contract
Documents, but no acceptance shall relieve Shipyard of its obligations under
Section 8 of this Contract. Shipyard will, upon notice in writing by Owner or
its representative, correct any deficiencies or defects in the Conversion Work
noted upon inspection. Shipyard shall not be required to delay work because of
the absence of Owner's representative. In the event Shipyard's work is
interrupted, delayed or placed out of sequence because Owner's representative is
not available to attend or conduct any required inspection or testing for which
at least 48 hours advance notice is given, the cost and/or time impact of such a
delay may be claimed as Force Majeure (as such term is hereinafter defined) or a
change requiring a change order. All disputes relating to acceptances or
rejections of work will be treated as technical disputes under Section 13 of
this Contract.
16. Force Majeure.
(a) Neither party shall incur any liability to the extent of, and
the schedule described in Section 6 of this Contract shall be adjusted for,
delays which are occasioned by, any event or circumstance which is beyond the
reasonable control of the party affected, including, but not limited to, riots,
sabotages, acts of war (whether declared or not), blockades, economic embargoes,
terrorist activities, fires, floods, earthquakes, acts of God, strikes,
lockouts, or other labor disturbances (each event, an item of "FORCE MAJEURE").
(b) Shipyard shall have no liability for delays, and the schedule
shall be adjusted for delays, which are caused by act or omission of Owner or
any employee, agent or other contractor of Owner, including any nonconformity,
defect, or delay in delivery of equipment furnished by Owner limited in the
Contract Documents to a particular supplier or manufacturer.
(c) The affected party shall use its reasonable efforts to mitigate
the effects of Force Majeure. As soon as reasonably possible following the
incidence of Force Majeure, the party affected shall notify the other party,
describing the incident and its impact on this Contract.
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Any two or more items of Force Majeure occurring concurrently shall run
concurrently for purposes of calculating any delay period.
(d) Notwithstanding the foregoing, in the event that any items or
items of Force Majeure last in excess of 15 consecutive calendar days or 30
calendar days in the aggregate, Owner shall be entitled to terminate this
Contract without further obligation to Shipyard other than the obligation to pay
Shipyard for any and all work performed by Shipyard up until such termination of
the Contract by Owner, and Shipyard shall be obligated to prepare and place the
Vessel in a condition and mode by which the Vessel can be transported by Owner
to another shipyard for completion of the Conversion Work.
17. Public Announcement. The parties agree to treat this Contract,
including the price, and the agreements and arrangements contemplated hereby in
strict confidence and neither party shall divulge the existence of this
Contract, final negotiations between the parties or any of the terms hereof or
thereof except in furtherance of Contract negotiations or as otherwise permitted
by the non-disclosing party in writing. Notwithstanding the foregoing, nothing
contained herein shall limit either party from making any disclosure required by
law (including the Securities Exchange Act of 1934). Subject to the above, each
party may make public announcements concerning the conversion of the Vessel upon
the prior written consent of the other party.
18. Default Terminations.
(a) Owner shall be entitled (but not bound) to terminate this
Contract in the following circumstances:
(i) Where Shipyard commits a material breach of the terms of,
or fails to perform any of its obligations under, this Contract and
fails to remedy the same within 5 calendar days of receipt of written
notice by Owner stipulating the material breach that has occurred; or
(ii) Where Shipyard fails to staff or prosecute the Conversion
Work in accordance with the schedule identified in Section 6 of this
Contract and fails to remedy the same within 5 calendar days of receipt
of written notice of Owner stating that such a condition exists.
(b) Shipyard shall be entitled (but not bound) to terminate this
Contract where Owner commits a material breach of the terms of, or fails to
perform any of its obligations under, this Contract and fails to remedy the same
within 5 calendar days of receipt of written notice by Shipyard stipulating the
material breach that has occurred.
(c) In the event that either party terminates this Contract under
Sections 18(a) or 18(b), respectively, of this Contract, then such party shall
so notify the other party in writing. Such notice of cancellation shall be
effective as of the date of receipt of the same by recipient and, at Owner's
direction, Shipyard shall then: (i) complete all work required as a minimum to
permit the Vessel to depart from Shipyard's facility in a safe and seaworthy
condition; (ii) thereafter remove its employees, agents and contractors,
together with their equipment, from the Vessel; and (iii) render all necessary
assistance to the Vessel and Owner in leaving Shipyard's facility at the
earliest moment convenient to Owner. In case of such termination, Owner shall be
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liable to pay to Shipyard those parts of the Conversion Work already
incorporated into, supplied or delivered to the Vessel by Shipyard plus any work
described in this Section 18(c) less the amount of the Contract Price then paid
by Owner. Termination of this Contract shall in no sense prejudice any accrued
claim a party may at the time of such termination assert, whether in law or
equity, against the other party including, but not limited to, a claim for
liquidated damages by Owner in accordance with Section 7 of this Contract, but
in no event shall Owner be liable for any incidental or consequential damages,
including without limitation, loss of profit or market, loss of use of property,
delay damages or consequential damages of any other type, whether arising from
the breach of this Contract, regardless of whether or not such incidental or
consequential damages may have been foreseeable by the parties.
19. Liens. Shipyard shall discharge at once or bond or otherwise secure
against all valid liens and attachments which are filed in connection with any
contractor's performance of the Conversion Work and Shipyard shall indemnify and
hold Owner harmless from and against any and all loss and liability resulting
directly or indirectly from such liens and attachments of which any contractor
is given prompt notice. Shipyard hereby waives its rights to a maritime lien
pursuant to Section 31305 of Title 46 of the United States Code and further
agrees not to assert any mechanic's lien or other lien under any applicable
statutes or otherwise for work done or materials, services or equipment
furnished in connection with the Conversion Work. In the event a dispute evolves
which, if not for the preceding sentence, would give rise to a lien right for
Contractor, Owner hereby agrees to post a bond or establish in escrow with the
local federal court in an amount equal to that portion of the Contract Price
still due, as provided under this Contract.
20. Ownership of Drawings. All drawings provided by Owner or its
representatives, and all working drawings and as-built drawings generated by or
through Shipyard, shall remain and become the property of Owner upon the
Contract Completion Date (or the Modified Completion Date, if applicable), at
which time Shipyard shall return or deliver all such drawings to Owner. Shipyard
may retain copies of all such drawings for the exclusive purpose or performing
additional work as required under the limited warranty.
21. Fees and Expenses. Except as set forth above, each party shall
bear its own costs and expenses to date and of negotiating this Contract.
22. Miscellaneous.
(a) Notices. Any notice required under this Contract or the
Contract Documents shall be in writing and shall specifically reference the
Section of this Contract or the Contract Documents under which such notice is
being given. All notices, correspondence, submittals and other communications
relating to this Contract or the Contract Documents shall be addressed as
follows:
(i) To Owner: The Delta Queen Steamboat Co.
c/o American Classic Voyages Co.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Project Manager, and
Jordan ▇. ▇▇▇▇▇, Executive Vice President
and General Counsel
(ii) To Shipyard: Cascade General, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President
with copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: C. ▇▇▇▇ ▇▇▇▇▇▇▇
Either party may change such address or telephone numbers by written
notice to the other in accordance herewith and such change shall take effect of
receipt of such notice by the other. All notices and communications under this
Contract shall be mailed, postage prepaid, or by facsimile, with confirmation of
receipt of transmittal, and shall be effective upon receipt thereof by the
parties to whom they are addressed.
(b) Severability. In case any one or more of the provisions
contained in this Contract shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and this Contract shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
(c) Assignments. Neither this Contract nor any of the rights,
interests or obligations under this Contract shall be assigned by any party
without the prior written consent of the other party. Notwithstanding the
foregoing, Shipyard may assign to its rights, interests or obligations under
this Contract to subcontractors in furtherance of the Conversion Work without
the prior written consent of Owner.
(d) Amendments. No modification or amendment of this Contract shall
be effective unless such modification or amendment shall be in writing and
executed by the parties hereto.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF the parties have caused this Amended and Restated
Agreement to be duly executed by their respective authorized officers as of the
day and year first hereinabove written.
SHIPYARD: OWNER:
CASCADE GENERAL, INC. THE DELTA QUEEN STEAMBOAT CO.
By: /s/ ▇▇▇▇▇ ▇▇▇▇ By: /s/ Jordan ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇, President Jordan ▇. ▇▇▇▇▇,
Executive Vice President and
General Counsel
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