1
FORM 10-K/A #1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended November 30, 1994
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
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Commission file number 1-9610
CARNIVAL CORPORATION
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(Exact name of registrant as specified in its charter)
REPUBLIC OF PANAMA 59-1562976
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3655 N.W. 87TH AVENUE, MIAMI, FLORIDA 33178-2428
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (305) 599-2600
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Securities registered pursuant to Section 12(b) of the Act:
NAME OF EXCHANGE ON WHICH
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TITLE OF EACH CLASS REGISTERED
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Class A Common Stock New York Stock
($.01 par value) Exchange, Inc.
4-1/2% Convertible New York Stock
Subordinated Notes due July 1, 1997 Exchange, Inc.
Securities registered pursuant to Section 12(g) of the Act: None.
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
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best of Registrant's knowledge, in any definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ].
The aggregate market value of the voting stock held by non-affiliates of the
Registrant is approximately $2,172,000,000 based upon the closing market price
on February 8, 1995 of a share of Class A Common Stock on the New York Stock
Exchange as reported by the Wall Street Journal.
At February 8, 1995, the Registrant had outstanding 227,657,557
shares of its Class A Common Stock, $.01 par value and 54,957,142 shares of its
Class B Common Stock, $.01 par value.
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(A)(3) EXHIBITS:
A. Exhibit 13 to the Registrant's Annual Report on Form 10-K is
hereby amended to correct the amount of authorized shares of Class A and Class
B Common Stock set forth in the Consolidated Balance Sheet of the Registrant.
The corrected amounts are 399,500,000 authorized shares of Class A Common Stock
and 100,500,000 authorized shares of Class B Common Stock. The Consolidated
Balance Sheet was filed with the commission on page 20 of the Registrant's 1994
Annual Report and incorporated by reference into the Registrant's Annual Report
of Form 10-K.
Exhibit 13, as amended, is attached hereto and refiled in its
entirety.
B. Part IV, Item 14(a)(3) of the Annual Report on Form 10-K is hereby
amended to file the five previously unfiled Exhibits listed below. The
Registrant has requested confidential treatment of certain portions of such
exhibits.
10.23 Shipbuilding Agreement dated January 14, 1995 between
Utopia Cruises, Inc. and Fincantieri-Cantieri Navali Italiani S.p.A.
10.24 Shipbuilding Agreement dated January 14, 1995 between
Wind Surf Limited and Fincantieri-Cantieri Navali Italiani S.p.A.
10.25 Shipbuilding Agreement dated December 7, 1994 between
Carnival Corporation and Kvaerner Masa-Yards, Inc.
10.26 Shipbuilding Agreement dated January 12, 1995 between
Carnival Corporation and Kvaerner Masa-Yards, Inc.
10.27 Shipbuilding Agreement dated March 25, 1992 between
Carnival Corporation and Kvaerner Masa-Yards, Inc.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Miami, and the State of Florida on this 20th day of March 1995.
CARNIVAL CORPORATION
By: /S/ HOWARD FRANK
-----------------------------------
Howard Frank, Vice Chairman and
Chief Financial Officer
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OPERATING LEASES
On March 27, 1989, the Company entered into a ten-year lease for 230,000
square feet of office space located in Miami, Florida. The Company moved its
operation to this location in October 1989. In December 1994, the Company
purchased the building and an adjacent parcel of land for approximately $23
million. In order to provide space for the Company's expanding operations, the
Company has commenced construction of a second building on the parcel of land
at an estimated cost of $35 million. The Company also leases other facilities,
transportation and other equipment under operating leases. Rental expense for
all operating leases for the years ended November 30, 1994, 1993 and 1992 was
approximately $7.7 million, $8.7 million and $10.7 million, respectively. As
of November 30, 1994, minimum annual rentals for all operating leases,
excluding the lease related to the building purchase discussed above, with
initial or remaining terms in excess of one year, are as follows (in
thousands):
1995 $ 5,792
1996 5,789
1997 5,681
1998 4,666
1999 2,908
Thereafter 9,676
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$34,512
============================
NOTE 11 -- SEGMENT INFORMATION
The Company's cruise segment currently operates sixteen passenger cruise
ships and three luxury sailing vessels. Cruise revenues are comprised of sales
of tickets and other revenues from on-board activities. A tour business
operated by HAL, consisting of sixteen hotels, four luxury day-boats, over 290
motor coaches and eight private domed rail cars comprise the assets that
generate revenue for the tour segment. Intersegment revenues represent tour
revenues generated when tour services are rendered in conjunction with a
cruise.
Segment information for the three years ended November 30, 1994 is as follows:
(in thousands)
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Year Ended November 30, 1994 1993 1992
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REVENUES
Cruise $1,623,069 $1,381,473 $1,292,587
Tour 227,613 214,382 215,194
Intersegment revenues (44,666) (38,936) (34,167)
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$1,806,016 $1,556,919 $1,473,614
=========================================================================================
GROSS OPERATING
PROFIT
Cruise $ 726,808 $ 598,642 $ 552,669
Tour 50,733 50,352 55,358
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$ 777,541 $ 648,994 $ 608,027
=========================================================================================
DEPRECIATION AND AMORTIZATION
Cruise $ 101,146 $ 84,228 $ 79,743
Tour 9,449 9,105 9,090
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$ 110,595 $ 93,333 $ 88,833
=========================================================================================
OPERATING INCOME
Cruise $ 425,590 $ 333,392 $ 301,845
Tour 18,084 14,274 23,051
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$ 443,674 $ 347,666 $ 324,896
=========================================================================================
IDENTIFIABLE ASSETS
Cruise $3,531,727 $2,995,221 $2,415,547
Tour 138,096 134,146 140,507
Discontinued resort and casino 89,553 89,553
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$3,669,823 $3,218,920 $2,645,607
=========================================================================================
CAPITAL EXPENDITURES
Cruise $ 587,249 $ 705,196 $ 111,766
Tour 9,963 10,281 11,400
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$ 597,212 $ 715,477 $ 123,166
=========================================================================================
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NOTE 12 -- EMPLOYEE BENEFIT PLANS
STOCK OPTION PLANS
The Company has stock option plans, applicable to Class A Common Stock, for
certain key employees. The plans are administered by a committee of two
directors of the Company (the "Committee") who determine the employees and
directors eligible to participate, the number of shares for which options are
to be granted and the amounts that any employee or director may exercise within
a specified year or years. The maximum number of shares available to be
granted as of November 30, 1994 was 3,128,836. Under the terms of the plans,
the option price per share is established by the Committee as an amount between
50% and 100% of the fair market value of the shares of Class A Common Stock on
the date the option is granted. Since 1991, all options granted have been for
100% of the fair market value of the shares on the date of grant. Options may
extend for such periods as may be determined by the Committee but only for so
long as the optionee remains an employee of the Company.
The status of options issued by the Company was as follows (restated to
reflect a two-for-one stock split):
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Years Ended November 30, 1994 1994 1993 1992
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PRICE
PER SHARE NUMBER OF SHARES
- -------------------------------------------------------------------------------------------------------------------
Unexercised Options -- Beginning of Year $ 3.88 - $20.25 730,526 730,598 101,718
Options Granted $19.82 - $23.88 1,764,000 72,000 674,000
Options Exercised $ 4.50 - $16.00 (61,290) (56,472) (45,120)
Options Cancelled (15,600)
- -------------------------------------------------------------------------------------------------------------------
Unexercised Options -- End of Year $ 3.88 - $23.88 2,433,236 730,526 730,598
===================================================================================================================
RESTRICTED STOCK PLANS
The Company has restricted stock plans under which certain key employees are
granted restricted shares of the Company's Class A Common Stock. Shares are
awarded in the name of each of the participants, who have all the rights of
other Class A shareholders, subject to certain restriction and forfeiture
provisions. Unearned compensation is recorded at the date of award based on
the market value of the shares on the date of grant. Unearned compensation is
amortized to expense over the vesting period. As of November 30, 1994 there
have been 1,896,032 shares issued under the plans of which 661,850 remain to be
vested.
DEFINED CONTRIBUTION PLANS
HAL has two defined contribution plans available to substantially all U.S. and
Canadian employees. HAL contributes to these plans based on employee
contributions and salary levels. Total expense relating to these plans in each
fiscal year ended November 30, 1994, 1993 and 1992 was approximately $2 million.
DEFINED BENEFIT PENSION PLANS
The Company adopted two pension plans (qualified and non-qualified) effective
January 1, 1989 which together cover all full-time employees of Carnival
Corporation working in the United States, excluding HAL employees. Employees
will vest in the pension plans 100% after five years of service and will be
eligible to receive benefits at age 55. The benefits are based on years of
service and the employee's highest average compensation over five consecutive
years during the last ten years of employment. Carnival Corporation's funding
policy for the qualified plan is to annually contribute at least the minimum
amount required under the applicable labor regulations. The weighted average
discount rate, 8.5% in 1994, 7.5% in 1993 and 8.0% in 1992, and a 5.0% rate of
increase in future compensation levels were used in determining the projected
benefit obligation. The expected long-term rate of return on assets was 8.5%.
Pension costs for the qualified and non-qualified defined benefit plans were
approximately $2.0 million, $1.5 million and $1.4 million in 1994, 1993 and
1992, respectively.
The funded status of the plans at November 30, 1994 and 1993 is:
Qualified Non-Qualified
(in thousands) (in thousands)
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1994 1993 1994 1993
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Accumulated benefit obligation:
Vested $ 2,796 $ 2,673 $ 3,089 $ 3,464
Non-vested 285 461 102 149
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$ 3,081 $ 3,134 $ 3,191 $ 3,613
===================================================================================================================
Projected benefit obligation $ 4,606 $ 4,842 $ 4,801 $ 5,532
Plan assets (3,745) (3,307)
- -------------------------------------------------------------------------------------------------------------------
Unfunded accumulated benefits 861 1,535 4,801 5,532
Unrecognized prior service cost (491) (576) (460) (1,553)
Unrecognized gains and (losses) (493) (1,067) 309 (265)
- -------------------------------------------------------------------------------------------------------------------
Accrued (prepaid) pension obligation $ (123) $ (108) $ 4,650 $ 3,714
===================================================================================================================
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REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
PRICE WATERHOUSE LLP [LOGO]
To the Board of Directors and Shareholders of
Carnival Corporation
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of operations and cash flows present fairly, in all
material respects, the financial position of Carnival Corporation and its
subsidiaries at November 30, 1994 and 1993, and the results of their operations
and their cash flows for each of the three years in the period ended November
30, 1994, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates
made by management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for the
opinion expressed above.
PRICE WATERHOUSE LLP
Miami, Florida
January 23, 1995
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Carnival Corporation and its subsidiaries (the "Company") earn revenues
primarily from (i) the sale of passenger tickets, which include accommodations,
meals, airfare and substantially all shipboard activities, and (ii) the sale of
goods and services on board its cruise ships, such as casino gaming, liquor
sales, gift shop sales and other related services. The Company also derives
revenues from the tour operations of HAL Antillen N.V. ("HAL").
For selected segment information related to the Company's revenues, gross
operating profit, operating income and other financial information, see Note 11
in the accompanying financial statements.
The following table presents operations data expressed as a percentage of
total revenues and selected statistical information for the periods indicated:
Years Ended November 30, 1994 1993 1992
- ----------------------------------------------------------------------------------------------
REVENUES 100% 100% 100%
COSTS AND EXPENSES:
Operating expenses 57 58 59
Selling and administrative 12 14 13
Depreciation and amortization 6 6 6
- ----------------------------------------------------------------------------------------------
OPERATING INCOME 25 22 22
OTHER INCOME (EXPENSE) (4) (2) (3)
- ----------------------------------------------------------------------------------------------
INCOME FROM CONTINUING OPERATIONS 21% 20% 19%
==============================================================================================
SELECTED STATISTICAL INFORMATION:
Passengers carried 1,354,000 1,154,000 1,153,000
Passenger cruise days 8,102,000 7,003,000 6,766,000
Occupancy percentage 104.0% 105.3% 105.3%
GENERAL
The growth in the Company's revenues during the last three fiscal years has
primarily been a function of the expansion of its fleet capacity.
Fixed costs, including depreciation, fuel, insurance, port charges and crew
costs represent more than one-third of the Company's operating expenses and do
not significantly change in relation to changes in passenger loads and aggregate
passenger ticket revenue.
The Company's different businesses experience varying degrees of seasonality.
The Company's revenue from the sale of passenger tickets for Carnival Cruise
Lines ("Carnival") ships is moderately seasonal. Historically, demand for
Carnival cruises has been greater during the periods from late December through
April and late June through August. HAL cruise revenues are more seasonal than
Carnival's cruise revenues. Demand for HAL cruises is strongest during the
summer months when HAL ships operate in Alaska and Europe. Demand for HAL
cruises is lower during the winter months when HAL ships sail in more
competitive markets. The Company's tour revenues are extremely seasonal with
a large majority of tour revenues generated during the late spring and summer
months in conjunction with the Alaska cruise season.
FISCAL YEAR ENDED NOVEMBER 30, 1994 COMPARED TO FISCAL YEAR ENDED NOVEMBER 30,
1993
REVENUES
The increase in total revenues of $249.1 million from 1993 to 1994 was
comprised of a $241.6 million, or 17.5%, increase in cruise revenues and an
increase of $7.5 million, or 4.3%, in tour revenues for the period. The
increase in cruise revenues was primarily the result of a 17.2% increase in
capacity for the period. This capacity increase resulted from additional
capacity provided by Carnival's SuperLiners Sensation and Fascination which
entered service in November 1993 and July 1994, respectively, and Holland
America Line's Maasdam and Ryndam which entered service in December 1993 and
October 1994, respectively. Also affecting cruise revenues were slightly higher
yields, slightly lower occupancies and lost revenues related to the grounding of
the Nieuw Amsterdam which resulted in the cancellation of three one-week cruises
in August 1994. See Other Income (Expense) below.
Average capacity is expected to increase approximately 13% during the next
fiscal year as a result of the delivery of the Fascination in July 1994, the
Ryndam in October 1994 and the Imagination in June 1995, net of a reduction in
capacity due to the discontinuance of the Company's FiestaMarina cruise division
in September 1994.
Revenues from the Company's tour operations increased to $182.9 million in
1994 from $175.4 million in 1993 primarily due to an increase in the number of
tour passengers.
COSTS AND EXPENSES
Operating expenses increased $120.6 million, or 13.3% , from 1993 to 1994.
Cruise operating costs increased by $113.4 million, or 14.5%, to $896.3 million
in 1994 from $782.8 million in 1993. Cruise operating costs increased primarily
due to costs associated with the increased capacity in 1994.
Selling and administrative expenses increased $15.3 million, or 7.3%, from
1993 to 1994. These increases were
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attributable to additional advertising and other costs associated primarily with
the increase in capacity. Depreciation and amortization increased by $17.3
million, or 18.5%, to $110.6 million in 1994 from $93.3 million in 1993.
Depreciation and amortization increased primarily due to the additional
capacity discussed above. Also, the depreciable lives of four of the Carnival
ships built in the 1980's were extended from 20 or 25 years to 30 years to
conform to industry standards. This resulted in a reduction of depreciation of
approximately $4 million during 1994.
OTHER INCOME (EXPENSE)
Total other expense (net of other income) in 1994 of $61.9 million increased
from $29.5 million in 1993. Interest income decreased to $8.7 million in 1994
from $11.5 million in 1993 due to a lower level of investments in 1994. Interest
expense increased to $73.3 million in 1994 from $58.9 million in 1993 as a
result of increased debt levels. Both the lower investment levels and higher
debt levels were the result of expenditures made in connection with the ongoing
construction and delivery of cruise ships. Capitalized interest decreased to
$21.9 million in 1994 from $24.6 million in 1993.
Other expenses increased to $9.1 million in 1994 because of two events
which occurred during 1994. In August 1994, HAL's Nieuw Amsterdam ran aground
in Alaska which resulted in the cancellation of three one-week cruises. Costs
associated with repairs to the ship, passenger handling and various other
expenses amounted to $6.4 million and were included in other expenses. In
September 1994, the Company discontinued its FiestaMarina division because of
lower than expected passenger occupancy levels. This resulted in a charge of
$3.2 million to other expense. The cruise ship operated by FiestaMarina was
under charter from Epirotiki Lines, 43% owned by the Company, and was returned
to Epirotiki.
Income tax expense increased to $10.1 million in 1994 primarily as a result
of taxes, approximately $3 million, on a dividend paid by the tour company, a
U.S. company, to its parent company, a foreign shipping company.
FISCAL YEAR ENDED NOVEMBER 30, 1993 COMPARED TO FISCAL YEAR ENDED NOVEMBER 30,
1992
REVENUES
The increase in total revenues of $83.3 million from 1992 to 1993 was
comprised of an $88.9 million, or 6.9%, increase in cruise revenues for the
period and a $5.6 million decrease in tour revenues. The increase in cruise
revenues was primarily the result of a 3.5% increase in capacity for the period
resulting from the addition of Holland America Line's cruise ship Statendam in
late January 1993 and a 3.3% increase in passenger yields resulting from an
increase in ticket pricing and passenger spending.
Revenues from the Company's tour operation decreased $5.6 million, or 3.1%,
from $181.0 million in 1992 as compared to $175.4 million in 1993. The decrease
was due to a reduction in pricing resulting from increased discounting by
competitors.
COSTS AND EXPENSES
Operating expenses increased $42.3 million, or 4.9%, from 1992 to 1993.
Cruise operating costs increased by $42.9 million, or 5.8%, to $782.8 million in
1993 from $739.9 million in 1992, primarily due to additional costs associated
with the increased capacity in 1993.
Selling and administrative costs increased $13.7 million, or 7.0%, primarily
due to increases in advertising expenses associated with increased capacity and
an increase in television advertising in 1993.
Depreciation and amortization increased by $4.5 million, or 5.1%, to $93.3
million in 1993 from $88.8 million in 1992 primarily due to the addition of the
Statendam.
OTHER INCOME (EXPENSE)
Other expense (net of other income) of $29.5 million decreased in 1993 from
$43.1 million in 1992. Interest income decreased to $11.5 million in 1993 from
$16.9 million in 1992 due to lower interest rates on short-term investments in
1993. Interest expense, net of capitalized interest, decreased to $34.3 million
in 1993 from $53.8 million in 1992. Total interest expense decreased to $58.9
million in 1993 from $75.5 million in 1992 as a result of decreased debt levels
and lower interest rates on floating rate debt. Capitalized interest increased
to $24.6 million in 1993 from $21.7 million in 1992 due to higher investments in
vessels under construction. Income tax expense decreased $3.5 million to $5.5
million in 1993 from $9.0 million in 1992 due primarily to a reduction in
earnings for the tour operation.
LIQUIDITY AND CAPITAL RESOURCES
SOURCES AND USES OF CASH
The Company's business provided $537 million of net cash from operations
during the year ended November 30, 1994, an increase of 12% over the comparable
period in 1993. The increase was primarily the result of higher earnings for
the period.
During the year ended November 30, 1994, the Company spent approximately $595
million on capital projects of which $549 million was spent in connection with
its ongoing shipbuilding program. The Fascination and the Ryndam were
completed and delivered in 1994. The remainder was spent on vessel
refurbishments, tour assets and other equipment.
These capital expenditures were funded by cash from operations, borrowings
under the $750 Million Revolving Credit Facility and the issuance by the
Company of $100 million of 7.7% Notes Due July 15, 2004 (the 7.7% Notes) and
$30 million of medium term notes due from 1999 to 2004.
The Company also made scheduled principal payments during 1994 totalling
approximately $90 million under various individual vessel mortgage loans and
paid $79 million in cash dividends.
FUTURE COMMITMENTS
The Company is scheduled to take delivery of eight new vessels over the next
five years. The Imagination is scheduled for delivery in fiscal 1995. The
Company will pay approximately $385 million in fiscal 1995 related to the
construction of cruise ships and $1.9 billion beyond fiscal 1995. See Note 10
in the accompany-
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ing financial statements for more information related to commitments for the
construction of cruise ships. In addition, the Company has $1,132 million of
long-term debt of which $85 million is due in fiscal 1995. See Note 6 for more
information regarding the Company's debt. The Company also enters into forward
foreign currency contracts and interest rate swap agreements to hedge the
impact of foreign currency and interest rate fluctuations. See Notes 2 and 8
for more information regarding forward contracts and swap agreements.
FUNDING SOURCES
Cash from operations is expected to be the Company's principal source of
capital to fund its debt service requirements and ship construction costs. In
addition, the Company may fund a portion of the construction cost of new ships
from borrowings under the $750 Million Revolving Credit Facility and/or through
the issuance of long-term debt in the public or private markets. One of the
Company's subsidiaries also has a $25 million line of credit. At November 30,
1994, approximately $512 million was available for borrowing by the Company
under the $750 Million Revolving Credit Facility.
To the extent that the Company should require or choose to fund future capital
commitments from sources other than operating cash or from borrowings under the
$750 Million Revolving Credit Facility, the Company believes that it will be
able to secure such financing from banks or through the offering of debt and/or
equity securities in the public or private markets. In this regard, the Company
has filed two Registration Statements on Form S-3 (the "Shelf Registration")
relating to a shelf offering of up to $500 million aggregate principal amount of
debt or equity securities. In July 1994, the Company issued the 7.7% Notes
under the Shelf Registration. The Company has also commenced an ongoing $100
million medium term note program under the Shelf Registration pursuant to which
the Company may from time to time issue notes with maturities from nine months
to 50 years from the date of issue. Under the medium term note program, the
Company has issued $30 million of five to ten-year notes bearing interest at
rates ranging from 5.95% to 7% per annum. A balance of $370 million aggregate
principal amount of debt or equity securities remains available for issuance
under the Shelf Registration.
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SUPPLEMENTAL INFORMATION
SELECTED FINANCIAL DATA
The selected financial data presented below for the fiscal years ended
November 30, 1990 through 1994 and as of the end of each such fiscal year are
derived from the financial statements of the Company and should be read in
conjunction with such financial statements and the related notes. Certain
amounts in prior years have been reclassified to conform with the current year's
presentation.
(In thousands, except per share data)
- -----------------------------------------------------------------------------------------------------------------------------------
Years Ended November 30, 1994 1993 1992 1991 1990
- -----------------------------------------------------------------------------------------------------------------------------------
INCOME STATEMENT DATA:
Total revenues $1,806,016 $1,556,919 $1,473,614 $1,404,704 $1,253,756
Operating income $ 443,674 $ 347,666 $ 324,896 $ 315,905 $ 291,313
Income from continuing operations $ 381,765 $ 318,170 $ 281,773 $ 253,824 $ 234,431
Net income $ 381,765 $ 318,170 $ 276,584 $ 84,988 $ 206,202
Earnings per share (1):
Income from continuing operations $ 1.35 $ 1.13 $ 1.00 $ .93 $ .87
Net income $ 1.35 $ 1.13 $ .98 $ .31 $ .77
Dividends declared per share $ .285 $ .280 $ .280 $ .245 $ .240
Passenger cruise days 8,102 7,003 6,766 6,365 5,565
Percent of total capacity (2) 104.0% 105.3% 105.3% 105.7% 106.6%
(in thousands)
- -----------------------------------------------------------------------------------------------------------------------------------
November 30, 1994 1993 1992 1991 1990
- -----------------------------------------------------------------------------------------------------------------------------------
BALANCE SHEET DATA:
Total assets $3,669,823 $3,218,920 $2,645,607 $2,650,252 $2,583,424
Long-term debt and convertible
notes $1,161,904 $1,031,221 $ 776,600 $ 921,689 $ 999,772
Total shareholders' equity $1,928,934 $1,627,206 $1,384,845 $1,171,129 $1,036,071
(1) All earnings per share amounts have been adjusted to reflect a two-for-one
stock split effective November 30, 1994.
(2) In accordance with cruise industry practice, total capacity is calculated
based upon two passengers per cabin even though some cabins can accommodate
three or four passengers. The percentages in excess of 100% indicate that
more than two passengers occupied some cabins.
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MARKET PRICE FOR CAPITAL STOCK
The following table sets forth for the periods indicated the high and low
market prices for the Class A Common Stock on the New York Stock Exchange
restated to reflect the two-for-one stock split effective November 30, 1994:
SALES PRICE SALES PRICE
- ------------------------------------------------------------- -------------------------------------------------------------
HIGH LOW HIGH LOW
- ------------------------------------------------------------- -------------------------------------------------------------
Fiscal Year ended November 30, 1994: Fiscal Year ended November 30, 1993:
- ------------------------------------------------------------- -------------------------------------------------------------
FIRST QUARTER $26.125 $23.000 FIRST QUARTER $19.688 $15.688
- ------------------------------------------------------------- -------------------------------------------------------------
SECOND QUARTER $25.438 $21.000 SECOND QUARTER $19.563 $15.125
- ------------------------------------------------------------- -------------------------------------------------------------
THIRD QUARTER $24.063 $21.750 THIRD QUARTER $22.125 $16.500
- ------------------------------------------------------------- -------------------------------------------------------------
FOURTH QUARTER $23.125 $20.563 FOURTH QUARTER $24.125 $19.875
- ------------------------------------------------------------- -------------------------------------------------------------
As of February 14, 1995, there were approximately 3,488 holders of record of
the Company's Class A Common Stock. All of the issued and outstanding shares
of Class B Common Stock are held by The Micky Arison 1994 "B" Trust, a United
States Trust, whose primary beneficiary is Micky Arison. While no tax treaty
currently exists between the Republic of Panama and the United States, under
current law, the Company believes that distributions to its shareholders are not
subject to taxation under the laws of the Republic of Panama.
SELECTED QUARTERLY FINANCIAL DATA (unaudited)
Quarterly financial results for the year ended November 30, 1994 are as
follows:
(in thousands, except per share data)
- ------------------------------------------------------------------------------------------------------------------------------------
FOR THE QUARTER FIRST SECOND THIRD FOURTH
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL REVENUES $385,256 $409,400 $600,796 $410,564
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING INCOME $ 72,013 $ 85,780 $204,927 $ 80,954
- ------------------------------------------------------------------------------------------------------------------------------------
NET INCOME $ 65,051 $ 77,886 $168,776 $ 70,052
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EARNINGS PER SHARE $ .23 $ .28 $ .60 $ .25
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Quarterly financial results for the year ended November 30, 1993 are as
follows:
(in thousands, except per share data)
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FOR THE QUARTER FIRST SECOND THIRD FOURTH
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TOTAL REVENUES $323,635 $378,237 $529,328 $325,719
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OPERATING INCOME $ 51,732 $ 70,236 $172,008 $ 53,690
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NET INCOME $ 50,677 $ 65,140 $152,214 $ 50,139
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EARNINGS PER SHARE $ .18 $ .23 $ .54 $ .18
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1
EXHIBIT 10.23
[PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO
AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT
REQUESTED BY CARNIVAL CORPORATION]
FINCANTIERI CANTIERI NAVALI ITALIANI SpA
and
UTOPIA CRUISES, INC.
SHIPBUILDING CONTRACT
for Hull 5979
2
INDEX
Art. Index
1. Subject of the Contract
2. Vessel's Classification - Rules and Regulations - Certificates
3. Vessel's Characteristics
4. Builder's Supply - Owner's Supply
5. Approvals - Supplies by Third Parties
6. Hull Number
7. Inspection of Construction
8. Delivery
9. Price
10. Payment Conditions
11. Defaults by the Owner
12. Trials
13. Speed - Liquidated Damages
14. Deadweight - Liquidated Damages
15. Stability
16. Passengers and Crew Accommodation Capacity
17. Fuel Oil Consumption - Liquidated Damages
18. Vibrations and Noise
19. Maximum Amount of Liquidated Damages
20. Termination of the Contract - Liquidated Damages to be paid by the Builder
21. Property Rights
22. Responsibility after Delivery
23. Insurance
24. Modification to Plans and Specification
25. Guarantee - Liability
26. Events of Force Majeure
27. Patents
28. Contract Expenses
29. Assignment of the Contract
30. Law of the Contract - Disputes
31. Address for Correspondence
Annex 1
Annex 2
Annex 3 A, B, C, D
Annex 4
Annex 5
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SHIPBUILDING CONTRACT
Between:
UTOPIA CRUISES, INC. a company organised and existing under the law of Panama,
with a registered office in Panama City, Panama hereinafter called the "Owner"
and
FINCANTIERI - CANTIERI NAVALI ITALIANl S.p.A., a company organised and existing
under the law of the Republic of Italy, with registered office in Trieste, via
Genova, 1, fiscal code 00397130584, hereinafter called the "Builder",
IT IS HEREBY AGREED AND STIPULATED AS FOLLOWS:
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
ARTICLE 1
Subject of the Contract
1.1 The Builder undertakes to design and build at its Monfalcone Yard
and to deliver to the Owner, who undertakes to accept delivery of
one passenger cruiseship for the transport of XXXX passengers and
XXXX crew (plus XXX pullmans or convertible sofas) and a
deadweight of XXXX metric tonnes (hereinafter called "Vessel"),
identical in all respects (except as provided in this Contract)
to the passenger ship identified by Hull Number 5941, now under
construction at Monfalcone yard, as originally contracted for in
the Shipbuilding Contract dated January 11, 1993 (hereinafter as
amended, called the "Principal Contract" ) but with all
modifications to the plans and specification and related
documentation (including Maker's List) agreed in regard of Hull
5941 to the date of December 19, 1994. In this contract the term
"Specification" means the Specification as defined in the
Principal Contract in relation to Hull 5941 with the
modifications provided in this Contract. The length of the
Vessel shall be increased as compared with Hull 5941 as provided
in Article 3 and the Vessel shall be constructed in accordance
with the General Arrangement Plan of even date herewith (G.A.
Plan Yard No. 5979 as modified 12 January 1995) and the Owner's
architect's telefax message of 12 January 1995 and attached plans
(hereinafter together called the "Plan").
The Specification for the Vessel shall be the same as for Hull
5941 except that:
- Model tests shall be restricted to propulsion tests only.
- Mock-up cabins for Hull 5941 will apply and no additional
mock-up cabins will be required.
- A bow, anchor-test model will not be required.
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1.2 The decorative details of the public areas of the Vessel will be
different from the Vessel built under the Principal Contract and
the Owner's architects will provide drawings thereof according to
the building schedule of the Vessel. The Builder will advise the
Owner as soon as practical of the dates by which such drawings
require to be supplied to provide the architect reasonable time
to prepare the drawings. It is however agreed that the
Specification for the Vessel relating to the public areas and the
general scope, materials and finish for the Vessel will be to the
standard until today agreed for Hull 5941.
1.3 In the event of conflict between this Contract and the
Specification and/or Plans, the provisions of this Contract shall
prevail. In the event of conflict between the Specification and
the Plan, the provisions of the Specification shall prevail.
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ARTICLE 2
Vessel's Classification - Rules and Regulations - Certificates
2.1 The Vessel will be built under the survey of Lloyd's Register of
Shipping (the "Classification Society") and to Rules and
Regulations of Lloyd's Register of Shipping for the Class "+ 100
A1 + LMC, UMS, Passenger Ship Unrestricted Service, Underwater
Survey".
2.2 The Vessel shall comply with the laws, rules, regulations and
enactments published and in force on the date hereof as stated in
the SPECIFICATIONS, including also Stability Regulations for
Passenger Vessels (April 1990) and Fire Protection for Lifeboats
and Rafts in way of windows and screens (SOLAS 74, amended) to
the requirements of the Classification Society and the Panamanian
Government. The Vessel shall also comply with the requirements
of the following:
(a) U.S.P.H including "Vessel Sanitation Programme -
Operation Manual (edition August 1989) and W.H.O. "Guide
to Ship Sanitation"; and
(b) SOLAS Regulations and Wireless in relation to Global
Marine Distress Signal Systems.
2.3 Classification, certification, testing and survey charges to be
paid to the Classification Society and other third parties
related to the construction and delivery of the Vessel, its
machinery and equipment shall if so required in the Specification
be for the account of the Builder.
2.4 The decisions by the Classification Society and other regulatory
bodies which are to issue the certificates set forth in the
Specification shall be binding on both Parties hereto as to the
Vessel's compliance or non-compliance with the rules and
regulations of the Classification Society and such regulatory
bodies. This does not absolve Builder from compliance with the
Specification in respect of provisions which exceed the above
requirements.
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2.5 The Builder shall carry out such work as is necessary in
accordance with this Contract so that the Vessel on arrival in
the U.S.A. is approved by the USPH authorities.
2.6 Where after December 19, 1994 amendments to the Specifications
and/or Plans for Hull 5941 are agreed in relation to Hull 5941,
such amendments shall, except where agreed otherwise, be
incorporated in the Vessel with the same adjustments to the
Contract Price and technical characteristics of the Vessel as was
agreed in relation to Hull 5941.
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
ARTICLE 3
Vessel's Characteristics
3.1 The Vessel shall have the following main dimensions and
characteristics:
(A) Main dimensions
---------------
Length between perpendiculars abt. XXXXX m
Length overall " XXXXX m
Breadth at water line (moulded) " XXXXX m
Breadth Maximum " XXXXX m
Depth moulded to deck 2 " XXXXX m
Depth moulded to deck 7 " XXXXX m
Depth moulded to deck 12 " XXXXX m
Design Draught (maximum in seawater
density 1.025 kg/m(3)) " XXXXX m
Deadweight at above Design
Draught of XXXX M " about XXXX metric tons
(to be adjusted)
which may be distributed as follows:
- passengers and crew effects XXX tonnes
- provisions and stores XXX tonnes
- heavy fuel oil XXX tonnes
- diesel oil XXX tonnes
- pool water XXX tonnes
- stores and spares XXX tonnes
- Owner's supplies over and above To be
Owner's supplies included in lightship weight XXX tonnes Adjusted
- sewage XXX tonnes
- lubricating oil (in storage) XXX tonnes
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
- fresh water XXX tonnes
- technical water XXX tonnes
- miscellaneous XXX tonnes
-----------------
Total XXXX tonnes
(to be adjusted)
To be adjusted relative
to 5941 as follows:
(B) Passenger Cabins
Standard Cabins inside (with shower) XXX
Standard Cabins outside without balcony XXX
Outside Cabins with Balcony XXX
Suites XXX
Penthouse Suites XXX
-----------
XXXX Total
Crew Cabins
crew cabins (shared bathroom between
two cabins) XXX May be subject
staff cabins/P.O. cabins XXX to minor
officer cabins XXX re-distribution
-----------
XXXX Total
(C) Life saving equipment
Total number of persons on board for purpose of life saving equipment to be XXXX
(D) Machinery - Diesel Electrical Generators/Propulsion Plant
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
The main propulsion machinery shall consist of XXXXXXX
elastically mounted medium speed diesel engines driving
electrical generators and XXXXXXX cycloconverter controlled
electric motors, each driving one controllable pitch propeller.
(E) Main Diesel Generating Sets
The main diesel generating sets shall comprise XXXXXXX medium
speed, four stroke, trunk piston diesel engines, turbocharged,
fresh water cooled, started by compressed air of the following
number and type:
2 x GMT - Sulzer 12ZAV 40S, MCR XXXXXX at XXX r.p.m.
4 x GMT - Sulzer 16ZAV 40S, MCR XXXXXXX at XXX r.p.m.
Total installed machinery power : XXXXX MW (ISO XXXXXX)
Fuel oil : HFO with maximum viscosity according to CIMAC K 55.
(F) Power and Speed
(i) Service speed:
With propulsion motor power of XX MW (XXXXMW) the Vessel in
trial conditions shall reach a speed of XXXX knots at XXX draught
and wind/sea force not exceeding 2 Beaufort scale.
(ii) Guaranteed contract speed:
With all XXX diesel alternators in operation and with the
propulsion motors developing each at the motor flange XX MW at
about XXX r.p.m. the Vessel, under trial conditions with clean
bottom and wind/sea force not exceeding Beaufort scale 2, shall
reach a speed of XXXXXX knots at XXXM draught.
(G) Trade
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
The Vessel is to be suitable for around the world cruising with
consideration of 10-14 day cruises at service speed of XX knots.
Minimum range in respect of fuel to be XX days.
3.2 The foregoing main characteristics (except the characteristics
which are the subject of Articles 13, 14, 15, 16 and 17) may be
slightly modified, should the Builder deem such modifications
necessary to fulfil the contractual requirements in respect of
the draft, deadweight, stability and guaranteed speed. Such
modifications shall be subject to the Owner's prior approval,
such approval not to be unreasonably withheld.
3.3 It is understood that the XXXXXXXXXXX of the Vessel as compared
with Hull 5941 may have an effect on the trial and service speed
of the Vessel as specified in the Shipbuilding Contract as well
as on the deadweight scantling drafts and other characteristics
specified in Article 3.01(A). It is agreed that the trial speed
of the Vessel for the purpose of Article 3(F) and 13 shall be the
speed calculated on the basis of the model tests to be carried
out in accordance with Article 12.2 and the service speed for the
purpose of Article 3(F) and 13 shall be recalculated by reference
to the result of the tank tests aforesaid. Notwithstanding the
foregoing, if the trial speed and/or service speed of Hull 5941
fall short of the trial speed and/or service speed specified in
the Contract for Hull 5941 the specified trial speed and service
speed for Hull 5941 shall be used as the reference point for the
calculation of liquidated damages in respect of the Vessel under
Article 13 rather than the trial and/or service speed revised as
provided above.
Thrusters' power will be of XXXX KW each.
3.4 Services, such as air conditioning, sewage collection and
treatment, etc., are to be increased as necessary.
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ARTICLE 4
Builder's Supply - Owner's Supply
4.1 Those items of equipment listed under paragraph 0,132 (Owner's
supply) of the Specification Section "0" will be provided by the
Owner. The Builder shall supply all other items of equipment and
materials which are required for the construction and outfit of
the Vessel in accordance with the standards prescribed in Article
1 and in the Specification whether or not such items are or are
not expressly listed in the Specification provided such are
necessary for construction and outfit of the Vessel as described
herein and in the Specification.
4.2 The Owner's supplies will reach the Builder's Shipyard delivered
at the Shipyard, in due time to maintain the Schedule of delivery
to such items advised by the Builder so as to give the Owner
adequate time to arrange such supply in conformity with the
schedule of construction of the Vessel.
4.3 The Builder shall be responsible both for the keeping in stores
safe and well protected from damage and deterioration including
from atmospheric agents and for the careful handling of the
Owner's supplies, including artwork delivered to the Shipyard and
shall also take care, at its own expense and under its
responsibility, for the subsequent loading and arrangement on
board (including framing and mounting of artwork) of the various
materials and of the installation of the equipment supplied by
the Owner.
4.4 The Builder shall advise the Owner as soon as practicable of any
deficiency or damage in the supply or performance of the Owner's
supplies. The Owner as soon as practicable shall take all
necessary steps to supply missing items and rectify deficiencies
in performance.
4.5 For items of machinery and equipment the usual assistance of the
maker for installation and testing will be made available to the
Builder by the Owner.
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4.6 The Builder shall not be responsible for the quality and
efficiency of the Owner's supplies but shall be responsible for
their proper installation which will be governed by the guarantee
under the terms set out in Article 25 hereof.
4.7 The foregoing shall apply also for the Owner's other supplies, if
any, not foreseen in the Specification, for which the Owner and
the Builder shall mutually agree each time upon possible costs of
loading and fitting on board.
4.8 Fuel oils and lubricants for the set up of the plants on board
and for all the shop tests of such plants and the trials of the
Vessel afloat will be supplied by the Builder and at the
Builder's cost and expense.
4.9 The Builder will assist the Owner in clearing with customs and
taking delivery to the Builder's yard of each shipment of the
Owner's supplies in cooperation with the Owner's local
representatives.
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ARTICLE 5
Approvals - Supplies by Third Parties
5.1 Wherever mentioned in this Article, the term "drawings" shall
mean plans, schedules, subcontractors' supply order
specifications and other material subject to Owner's approval as
per the Specification.
Drawings shall be submitted for approval only for new or modified
construction and outfit different from those already approved for
Hull 5941.
5.2 The Builder shall send by courier to the Owner, for preliminary
approval, copies of the drawings for the construction, outfitting
and completion of the Vessel as foreseen in the Specification,
and the Owner shall dispatch by courier one copy of the foregoing
drawings, either approved or supplemented with possible remarks
suggestions or proposals, within a term of 21 days as from the
date of arrival of the drawings to the Owner's office or such
longer period as may be agreed by the Builder at its reasonable
discretion if the Owner requests an extension of the said 21 day
period.
In the event that, on such expiration date the foregoing drawings
have not yet been returned to the Builder, such drawings will be
considered as approved.
5.3 The Builder shall take into consideration the remarks,
suggestions or proposals, if any, by the Owner, acting as
follows:
(A) if such remarks, suggestions or proposals are
covered by its contractual obligations, the
Builder shall promptly carry them out without
claiming any costs and shall supply the Owner
with the relevant amended drawings in order to
describe and confirm the modification made;
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(B) conversely, the remarks, suggestions or
proposals not covered by the Builder's
contractual obligations will be handled
according to Article 24 hereof.
The amendments, in respect of drawings referred under sub-para
(B) above according to Article 24 hereof, will in turn be
submitted for the approval of the Owner, with the same procedure,
limited to the part modified.
5.4 Approval or deemed approval of such drawings etc shall in no way
affect the responsibility of the Builder for the successful
completion of the Vessel and for the fulfilment of the Builder's
contractual obligations under this Contract, the Specification
and the Plans.
5.5 The Owner undertakes to use reasonable endeavours to ensure that
the requested approvals are given in the shortest time reasonably
practicable within the period specified in paragraph 2 of this
Article.
5.6 The Builder shall have the right to sub-contract part of the
supply and work to be carried out under this Contract on the
building site or elsewhere provided that the main work of
construction and main work of assembly of the Vessel's sections,
as well as installation of machinery, equipment and outfit, shall
be carried out at the Builder's yard at Monfalcone.
5.7 The subcontractors for items included in the makers' list agreed
between the Owner and the Builder (the "Makers' List") shall be
one of the companies listed in the Maker's List in relation to
the relevant item. The Owner and Builder may by agreement from
time to time add to or remove names from the Makers' List. In
relation to those items specified in the Makers List the Builder
shall select the supplier from the companies listed in the
Makers' List and send to the Owner for approval in accordance
with Article 5 the specification of the relevant item together
with the information the Owner may reasonably require to assess
the suitability or the Maker proposed. The Owner shall approve or
disapprove the specification as provided in Article 5 and may
propose to the Builder the selection of another of the companies
listed in the Makers' List in relation to the relevant item. The
Builder will
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do its best to meet the Owner's wishes and will forward the
respective specification for its approval. However if the item
supplied by the company proposed by the Owner from those of the
Makers' List in relation to the relevant item is more expensive
than the item manufactured or supplied by the company as proposed
by the Builder and the Builder and the Owner are unable to agree
on the selection of the item by the company proposed by the Owner
(within the procedures laid down in Article 5), the Owner may
insist on the selection of the company proposed by it provided
that the difference in price shall be treated as a modification
as provided in Article 24.
5.8 The selection of subcontractors for main items not included in
the Makers' List shall be subject to the Owner's prior approval
such approval not to be unreasonably withheld.
5.9 Any contact with the Builder's suppliers, in connection with the
supplies intended for the Vessel subject of this Contract will,
in any case, be carried out through the Builder.
5.10 The Owner will be provided with such information as it may
reasonably request in order to verify the performance of the
equipment supply or work carried out by the subcontractors.
5.11 The supplies from and work of third parties will be covered by
the Builder's guarantee as provided in Article 25 hereof.
5.12 The Owner undertakes to supply the architectural drawings
("Design Concepts") developed from the public rooms Owner's
architect drawings referred to in Article 1 relevant to the
public rooms and passenger open decks identified in the Plans.
Such Design Concepts will be drawn up at the Owner's expense and
delivered to the Builder. The Builder will advise the Owner
within three months from the date of this Contract of the
schedule for delivery and scope of the Design Concepts for the
Vessel which the Owner has to provide. Such schedule shall allow
reasonable time in each case for the Owner's architect to draw up
such Design Concepts and the Builder shall provide the Owner's
architect a reasonable period in advance of the
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deadline for submission of the Design Concepts with information
regarding the layout, frame spacing, steel structure, engine
casing, vertical and horizontal air and cable ducts and other
similar information which is sufficiently firm to enable the
Owner's architect to prepare the Design Concepts and precludes
foreseeable major changes in such items which would affect the
preparation of such Design Concepts.
The Design Concepts will conform with the structure and layout of
the relevant areas of the Vessel and the standards stipulated in
this Contract. However if the Builder discovers that detailed
modifications are required to accommodate the general concepts in
a reasonable manner, it will promptly notify the Owner about the
problem with a view to finding a solution acceptable to both
parties.
Within two months from the receipt of the Design Concepts the
Builder shall work up the Design Concepts and provide the Owner
with detailed drawings implementing the same and during the
following 30 days the Builder and the Owner shall collaborate to
reach the final decision about the drawings implementing the
Design Concepts.
Each of the final drawings prepared by the Builder will be signed
by the Owner and the Builder by way of approval.
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ARTICLE 6
Hull Number
6.1 The Vessel will be identified as hull number 5979.
6.2 As soon as possible after the arrival at the Builder's yard, all
materials, machinery and other equipment intended to be
incorporated in the Vessel shall be marked with the above Hull
number for the purpose of identification and establishing that
such materials, machinery and equipment belong to the Vessel. The
Builder may not use any such marked material, machinery, and
equipment for the construction of any other vessel without the
approval of the Owner, such approval not to be unreasonably
withheld. The Builder may not use for the construction of the
Vessel materials, machinery and other equipment marked for use in
the construction of any other vessel without the approval of the
Owner, such approval not to be unreasonably withheld.
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ARTICLE 7
Inspection of Construction
7.1 During the Vessel's construction, the Owner shall have the right
to have the Vessel and all engines, auxiliary machinery, outfit,
furnishing etc., inspected by its authorised representatives, to
whom the Builder shall grant free access - during working hours -
to the Vessel, its shipyard and workshops and shall obtain the
same right of access to the plant where parts intended for the
Vessel subject of this Contract were sub-contracted by the
Builder.
7.2 The supervision and inspection carried out during the Vessel's
construction by the Owner or its authorised representative shall
not relieve the Builder from its obligations to complete the
Vessel in accordance with this Contract and Specification and the
Plans. Throughout the period during which the Vessel is under
construction the Builder will conduct its proper quality control
programme of inspections, testing and supervision by a team of
the Builder's staff designated for this purpose. The Owner's
quality control staff shall wherever practicable work together
with the Builder's staff and jointly sign protocols in respect of
items approved by them.
7.3 The Owner and/or its authorised representatives shall promptly
notify the Builder in writing of any noted defects and
deficiencies which are considered by them as non-compliance with
the contractual conditions in respect of materials or
workmanship.
7.4 Approval by the Owner or Owner's representatives of work,
inspections, tests, trials, documents or plans shall not relieve
the Builder of its responsibility for the successful completion
of the Vessel in accordance with this Contract, the Specification
and Plans.
7.5 The Builder shall take into due account reasonable remarks, if
any, by the Owner or its authorised representatives, within the
limits of the contractual obligations.
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7.6 The Owner's authorised representatives shall observe the work
rules prevailing at the Builder's and Builder's subcontractors'
premises as far as they may be concerned. They shall also
address their remarks exclusively to the Builder's appointed
representatives.
7.7 Should the Owner elect to entrust the inspection to persons
outside its organisation, such persons shall be subject to the
Builder's prior approval (not to be unreasonably withheld).
7.8 The Builder shall prepare an inspection and tests schedule and
shall give to the Owner reasonable advance notice about the dates
of all inspections, tests and trials including those carried out
on sub contractors' premises as required by the Specification. On
completion of the test operations of major items, there will be
drawn up protocols of acceptance undersigned by the Owner's and
Builder's authorized representatives and, wherever required, by
the Classification Society.
7.9 The Builder shall provide at its yard to the Owner's
Representatives, for their inspection tasks, suitably furnished
office spaces equipped with lavatories, telephone, word
processors and telefax and as described in the Specification. The
telephone and telex/telefax expenses will be borne by the Owner.
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ARTICLE 8
Delivery
8.1 The delivery of the Vessel means the presentation of the Vessel
afloat, moored at a quay, suitable for crew and passenger
embarkation and loading of Owner's supplies and provisions, free
from encumbrances or liens (other than the Construction Finance
Mortgage referred to in Article 10.5 which shall be discharged
contemporaneously with delivery), upon the satisfactory trials
completion and completion of all work required under this
Contract, the Specification and the Plans, together with the
documents required by the Specification. Such documents shall be
in the usual form they are issued on delivery.
The following further documents will be handed over to the Owner
(A) Invoice for the total final price.
(B) Declaration of Warranty of the Builder that the
Vessel is delivered to the Owner free and clear
of any and all liens, claims or other
encumbrances upon the Vessel and the Owner's
title thereto, and in particular, that the
Vessel is absolutely free of all burdens, in the
nature of imposts, taxes or charges imposed by
the city, state or county of the port of
delivery, as well as of all liabilities arising
from the construction or operation of the Vessel
on trial runs or otherwise, prior to delivery
and acceptance.
(C) Builder's Certificate.
A protocol of delivery and acceptance will be signed by the
Builder and the Owner.
8.2 If:-
(A) the aforementioned documents are tendered by the
Builder and
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
(B) the Vessel has been duly completed in accordance
with this Contract, the Specification and the
Plans, the delivery shall be considered as
carried out to all effects even if the Owner
refuses to sign the protocol of delivery and
acceptance.
8.3 The Vessel will be delivered to the Owner, in accordance with
this Contract and provided the payments hereinafter specified are
made within the terms set forth, upon completion of all work
necessary to enable the Vessel to comply with this Contract, the
Specification and the Plans on 15 December 1998 extended by the
period by which the delivery of the Vessel is delayed by reason
of force majeure affecting the Vessel as provided in Article 26
and for modifications affecting the Vessel as provided in Article
24 and for delays in payment in relation to the Vessel as
provided in this Contract which would permit the Builder to delay
delivery of the Vessel. The Vessel may be delivered at the
Builder's yard at which the Vessel has been built or at Venice or
Trieste provided that the Builder shall give to the Owner not
less than 30 days' notice of the place of delivery. The Builder
agrees and will procure that the Vessel may remain at the quay
for a period of 7 days after delivery. If the Vessel is completed
and tendered for delivery to the Owner before the date specified
above the Owner may, but shall not be obliged to, take delivery
of the Vessel before that date.
8.4 Should the Vessel not be delivered in accordance with the terms
of this Contract, the Specification and the Plans on or before
the date extended as referred to therein the Builder shall pay to
the Owner as final liquidated damages an amount of US Dollars
XXXXXXX for each solar day of delay.
8.5 Should the delay in the delivery of the Vessel, exceed by 360
solar days, the delivery date specified in paragraph (3) of this
Article extended as referred to in the said paragraph (3) the
Owner, as an alternative to receiving the foregoing liquidated
damages, shall have the right to terminate this Contract with the
consequences set forth in Article 20 hereof.
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8.6 Should the delay in the delivery of the Vessel exceed by more
than 540 solar days the delivery date specified in relation
thereto in paragraph (3) of this Article, as extended by the
period by which the Vessel is delayed by reason of modifications
affecting the Vessel as provided in Article 24 and delays in
payment in relation to the Vessel as provided in Article 11 then,
irrespective of the provisions of Article 26 which might
otherwise permit postponement of delivery, the Owner shall have
the right to terminate this Contract with the consequences set
forth in Article 20 hereof.
8.7 Without prejudice to the Owner's rights under Article 8, 13, 14,
15, 16, 17 and 18 of this Contract, in the event that the Vessel
is tendered for delivery by the Builder, the Vessel has defects
or deviations (other than defects or deviations referred to in
Articles 13, 14, 16, 17 or 18) and each of the following
conditions is satisfied in relation thereto:
(A) the defects and/or deviations do not make the
Vessel unsuited to the service for which the
Vessel has been ordered; and
(B) the defects and/or deviations do not represent a
material departure from the requirements of this
Contract, the Specification, the Plans and the
hull lines and form developed for the Vessel;
and
(C) the defects and/or deviations cannot reasonably
be expected to affect the operational efficiency
of the Vessel; and
(D) the defects and/or deviations cannot reasonably
be expected to affect the safety or comfort of
the Vessel's passengers; and
(E) the defects and/or deviations do not prevent the
issue of the certificates which the Builder is
required by the Specification to deliver to the
Owner on the delivery of the Vessel;
but the Vessel has in other respects been completed in accordance
with the requirements of this Contract, the Specification and the
Plans, the Owner shall
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accept delivery of the Vessel with an appropriate reduction of
the price. If the Vessel is tendered with defects or deviations
other than such defects or deviations as are referred to above
the Owner shall, subject to Articles 13, 14, 16 and 17, not be
obliged to take delivery of the Vessel. In circumstances in which
the foregoing provisions of this paragraph apply the
determination of the appropriate reduction of the price by
agreement or arbitration shall not delay the delivery of the
Vessel.
8.8 In the event that when delivery of the Vessel is tendered by the
Builder the Vessel shows minor defects or non-completions in the
passengers' areas, the Owner will take delivery of the Vessel
while claiming remedy of the defects and/or completion of work
during the Vessel's transfer voyage and the Builder shall supply,
at its expense, all the materials and labour necessary to remedy
the foregoing defects and non-completions before the date
foreseen for the embarkation of passengers. However, subject to
Article 16.4, in the event that on the embarkation of passengers
one or more cabins are still unusable, the Owner will be entitled
to claim from the Builder the reimbursement of the Owner's loss
of profit attributable to the non-completions up to the date when
the defects or non completion will be remedied by the Builder.
The Owner will give the Builder the opportunity to continue to
work, provided that such work shall be carried out in a manner
which will not reasonably cause discomfort or annoyance to
passengers. If the Builder is unable to remedy such defects or
non-completions so as to render the affected cabins unusable the
Builder's obligation to reimburse the Owner for its loss of
profit shall cease when the Builder acknowledges it is so unable
and the Builder shall therefore be liable to pay the liquidated
damages stipulated in Article 16.5
8.9 In the event that when delivery of the Vessel is tendered by the
Builder the Vessel shows minor defects or non-completions
concerning areas not intended for passengers, and/or areas
intended for passengers except to the extent remedied by the
Builder under paragraph 8 of this Article or as to which the
Builder has paid liquidated damages under paragraph 8 of this
Article and Article 16.4, then the Owner will be entitled either
to claim their remedy by the Builder at the Builder's expense
after delivery during the Vessel's transfer voyage prior to the
Vessel entering service, or to arrange itself for the execution
of such remedy work, and in the latter case the Builder shall
refund the actual cost incurred by the Owner. Such
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work shall be carried out in a manner which will not reasonably
cause discomfort or annoyance to passengers.
8.10 In paragraphs 8 and 9 of this Article "minor defects or
non-completions" means defects or non-completions which exist
when delivery of the Vessel is tendered and which either:
(A) would not entitle the Owner to reject the Vessel
and terminate this Contract by virtue of
paragraph 7 of this Article; or
(B) would entitle the Owner to reject the Vessel but
despite which the Owner agrees to take delivery
of the Vessel and which are notified to the
Builder on delivery.
8.11 If it is not practicable before delivery for the Builder to
demonstrate the contractual performance of any of the specified
equipment or the contractual performance of any of the specified
technical systems of the Vessel in its intended operating
conditions, the Builder will demonstrate such performance as soon
as practicable and if not practicable within 180 days of delivery
compliance or non-compliance shall be determined by calculations.
In case of deficiencies in performance the Builder will remedy
such deficiencies under paragraph 9 of this Article or under the
guarantee contained in Article 25 as appropriate.
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ARTICLE 9
Price
The Owner shall pay to the Builder for the Vessel the price of Italian Lire
XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX (It. Lire XXXXXXXXXXXXXXX) fixed and not
subject to adjustment.
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ARTICLE 10
Payment Conditions
10.1 The payment of the price of Italian Lire XXXXXXXXXXXXXXX will be
made for the Vessel as follows:
XX% (Italian Lire XXXXXXXXXXXXX) on signature of this Contract;
XX% (Italian Lire XXXXXXXXXXXXXX) on XXXXXXXXXXXXX;
XX% (Italian Lire XXXXXXXXXXXXXX) on XXXXXXXXXXXXX;
XX% (Italian Lire XXXXXXXXXXXXXX) on XXXXXXXXXXXXXXXXX;
XX% (Italian Lire XXXXXXXXXXXXXX) on XXXXXXXXXXXXXXXXXX;
XX% (Italian Lire XXXXXXXXXXXXXXX) financed through a supplier's
credit on the following conditions:
(A) Rate of interest: XXXX% per annum, fixed, net,
payable on a semiannual basis and calculated on
the loan outstanding balance.
(B) Repayment: over XXX years by means of XX
semiannual equal principal instalments including
the relevant interest calculated as above from
the Vessel's delivery (as per Annex 1).
(C) Loan instruments for the Vessel: XX sets of XX
promissory notes. The promissory notes must be
free of any taxes, impost, levies or duties
present or future of any nature whatsoever and
not capable of prepayment (as per Annex 2).
(D) Maturities: the promissory notes shall have
maturities in accordance with the expected date
for delivery of the Vessel as provided in
paragraph (3) of Article 8. The first note of
each set will expire at 6 monthly intervals from
each such expected delivery date. The
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following maturities will expire at 6 monthly
intervals thereafter (as per Annexes 3/A, 3/B
3/C and 3/D).
(E) Release of loan instruments: promissory notes,
duly filled in, shall be deposited in trust
within 30 days from the date of this Contract at
a first class Italian Bank acceptable to the
Owner (hereinafter called the "Trustee Bank")
with irrevocable instructions (see Annex 4) to
release them to the benefit of the Builder, upon
presentation by the same of RINA certificates
stating that the Vessel has reached the
percentage stage of completion stated in Annex
5.
The Builder undertakes to release such
promissory notes only in order to obtain the
financing of the Vessel during the construction
period.
(F) Deferred delivery: in case the actual delivery
date of the Vessel is different from the date
specified in relation thereto in paragraph 3 of
Article 8, the parties agree to reissue or amend
the promissory notes modified accordingly, so
that the new maturity dates will be at six
monthly intervals from the actual delivery date.
10.2 The amounts due by the Owner or by the Builder for the
modifications to the Specification and to the Plans will be paid
on delivery of the Vessel. Interest on XX% of the cost of
modification shall be payable by the Owner to the Builder in the
case of extra costs, or by the Builder to the Owner in the case
of credits, from the date on which the modification is agreed
until delivery, calculated at the prime rate ABI as mentioned in
Article 20.1(A).
10.3 Liquidated damages, if any, or premiums for delivery, speed,
deadweight, capacity and fuel oil consumption will be determined
on delivery of the Vessel and the relevant amount will be paid to
the party entitled thereto on delivery.
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In the event of any dispute as to the quantification of any such
amount, delivery of the Vessel shall nevertheless take place in
accordance with this Contract (but without prejudice to the right
of either party to refer such dispute to arbitration in
accordance with Article 30 of this Contract).
Any liquidated damages or price reduction will be settled by way
of cash payment by the Builder to the Owner and not by way of
reduction in the amounts payable hereunder by the Owner or by way
of modification to the promissory notes referred to in Article
10.1.
10.4 The Owner shall not delay or discontinue any payment foreseen in
this Contract for any reason whatsoever except in the event of
the proper termination of this Contract in relation to the Vessel
or a total loss of the Vessel as provided herein.
Exceptions and/or claims, if any, by the Owner against the
Builder, will be asserted separately according to the provisions
set forth in Article 30 hereof.
10.5 If, as contemplated in Article 10.1 (E), the Builder proposes to
release the promissory notes in order to obtain the financing of
the Vessel during the construction period, then in order to
procure such financing, the Builder may (prior to the transfer of
the property in any part of the Vessel to the Owner pursuant to
Article 21) grant in favour of the financing parties a first
priority mortgage over the Vessel (the "Construction Finance
Mortgage") and register the same as a mortgage of a vessel under
construction (at its own expense), provided (1) that the
financing parties agree for the benefit of the Builder and the
Owner that they will not take any steps to enforce the mortgage
save in circumstances where an event has occurred which entitles
the Owner or the Builder to rescind or terminate the Contract and
(2) that the mortgagees under the Construction Finance Mortgage
give undertakings to the Owner in mutatis mutandis substantially
the same terms as the undertakings given by Citibank N.A. to the
Owner in relation to Hull 5941.
If a Construction Finance Mortgage is created, then the transfer
of the property in all or part of the Vessel pursuant to Article
21 shall be a transfer subject to the Construction Finance
Mortgage.
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10.6 Any financing provided to the Builder in respect of the
construction period will be on terms whereby the full amount due
will be repayable at the delivery of the Vessel at which point
the Builder will re-acquire the promissory notes issued by the
Owner under Article 10 and sell the promissory notes without
recourse to an investor or investors.
10.7 The Builder shall not have any rights to sell the Promissory
Notes of the Owner referred to in Article 10 of this Contract to
anyone other than one or more Qualified Investors.
"Qualified Investor", used herein, means any financial
institution(s) or other entity approved in writing by the Owner.
10.8 If at delivery of the Ship by the Builder to the Owner in
accordance with the terms of this Contract the Builder has not
received a bona fide offer from a Qualified Investor to purchase
the Promissory Notes, on terms substantially the same as the
offer referred to in the letter dated January 14, 1995 (the
"Citibank Offer") from Citibank, N.A. to the Builder and Citibank
N.A. Rome as intermediary bank, or at a price equal to the
principal value of the Promissory Notes (i.e., It. Lire
XXXXXXXXXXXXXXX), then the Builder shall have the right to demand
payment of the deferred portion of the purchase price of the Ship
represented by the principal value of the Promissory Notes in
cash on the date of delivery. In such event, the Builder shall
concurrently return the Promissory Notes to the Owner on payment
of such amount, and the Owner agrees to indemnify and hold the
Builder harmless under such circumstances from and against all
losses, directly incurred by the Builder as a result of repayment
of any subsidy otherwise paid to, or loss of any subsidy due to
the Builder in respect of the construction financing of the Ship.
10.9 In the event that the Builder has received a bona fide offer from
a Qualified Investor to purchase the Promissory Notes on or
before the delivery date of the Ship under this Contract, on
terms substantially the same as the Citibank Offer or at a price
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equal to the principal value of the Promissory Notes (i.e., It.
Lire XXXXXXXXXXXXXXX) and the Builder fails to deliver the
Promissory Notes for purchase under such offer, then the Owner
shall have the right, but not the obligation, to pay the deferred
portion of the purchase price of the Ship in cash on delivery for
an amount equal to the purchase price of the Promissory Notes
under the bona fide offer not accepted by the Builder. If the
Owner pays such price in cash then the Builder shall concurrently
return the Promissory Notes to the Owner. In this event, the
Builder will indemnify the Owner in respect of any advisers'
legal fees relating to this transaction, and no indemnification
will be required from the Owner to the Builder, in respect of any
loss of subsidy or otherwise.
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ARTICLE 11
Defaults by the Owner/Carnival Corporation.
11.1 Should the Owner be in default in payment of any Contract
instalment and/or other amounts due under this Contract, then the
Owner shall pay to the Builder - as from the due date - interest
thereon reckoned according to the prime rate ABI (Italian Banking
Association), increased by 4 percentage points, published on "Il
Sole 24 Ore" at three months capitalization.
11.2 Moreover, the Builder shall be entitled to one day's extension in
the delivery time of the Vessel for each day of delay in the
payment of the aforesaid sums and if the delay exceeds 15 days as
from the due date the Builder shall have the option to suspend
the Builder's obligations under this Contract in relation to the
Vessel until payment of such sums and interest thereon has been
received by the Builder.
11.3 If the aforesaid delay exceeds one month from the due date, the
Builder, even if it has elected to suspend its obligations as
aforesaid, or if any of the events specified in Article 11.7
occurs and is continuing, may give to the Owner at any time
notice in writing declaring the Contract terminated and claim
damages.
11.4 To recover payment of the damages for default of the Owner under
this Article the Builder shall have the option, but shall not be
bound to sell the Vessel before or after having completed it
(together (at the Builder's discretion) with any Owner's supplies
in the Builder's possession) without prejudice to any other of
the Builder's rights.
11.5 Should the Builder elect to sell the Vessel (together with any
such Owner's supplies) then the sale shall be effected by auction
or by private sale, on such terms and conditions at such price as
the Builder shall determine, no responsibility deriving therefrom
to the Builder. Should the net proceeds of such sale and the
instalments already paid by the Owner not cover the damages and
expenses suffered by the Builder (including, without limitation,
costs and expenses incurred by the Builder in connection with the
sale, and any costs and expenses incurred by the Builder in
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constructing and completing the Vessel after termination of the
Contract in relation thereto), the Owner shall be liable for the
difference.
11.6 Should the Owner fail to take delivery of the Vessel in
accordance with the terms of this Contract then, without
prejudice to any other right of the Builder, the whole of the
outstanding balance of the purchase price payable under Article
10 and all the other outstanding payments due from the Owner
shall be regarded as having fallen due immediately on service of
notice from the Builder to the Owner, demanding payment pursuant
to this Article 11.6.
11.7 The events referred to in Article 11.3 are:-
(A) a bona fide petition, whether voluntary or
involuntary, is filed and is not dismissed
within thirty (30) days or an effective
resolution is passed for bankruptcy,
liquidation, reorganisation or winding up of the
Owner or Carnival Corporation (other than for
the purpose of a reconstruction or amalgamation
which has received the Builder's prior written
approval, such approval not to be unreasonably
withheld); or
(B) a receiver, trustee, liquidator, or sequestrator
of, or for, the Owner or Carnival Corporation or
any substantial portion of the property of the
Owner or Carnival Corporation is appointed or
the Owner or Carnival Corporation makes an
assignment of the whole or a substantial part of
its assets for the benefit of creditors; or
(C) the Owner or Carnival Corporation is unable to
pay or admits its inability to pay its debts as
they fall due or if a moratorium shall be
declared in respect of any indebtedness of the
Owner or Carnival Corporation or the Owner or
Carnival Corporation ceases to carry on its
business or makes any composition with its
creditors generally or is declared bankrupt or
goes into liquidation.
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ARTICLE 12
Trials
12.1 The Vessel shall run the following testing trials:
(A) Dock trial as specified in the Specification.
(B) Official sea-trials as provided in the
Specification during which the trial speed and
the propulsion motors output and revolutions
shall be determined in accordance with paragraph
(F)(ii) of Article 3.1.
An endurance test as well as all other trials and test included
in the sea trial program in the specification shall also be
carried out with recording of measurements of all parameters,
enabling determination of performance relevant to each test.
(C) All other trials specified in the Specification.
The trials program will be timely agreed upon by
Owner and Builder.
12.2 The speed runs and endurance test shall be run at the draft of
XXX meters or at the draft attainable by ballasting the Vessel
with ballast water using tanks and compartments intended for this
purpose.
As far as practicable the draft and conditions shall be as close
as possible to the corresponding draft and other actual trial
conditions at which tank model tests have been carried out.
Should such speed trial draft and other actual trial conditions
be other than the draft and conditions specified in paragraph
(F)(ii) of Article 3.1, the speed, the propulsion motors' output
and the revolutions corresponding to the latter draft and
conditions shall be determined by the Netherlands Model Basin in
Wageningen on the basis of the results recorded at the sea trials
by means of data from their model tests carried out with the
final hull form and design propellers.
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12.3 All trials and measurements will be conducted in a manner and to
an extent as prescribed in a detailed schedule based on the
Specification. The methods to be used are to be selected by the
Builder to suit the Vessel's sea trials programme to the approval
of the Owner.
12.4 The Builder has the right to subcontract speed and power
measurements to an independent model basin or research institute.
However, the Owner will be kept fully informed and allowed to
observe and ascertain measurements recorded during the trials as
if the Builder had carried out the tests with its own personnel.
12.5 Should conditions which properly qualify to delay delivery as
provided in Article 26 prevent the Builder from carrying out
properly the official trial on the day scheduled therefor, the
Builder has the right to postpone the trial or such part of it as
deemed necessary. In such case the Builder shall be entitled to
an extension of the Vessel's delivery time covering the whole
period of postponement provided that the Vessel's delivery is
actually delayed by such postponement and provided further that
the Builder shall promptly carry out the postponed trial or part
as soon as conditions allow.
12.6 The Builder shall also conduct a preliminary sea trial, enabling
checking and adjustment of the propulsion plant and the detection
of defects and deficiencies, such as excessive noise and
vibration, and their correction in good time. The preliminary sea
trial shall take place as soon as the Vessel is sufficiently
completed for this purpose. The Owner's representatives shall be
entitled to attend such preliminary trial. Any adjustment to the
functioning of the power generation and propulsion plants and
system associated otherwise shall be within the normal limits
prescribed by the makers of the propulsion plant and will not in
any case cause conditions of undue stress or any other abnormal
condition in the Vessel, its machinery and equipment.
12.7 The sea trials program shall include trials for the determination
of the steering and manoeuvring characteristics of the Vessel.
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12.8 The Builder shall have the right to repeat any trial whatsoever
after giving reasonable notice to the Owner.
12.9 The official sea trials will be carried out using H.F.O. with a
viscosity of up to 700 CST/50 DEG.C., but not less than 380
CST/50 DEG.C.
12.10 All expenses for the trials will be borne by the Builder who,
during the sea trials, will provide the necessary crew at its own
expense.
12.11 Should any breakdowns occur during the trials, entailing their
interruption or irregular performance and breakdown cannot be
repaired by the normal means available on board, the trial so
affected will be cancelled and will be repeated by and at the
expense of the Builder. The time period required for the repairs
will produce an extension of the delivery term to be agreed upon
by the Owner and the Builder if caused by events which permit
extension of the delivery date under Article 26.
12.12 If the breakdowns could be repaired by the normal means available
on board, the trials, with the previous agreement between the
Owner and the Builder, will be continued and considered as a
valid trial.
12.13 The Builder shall give the Owner thirty days notice of the
anticipated date of the sea trials.
12.14 Provided the Builder will make available to the Owner the results
of the sea trials within 7 days after completion of sea trials,
within the following 7 days, the Owner shall give the Builder a
notice in writing, or by telefax confirmed in writing, of
completion and acceptance of the sea trials, advising whether the
Owner considers that the results of the sea trials indicate
conformity of the Vessel to this Contract, the Specification and
the Plans to the extent that matters have been the subject of
such sea trials or further trials.
12.15 In the event that the Owner rejects the results of the sea trials
as not conforming to the said extent by this Contract or to the
Specification or the Plans, the Owner shall indicate within the
subsequent 7 days in its notice of rejection in what respect the
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Vessel, or any part or equipment thereof, does not conform to
this Contract and/or the Specification and/or the Plans.
12.16 In the event that the Owner fails to notify the Builder as
aforesaid of the acceptance or the rejection, together with the
reason therefor, of the sea trials within the period as provided
above, the Owner shall be deemed to have accepted the sea trials
of the Vessel.
12.17 Acceptance of the results of the sea trials as above provided
shall be final and binding so far as conformity of the Vessel to
this Contract and the Specification and the Plans to the extent
demonstrated on such trials is concerned and shall preclude the
Owner from refusing formal delivery of the Vessel as hereinafter
provided, on the grounds of non conformity of the Vessel in
respect of items whose conformity has been demonstrated and
accepted during the sea trials, if the Builder complies with all
other requirements for delivery as provided in this Contract.
12.18 Should any fuel oil or lubricating oil in storage tanks or
unbroached barrels, greases and ship's stores, including fresh
water furnished by the Builder for the sea trial remain on board
the Vessel at the time of acceptance thereof by the Owner, the
Owner agrees to buy the same from the Builder at the Builder's
cost price.
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ARTICLE 13
Speed - Liquidated Damages
13.1 Should the speed of the Vessel, at the design draft of XXX m
determined in accordance with Article 3.1(F)(ii) hereof, under
the conditions set out in the Specification, as determined in
Article 12 hereof, be lower than XXXXXX knots, the Builder shall
pay to the Owner, as final liquidated damages, the following
cumulative amounts:-
-for the first two tenths of knot of less speed:
-for the third tenth of knot of less speed: It.Lire XXXXXXXX
-for the fourth tenth of knot of less speed: It.Lire XXXXXXXX
-for the fifth tenth of knot of less speed: It.Lire XXXXXXXX
-for the sixth tenth of knot of less speed: It.Lire XXXXXXXX
-for the seventh tenth of knot of less speed: It.Lire XXXXXXXX
-for the eighth tenth of knot of less speed: It.Lire XXXXXXXX
-for the ninth tenth of knot of less speed: It.Lire XXXXXXXX
-for one knot of less speed: It.Lire XXXXXXXX
-fractions in proportion.
Should the speed of the Vessel determined as aforesaid be less
than XXXXXX knots, then the Owner, as an alternative to receiving
the foregoing liquidated damages,
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shall have the option to terminate this Contract with the
consequences provided for in Article 20 hereof.
13.2 Should the service speed of the Vessel determined in accordance
with Article 3.1(F)(i) hereof under the conditions set out in the
Specification, as determined on the sea trials, be lower than XX
knots, the Builder shall pay to the Owner, as final liquidated
damages, the following cumulative amounts:-
-for the first two tenths of a knot of less speed: XXXX
-for the third tenth of knot of less speed: It.Lire XXXXXXXXXXX
-for the fourth tenth of knot of less speed: It.Lire XXXXXXXXXXX
-for the fifth tenth of knot of less speed: It.Lire XXXXXXXXXXX
-for the sixth tenth of knot of less speed: It.Lire XXXXXXXXXXX
-for the seventh tenth of knot of less speed: It.Lire XXXXXXXXXXX
-for the eighth tenth of knot of less speed: It.Lire XXXXXXXXXXX
-for the ninth tenth of knot of less speed: It.Lire XXXXXXXXXXX
-for one knot of less speed: It.Lire XXXXXXXXXXX
-fractions in proportion.
Should the service speed of the Vessel determined in accordance
with the preceding provisions of this paragraph be less than XX
knots, then the Owner, as an alternative to receiving the
foregoing liquidated damages, shall have the option to terminate
this Contract with the consequences provided for in Article 20
hereof.
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13.3 If the Owner would be entitled to receive amounts by way of
liquidated damages under both Article 13.1 and 13.2 in respect of
deficiencies in speed calculated under the respective provisions
thereof the Owner shall receive the higher of the amounts due
under respectively Article 13.1 and 13.2 but not both amounts.
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ARTICLE 14
Deadweight - Liquidated Damages
14.1 The Vessel's deadweight - as determined in the Specification - in
sea water of 1.025 specific gravity on the mean draft of XXX
meters from the base line will not be less than XXXX metric tons.
14.2 Should the Vessel's deadweight be less than XXXX metric tons,
then the Builder shall pay to the Owner, as final liquidated
damages, an amount of Italian Lire XXXXXXXXX for each metric ton
of lesser deadweight, with a fixed free allowance of XXX metric
tons.
14.3 Should the Vessel's deadweight be less than XXXX metric tons,
then the Owner, as an alternative to receiving the aforementioned
liquidated damages, shall have the option to terminate this
Contract with the consequences provided for in Article 20 hereof.
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ARTICLE 15
Stability
15.1 The Vessel's stability characteristics shall be such as to fulfil
the provisions of the rules set out in Article 2 hereof and to be
adequate for satisfactory seakeeping and seaworthiness.
15.2 An inclining test for the determination of the Vessel's stability
characteristics shall be carried out in accordance with the
provisions of Lloyd's Register of Shipping and/or national
administration of the Vessel's intended Registry.
15.3 (A) If necessary to enable the Vessel to comply with
stability requirements in accordance with the
regulations referred to in Article 2 hereof, the
Builder may use the double bottom void tanks for
ballast.
(B) If necessary in order to fulfil the deadweight
commitments in accordance with Article 3.1
hereof, the design draft may be increased.
In either (A) or (B) above, or a combination of both, the design
draft may be increased up to a maximum XXX metres and the design
draft referred to in Articles 3.1(A), 3.1(F), 12.2, 13 and 14.1
shall be correspondingly increased.
The foregoing does not relieve the Builder of its responsibility
to comply in all respects with the prescribed deadweight, speed
and range as specified in Article 3, with the increased design
draft.
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ARTICLE 16
Passengers and Crew Accommodation Capacity
16.1 The capacity of the passenger and crew accommodation is specified
in Article 3 hereof, the Specification and Plans.
16.2 It is however understood that, except in the case of prior
agreement between the Builder and the Owner, if the number of
passenger cabins of the Vessel is lower than the number
determined in the contractual documentation (after deducting the
number of cabins which are unacceptable, taking account of the
allowed tolerances, owing to excess noise and/or vibrations as
set forth in the Specification), then the Builder shall pay to
the Owner, as final liquidated damages, the amount quoted in
Article 16.4 for each missing cabin.
16.3 In the event that, except in the case of prior agreement between
the Builder and the Owner, the number of the passenger cabins is
less than XXXX or if the Vessel does not have XXXXXXXXX and
XXXXXXXXXXXXXXXXXXX then the Owner, as an alternative to
receiving the aforementioned liquidated damages, shall have the
option to terminate this Contract with the consequences provided
for in Article 20 hereof.
16.4 The amount to be paid as liquidated damages for each cabin is:
XX cabins deficiency: nil
XXXXX cabins deficiency: USD XXXXXX per cabin
(including first XX cabins)
more than XX cabins deficiency: USD XXXXXXX per cabin
(including first XX cabins)
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ARTICLE 17
Fuel Oil Consumption - Liquidated Damages
17.1 For the main diesel engines a shop test shall be carried out in
accordance with the Specification. During such shop test the
specified fuel consumption shall be ascertained and corrected to
the design parameters.
17.2 For this purpose the shop test shall be run on marine diesel fuel
oil with each diesel engine developing XXX MCR at XXX
revolutions. The measured fuel consumption shall be corrected to
a reference lower calorific value of XXXXX kilojoules per kg and
ISO XXXXXX standard conditions. The fuel consumption of the main
propulsion plant so corrected shall not exceed XXX grams per KWH
for engines Type 12ZAV 40S and engines type 16ZAV 40S.
17.3 With respect to any of the engines, should the corrected fuel
consumption be in excess of XXX% of XXX grams per KWH for engines
type 12 ZAV 40S and engines type 16 ZAV 40S, the Builder shall
pay to the Owner, liquidated damages and not by way of penalty,
an amount of Italian Lire XXXXXXXXXX for each full one per cent
and pro rata for each fraction thereof in excess of XXX% of XXX
grams per KWH for engines type 12ZAV 40S and engines type 16ZAV
40S save and except that the Builder shall have the right to
remedy any defect causing such excessive fuel consumption and
repeat the trial.
17.4 With respect to any of the engines, should the corrected fuel
consumption be in excess of XXX per cent of XXX grams per KWH for
any of engines type 12ZAV 40S or engines type 16ZAV 40S the
Owner, as an alternative to receiving the above mentioned
liquidated damages, shall have the option to terminate this
Contract, with the consequences provided for in Article 20, save
and except that the Builder shall have the right to remedy any
defect causing such excessive fuel consumption and repeat the
trial.
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ARTICLE 18
Vibrations and Noise
The noise and vibration permissible levels, calculations and investigation for
the prediction thereof, exciter tests measurements, and precautions to be
carried out by the Builder shall be in accordance with the provisions of the
Specification.
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ARTICLE 19
Maximum amount of Liquidated Damages
The amount of the liquidated damages referred to in Article 8 (delivery), 13
(speed), 14 (deadweight), 16 (capacity) and 17 (fuel consumption), shall in no
case whatsoever exceed XX% of the price set forth in Article 9 hereof; the
Owner shall waive its entitlement to any excess.
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ARTICLE 20
Termination of the Contract - Liquidated Damages to be paid by
the Builder
20.1 In the event of termination of this Contract under Articles 8,
13, 14, 15, 16 or 17, or paragraphs 2 or 3 of this Article, the
Owner shall be entitled to:
(A) the refund of all the sums paid to the Builder increased
by the interest reckoned according to the ABI (Italian
Bankers' Association) prime rate published on "Il Sole 24
Ore" at three month capitalization running from the date
of the payment of relevant amount; and
(B) the cost to the Owner and/or Carnival Corporation of
unwinding the forward foreign exchange contracts entered
into by the Owner and/or Carnival Corporation for the
purchase of Italian lire with United States Dollars to
enable the Owner to make payments to the Builder under
Article 10 hereof.
(C) the return of the original signed Promissory Notes issued
by the Owner pursuant to Article 10;
(D) the return of the Owner's supply items or the payment of
an amount equal to the cost to the Owner of supplying
those items of the Owner's supply which are not returned
or which cannot reasonably be used by the Owner; and
(E) in the case of termination pursuant to Article 8, the
liquidated damages which would have accrued pursuant to
Article 8.4 as if the Vessel had been delivered on the
date of termination.
Except as otherwise expressly agreed and as provided in this
Article 20.1 the Builder shall not have any further or other
liability arising from this Contract following termination under
the provisions referred to in this Article 20.1.
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20.2 If:
(A) a bona fide petition is filed and is not dismissed within
thirty (30) days or an effective resolution is passed for
the winding up of the Builder (other than for the purpose
of a reconstruction or amalgamation which has received
the prior written approval of the Owner; such approval
however not to be required in case of reconstruction or
amalgamation within the Fincantieri Group affecting the
Builder); or
(B) a receiver is appointed of the undertaking or property of
the Builder; or
(C) the Builder suspends payment of its debts or ceases to
carry on its business or makes any composition with its
creditors generally or is subjected to amministrazione
controllata;
and in any such case the construction of the Vessel is suspended
for a period of more than sixty days for reasons other than any
of the events specified in Article 26 (in cases in which such
events may excuse delay in construction);
then, the Owner may immediately (without being bound thereto)
terminate this Contract by giving notice in writing to the
Builder.
20.3 If the Builder is declared bankrupt or goes into liquidation then
the Owner may immediately (without being bound thereto) terminate
this Contract by giving notice in writing to the Builder.
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ARTICLE 21
Property Rights
21.1 The property of the vessel belongs ab initio to the Builder. With
reference to the supplier credit provided in Article 10.1, the
property of the Vessel will be transferred gradually to the Owner
in the quantity and when the stages of construction certified by
R.I.Na. foreseen in the Annex 5 have been reached.
21.2 Taking into account the provisions of Article 21.1 and the fact
that during the construction of the Vessel the Owner will pay in
cash a partial amount of the purchase price, the parties agree in
favour of the Builder that any transfer of property to the Owner
is subject to the due performance by the Owner of its obligations
under this Contract. It is agreed that the Builder has required
this condition as condition of its agreement to the transfer of
the property provided in this Article.
Accordingly if the Builder becomes entitled to terminate this
Contract in accordance with Article 11.3 or the Owner fails to
take delivery of the Vessel as provided in Article 11.6 or if the
Owner exercises its right to terminate this Contract under
Articles 8, 13, 14, 15, 16 or 17 or Article 20.2 or 20.3, or in
the event that on the occurrence of a dispute between the Builder
and the Owner, then, subject to Article 21.12, the transfer of
the property of all the portions of the Vessel will be null and
void and the property of the Vessel will come back automatically
("condizione risolutiva" under Italian Law) to the Builder
without any claim from the Owner for this retransfer of property.
The retransfer of the property will take place at the moment when
the relevant event has occurred and the Builder has given notice
in writing to the Owner referring to this Article 21.2 and
specifying that the condition for retransfer has occurred.
21.3 It is agreed that any retransfer of the property from the Owner
to the Builder will not prejudice the other rights of each party
under the other provisions of this Contract.
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21.4 Since the clause 21.2 is in favour of the Builder, the Builder
shall be entitled to waive the benefit thereof by written
communication to the Owner.
21.5 The Owner further undertakes (i) at the Builder's expense on the
occurrence of any of the events specified in Article 21.2, to
fulfil immediately under simple request by the Builder any
further activity and/or to provide any further, even notarial
document, if necessary to get the immediate retransfer of
property to the Builder; (ii) not to register any mortgage, liens
or other encumbrances on the Vessel under construction; (iii)
(without prejudice to the Owner's rights under Article 29
(assignment)) not to sell his portions of the Vessel.
21.6 The Owner will acquire the whole property of the Vessel on the
signing of the protocol of delivery.
21.7 The Builder will be entitled to register at the Builder's expense
at each transfer of property of the Vessel to the Owner an
Italian hypothec (ipoteca su nave in costruzione) on the Vessel
as a guarantee of the Owner's obligation specified in Article
21.2. This hypothec will cease only on signature by the Builder
and the Owner of the protocol of delivery and acceptance and
shall rank behind any Construction Finance Mortgage granted as
contemplated in Article 10. On delivery the Owner will register a
first mortgage on the Vessel in favour of the Builder under its
flag of registry (in the form to be agreed between the Owner and
the Builder, including in any case an assignment of the Owner's
rights in respect of the marine insurances and protection and
indemnity cover in respect of the Vessel) which shall be released
by the Builder when the Builder enters into an unconditional
contract with a Qualified Investor for the purchase from the
Builder of the Promissory Notes issued by the Owner under Article
10. No such mortgage will be required if the Builder has entered
into such unconditional contract on or before the delivery of the
Vessel.
21.8 The transfer of property and mortgage rights contemplated by this
Article will be regulated by Italian Law without prejudice to
provisions set forth in Article 30.1.
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21.9 All the rights in the Specification, Plans and working drawings,
technical descriptions, calculations, test results and other data
information and documents concerning the design and construction
of the Vessel shall belong to the Builder before actual delivery
and after actual delivery each party recognises the right of the
other to use them, excluding (before and after delivery) the
Specification, Plans and drawings for passengers' accommodation,
wheel house and engine control room, public rooms and store and
baggage handling areas, property in, and the right to use, which
shall (before and after delivery) belong exclusively to the
Owner.
21.10 In the event of termination of this Contract by reason of the
Builder's default the Owner may also use the Specification,
Plans, working drawings, technical descriptions, calculations,
test results and other data, information and documents referred
to above. The property in the Specification, plans, working
drawings, technical descriptions, calculations, test results and
other data, information and documents referred to above shall
automatically become the exclusive property of the Owner.
21.11 In the event of termination of this Contract by reason of the
Owner's default, the Builder may also use the Specification,
Plans and drawings which would otherwise be the exclusive
property to the Owner by virtue of paragraph 9 of this Article.
21.12 If:
(i) the Owner has been notified by the construction
financiers that the Construction Finance Mortgage has
become enforceable;
(ii) the Owner purchases (or procures that an affiliate
purchases) the claims of the construction financiers
secured by the Construction Finance Mortgage and
discharges (or procures the discharge) of all such
claims; and
(iii) the Owner notifies the Builder that the provisions of
this Article 21.12 shall apply;
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then the provisions of Article 21.2 (and the 'condizione
risolutiva' therein provided for) shall no longer apply
and the property in the Vessel shall belong to the Owner
free from such condition and from any right of the
Builder to have the property retransferred to it.
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ARTICLE 22
Responsibility after Delivery
On delivery of the Vessel to the Owner, every responsibility for the safety and
generally for the condition of the Vessel is transferred to the Owner,
remaining on the part of the Builder only the guarantee obligations set forth
in Article 25 hereof.
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ARTICLE 23
Insurance
23.1 The Vessel under construction will be insured with leading
insurance companies up to the moment of delivery by and at the
expense of the Builder against all risks covered by the
"Institute Clauses for Builders' Risks" (and usual supplementary
conditions) and against all risks covered by the "Institute War
Clauses/Builders' Risks" and "Institute Strikes Clauses/Builders'
Risks".
23.2 The insurance of the Vessel shall be effected for not less than
the aggregate amount of all instalments of the contract price of
the Vessel paid to the Builder from time to time and interest
thereon from the date each such payment was made to the Builder
at the prime rate ABI (Italian Banking Association) published on
"Il Sole 24 Ore" and the declared value of Owner's supplied items
after delivery thereof to the Builder's yard and, in addition,
such amount as the financing parties providing construction
finance may require to cover the amount of construction finance
provided, and interest thereon.
23.3 The insurance monies will be allocated to the repair of damages
and/or the reconstruction of the Vessel.
23.4 In the event of a constructive arranged or compromised total loss
and/or abandonment of the Vessel before delivery, the Builder
shall be entitled to withdraw from this Contract or, if agreed by
the Owner, to fulfil it but with the right to an adequate
extension of the delivery term. Should the Builder exercise its
withdrawal right, the Owner shall be entitled to:
(A) the reimbursement of the amounts already paid to the
Builder on account of the contract price of the Vessel;
and
(B) payment of interest, at the same rate provided for in
paragraph (2) of this Article, on the instalments of the
contract price paid to the
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Builder from the date such instalments were paid to the
Builder until reimbursement to the Owner (before or after
judgement); and
(C) return of the Promissory Notes referred to in Article
10.1; and
(D) payment of an amount equal to the cost to the Owner of
purchasing and delivering to the Builder's yard those
items of the Owner's supply which have been purchased by
the Owner for the Vessel provided that these items are
in the Builder's premises.
23.5 To guarantee reimbursement to the Owner and the financing parties
providing construction finance for the Vessel, the insurance
policies effected by the Builder will be bound in their favour
(including their assignees), up to the amount of their respective
interests as set out in Article 23.2 and endorsed with
appropriate loss payable clauses providing for the payment to the
Owner and the financing parties, rateably, of the amounts due to
them.
23.6 The effecting of the aforementioned insurances, and the due
fulfilment of the obligations by the Builder as set forth in this
Article, exempt the same from any and whatsoever responsibility
both legal and contractual in connection with the risk and danger
of the Vessel under construction provided that the Builder, in
the case of damage not involving a total or constructive total
loss of the Vessel, shall use its best efforts to make good the
damage as quickly as reasonably possible after the occurrence
thereof.
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ARTICLE 24
Modification to Plans and Specification
24.1 Subject to paragraph (3) of this Article, the Builder shall make
the modifications, if any, to the Specifications and Plans,
requested by the Owner provided that in the sole opinion of the
Builder such modifications or accumulation of modifications do
not adversely affect the Builder's commitments to other
purchasers.
24.2 Both the requests by the Owner and their acceptance by the
Builder will be made in writing.
24.3 The Builder shall notify the Owner in writing of the variations
in price and other contractual conditions which the accepted
modifications may entail and shall execute such modifications
only upon written acceptance of the foregoing variations by the
Owner. The Builder shall submit to the Owner for approval changes
to the plans and Technical Drawings resulting from such
modifications.
24.4 The Owner's written acceptance must reach the Builder within 10
days from the date of the Builder's notice or such longer period
as the Owner may request and the Builder may agree in its
reasonable discretion.
24.5 Should such an acceptance be not received within the terms set
forth in paragraph (4) of this Article, the Builder shall have
the right to continue the Vessel's construction as though no
request for modifications had been made by the Owner.
24.6 In case of disagreement on the price and/or consequent variation
of the contractual conditions concerning the modifications
accepted by the Builder, the Owner shall have the right to have
the modifications executed, but shall undertake by written notice
to the Builder to pay the price requested by the Builder
according to the terms of Article 10 hereof (which shall be
determined having regard to the provisions of paragraphs (7) and
(9) of this Article).
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24.7 The Owner may contest the Builder's required price and proposed
variation of the Contract, Specification and Plans to the extent
that the price is excessive in relation to prices normally
charged by the Builder for similar work and to the extent that
such other variation is not reasonably justifiable.
24.8 In the event that, subsequent to the date of signature of this
Contract variations are made to the provisions compliance with
which is compulsory, the Builder shall notify the Owner in
writing of the consequent modifications with their relevant price
(which shall be determined having regard to the provisions of
paragraphs (7) and (9) of this Article). The Owner may first
apply, or if such action should properly be taken by the Builder
may require that the Builder shall first apply, for a formal
waiver of compliance with such modifications, deletions or
additions from the authority by whom the modifications, deletions
or additions have been promulgated, should the Owner consider
that the operation of the Vessel in its intended service would
permit of such waiver. In such agreement the Builder will fix a
time limit after which if the waiver has not been obtained, the
Builder will go on with the required modifications, deletions or
additions. Any additional costs caused by the application for
such waiver whether or not obtained shall be for account of the
Owner and the date of delivery of the Vessel if actually delayed
thereby shall be extended by the time necessary as a result of
the application for waiver.
24.9 When requested by the Owner, the Builder will provide the Owner
with the cost of each item involved in the modification (but not
of the component parts of each item).
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ARTICLE 25
Guarantee - Liability
25.1 The guarantee of the Vessel shall have the validity of
XXXXXXXXXXXXXXXXXXXXXXXXXXX commencing on the date of the
delivery of the Vessel to the Owner, extendable only by virtue of
paragraphs (3) or (6) of this Article.
25.2 On the Owner's request, the Builder shall, at its own expense,
repair and/or, if necessary, replace at one of its shipyards any
defects or deviations in the Vessel or its design which are
either notified by the Owner on delivery or which are not
reasonably apparent on an external examination on delivery of the
Vessel, provided that such defects and deviations be notified in
writing to the Builder on delivery (in the case of such as are
discovered on or before delivery) or, at the latest, within one
month from the date of their discovery by the Owner.
25.3 If for operational reasons the guarantee drydocking of the Vessel
cannot reasonably be carried out before the expiration of the
said XXXXXXXXXXXX period, then the guarantee drydocking can be
postponed up to fourteen months after delivery of the Vessel and
the Builder will repair and/or replace the defects or deviations
which the Owner can prove were existing before the expiration of
the guarantee period.
25.4 The Builder shall provide a guarantee to the Owner in relation to
the paint for the Vessel on the same terms as that provided by
the paint supplier to the Builder. Such guarantee shall be on the
basis that the paintwork shall be carried out under the
supervision of and to the satisfaction of authorised
representatives of the paint supplier. The Builder shall be
responsible for arranging for such supervision.
25.5 The Builder's liability in relation to the Vessel, after the
Vessel's delivery, shall be limited to the obligations expressly
set out in this Article and Articles 8.8 and 8.9
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and the Builder and its sub-contractors and suppliers shall have
no liability whatsoever for damages in any way deriving from or
connected either with the foregoing defects or deviations or with
the repair and replacement processes relevant to the foregoing
defects or deviations, as is also excluded any other liability
deriving from or in any way connected with any other cause not
included in the foregoing guarantee obligation, which covers
solely rectification and/or repair and/or replacement.
25.6 If the Builder itself makes good any defects during the guarantee
period specified in paragraph 1 of this Article as above or
pursuant to Article 8.8 or 8.9, then the provisions of this
Article shall apply to the parts repaired or replaced and the
repair or replacement work for a period of XXXXXXXXXXXXX after
the repair or replacement was completed.
25.7 The Builder agrees within the terms of this Article to
investigate the cause of any recurrent defect with a view to
providing a satisfactory remedy therefor.
25.8 In the event that the Vessel has to be drydocked, solely for
repairs or replacements made necessary by defects or deviations
attributable to the Builder in accordance with this Article, the
relevant expenses will be borne by the Builder in proportion to
the extent to which the drydock work is made necessary by such
defects or deviations attributable to the Builder.
25.9 The Owner shall indemnify and hold harmless the Builder for the
expenses of repair or replacement borne by the Builder and which
were recoverable by the Owner on the basis of the insurance
policies.
25.10 The Builder shall not be liable to repair, replace or bear any
responsibility for defects or deviations:-
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(A) due to normal wear and tear of the materials and
damage whatsoever due to accidents involving the
Vessel moored and/or at sea, or to fires,
mismanagement or negligence in the use of the
Vessel by the Owner or by persons who, at the
moment of the damage, were possessed of or
governing the Vessel, or by any of their
persons-in-charge, official or agent; or
(B) affecting items of the Owner's supply, but
without prejudice to the Builder's
responsibility for defects or deviations in the
work of installation of such items.
25.11 Should it prove necessary in the Owner's opinion, owing to the
conditions and location of the Vessel, or to avoid delays in
carrying out urgent repairs or replacements, the Owner may have
the rectification and/or repair and/or replacement works covered
by the Builder's guarantee obligations carried out otherwise than
in the Builder's shipyards, provided that the Owner previously
notifies the Builder, by letter or telefax, about the type and
extent of the defects or deviations to be remedied stating the
reason of the necessity to have the works carried out elsewhere.
The Builder shall reimburse the Owner the higher of (1) costs
which would have been applicable had the work been carried out at
the Builder's yard in effecting such repairs and/or replacements
and (2) the average of the costs charged for such work by Western
European shipyards but not in any event more than the actual cost
incurred by the Owner for such work.
25.12 If so requested by the Builder, the Owner shall return, at the
Builder's cost and expense, the parts replaced.
25.13 In any case, there is excluded any guarantee and/or liability of
the Builder for repair and/or replacement work carried out
outside the Builder's Shipyard unless carried out on board the
Vessel by the Builder's workmen or its subcontractors or by
persons arranged for by the Builder or its subcontractors.
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25.14 In any case the Vessel shall be taken at the Owner's cost and
responsibility to the place elected for the work to be carried
out ready in all respects for the guarantee work to be commenced.
25.15 In the event that the guarantee stipulated by manufacturers or
suppliers of machinery, materials, equipment, appurtenances and
outfit furnished to the Builder and embodied in the Vessel
exceeds the guarantee given by the Builder to the Owner
hereunder, such extended guarantee rights are to be assigned and
made available to the Owner by the Builder.
25.16 The Builder, at its own cost, is to have the right to investigate
the validity of the Owner's claim either by the attendance aboard
the Vessel (at its point of service) of an accredited
representative or, if in the opinion of the Builder it is
practicable to do so after suitable replacement is made, by the
removal from the Vessel and the transportation to the Builder's
yard of the defective part.
25.17 During the guarantee period, the Builder shall, at its own
expense, place on board a guarantee technician approved by the
Owner limited to the Vessel's first trip but anyway for a period
no longer than one month.
25.18 Every assistance will be given to the guarantee technician to
allow him to inspect the operation of the engine and other
machinery and their maintenance.
25.19 The Owner shall ensure to the said technician a status on board
not inferior to that due to the First Engineer.
25.20 Should the Owner decide to extend the stay on board of the said
technician beyond the foregoing date, the Owner shall pay to the
Builder a remuneration for the period of longer stay equal to
that provided for in the ANIE tariffs.
25.21 The presence on board of the said technician shall in no way
affect the Owner's liability regarding the good operation of the
Vessel nor shall affect the liability of the Builder provided for
in this Article.
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25.22 Subject to performance by the Builder of its obligations under
this Article, the Owner waives, with the guarantee agreed upon in
this Article, any further greater or different guarantee or
liability by the Builder.
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ARTICLE 26
Events of Force Majeure
26.1 Should the Builder be prevented from tendering delivery of the
Vessel by the date specified in relation to the Vessel in
paragraph (3) of Article 8 owing to: Acts of God; engagement in
war or other hostilities, civil war, civil commotions, riots or
insurrections; requirements of civil or military authorities;
blockades; embargoes; vandalism; sabotage; epidemics or sickness
above the normal yard statistics; strikes; lockouts; officially
agreed reduction of working hours relating to the Italian
workforce as a whole; labour shortage; earthquakes; landslides;
floods; weather conditions not included in normal planning;
failure of electric current, damage by lightning; explosions,
collisions, strandings or fire; accidents of any nature; damage
to the Vessel and time taken to repair such damage; shortage of
materials and equipment or inability to obtain delivery thereof,
provided that such materials and equipment at the time of
ordering could reasonably be expected by the Builder to be
delivered in time; delays by land, sea or air carriers; defects
in materials and equipment which could not have been detected by
the Builder or its subcontractors using reasonable care; casting,
forging or machining rejects or the like; delays caused by delay
of the Classification Society or other bodies whose documents are
required in issuing such documents; delays caused by default,
action or omission on the part of the Owner (but without
prejudice to any other rights of the Builder under this
Contract); delays caused by events similar to the foregoing; any
cause of delay whatsoever whether or not of a kind previously
specified in this Article or of a different kind, reasonably to
be considered beyond the control of the Builder; the effect of
the foregoing on the Builder's other commitments; all the
foregoing irrespective of whether or not these events occur
before or after the date hereinbefore specified as the date on
which the Vessel is to be delivered and irrespective of whether
or not occurrence of these events could be foreseen at the day of
signing this contract; then and in any such case the delivery
date of the Vessel shall, subject to the following provisions of
this Article, be extended by the number of working days of delay
incurred by the Builder in completing and delivering the Vessel
in consequence of any of these events. The Builder shall as
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soon as reasonably possible notify the Owner in writing of the
occurrence of any of the foregoing events which it expects may
delay construction or delivery of the Vessel.
26.2 Six months before the date on which the Builder expects the
Vessel to be ready for delivery duly completed in accordance with
this Contract, the Builder shall give definitive notice to the
Owner that the Vessel will be delivered to the Owner on the date
following six months after the notice is given. Following such
notice of the delivery date the only events which shall be
permitted to extend the delivery date of the Vessel shall be:
Acts of God, engagement in war or other hostilities, civil wars,
civil commotions, riots or insurrection; requirements of civil or
military authorities in contemplation of war, blockades,
embargoes, vandalism, sabotage, epidemics, earthquakes,
landslides, flood, damage by lightning, explosions, collisions,
strandings, fires or nationwide strikes or lockouts (for the sake
of good order it being agreed that strikes of the Fincantieri
workforce alone shall not be permitted to extend the delivery
after the said six (6) months' notice).
26.3 The Builder shall not be entitled to extend the delivery date of
the Vessel to the extent that the delay referred to in Articles
26.1 or 26.2 has been caused or contributed to by the negligence
of the Builder, its servants or agents or of the Builder's
subcontractors, their servants or agents.
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ARTICLE 27
Patents
The Builder, for the items of its own supply, shall hold harmless the Owner
against any claim made by third parties for patent rights or infringement of
copyright and for any other relevant reason and the Builder undertakes for its
account every liability or indemnity whatsoever.
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ARTICLE 28
Contract Expenses
28.1 All taxes, expenses, duties, stamps and fees levied by the
Authorities in Italy and connected to this Contract are to be
borne by the Builder.
28.2 Any taxes, duties and stamps off-Italy in relation to the
signature and authentication of this Contract (except notarial
charges) are to be borne by the Owner.
28.3 This Contract shall be registered in Italy, at fixed tax,
according to Article 40 of Decree No. 131, dated April 26, 1986,
by the President of the Italian Republic.
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ARTICLE 29
Assignment of the Contract
29.1 The Owner may transfer its rights and/or liabilities hereunder to
Carnival Corporation or to another wholly owned subsidiary of
Carnival Corporation provided that Carnival Corporation issues
an irrevocable and unconditional guarantee of the obligations of
the transferee to the Builder under this Contract in form and
substance identical (mutatis mutandis) to the guarantee of even
date herewith issued by Carnival Corporation to the Builder in
respect of the obligations of the Owner under this Contract. The
Builder's prior approval will also be required in the event of a
merger of the Owner. Such an approval may be subject to the
presentation of an adequate guarantee.
29.2 The Owner shall be entitled to assign this Contract to a third
party other than Carnival Corporation or a subsidiary of Carnival
Corporation if the assignee is a party whose financial standing
is acceptable to the Builder, to the financing parties providing
finance during the construction period, and to any other bank or
financial institution who may have agreed to purchase the
Promissory Notes issued by the Owner pursuant to Article 10.1.
29.3 The Owner shall further be entitled to assign its rights to
receive any sum due from the Builder according to this Contract
and its right to take delivery of the Vessel according to this
Contract (but not any of its other rights hereunder) to a first
class bank or financial institution on behalf of a syndicate of
banks and/or financial institutions subject to such bank or
financial institution agreeing to perform the Owner's financial
obligations under this Contract before, on and after delivery of
the Vessel if not so performed by the Owner.
29.4 The Builder shall not be entitled to assign this Contract to
third parties without the Owner's prior approval Provided that
the Builder shall be entitled (without prior approval) to assign
(as security) the benefit of all, or part, of this Contract to
financial institutions who make available to the Builder a loan
or note purchase facility for the purpose of assisting the
Builder to finance the construction of the
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Vessel. The Owner's approval of the assignment of this Contract
to third parties, other than the said financial institutions, may
be subject to the presentation of a guarantee of the Builder's
performance of this Contract.
Notice of this assignment will be given to the Owner in the
normal way, and will require to be acknowledged by the Owner. In
that acknowledgment, the Owner will be required to agree to make
the assigned payments directly to the construction financiers
(without deduction, set-off or counterclaim) and (but without
liability for failure on its part):
(i) to copy directly to the construction financiers any
notice served by it on the Builder notifying the Builder
of any rejection of the Vessel, or the trials, or of a
breach of contract which entitles the Owner to seek
liquidated damages or a price reduction, or to terminate
the Contract, or which may reasonably be expected to
result in a delay in the delivery of the Vessel;
(ii) to agree to confirm to the construction financiers on
request from time to time that (save as disclosed) no
such breach of contract has occurred.
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ARTICLE 30
Law of the Contract - Disputes
30.1 This Contract and all other agreements relating hereto shall be
construed and interpreted under English law.
30.2 If any dispute of a technical nature arises during the
construction of the Vessel between the parties in regard to the
construction of the Vessel, engines, materials or workmanship, it
shall forthwith be referred to a technical expert nominated by
agreement between the parties hereto and his decision shall be
final and binding upon both parties. Failing such agreement the
dispute shall be referred to arbitration in accordance with
paragraphs (3) to (5) of this Article.
30.3 Without prejudice to paragraph (2) of this Article, if any
dispute arises between the parties as to any matter regarding
this Contract which cannot be settled by the parties themselves,
the matter in dispute shall be settled by arbitration by three
arbitrators in London. One arbitrator shall be appointed by each
party and the third appointed by the two arbitrators appointed by
the parties. Hearings before the arbitrators shall be conducted
and all evidence given in the English language.
30.4 The arbitration shall be conducted in accordance with the English
Arbitration Acts 1950-1979 with such modifications as the parties
may agree.
30.5 Judgment upon any award rendered may be entered in any court
having jurisdiction or application may be made to any competent
court or authority for judicial acceptance of any award and an
order of enforcement, as the case may be.
69
70
ARTICLE 31
Addresses for Correspondence
31.1 The Builder shall send all notices, letters and documents for the
Owner in connection with or required under this Contract to the
following addresses:
(A) for all technical matters:
Address: Technical Marine Planning Limited (T.M.P.)
70, Great Eastern Street
London EC2A 3JL, ENGLAND
Telephone: 44-1-739 3533
Telefax: 44-1-729 1169
(B) for all legal and financial matters:
Carnival Corporation
Address: Koger Center
5225 NW 87th Avenue
3rd Floor
Miami
Florida 33178.2193 - USA
Attention: Captain Vittorio Fabietti (for)
Mr Micky Arison
Telephone: 1-305-471-5777
Telefax: 1-305-471-5778
31.2 The Owner shall send all notices, letters and documents for the
Builder in connection with or required under this Contract to the
following address:
70
71
FINCANTIERI - Cantieri Navali Italiani S.p.A.
Divisione Costruzioni Mercantili
Passeggio S. Andrea 6
34123 - Trieste
Telephone: 39-40-3193111
Telefax: 39-40-376969
Whenever this Contract requires that notice and/or notification shall be given
in writing, such notice and/or notification may validly be given by telefax
confirmed by letter. All approvals or consents required by this Contract shall
be in writing or by telefax except as otherwise provided herein.
Signed by )
)
)
for and on behalf of )
UTOPIA CRUISES INC. )
in the presence of:-
Signed by )
)
)
for and on behalf of )
FINCANTIERI - Cantieri Navali )
Italiani S.p.A. )
In the presence of:-
71
72
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 1
-------
Schedule of Payments
--------------------
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ _________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
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xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
73
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 1
-------
Schedule of Payments
--------------------
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx
74
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX NO. 2
-----------
PLACE AND DATE OF ISSUANCE
- ------------------------------------------------------------------------------------------------------------------------------------
ON DUE DATE for value received, we promise to pay
- ------------------------------------------------------------------------------------------------------------------------------------
against this promissory note to the order of PAYEE
- ------------------------------------------------------------------------------------------------------------------------------------
the sum of
- ------------
effective payment to be made in CURRENCY WITH WHICH PAYMENT IS MADE , without
- ------------------------------------------------------------------------------------------------------------------------------------
deduction for and free of any taxes, impost, levies or duties present or future of any nature.
- --------------
This promissory note is payable at PLACE OF PAYMENT
- ----------------------------------------------------
- -----------------------------------------------------
NAME AND ADDRESS OF DEBTOR DEBTOR'S STAMP
- ----------------------------------------------------- AND
- ----------------------------------------------------- SIGNATURE
- -----------------------------------------------------
75
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/A
---------
Schedule of Payments
--------------------
(Regarding xx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
76
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/A
---------
Schedule of Payments
--------------------
(Regarding xx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx
77
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/B
---------
Schedule of Payments
--------------------
(Regarding xxxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
78
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/B
---------
Schedule of Payments
--------------------
(Regarding xxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
79
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/C
---------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
80
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/C
---------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx
81
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/D
---------
Schedule of Payments
--------------------
(Regarding xxxxxxxxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
82
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/D
---------
Schedule of Payments
--------------------
(Regarding xxxxxxxxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
83
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL]
Annex 4
-------
LETTER OF INSTRUCTION TO BE SENT BY THE OWNER
---------------------------------------------
TO THE TRUSTEE BANK
-------------------
TO
.................(BANK)
.................
Copy to: Fincantieri Cantieri Navali Italiani S.p.A.
Re: promissory notes/Hull No. 5979
Dear Sirs:
With reference to the contract made and entered into on ........... by
and between us, on the one part, and Finacantieri Cantieri Navali Italiani
S.p.A. on the other part, for the construction and supply of one passenger
cruise ship, we deposit in trust in relation to Hull No. 5980 XX sets of XX
promissory notes each (as per Annex "A", "B", "C" and "D") in favor of
Fincantieri Cantieri Navali Italiani S.p.A. for the total amount of Lit.
XXXXXXXXXXXXXXX.
According to the above shipbuilding contract, we irrevocable instruct you to
release such notes to the beneficiary (Fincantieri Cantieri Navli Italiani
S.p.A.) upon presentation by the same of RINA certificates stating that
construction of the ship has reached the percentage stated in annex "E" to this
letter.
We acknowledge that the Trustee Bank is not liable or responsible for the forms
sufficiency, accuracy, genuiness or legal effect of RINA certificates.
We ask you to acknowledge to the beneficiary:
- - the correctness of signature and powers of persons who signed such
Promissory Notes;
- - that all Notes are issued and duly stamped in accordance with
applicable Law of the place of issuance.
Please confirm your agreement to such irrevocable instructions and that you
will act strictly in accordance therewith.
84
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL]
Please also notify return mail to Fincantieri Cantieri Navali Italiani S.p.A.
- - Trieste your agreement to act accordingly with irrevocable instructions.
Yours faithfully,
Encl: Annex "A", "B", "C", "D" and "E"
85
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "A" to Annex 4
-------------------
Schedule of Payments
--------------------
(Regarding xx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ _________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxx
86
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "A" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx
87
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "B" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
88
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "B" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
89
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "C" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
90
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "C" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
91
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "D" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxxxxxxxxxxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
92
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "D" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxxxxxxxxxxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
93
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL]
Annex "E" to Annex 4
--------------------
NOTES TO BE DELIVERED
xxxxxxxxxxxxxx WHEN ACTUAL CONSTRUCTION
xxx PROMISSORY REACHES FOLLOWING
NOTES EACH) STAGE OF COMPLETION
-------------- -------------------------
xxxxx xx% xxxxxxx
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
94
MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL]
Annex No. 5
-----------
NOTES TO BE DELIVERED
xxxxxxxxxxxxxx WHEN ACTUAL CONSTRUCTION
xxx PROMISSORY PRINCIPAL REACHES FOLLOWING
NOTES EACH) (AS PERCENTAGE) STAGE OF COMPLETION
_______________ _______________ ________________________
xxxxx xxx% xx% xxxxxxx
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
1
EXHIBIT 10.24
[PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO AN
APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT REQUESTED BY
CARNIVAL CORPORATION]
FINCANTIERI CANTIERI NAVALI ITALIANI SPA
and
WIND SURF LIMITED
SHIPBUILDING CONTRACT
For Hull 5980
Sinclair Roche & Temperley
2
INDEX
Art. Index
1. Subject of the Contract
2. Vessel's Classification - Rules and Regulations - Certificates
3. Vessel's Characteristics
4. Builder's Supply - Owner's Supply
5. Approvals - Supplies by Third Parties
6. Hull Number
7. Inspection of Construction
8. Delivery
9. Price
10. Payment Conditions
11. Defaults by the Owner
12. Trials
13. Speed - Liquidated Damages
14. Deadweight - Liquidated Damages
15. Stability
16. Passengers and Crew Accommodation Capacity
17. Fuel Oil Consumption - Liquidated Damages
18. Vibrations and Noise
19. Maximum Amount of Liquidated Damages
20. Termination of the Contract - Liquidated Damages to be paid by the
Builder
21. Property Rights
22. Responsibility after Delivery
23. Insurance
24. Modification to Plans and Specification
25. Guarantee - Liability
26. Events of Force Majeure
27. Patents
28. Contract Expenses
29. Assignment of the Contract
30. Law of the Contract - Disputes
31. Address for Correspondence
Annex 1
Annex 2
Annex 3 A, B, C, D
Annex 4
Annex 5
3
SHIPBUILDING CONTRACT
Between:
WIND SURF LIMITED a company organised and existing under the law of the
Commonwealth of the Bahamas, with a registered office in Nassau, Bahamas
hereinafter called the "Owner"
and
FINCANTIERI - CANTIERI NAVALI ITALIANI S.p.A., a company organised and existing
under the law of the Republic of Italy, with registered office in Trieste, via
Genova, 1, fiscal code 00397130584, hereinafter called the "Builder",
IT IS HEREBY AGREED AND STIPULATED AS FOLLOWS :
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ARTICLE 1
Subject of the Contract
1.1 The Builder undertakes to design and build at its Marghera yard and to
deliver to the Owner, who undertakes to accept delivery of one
passenger cruiseship for the transport of XXXX passengers and XXX crew
(plus XX pullmans or convertible sofas) and a deadweight of XXXX
metric tonnes (hereinafter called "Vessel") in accordance with this
Contract, dated January ___, 1995, the Specification for Hull 5881,
5882 and 5883 (ref. 7864/A) as supplemented and amended by an Addendum
of even date herewith (ref. TMP 1713) (hereinafter together called the
"Specification"), the General Arrangement Plans reference P. 8006/D
dated January 1995 (-5 sheets) (hereinafter called "Plans") and VFD
Interiors b.v. Interior Design drawings and Specification reference
9427 dated January 8, 1995 (hereinafter called "Interior Design
Specification").
The Specification, Plans, Interior Design Specification and the
Makers' List mentioned in the Specification each signed by the Parties
hereto form an integral part of this Contract although not attached
hereto. Except where expressly provided otherwise reference in this
Contract to the Specification shall also include the Interior Design
Specification.
1.2 In the event of conflict between this Contract and the Specification
and/or Plans, the provisions of this Contract shall prevail. In the
event of conflict between the Specification and the Plan, the
provisions of the Specification shall prevail.
1.3 The Specification for the Vessel and the Interior Design Specification
relating to the public areas as well as the general scope materials
and finish for the Vessel will be to the standard of m.s. "Ryndam" as
built.
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1.4 The Specification shall further incorporate all changes to the
original specification for m.s. "Ryndam" agreed in relation to the
construction of Hull 5954 up to December 19, 1994.
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ARTICLE 2
Vessel's Classification - Rules and Regulations - Certificates
2.1 The Vessel will be built under the survey of Lloyd's Register of
Shipping (the "Classification Society") and to Rules and Regulations
of Lloyd's Register of Shipping for the Class "+ 100 A1 + LMC, UMS,
Passenger Ship Unrestricted Service, Underwater Survey".
2.2 The Vessel shall comply with the laws, rules, regulations and
enactments published and in force on the date hereof as stated in the
SPECIFICATIONS, including also Stability Regulations for Passenger
Vessels (April 1990) and Fire Protection for Lifeboats and Rafts in
way of windows and screens (SOLAS 74, amended) to the requirements of
the Classification Society and the Panamanian Government. The Vessel
shall also comply with the requirements of the following:
(a) U.S.P.H. including "Vessel Sanitation Programme - Operation
Manual (edition August 1989) and W.H.O. "Guide to Ship
Sanitation"; and
(b) SOLAS Regulations and Wireless in relation to Global Marine
Distress Signal Systems.
2.3 Classification, certification, testing and survey charges to be paid
to the Classification Society and other third parties related to the
construction and delivery of the Vessel, their machinery and equipment
shall if so required in the Specification be for the account of the
Builder.
2.4 The decisions by the Classification Society and other regulatory
bodies which are to issue the certificates set forth in the
Specification shall be binding on both Parties hereto as to the
Vessel's compliance or non-compliance with the rules and regulations
of the Classification Society and such regulatory bodies. This does
not absolve Builder from compliance with the Specification in respect
of provisions which exceed the above requirements.
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2.5 Where after December 19, 1994 amendments to the Specification and/or
Plan for Hull 5954 are agreed in relation to Hull 5954 such amendments
shall, unless specifically agreed otherwise or where inappropriate to
the Vessel, be incorporated in the Vessel with the same adjustments to
the Contract Price and technical characteristics of the Vessel as are
agreed in relation to Hull 5954.
2.6 The Builder shall carry out such work as is necessary in accordance
with this Contract so that the Vessel on arrival in the United States
is approved by the USPH authorities.
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ARTICLE 3
Vessel's Characteristics
3.1 The Vessel shall have the following main dimensions and
characteristics:
(A) Main dimensions
Length between perpendiculars abt. XXXXXX m
Length overall " XXXXXX m
Beam Amidship at water line " XXXXXX m
Beam Maximum " XXXXXX m
Height to deck No. 9 " XXXXXX m
Design Draught (moulded in seawater
density 1.025 kg/m(3)) " XXXX m
Deadweight at above Design
Draught of XXXX M " XXXX metric tons
(B) Passengers Cabins
Standard Cabins inside (with shower) XXX
Standard Cabins outside with bathtub XXX
Deluxe Cabins with Balcony and
Jacuzzi-type bathtub XXX
Suites with Balcony and Jacuzzi XX
Penthouse Suite with Balcony and Jacuzzi X
------
Total XXX
(C) Life saving equipment
Total number of persons on board for purpose of life saving equipment
to be
XXXX.
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(D) Main Engines
An integrated high and low voltage power station machinery plant is to
be provided based on X medium speed diesel alternators, consisting of
XXXXX XXXXXX 16 ZAV 40 S diesel engines, each developing XXXXX kW MCR
and XXX Sulzer 12 ZAL 40 S diesel engines each developing XXXX kW MCR
for generation of power for propulsion by two high skewed C.P.
Propellers driven by synchronous A.C. motors on each shaft and
controlled by cycloconverters, as well as for all other electrical
consumers requirements of the Vessel.
The diesel engines shall be able to burn poor quality H.F.O. with a
viscosity of up to 700 CST/50 deg C. without adverse effects.
The propulsion motors to develop each an output of up to a maximum
XXXX M.W.
(E) Power and Speed
i) Service Speed
With a power output not exceeding XX% MCR, and allowing
XXX M.W. for all Vessel's electrical consumers, except
propulsion, the residual power shall enable the Vessel
to cruise at a service speed of XXXX knots with a sea
margin of XX% at the design draft with one engine out
of commission.
ii) Trial Speed
With a total power output of all engines not exceeding
XX% MCR, the Vessel under trial conditions with clean
bottom and wind/sea force not exceeding Beaufort scale
2, shall reach a speed of XX knots at the design draft.
There shall be no power-deficiency corrections applied
to speed trial calculations.
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(F) Trade
The Vessel is to be suitable for around the world cruising
with service speed of XXXX knots. Minimum range in respect of
fuel to be XXXX nautical miles.
3.2 The foregoing main characteristics (except the characteristics
which are the subject of Articles 13, 14, 15, 16 and 17) may
be slightly modified, should the Builder deem such
modifications necessary to fulfil the contractual requirements
in respect of the draft, deadweight, stability and guaranteed
speed. Such modifications shall be subject to the Owner's
prior approval such approval not to be unreasonably withheld.
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ARTICLE 4
Builder's Supply - Owner's Supply
4.1 Those items of equipment listed under paragraph 0,132 (Owner's
supply) of the Specification Section "0" will be provided by
the Owner. The Builder shall supply all other items of
equipment and materials which are required for the
construction and outfit of the Vessel in accordance with the
standards prescribed in Article 5.13 and in the Specification
whether or not such items are or are not expressly listed in
the Specification provided such are necessary for construction
and outfit of the Vessel as described herein and in the
Specification.
4.2 The Owner's supplies will reach the Builder's Shipyard
delivered at the Shipyard, in due time to maintain the
Schedule of delivery to such items advised by the Builder so
as to give the Owner adequate time to arrange such supply in
conformity with the schedule of construction of the Vessel.
4.3 The Builder shall be responsible both for the keeping in
stores safe and well protected from damage and deterioration
including from atmospheric agents and for the careful handling
of the Owner's supplies, including artwork delivered to the
Shipyard and shall also take care, at its own expense and
under its responsibility, for the subsequent loading and
arrangement on board (including framing and mounting of
artwork) of the various materials and of the installation of
the equipment supplied by the Owner.
4.4 The Builder shall advise the Owner as soon as practicable of
any deficiency or damage in the supply or performance of the
Owner's supplies. The Owner as soon as practicable shall take
all necessary steps to supply missing items and rectify
deficiencies in performance.
4.5 For items of machinery and equipment the usual assistance of
the maker for installation and testing will be made available
to the Builder by the Owner.
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4.6 The Builder shall not be responsible for the quality and
efficiency of the Owner's supplies but shall be responsible
for their proper installation which will be governed by the
guarantee under the terms set out in Article 25 hereof.
4.7 The foregoing shall apply also for the Owner's other supplies,
if any, not foreseen in the Specification, for which the Owner
and the Builder shall mutually agree each time upon possible
costs of loading and fitting on board.
4.8 Fuel oils and lubricants for the set up of the plants on board
and for all the shop tests of such plants and the trials of
the Vessel afloat will be supplied by the Builder and at the
Builder's cost and expense.
4.9 The Builder will assist the Owner in clearing with customs and
taking delivery to the Builder's yard of each shipment of the
Owner's supplies in cooperation with the Owner's local
representatives.
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ARTICLE 5
Approvals - Supplies by Third Parties - Standard
5.1 Wherever mentioned in this Article, the term "drawings" shall
include plans, schedules, subcontractors, supply order
specifications and other material subject to Owner's approval
as per the Specification.
5.2 The Builder shall send by courier to the Owner, for
preliminary approval, copies of the drawings for the
construction, outfitting and completion of the Vessel as
foreseen in the Specification, and the Owner shall dispatch by
courier one copy of the foregoing drawings, either approved or
supplemented with possible remarks suggestions or proposals,
within a term of 21 days as from the date of arrival of the
drawings to the Owner's office or such longer period as may be
agreed by the Builder at its reasonable discretion if the
Owner requests an extension of the said 21 day period.
In the event that, on such expiration date the foregoing
drawings have not yet been returned to the Builder, such
drawings will be considered as approved.
5.3 The Builder will send to the Owner, within three months from
the signing of this contract, the completion and despatch
schedule for the foregoing drawings. Such schedule shall be as
detailed as possible in order to allow the Owner a
corresponding planning of its resources. Amendments, if any,
to such schedule will be timely made known to the Owner.
5.4 The Builder shall take into consideration the remarks,
suggestions or proposals, if any, by the Owner, acting as
follows:
(A) if such remarks, suggestions or proposals are covered
by its contractual obligations, the Builder shall
promptly carry them out without claiming any costs and
shall supply the Owner with the relevant amended
drawings in order to describe and confirm the
modification made;
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(B) conversely, the remarks, suggestions or proposals not
covered by the Builder's contractual obligations will
be handled according to Article 24 hereof.
The amendments, in respect of drawings referred under sub-para
(B) above according to Article 24 hereof, will in turn be
submitted for the approval of the Owner, with the same
procedure, limited to the part modified.
5.5 Approval or deemed approval of such drawings etc shall in no
way affect the responsibility of the Builder for the
successful completion of the Vessel and for the fulfilment of
the Builder's contractual obligations under this Contract, the
Specification and the Plans.
5.6 The Owner undertakes to use reasonable endeavours to ensure
that the requested approvals are given in the shortest time
reasonably practicable within the period specified in
paragraph 2 of this Article.
5.7 The Builder shall have the right to sub-contract part of the
supply and work to be carried out under this Contract on the
building site or elsewhere provided that the main work of
construction and main work of assembly of the Vessel's
sections, as well as installation of machinery, equipment and
outfit, shall be carried out at the Builder's yard in
Marghera.
5.8 The subcontractors for items included in the makers' list
agreed between the Owner and the Builder (the "Makers' List")
shall be one of the companies listed in the Maker's List in
relation to the relevant item. The Owner and Builder may by
agreement from time to time add to or remove names from the
Makers' List. In relation to those items specified in the
Makers List the Builder shall select the supplier from the
companies listed in the Makers' List and send to the Owner for
approval in accordance with Article 5 the specification of the
relevant item together with the information the Owner may
reasonably require to assess the suitability or the Maker
proposed. The Owner shall approve or disapprove the
specification as provided in Article 5 and may propose to the
Builder the selection of another of the companies listed in
the
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Makers' List in relation to the relevant item. The Builder
will do its best to meet the Owner's wishes and will forward
the respective specification for its approval. However if the
item supplied by the company proposed by the Owner from those
of the Makers' List in relation to the relevant item is more
expensive than the item manufactured or supplied by the
company as proposed by the Builder and the Builder and the
Owner are unable to agree on the selection of the item by the
company proposed by the Owner (within the procedures laid down
in Article 5), the Owner may insist on the selection of the
company proposed by it provided that the difference in price
shall be treated as a modification as provided in Article 24.
5.9 The selection of subcontractors for main items not included in
the Makers' List shall be subject to the Owner's prior
approval such approval not to be unreasonably withheld.
5.10 Any contact with the Builder's suppliers, in connection with
the supplies intended for the Vessel subject of this Contract
will, in any case, be carried out through the Builder.
5.11 The Owner will be provided with such information as it may
reasonably request in order to verify the performance of the
equipment supply or work carried out by the subcontractors.
5.12 The supplies from and work of third parties will be covered by
the Builder's guarantee as provided in Article 25 hereof.
5.13 The Owner undertakes to supply the detailed architectural
drawings ("Design Concepts") developed from the public rooms
Owner's architect drawings referred to in Article 1 relevant
to the public rooms and passenger open decks identified in the
Plans. Such Design Concepts will be drawn up at the Owner's
expense and delivered to the Builder. The Builder will advise
the Owner within three months from the date of this Contract
of the schedule for delivery and scope of the Design Concepts
for the Vessel which the Owner has to provide. Such schedule
shall allow reasonable time in each case for the
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Owner's architect to draw up such Design Concepts and the
Builder shall provide the Owner's architect a reasonable
period in advance of the deadline for submission of the Design
Concepts with information regarding the layout, frame spacing,
steel structure, engine casing, vertical and horizontal air
and cable ducts and other similar information which is
sufficiently firm to enable the Owner's architect to prepare
the Design Concepts and precludes foreseeable major changes in
such items which would affect the preparation of such Design
Concepts.
The Design Concepts will conform with the structure and layout
of the relevant areas of the Vessel and the standards
stipulated in this Contract. However if the Builder discovers
that detailed modifications are required to accommodate the
general concepts in a reasonable manner, it will promptly
notify the Owner about the problem with a view to finding a
solution acceptable to both parties.
Within two months from the receipt of the Design Concepts the
Builder shall work up the Design Concepts and provide the
Owner with detailed drawings implementing the same and during
the following 30 days the Builder and the Owner shall
collaborate to reach the final decision about the drawings
implementing the Design Concepts.
Each of the final drawings prepared by the Builder will be
signed by the Owner and the Builder by way of approval.
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ARTICLE 6
Hull Number
6.1 The Vessel will be identified as hull number 5980.
6.2 As soon as possible after the arrival at the Builder's yard,
all materials, machinery and other equipment intended to be
incorporated in the Vessel shall be marked with the above Hull
number for the purpose of identification and establishing that
such materials, machinery and equipment belong to the Vessel.
The Builder may not use any such marked material, machinery,
and equipment for the construction of any other vessel without
the approval of the Owner, such approval not to be
unreasonably withheld. The Builder may not use for the
construction of the Vessel materials, machinery and other
equipment marked for use in the construction of any other
vessel without the approval of the Owner, such approval not to
be unreasonably withheld.
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ARTICLE 7
Inspection of Construction
7.1 During the Vessel's construction, the Owner shall have the
right to have the Vessel and all engines, auxiliary machinery,
outfit, furnishing etc., inspected by its authorised
representatives, to whom the Builder shall grant free access -
during working hours - to the Vessel, its shipyard and
workshops and shall obtain the same right of access to the
plant where parts intended for the Vessel subject of this
Contract were sub-contracted by the Builder.
7.2 The supervision and inspection carried out during the Vessel's
construction by the Owner or its authorised representative
shall not relieve the Builder from its obligations to complete
the Vessel in accordance with this Contract and Specification
and the Plans. Throughout the period during which the Vessel
is under construction the Builder will conduct its proper
quality control programme of inspections, testing and
supervision by a team of the Builder's staff designated for
this purpose. The Owner's quality control staff shall wherever
practicable work together with the Builder's staff and jointly
sign protocols in respect of items approved by them.
7.3 The Owner and/or its authorised representatives shall promptly
notify the Builder in writing of any noted defects and
deficiencies which are considered by them as non-compliance
with the contractual conditions in respect of materials or
workmanship.
7.4 Approval by the Owner or Owner's representatives of work,
inspections, tests, trials, documents or plans shall not
relieve the Builder of its responsibility for the successful
completion of the Vessel in accordance with this Contract, the
Specificatin and Plans.
7.5 The Builder shall take into due account reasonable remarks, if
any, by the Owner or its authorised representatives, within
the limits of the contractual obligations.
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7.6 The Owner's authorised representatives shall observe the work
rules prevailing at the Builder's and Builder's
subcontractors' premises as far as they may be concerned.
They shall also address their remarks exclusively to the
Builder's appointed representatives.
7.7 Should the Owner elect to entrust the inspection to persons
outside its organisation, such persons shall be subject to the
Builder's prior approval (not to be unreasonably withheld).
7.8 The Builder shall prepare an inspection and tests schedule and
shall give to the Owner reasonable advance notice about the
dates of all inspections, tests and trials including those
carried out on sub contractors' premises as required by the
Specification. On completion of the test operations of major
items, there will be drawn up protocols of acceptance
undersigned by the Owner's and Builder's authorized
representatives and, wherever required, by the Classification
Society.
7.9 The Builder shall provide at its yard to the Owner's
Representatives, for their inspection tasks, suitably
furnished office spaces equipped with lavatories, telephone,
word processors and telefax and as described in the
Specification. The telephone and telex/telefax expenses will
be borne by the Owner.
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ARTICLE 8
Delivery
8.1 The delivery of the Vessel means the presentation of the
Vessel afloat, moored at a quay, suitable for crew and
passenger embarkation and loading of Owner's supplies and
provisions, free from encumbrances or liens (other than the
Construction Finance Mortgage referred to in Article 10.5
which shall be discharged contemporaneously with delivery),
upon the satisfactory trials completion and completion of all
work required under this Contract, the Specification and the
Plans, together with the documents required by the
Specification. Such documents shall be in the usual form they
are issued on delivery.
The following further documents will be handed over to the
Owner
(A) Invoice for the total final price.
(B) Declaration of Warranty of the Builder that the Vessel
is delivered to the Owner free and clear of any and all
liens, claims or other encumbrances upon the Vessel and
the Owner's title thereto, and in particular, that the
Vessel is absolutely free of all burdens, in the nature
of imposts, taxes or charges imposed by the city, state
or county of the port of delivery, as well as of all
liabilities arising from the construction or operation
of the Vessel on trial runs or otherwise, prior to
delivery and acceptance.
(C) Builder's Certificate.
A protocol of delivery and acceptance will be signed by
the Builder and the Owner.
8.2 If:-
(A) the aforementioned documents are tendered by the
Builder and
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(B) the Vessel has been duly completed in accordance with
this Contract, the Specification and the Plans, the
delivery shall be considered as carried out to all
effects even if the Owner refuses to sign the protocol
of delivery and acceptance.
8.3 The Vessel will be delivered to the Owner, in accordance with
this Contract and provided the payments hereinafter specified
are made within the terms set forth, upon completion of all
work necessary to enable the Vessel to comply with this
Contract, the Specification and the Plans on 30 September 1997
extended by the period by which the delivery of the Vessel is
delayed by reason of force majeure affecting the Vessel as
provided in Article 26 and for modifications affecting the
Vessel as provided in Article 24 and for delays in payment in
relation to the Vessel as provided in this Contract which
would permit the Builder to delay delivery of the Vessel. The
Vessel may be delivered at the Builder's yard at which the
Vessel has been built or at Venice or Trieste provided that
the Builder shall give to the Owner not less than 30 days'
notice of the place of delivery. The Builder agrees and will
procure that the Vessel may remain at the quay for a period of
7 days after delivery. If the Vessel is completed and tendered
for delivery to the Owner before the date specified above the
Owner may, but shall not be obliged to, take delivery of the
Vessel before that date.
8.4 Should the Vessel not be delivered in accordance with the
terms of this Contract, the Specification and the Plans on or
before the date extended as referred to therein the Builder
shall pay to the Owner as final liquidated damages an amount
of Italian Lire XXXXXXX for each solar day of delay.
8.5 Should the delay in the delivery of the Vessel, exceed by 360
solar days, the delivery date specified in paragraph (3) of
this Article extended as referred to in the said paragraph (3)
the Owner, as an alternative to receiving the foregoing
liquidated damages, shall have the right to terminate this
Contract with the consequences set forth in Article 20 hereof.
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8.6 Should the delay in the delivery of the Vessel exceed by more
than 540 solar days the delivery date specified in relation
thereto in paragraph (3) of this Article, as extended by the
period by which the Vessel is delayed by reason of
modifications affecting the Vessel as provided in Article 24
and delays in payment in relation to the Vessel as provided in
Article 11 then, irrespective of the provisions of Article 26
which might otherwise permit postponement of delivery, the
Owner shall have the right to terminate this Contract with the
consequences set forth in Article 20 hereof.
8.7 Without prejudice to the Owner's rights under Article 8, 13,
14, 15, 16, 17 and 18 of this Contract, in the event that the
Vessel is tendered for delivery by the Builder, the Vessel has
defects or deviations (other than defects or deviations
referred to in Articles 13, 14, 16, 17 or 18) and each of the
following conditions is satisfied in relation thereto:
(A) the defects and/or deviations do not make the Vessel
unsuited to the service for which the Vessel has been
ordered; and
(B) the defects and/or deviations do not represent a
material departure from the requirements of this
Contract, the Specification, the Plans and the hull
lines and form developed for the Vessel; and
(C) the defects and/or deviations cannot reasonably be
expected to affect the operational efficiency of the
Vessel; and
(D) the defects and/or deviations cannot reasonably be
expected to affect the safety or comfort of the
Vessel's passengers; and
(E) the defects and/or deviations do not prevent the issue
of the certificates which the Builder is required by
the Specification to deliver to the Owner on the
delivery of the Vessel;
but the Vessel has in other respects been completed in
accordance with the requirements of this Contract, the
Specification and the Plans, the Owner shall accept delivery
of the Vessel with an appropriate reduction of the price. If
the
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Vessel is tendered with defects or deviations other than such
defects or deviations as are referred to above the Owner
shall, subject to Articles 13, 14, 15, 16 and 17, not be
obliged to take delivery of the Vessel. In circumstances in
which the foregoing provisions of this paragraph apply, the
determination of the appropriate reduction of the price by
agreement or arbitration shall not delay the delivery of the
Vessel.
8.8 In the event that when delivery of the Vessel is tendered by
the Builder the Vessel shows minor defects or non-completions
in the passengers' areas, the Owner will take delivery of the
Vessel while claiming remedy of the defects and/or completion
of work during the Vessel's transfer voyage and the Builder
shall supply, at its expense, all the materials and labour
necessary to remedy the foregoing defects and non-completions
before the date foreseen for the embarkation of passengers.
However, subject to Article 16.3, in the event that on the
embarkation of passengers one or more cabins are still
unusable, the Owner will be entitled to claim from the Builder
the reimbursement of the Owner's loss of profit attributable
to the non-completions, up to the date when the defects or non
completions will be remedied by the Builder. The Owner will
give the Builder the opportunity to continue to work, provided
that such work shall be carried out in a manner which will not
reasonably cause discomfort or annoyance to passengers. If the
Builder is unable to remedy such defects or non-completions so
as to render the affected cabins unusable the Builder's
obligation to reimburse the Owner for its loss of profit shall
cease when the Builder acknowledges it is so unable and the
Builder shall therefore be liable to pay the liquidated
damages stipulated in Article 16.5
8.9 In the event that when delivery of the Vessel is tendered by
the Builder the Vessel shows minor defects or non-completions
concerning areas not intended for passengers, and/or areas
intended for passengers except to the extent remedied by the
Builder under paragraph 8 of this Article or to which the
Builder has paid liquidated damages under paragraph 8 of this
Article and Art. 16.5, then the Owner will be entitled either
to claim their remedy by the Builder at the Builder's expense
after delivery during the Vessel's transfer voyage prior to
the Vessel entering service, or to arrange itself for the
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execution of such remedy work, and in the latter case the
Builder shall refund the actual cost incurred by the Owner.
Such work shall be carried out in a manner which will not
reasonably cause discomfort or annoyance to passengers.
8.10 In paragraphs 8 and 9 of this Article "minor defects or
non-completions" means defects or non-completions which exist
when delivery of the Vessel is tendered and which either:
(A) would not entitle the Owner to reject the Vessel and
terminate this Contract by virtue of paragraph 7 of
this Article; or
(B) would entitle the Owner to reject the Vessel but
despite which the Owner agrees to take delivery of the
Vessel and which are notified to the Builder on
delivery.
8.11 If it is not practicable before delivery for the Builder to
demonstrate the contractual performance of any of the
specified equipment or the contractual performance of any of
the specified technical systems of the Vessel in its intended
operating conditions, the Builder will demonstrate such
performance as soon as practicable and if not practicable
within 180 days of delivery compliance or non-compliance shall
be determined by calculations. In case of deficiencies in
performance the Builder will remedy such deficiencies under
paragraph 9 of this Article or the guarantee contained in
Article 25 as appropriate.
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ARTICLE 9
Price
The Owner shall pay to the Builder for the Vessel the price of Italian Lire
XXXXXXXXXXXXXXXXXXXXXXXXXXX (It. Lire XXXXXXXXXXXXXXX) fixed and not subject to
adjustment.
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ARTICLE 10
Payment Conditions
10.1 The payment of the price of Italian Lire
XXXXXXXXXXXXXXXXXXXXXXX (It. Lire XXXXXXXXXXXXXXX) will be
made for the Vessel as follows:
XX% (Italian Lire XXXXXXXXXXXXX) on signature of this
contract;
XX% (Italian Lire XXXXXXXXXXXXX) on XXXXXXXXXXXX;
XX% (Italian Lire XXXXXXXXXXXXXX) on XXXXXXXXXXXX;
XX% (Italian Lire XXXXXXXXXXXXXX) on XXXXXXXXXXXXX;
XX% (Italian Lire XXXXXXXXXXXXXX) on XXXXXXXXXXXX;
XX% (Italian Lire XXXXXXXXXXXYXXX) financed through a
supplier's
Credit on the following conditions:
(A) Rate of interest: XXXX% per annum, fixed, net, payable
on a semiannual basis and calculated on the loan
outstanding balance.
(B) Repayment: over XXX years by means of XX semiannual
equal principal instalments including the relevant
interest calculated as above from the Vessel's delivery
(as per Annex 1).
(C) Loan instruments for the Vessel: XX sets of XX
promissory notes. The promissory notes must be free of
any taxes, impost, levies or duties present or future
of any nature whatsoever and not capable of prepayment
(as per Annex 2).
(D) Maturities: the Promissory Notes shall have maturities
in accordance with the expected date for delivery of
the Vessel as provided in paragraph (3) of Article 8.
The first note of each set will expire at 6 monthly
intervals from each such expected delivery date. The
following
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maturities will expire at 6 monthly intervals
thereafter (as per Annexes 3/A, 3/B 3/C and 3/D).
(E) Release of loan instruments: promissory notes, duly
filled in, shall be deposited in trust within 30 days
from the date of this Contract at a first class Italian
Bank: acceptable to the Owner (hereinafter called the
"Trustee Bank") with irrevocable instructions (see
Annex 4) to release them to the benefit of the Builder,
upon presentation by the same of RINA certificates
stating that the Vessel has reached the percentage
stage of completion stated in Annex 5.
The Builder undertakes to release such promissory notes
only in order to obtain the financing of the Vessel
during the construction period.
(F) Deferred delivery: in case the actual delivery date of
the Vessel is different from the date specified in
relation thereto in paragraph 3 of Article 8, the
parties agree to reissue or amend the promissory notes
modified accordingly, so that the new maturity dates
will be at six monthly intervals from the actual
delivery date.
10.2 The amounts due by the Owner or by the Builder for the
modifications to the Specification and to the Plans will be
paid on delivery of the Vessel. Interest on XX% of the cost of
modification shall be payable by the Owner to the Builder in
the case of extra costs, or by the Builder to the Owner in the
case of credits, from the date on which the modification is
agreed until delivery, calculated at the prime rate ABI as
mentioned in Article 20.1(A).
10.3 Liquidated damages, if any, or premiums for delivery, speed,
deadweight, capacity and fuel oil consumption will be
determined on delivery of the Vessel and the relevant amount
will be paid to the party entitled thereto on delivery.
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In the event of any dispute as to the quantification of any
such amount, delivery of the Vessel shall nevertherless take
place in accordance with this Contract (but without prejudice
to the right of either party to refer such dispute to
arbitration in accordance with Article 30 of this Contract).
Any liquidated damages or price reduction will be settled by
way of cash payment by the Builder to the Owner and not by way
of reduction in the amounts payable hereunder by the Owner or
by way of modification to the promissory notes referred to in
Article 10.1.
10.4 The Owner shall not delay or discontinue any payment foreseen
in this Contract for any reason whatsoever except in the event
of the proper termination of this Contract in relation to the
Vessel or a total loss of the Vessel as provided herein.
Exceptions and/or claims, if any, by the Owner against the
Builder, will be asserted separately according to the
provisions set forth in Article 30 hereof.
10.5 If, as contemplated in Article 10.1 (E), the Builder proposes
to release the promissory notes in order to obtain the
financing of the Vessel during the construction period, then
in order to procure such financing, the Builder may (prior to
the transfer of the property in any part of the Vessel to the
Owner pursuant to Article 21) grant in favour of the financing
parties a first priority mortgage over the Vessel (the
"Construction Finance Mortgage") and register the same as a
mortgage of a vessel under construction (at its own expense),
provided that (1) the financing parties agree for the benefit
of the Builder and the Owner that they will not take any steps
to enforce the mortgage save in circumstances where an event
has occurred which entitles the Owner or the Builder to
rescind or terminate the Contract; and (2) that the mortgagees
under the Construction Finance Mortgage give undertakings to
the Owner in mutatis mutandis substantially the same terms as
the undertakings given by Citibank N.A. to the Owner in
relation to Hull 5954.
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If a Construction Finance Mortgage is created, then the
transfer of the property in all or part of the Vessel pursuant
to Article 21 shall be a transfer subject to the Construction
Finance Mortgage.
10.6 Any financing provided to the Builder in respect of the
construction period will be on terms whereby the full amount
due will be repayable at the delivery of the Vessel at which
point the Builder will re-acquire the promissory notes issued
by the Owner under Article 10 and sell the promissory notes
without recourse to an investor or investors.
10.7 The Builder shall not have any rights to sell the Promissory
Notes of the Owner referred to in Article 10 of this Contract
to anyone other than one or more Qualified Investors.
"Qualified Investor", used herein, means any financial
institutions or other entity approved in writing by the Owner.
10.8 If, at delivery of the Ship by the Builder to the Owner, in
accordance with the terms of this Contract, the Builder has
not received a bona fide offer from a Qualified Investor to
purchase the Promissory Notes, on terms substantially the same
as the offer referred to in the letter dated January 14, 1995
(the "Citibank Offer") from Citibank, N.A. to the Builder and
Citibank N.A. Rome as intermediary bank, or at a price equal
to the principal value of the Promissory Notes (i.e., It. Lire
XXXXXXXXXXXXXXX), then the Builder shall have the right to
demand payment of the deferred portion of the purchase price
of the Ship represented by the principal value of the
Promissory Notes in cash on the date of delivery. In such
event, the Builder shall concurrently return the Promissory
Notes to the Owner on payment of such amount, and the Owner
agrees to indemnify and hold the Builder harmless under such
circumstances from and against all losses, directly incurred
by the Builder as a result of repayment of any subsidy
otherwise paid to, or loss of any subsidy due to the Builder
in respect of the construction financing of the Ship.
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10.9 In the event that the Builder has received a bona fide offer
from a Qualified Investor to purchase the Promissory Notes on
or before the delivery date of the Ship under this Contract,
on terms substantially the same as the Citibank Offer or at a
price equal to the principal value of the Promissory Notes
(i.e., It. Lire XXXXXXXXXXXXXXX) and the Builder fails to
deliver the Promissory Notes for purchase under such offer,
then the Owner shall have the right, but not the obligation,
to pay the deferred portion of the purchase price of the Ship
in cash on delivery for an amount equal to the purchase price
of the Promissory Notes under the bona fide offer not accepted
by the Builder. If the Owner pays such price in cash then the
Owner shall concurrently return the Promissory Notes to the
Owner. In this event, the Builder will indemnify the Builder
will indemnify the Owner in respect of any advisers' legal
fees relating to this transaction, and no indemnification will
be required from the Owner to the Builder, in respect of any
loss of subsidy or otherwise.
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ARTICLE 11
Defaults by the Owner/Carnival Corporation
11.1 Should the Owner be in default in payment of any Contract
instalment and/or other amounts due under this Contract, then
the Owner shall pay to the Builder - as from the due date
interest thereon reckoned according to the prime rate ABI
(Italian Banking Association), increased by 4 percentage
points, published in "Il Sole 24 Ore" at three months
capitalization.
11.2 Moreover, the Builder shall be entitled to one day's extension
in the delivery time of the Vessel for each day of delay in
the payment of the aforesaid sums and if the delay exceeds 15
days as from the due date the Builder shall have the option to
suspend the Builder's obligations under this Contract in
relation to the Vessel until payment of such sums and interest
thereon has been received by the Builder.
11.3 If the aforesaid delay exceeds one month from the due date,
the Builder, even if it has elected to suspend its obligations
as aforesaid, or if any of the events specified in Article
11.7 occurs and is continuing, may give to the Owner at any
time notice in writing declaring the Contract terminated and
claim damages.
11.4 To recover payment of the damages for default of the Owner
under this Article the Builder shall have the option, but
shall not be bound to sell the Vessel before or after having
completed it (together (at the Builder's discretion) with any
Owner's supplies in the Builder's possession) without
prejudice to any other of the Builder's rights.
11.5 Should the Builder elect to sell the Vessel (together with any
such Owner's supplies), then the sale shall be effected by
auction or by private sale, on such terms and conditions at
such price as the Builder shall determine, no responsibility
deriving therefrom to the Builder. Should the net proceeds of
such sale and the instalments already paid by the Owner not
cover the damages
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and expenses suffered by the Builder (including, without
limitation, costs and expenses incurred by the Builder in
connection with the sale and any costs and expenses incurred
by the Builder in constructing and completing the Vessel after
termination of the Contract in relation thereto), the Owner
shall be liable for the difference.
11.6 Should the Owner fail to take delivery of the Vessel in
accordance with the terms of this Contract then, without
prejudice to any other right of the Builder, the whole of the
outstanding balance of the purchase price payable under
Article 10 and all the other outstanding payments due from the
Owner shall be regarded as having fallen due immediately on
service of notice from the Builder to the Owner demanding
payment pursuant to this Article 11.6.
11.7 The events referred to in Article 11.3 are:-
(A) a bona fide petition, whether voluntary or involuntary,
is filed and is not dismissed within thirty (30) days
or an effective resolution is passed for bankruptcy,
liquidation, reorganisation or winding up of the Owner
or Carnival Corporation (other than for the purpose of
a reconstruction or amalgamation which has received the
Builder's prior written approval, such approval not to
be unreasonably withheld); or
(B) a receiver, trustee, liquidator, or sequestrator of, or
for, the Owner or Carnival Corporation or any
substantial portion of the property of the Owner or
Carnival Corporation is appointed or the Owner or
Carnival Corporation makes an assignment of the whole
or a substantial part of its assets for the benefit of
creditors; or
(C) the Owner or Carnival Corporation is unable to pay or
admits its inability to pay its debts as they fall due
or if a moratorium shall be declared in respect of any
indebtedness of the Owner or Carnival Corporation or
the Owner or Carnival Corporation ceases to carry on
its business or makes any composition with its
creditors generally or is declared bankrupt or goes
into liquidation.
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ARTICLE 12
Trials
12.1 The Vessel shall run the following testing trials:
(A) Dock trial as specified in the Specification.
(B) Official sea-trials as provided in the Specification
during which the trial speed and the propulsion motors
output and revolutions shall be determined in
accordance with paragraph (E)(ii) of Article 3.1.
An endurance test as well as all other trials and test
included in the sea trial program in the specification
shall also be carried out with recording of
measurements of all parameters, enabling determination
of performance relevant to each test.
(C) All other trials specified in the Specification. The
trials program will be timely agreed upon by Owner and
Builder.
12.2 The speed runs and endurance test shall be run at the draft of
XXX meters or at the draft attainable by ballasting the Vessel
with ballast water using tanks and compartments intended for
this purpose.
As far as practicable the draft and conditions shall be as
close as possible to the corresponding draft and other actual
trial conditions at which tank model tests have been carried
out. Should such speed trial draft and other actual trial
conditions be other than the draft and conditions specified in
paragraph (E)(ii) of Article 3.1, the speed, the propulsion
motors' output and the revolutions corresponding to the latter
draft and conditions shall be determined by the Netherlands
Model Basin in Wageningen on the basis of the results recorded
at
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the sea trials by means of data from their model tests carried
out with the final hull form and design propellers.
12.3 All trials and measurements will be conducted in a manner and
to an extent as prescribed in a detailed schedule based on the
Specification. The methods to be used are to be selected by
the Builder to suit the Vessel's sea trials programme to the
approval of the Owner.
12.4 The Builder has the right to subcontract speed and power
measurements to an independent model basin or research
institute. However, the Owner will be kept fully informed and
allowed to observe and ascertain measurements recorded during
the trials as if the Builder had carried out the tests with
its own personnel.
12.5 Should conditions which properly qualify to delay delivery as
provided in Article 26 prevent the Builder from carrying out
properly the official trial on the day scheduled therefor, the
Builder has the right to postpone the trial or such part of it
as deemed necessary. In such case the Builder shall be
entitled to an extension of the Vessel's delivery time
covering the whole period of postponement provided that the
Vessel's delivery is actually delayed by such postponement and
provided further that the Builder shall promptly carry out the
postponed trial or part as soon as conditions allow.
12.6 The Builder shall also conduct a preliminary sea trial,
enabling checking and adjustment of the propulsion plant and
the detection of defects and deficiencies, such as excessive
noise and vibration, and their correction in good time. The
preliminary sea trial shall take place as soon as the Vessel
is sufficiently completed for this purpose. The Owner's
representatives shall be entitled to attend such preliminary
trial. Any adjustment to the functioning of the power
generation and propulsion plants and system associated
otherwise shall be within the normal limits prescribed by the
makers of the propulsion plant and will not in any case cause
conditions of undue stress or any other abnormal condition in
the Vessel, its machinery and equipment.
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12.7 The sea trials program shall include trials for the
determination of the steering and manoeuvring characteristics
of the Vessel.
12.8 The Builder shall have the right to repeat any trial
whatsoever after giving reasonable notice to the Owner.
12.9 The official sea trials will be carried out using H.F.O. with
a viscosity of up to 700 CST/50 DEG.C., but not less than 380
CST/50 DEG.C.
12.10 All expenses for the trials will be borne by the Builder who,
during the sea trials, will provide the necessary crew at its
own expense.
12.11 Should any breakdowns occur during the trials, entailing their
interruption or irregular performance and breakdown cannot be
repaired by the normal means available on board, the trial so
affected will be cancelled and will be repeated by and at the
expense of the Builder. The time period required for the
repairs will produce an extension of the delivery term to be
agreed upon by the Owner and the Builder if caused by events
which permit extension of the delivery date under Article 26.
12.12 If the breakdowns could be repaired by the normal means
available on board, the trials, with the previous agreement
between the Owner and the Builder, will be continued and
considered as a valid trial.
12.13 The Builder shall give the Owner thirty days notice of the
anticipated date of the sea trials.
12.14 Provided the Builder will make available to the Owner the
results of the sea trials within 7 days after completion of
sea trials, within the following 7 days, the Owner shall give
the Builder a notice in writing, or by telefax confirmed in
writing, of completion and acceptance of the sea trials,
advising whether the Owner considers that the results of the
sea trials indicate conformity of the Vessel to this Contract,
the Specification and the Plans to the extent that matters
have been the subject of such sea trials or further trials.
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12.15 In the event that the Owner rejects the results of the sea
trials as not conforming to the said extent by this Contract
or to the Specification or the Plans, the Owner shall indicate
within the subsequent 7 days in its notice of rejection in
what respect the Vessel, or any part or equipment thereof,
does not conform to this Contract and/or the Specification
and/or the Plans.
12.16 In the event that the Owner fails to notify the Builder as
aforesaid of the acceptance or the rejection, together with
the reason therefor, of the sea trials within the period as
provided above, the Owner shall be deemed to have accepted the
sea trials of the Vessel.
12.17 Acceptance of the results of the sea trials as above provided
shall be final and binding so far as conformity of the Vessel
to this Contract and the Specification and the Plans to the
extent demonstrated on such trials is concerned and shall
preclude the Owner from refusing formal delivery of the Vessel
as hereinafter provided, on the grounds of non conformity of
the Vessel in respect of items whose conformity has been
demonstrated and accepted during the sea trials, if the
Builder complies with all other requirements for delivery as
provided in this Contract.
12.18 Should any fuel oil or lubricating oil in storage tanks or
unbroached barrels, greases and ship's stores, including fresh
water furnished by the Builder for the sea trial remain on
board the Vessel at the time of acceptance thereof by the
Owner, the Owner agrees to buy the same from the Builder at
the Builder's cost price.
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ARTICLE 13
Speed - Liquidated Damages
13.1 Should the speed of the Vessel, at the design draft of XXX m
determined in accordance with Article 3.1(E)(ii) hereof, under
the conditions set out in the Specification, as determined in
Article 12 hereof, be lower than XX knots, the Builder shall
pay to the Owner, as final liquidated damages, the following
cumulative amounts:-
-for the first two tenths of knot of less speed: It.Lire XXXXXXXXXX
-for the third tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the fourth tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the fifth tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the sixth tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the seventh tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the eighth tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the ninth tenth of knot of less speed: It.Lire XXXXXXXXXX
-for one knot of less speed: It.Lire XXXXXXXXXX
-fractions in proportion.
Should the speed of the Vessel determined as aforesaid be less
than XX knots, then the Owner, as an alternative to receiving
the foregoing liquidated damages, shall have the option to
terminate this Contract with the consequences provided for in
Article 20 hereof.
13.2 Should the service speed of the Vessel determined in
accordance with Article 3.1(E)(i) hereof under the conditions
set out in the Specification, as determined on the sea trials,
be lower than XXXX knots, the Builder shall pay to the Owner,
as final liquidated damages, the following cumulative
amounts:-
-for the first two tenths of a knot of less speed:
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-for the third tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the fourth tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the fifth tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the sixth tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the seventh tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the eighth tenth of knot of less speed: It.Lire XXXXXXXXXX
-for the ninth tenth of knot of less speed: It.Lire XXXXXXXXXX
-for one knot of less speed: It.Lire XXXXXXXXXX
-fraction in proportion.
Should the service speed of the Vessel determined in
accordance with the preceding provisions of this paragraph be
less than XXXX knots, then the Owner, as an alternative to
receiving the foregoing liquidated damages, shall have the
option to terminate this Contract with the consequences
provided for in Article 20 hereof.
13.3 If the Owner would be entitled to receive amounts by way of
liquidated damages under both Article 13.1 and 13.2 in respect
of deficiencies in speed calculated under the respective
provisions thereof the Owner shall receive the higher of the
amounts due under respectively Article 13.1 and 13.2 but not
both amounts.
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ARTICLE 14
Deadweight - Liquidated Damages
14.1 The Vessel's deadweight - as determined in the Specification -
in sea water of 1.025 specific gravity on the mean draft of
XXX meters from the base line will not be less than XXXX
metric tons.
14.2 Should the Vessel's deadweight be less than XXXX metric tons,
then the Builder shall pay to the Owner, as final liquidated
damages, an amount of Italian Lire XXXXXXX for each metric ton
of lesser deadweight, with a fixed free allowance of XXX
metric tons.
14.3 Should the Vessel's deadweight be less than XXXX metric tons,
then the Owner, as an alternative to receiving the
aforementioned liquidated damages, shall have the option to
terminate this Contract with the consequences provided for in
Article 20 hereof.
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ARTICLE 15
Stability
15.1 The Vessel's stability characteristics shall be such as to
fulfil the provisions of the rules set out in Article 2 hereof
and to be adequate for satisfactory seakeeping and
seaworthiness.
15.2 An inclining test for the determination of the Vessel's
stability characteristics shall be carried out in accordance
with the provisions of Lloyd's Register of Shipping and/or
national administration of the Vessel's intended Registry.
15.3 If necessary to enable the Vessel to comply with stability
requirements in accordance with the regulations referred to in
Article 2 hereof, the Builder may use the double bottom void
tanks for ballast water; such tanks to be coated as specified
in the Specification for ballast tanks and provided with
ballast suctions and sounding pipes both port and starboard.
In this case the design draft as per Article 2 shall be
increased up to XXX M and the design draft referred to in
Article 3.1(E)(i) and (ii), 13 and 14.1 shall be
correspondingly increased. The above agreement does not
relieve the Builder of its responsibility to comply in all
respects with the prescribed deadweight, speed and range as
specified in Article 3 with the increased design draft.
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ARTICLE 16
Passengers and Crew Accommodation Capacity
16.1 The capacity of the passenger and crew accommodation is
specified in Article 3 hereof, the Specification and Plans.
16.2 It is however understood that, except in the case of prior
agreement between the Builder and the Owner, if the number of
passenger cabins of the Vessels is lower than the number
determined in the contractual documentation (after deducting
the number of cabins which are unacceptable, taking account of
the allowed tolerances, owing to excess noise and/or
vibrations as set forth in the Specification), then the
Builder shall pay to the Owner, as final liquidated damages,
the amount quoted in Article 16.5 for each missing cabin.
16.3 In the event that, except in the case of prior agreement
between the Builder and the Owner, the number of the passenger
cabins is less than XXX then the Owner, as an alternative to
receiving the aforementioned liquidated damages, shall have
the option to terminate this Contract with the consequences
provided for in Article 20 hereof.
16.4 For cabins which are unacceptable taking into due account the
allowed tolerances, owing to noise excess and/or vibrations as
set forth in the Specification then the Builder shall pay to
the Owner, as final liquidated damages, the amount quoted in
paragraph 5 of this Article 16, in respect of each such cabin.
16.5 The amount to be considered for liquidated damages purposes
for each type of cabin is:
Suites It. Lire XXXXXXXXXXX
Deluxe suites Lt. Lire XXXXXXXXXXX
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Outside Standard cabin It. Lire XXXXXXXXXXX
Inside Standard cabin It. Lire XXXXXXXXXXX
16.6 For loose furniture an amount of It. Lire XXXXXXXXXXXXX is
included in the Vessel's price. Consequently, it is understood
that during the outfitting of the Vessel the Builder shall
proceed by mutual agreement with the Owner to the selection
and purchasing of the loose furniture and the cost differences
(plus or minus) which may result, depending on the quantities
purchased and the actual unit prices paid, shall be paid as
set forth in Article 10.2 hereof according as the total amount
actually paid for such loose furniture exceeds or is less that
It. Lire XXXXXXXXXXXXX. It is also agreed that the Builder
shall hand over to the Owner one copy of the purchase orders
relevant to the loose furniture, complete with corresponding
prices.
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ARTICLE 17
Fuel Oil Consumption - Liquidated Damages
17.1 For the main diesel engines a shop test shall be carried out
in accordance with the Specification. During such shop test
the specified fuel consumption shall be ascertained and
corrected to the design parameters.
17.2 For this purpose the shop test shall be run on marine diesel
fuel oil with each diesel engine developing XXX MCR at XXX
revolutions. The measured fuel consumption shall be corrected
to a reference lower calorific value of XXXXX kilojoules per
kg and ISO XXXXXX standard conditions. The fuel consumption of
the main propulsion plant so corrected shall not exceed XXX
grams per KWH.
17.3 With respect to any of the engines, should the corrected fuel
consumption be in excess of XXXX% of XXX grams per KWH the
Builder shall pay to the Owner, liquidated damages and not by
way of penalty, an amount of Italian Lire XXXXXXXXXX for each
full XXX per cent and pro rata for each fraction thereof in
excess of XXX% of XXX grams per KWH save and except that the
Builder shall have the right to remedy any defect causing such
excessive fuel consumption and repeat the trial.
17.4 With respect to any of the engines, should the corrected fuel
consumption be in excess of XXX per cent of XXX grams per KWH
the Owner, as an alternative to receiving the above mentioned
liquidated damages, shall have the option to terminate this
Contract, with the consequences provided for in Article 20,
save and except that the Builder shall have the right to
remedy any defect causing such excessive fuel consumption and
repeat the trial.
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ARTICLE 18
Vibrations and Noise
The noise and vibration permissable levels, calculations and investigation for
the prediction thereof, exciter tests measurements, and precautions to be
carried out by the Builder shall be in accordance with the provisions of the
Specification.
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ARTICLE 19
Maximum amount of Liquidated Damages
The amount of the liquidated damages referred to in Article 8 (delivery), 13
(speed), 14 (deadweight), 16 (capacity) and 17 (fuel consumption), shall in no
case whatsoever exceed XX% of the price set forth in Article 9 hereof; the
Owner shall waive its entitlement to any excess.
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ARTICLE 20
Termination of the Contract - Liquidated Damages to be paid by the Builder
20.1 In the event of termination of this Contract under Articles 8,
13, 14, 15, 16 or 17, or paragraphs 2 or 3 of this Article,
the Owner shall be entitled to:
(A) the refund of all the sums paid to the Builder
increased by the interest reckoned according to the ABI
(Italian Bankers' Association) prime rate published on
"Il Sole 24 Ore" at three month capitalization running
from the date of the payment of relevant amount; and
(B) the cost to the Owner and/or Carnival Corporation
and/or HAL Antillen N.V. and/or HAL Cruises Ltd of
unwinding the forward foreign exchange contracts
entered into by the Owner and/or Carnival Corporation
and/or HAL Antillen N.V. and/or HAL Cruises Ltd for the
purchase of Italian Lire with United States Dollars to
enable the Owner to make payments to the Builder under
Article 10 hereof; and
(C) the return of the original signed Promissory Notes
issued by the Owner pursuant to Article 10; and
(D) the return of the Owner's supply items or the payment
of an amount equal to the cost to the Owner of
supplying those items of the Owner's supply which are
not returned or which cannot reasonably be used by the
Owner; and
(E) in the case of termination pursuant to Article 8, the
liquidated damages which would have accrued pursuant to
Article 8.4 as if the Vessel had been delivered on the
date of termination.
Except as otherwise expressly agreed and as provided in this
Article 20.1 the Builder shall not have any further or other
liability arising from this Contract following termination
under the provisions referred to in this Article 20.1.
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20.2 If:
(A) a bona fide petition is filed and is not dismissed
within thirty (30) days or an effective resolution is
passed for the winding up of the Builder (other than
for the purpose of a reconstruction or amalgamation
which has received the prior written approval of the
Owner; such approval however not to be required in case
of reconstruction or amalgamation within the
Fincantieri Group affecting the Builder); or
(B) a receiver is appointed of the undertaking or property
of the Builder; or
(C) the Builder suspends payment of its debts or ceases to
carry on its business or makes any composition with its
creditors generally or is subjected to amministrazione
controllata;
and in any such case the construction of the Vessel is
suspended for a period of more than sixty days for reasons
other than any of the events specified in Article 26 (in cases
in which such events may excuse delay in construction);
then, the Owner may immediately (without being bound thereto)
terminate this Contract by giving notice in writing to the
Builder.
20.3 If the Builder is declared bankrupt or goes into liquidation
then the Owner may immediately (without being bound thereto)
terminate this Contract by giving notice in writing to the
Builder.
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ARTICLE 21
Property Rights
21.1 The property of the vessel belongs ab initio to the Builder.
With reference to the supplier credit provided in Article
10.1, the property of the Vessel will be transferred gradually
to the Owner in the quantity and when the stages of
construction certified by R.I.Na. foreseen in the Annex 5 have
been reached.
21.2 Taking into account the provisions of Article 21.1 and the
fact that during the construction of the Vessel the Owner will
pay in cash a partial amount of the purchase price, the
parties agree in favour of the Builder that any transfer of
property to the Owner is subject to the due performance by the
Owner of its obligations under this Contract. It is agreed
that the Builder has required this condition as condition of
its agreement to the transfer of the property provided in this
Article.
Accordingly if the Builder becomes entitled to terminate this
Contract in accordance with Article 11.3 or the Owner fails to
take delivery of the Vessel as provided in Article 11.6 or if
the Owner exercises its right to terminate this Contract under
Articles 8, 13, 14, 15, 16 or 17 or Article 20.2 or 20.3, or
in the event that on the occurrence of a dispute between the
Builder and the Owner, then, subject to Article 21.12, the
transfer of the property of all the portions of the Vessel
will be null and void and the property of the Vessel will come
back automatically ("condizione risolutiva" under Italian Law)
to the Builder without any claim from the Owner for this
retransfer of property. The retransfer of the property will
take place at the moment when the relevant event has occurred
and the Builder has given notice in writing to the Owner
referring to this Article 21.2 and specifying that the
conditions for retransfer has occurred.
21.3 It is agreed that any retransfer of the property from the
Owner to the Builder will not prejudice the other rights of
each party under the other provisions of this Contract.
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21.4 Since the clause 21.2 is in favour of the Builder, the Builder
shall be entitled to waive the benefit thereof by written
communication to the Owner.
21.5 The Owner further undertakes : (i) at the Builder's expense on
the occurrence of any of the events specified in Article 21.2,
to fulfil immediately under simple request by the Builder any
further activity and/or to provide any further, even notarial
document, if necessary to get the immediate retransfer of
property to the Builder; (ii) not to register any mortgage,
liens or other encumbrances on the Vessel under construction;
(iii) (without prejudice to the Owner's rights under Article
29 (assignment)) not to sell his portions of the Vessel.
21.6 The Owner will acquire the whole property of the Vessel on the
signing of the protocol of delivery.
21.7 The Builder will be entitled to register at the Builder's
expense at each transfer of property of the Vessel to the
Owner an Italian hypothec (ipoteca su nave in costruzione) on
the Vessel as a guarantee of the Owner's obligation specified
in Article 21.2. This hypothec will cease only on signature by
the Builder and the Owner of the protocol of delivery and
acceptance and shall rank behind any Construction Finance
Mortgage granted as contemplated in Article 10. On delivery
the Owner will register a first mortgage on the Vessel in
favour of the Builder under its flag of registry (in the form
to be agreed between the Owner and the Builder, including in
any case an assignment of the Owner's rights in respect of the
marine insurances and protection and indemnity cover in
respect of the Vessel) which shall be released by the Builder
when the Builder enters into an unconditional contract with a
Qualified Investor for the purchase from the Builder of the
Promissory Notes issued by the Owner under Article 10. No
such mortgage will be required if the Builder has entered into
such unconditional contract on or before the delivery of the
Vessel.
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21.8 The transfer of property and mortgage rights contemplated by
this Article will be regulated by Italian Law without
prejudice to provisions set forth in Article 30.1.
21.9 All the rights in the Specification, Plans and working
drawings, technical descriptions, calculations, test results
and other data information and documents concerning the design
and construction of the Vessel shall belong to the Builder
before actual delivery and after actual delivery each party
recognises the right of the other to use them, excluding
(before and after delivery) the Specification, Plans and
drawings for passengers' accommodation, wheel house and engine
control room, public rooms and store and baggage handling
areas, property in, and the right to use, which shall (before
and after delivery) belong exclusively to the Owner.
21.10 In the event of termination of this Contract by reason of the
Builder's default the Owner may also use the Specification,
Plans, working drawings, technical descriptions, calculations,
test results and other data, information and documents
referred to above. The property in the Specification, plans,
working drawings, technical descriptions, calculations, test
results and other data, information and documents referred to
above shall automatically become the exclusive property of the
Owner.
21.11 In the event of termination of this Contract by reason of the
Owner's default, the Builder may also use the Specification,
Plans and drawings which would otherwise be the exclusive
property to the Owner by virtue of paragraph 9 of this
Article.
21.12 If:
(i) the Owner has been notified by the construction
financiers that the Construction Finance Mortgage has
become enforceable;
(ii) the Owner purchases (or procures that an affiliate
purchases) the claims of the construction financiers
secured by the Construction Finance
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Mortgage and discharges (or procures the discharge) of
all such claims; and
(iii) the Owner notifies the Builder that the provisions of
this Article 21.12 shall apply;
then the provisions of Article 21.2 (and the 'condizione
risolutiva' therein provided for) shall no longer apply and
the property in the Vessel shall belong to the Owner free from
such condition and from any right of the Builder to have the
property retransferred to it.
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ARTICLE 22
Responsibility after Delivery
On delivery of the Vessel to the Owner, every responsibility for the safety and
generally for the condition of the Vessel is transferred to the Owner,
remaining on the part of the Builder only the guarantee obligations set forth
in Article 25 hereof.
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ARTICLE 23
Insurance
23.1 The Vessel under construction will be insured with leading
insurance companies up to the moment of delivery by and at the
expense of the Builder against all risks covered by the
"Institute Clauses for Builders' Risks" (and usual
supplementary conditions) and against all risks covered by the
"Institute War Clauses/Builders' Risks" and "Institute Strikes
Clauses/Builders' Risks".
23.2 The insurance of the Vessel shall be effected for not less
than the aggregate amount of all instalments of the contract
price of the Vessel paid to the Builder from time to time and
interest thereon from the date each such payment was made to
the Builder at the prime rate ABI (Italian Banking
Association) published on "Il Sole 24 Ore" and the declared
value of Owner's supplied items after delivery thereof to the
Builder's yard and, in addition, such amount as the financing
parties providing construction finance may require to cover
the amount of construction finance provided, and interest
thereon.
23.3 The insurance monies will be allocated to the repair of
damages and/or the reconstruction of the Vessel.
23.4 In the event of a constructive arranged or compromised total
loss and/or abandonment of the Vessel before delivery, the
Builder shall be entitled to withdraw from this Contract or,
if agreed by the Owner, to fulfil it but with the right to an
adequate extension of the delivery term. Should the Builder
exercise its withdrawal right, the Owner shall be entitled to:
(A) the reimbursement of the amounts already paid to the
Builder on account of the contract price of the Vessel;
and
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(B) payment of interest, at the same rate provided for in
paragraph (2) of this Article, on the instalments of
the contract price paid to the Builder from the date
such instalments were paid to the Builder until
reimbursement to the Owner (before or after judgement);
and
(C) return of the Promissory Notes referred to in Article
10.1; and
(D) payment of an amount equal to the cost to the Owner of
purchasing and delivering to the Builder's yard those
items of the Owner's supply which have been purchased
by the Owner for the Vessel provided that these items
are in the Builder's premises.
23.5 To guarantee reimbursement to the Owner and the financing
parties providing construction finance for the Vessel, the
insurance policies effected by the Builder will be bound in
their favour (including their assignees), up to the amount of
their respective interests as set out in Article 23.2 and
endorsed with appropriate loss payable clauses providing for
the payment to the Owner and the financing parties, rateably,
of the amounts due to them.
23.6 The effecting of the aforementioned insurances, and the due
fulfilment of the obligations by the Builder as set forth in
this Article, exempt the same from any and whatsoever
responsibility both legal and contractual in connection with
the risk and danger of the Vessel under construction provided
that the Builder, in the case of damage not involving a total
or constructive total loss of the Vessel, shall use its best
efforts to make good the damage as quickly as reasonably
possible after the occurrence thereof.
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ARTICLE 24
Modification to Plans and Specification
24.1 Subject to paragraph (3) of this Article, the Builder shall
make the modifications, if any, to the Specifications and
Plans, requested by the Owner provided that in the sole
opinion of the Builder such modifications or accumulation of
modifications do not adversely affect the Builder's
commitments to other purchasers.
24.2 Both the requests by the Owner and their acceptance by the
Builder will be made in writing.
24.3 The Builder shall notify the Owner in writing of the
variations in price and other contractual conditions which the
accepted modifications may entail and shall execute such
modifications only upon written acceptance of the foregoing
variations by the Owner. The Builder shall submit to the Owner
for approval changes to the plans and Technical Drawings
resulting from such modification.
24.4 The Owner's written acceptance must reach the Builder within
10 days from the date of the Builder's notice or such longer
period as the Owner may request and the Builder may agree in
its reasonable discretion.
24.5 Should such an acceptance be not received within the terms set
forth in paragraph (4) of this Article, the Builder shall have
the right to continue the Vessel's construction as though no
request for modifications had been made by the Owner.
24.6 In case of disagreement on the price and/or consequent
variation of the contractual conditions concerning the
modifications accepted by the Builder, the Owner shall have
the right to have the modifications executed, but shall
undertake by written notice to the Builder to pay the price
requested by the Builder according to the terms of Article 10
hereof (which shall be determined having regard to the
provisions of paragraphs (7) and (9) of this Article).
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24.7 The Owner may contest the Builder's required price and
proposed variation of the Contract, Specification and Plans to
the extent that the price is excessive in relation to prices
normally charged by the Builder for similar work and to the
extent that such other variation is not reasonably
justifiable.
24.8 In the event that, subsequent to the date of signature of this
Contract variations are made to the provisions compliance with
which is compulsory, the Builder shall notify the Owner in
writing of the consequent modifications with their relevant
price (which shall be determined having regard to the
provisions of paragraphs (7) and (9) of this Article).
The Owner may first apply, or if such action should properly
be taken by the Builder may require that the Builder shall
first apply, for a formal waiver of compliance with such
modifications, deletions or additions from the authority by
whom the modifications, deletions or additions have been
promulgated, should the Owner consider that the operation of
the Vessel in its intended service would permit of such
waiver. In such agreement the Builder will fix a time limit
after which if the waiver has not been obtained, the Builder
will go on with the required modifications, deletions or
additions. Any additional costs caused by the application for
such waiver whether or not obtained shall be for account of
the Owner and the date of delivery of the Vessel if actually
delayed thereby shall be extended by the time necessary as a
result of the application for waiver.
24.9 When requested by the Owner, the Builder will provide the
Owner with the cost of each item involved in the modification
(but not of the component parts of each item).
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ARTICLE 25
Guarantee - Liability
25.1 The guarantee of the Vessel shall have the validity of
XXXXXXXXXXXXXXXXXXXXXXXXXXX commencing on the date of the
delivery of the Vessel to the Owner, extendable only by virtue
of paragraphs (3) or (6) of this Article.
25.2 On the Owner's request, the Builder shall, at its own expense,
repair and/or, if necessary, replace at one of its shipyards
any defects or deviations in the Vessel or its design which
are either notified by the Owner on delivery or which are not
reasonably apparent on an external examination on delivery of
the Vessel, provided that such defects and deviations be
notified in writing to the Builder on delivery (in the case of
such as are discovered on or before delivery) or, at the
latest, within one month from the date of their discovery by
the Owner.
25.3 If for operational reasons the guarantee drydocking of the
Vessel cannot reasonably be carried out before the expiration
of the said XXXXXXXXXXXX period, then the guarantee drydocking
can be postponed up to fourteen months after delivery of the
Vessel and the Builder will repair and/or replace the defects
or deviations which the Owner can prove were existing before
the expiration of the guarantee period.
25.4 The Builder shall provide a guarantee to the Owner in relation
to the paint for the Vessel on the same terms as that provided
by the paint supplier to the Builder. Such guarantee shall be
on the basis that the paintwork shall be carried out under the
supervision of and to the satisfaction of authorised
representatives of the paint supplier. The Builder shall be
responsible for arranging for such supervision.
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25.5 The Builder's liability in relation to the Vessel, after the
Vessel's delivery, shall be limited to the obligations
expressly set out in this Article and Articles 8.8 and 8.9 and
the Builder and its sub-contractors and suppliers shall have
no liability whatsoever for damages in any way deriving from
or connected either with the foregoing defects or deviations
or with the repair and replacement processes relevant to the
foregoing defects or deviations, as is also excluded any other
liability deriving from or in any way connected with any other
cause not included in the foregoing guarantee obligation,
which covers solely rectification and/or repair and/or
replacement.
25.6 If the Builder itself makes good any defects during the
guarantee period specified in paragraph 1 of this Article as
above or pursuant to Article 8.8 or 8.9, then the provisions
of this Article shall apply to the parts repaired or replaced
and the repair or replacement work for a period of
XXXXXXXXXXXXX after the repair or replacement was completed.
25.7 The Builder agrees within the terms of this Article to
investigate the cause of any recurrent defect with a view to
providing a satisfactory remedy therefor.
25.8 In the event that the Vessel has to be drydocked, solely for
repairs or replacements made necessary by defects or
deviations attributable to the Builder in accordance with this
Article, the relevant expenses will be borne by the Builder in
proportion to the extent to which the drydock work is made
necessary by such defects or deviations attributable to the
Builder.
25.9 The Owner shall indemnify and hold harmless the Builder for
the expenses of repair or replacement borne by the Builder and
which were recoverable by the Owner on the basis of the
insurance policies.
25.10 The Builder shall not be liable to repair, replace or bear any
responsibility for defects or deviations:-
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(A) due to normal wear and tear of the materials and damage
whatsoever due to accidents involving the Vessel moored
and/or at sea, or to fires, mismanagement or negligence
in the use of the Vessel by the Owner or by persons
who, at the moment of the damage, were possessed of or
governing the Vessel, or by any of their
persons-in-charge, official or agent; or
(B) affecting items of the Owner's supply, but without
prejudice to the Builder's responsibility for defects
or deviations in the work of installation of such
items.
25.11 Should it prove necessary in the Owner's opinion, owing to the
conditions and location of the Vessel, or to avoid delays in
carrying out urgent repairs or replacements, the Owner may
have the rectification and/or repair and/or replacement works
covered by the Builder's guarantee obligations carried out
otherwise than in the Builder's shipyards, provided that the
Owner previously notifies the Builder, by letter or telefax,
about the type and extent of the defects or deviations to be
remedied stating the reason of the necessity to have the works
carried out elsewhere.
The Builder shall reimburse the Owner the higher of (1) costs
which would have been applicable had the work been carried out
at the Builder's yard in effecting such repairs and/or
replacements and (2) the average of the costs charged for such
work by Western European shipyards but not in any event more
than the actual cost incurred by the Owner for such work.
25.12 If so requested by the Builder, the Owner shall return, at the
Builder's cost and expense, the parts replaced.
25.13 In any case, there is excluded any guarantee and/or liability
of the Builder for repair and/or replacement work carried out
outside the Builder's Shipyard unless carried out on board the
Vessel by the Builder's workmen or its subcontractors or by
persons arranged for by the Builder or its subcontractors.
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25.14 In any case the Vessel shall be taken at the Owner's cost and
responsibility to the place elected for the work to be carried
out ready in all respects for the guarantee work to be
commenced.
25.15 In the event that the guarantee stipulated by manufacturers or
suppliers of machinery, materials, equipment, appurtenances
and outfit furnished to the Builder and embodied in the Vessel
exceeds the guarantee given by the Builder to the Owner
hereunder, such extended guarantee rights are to be assigned
and made available to the Owner by the Builder.
25.16 The Builder, at its own cost, is to have the right to
investigate the validity of the Owner's claim either by the
attendance aboard the Vessel (at its point of service) of an
accredited representative or, if in the opinion of the Builder
it is practicable to do so after suitable replacement is made,
by the removal from the Vessel and the transportation to the
Builder's yard of the defective part.
25.17 During the guarantee period, the Builder shall, at its own
expense, place on board a guarantee technician approved by the
Owner limited to the Vessel's first trip but anyway for a
period no longer than one month.
25.18 Every assistance will be given to the guarantee technician to
allow him to inspect the operation of the engine and other
machinery and their maintenance.
25.19 The Owner shall ensure to the said technician a status on
board not inferior to that due to the First Engineer.
25.20 Should the Owner decide to extend the stay on board of the
said technician beyond the foregoing date, the Owner shall pay
to the Builder a remuneration for the period of longer stay
equal to that provided for in the ANIE tariffs.
25.21 The presence on board of the said technician shall in no way
affect the Owner's liability regarding the good operation of
the Vessel nor shall affect the liability of the Builder
provided for in this Article.
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25.22 Subject to performance by the Builder of its obligations under
this Article, the Owner waives, with the guarantee agreed upon
in this Article, any further greater or different guarantee or
liability by the Builder.
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ARTICLE 26
Events of Force Majeure
26.1 Should the Builder be prevented from tendering delivery of the
Vessel by the date specified in relation to the Vessel in
paragraph (3) of Article 8 owing to: Acts of God; engagement
in war or other hostilities, civil war, civil commotions,
riots or insurrections; requirements of civil or military
authorities; blockades; embargoes; vandalism; sabotage;
epidemics or sickness above the normal yard statistics;
strikes; lockouts; officially agreed reduction of working
hours relating to the Italian workforce as a whole; labour
shortage; earthquakes; landslides; floods; weather conditions
not included in normal planning; failure of electric current,
damage by lightning; explosions, collisions, strandings or
fire; accidents of any nature; damage to the Vessel and time
taken to repair such damage; shortage of materials and
equipment or inability to obtain delivery thereof, provided
that such materials and equipment at the time of ordering
could reasonably be expected by the Builder to be delivered in
time; delays by land, sea or air carriers; defects in
materials and equipment which could not have been detected by
the Builder or its subcontractors using reasonable care;
casting, forging or machining rejects or the like; delays
caused by delay of the Classification Society or other bodies
whose documents are required in issuing such documents; delays
caused by default, action or omission on the part of the Owner
(but without prejudice to any other rights of the Builder
under this Contract); delays caused by events similar to the
foregoing; any cause of delay whatsoever whether or not of a
kind previously specified in this Article or of a different
kind, reasonably to be considered beyond the control of the
Builder; the effect of the foregoing on the Builder's other
commitments; all the foregoing irrespective of whether or not
these events occur before or after the date hereinbefore
specified as the date on which the Vessel is to be delivered
and irrespective of whether or not occurrence of these events
could be foreseen at the day of signing this contract; then
and in any such case the delivery date of the Vessel shall,
subject to the following provisions of this Article, be
extended by the number of working days of delay incurred by
the Builder in completing and delivering
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the Vessel in consequence of any of these events. The Builder
shall as soon as reasonably possible notify the Owner in
writing of the occurrence of any of the foregoing events which
it expects may delay construction or delivery of the Vessel.
26.2 Six months before the date on which the Builder expects the
Vessel to be ready for delivery duly completed in accordance
with this Contract, the Builder shall give definitive notice
to the Owner that the Vessel will be delivered to the Owner on
the date following six months after the notice is given.
Following such notice of the delivery date the only events
which shall be permitted to extend the delivery date of the
Vessel shall be: Acts of God, engagement in war or other
hostilities, civil wars, civil commotions, riots or
insurrection, requirements of civil or military authorities in
contemplation of war, blockades, embargoes, vandalism,
sabotage, epidemics, earthquakes, landslides, flood, damage by
lightning, explosions, collisions, strandings, fires or
nationwide strikes or lockouts (for the sake of good order it
being agreed that strikes of the Fincantieri workforce alone
shall not be permitted to extend the delivery after the said
six (6) months' notice).
26.3 The Builder shall not be entitled to extend the delivery date
of the Vessel to the extent that the delay referred to in
Articles 26.1 or 26.2 has been caused or contributed to by the
negligence of the Builder, its servants or agents or of the
Builder's subcontractors, their servants or agents.
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ARTICLE 27
Patents
The Builder, for the items of its own supply, shall hold harmless the Owner
against any claim made by third parties for patent rights or infringement of
copyright and for any other relevant reason and the Builder undertakes for its
account every liability or indemnity whatsoever.
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ARTICLE 28
Contract Expenses
28.1 All taxes, expenses, duties, stamps and fees levied by the
Authorities in Italy and connected to this Contract are to be
borne by the Builder.
28.2 Any taxes, duties and stamps off-Italy in relation to the
signature and authentication of this Contract (except notarial
charges) are to be borne by the Owner.
28.3 This Contract shall be registered in Italy, at fixed tax,
according to Article 40 of Decree No. 131, dated April 26,
1986, by the President of the Italian Republic.
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ARTICLE 29
Assignment of the Contract
29.1 The Owner may transfer its rights and/or liabilities hereunder
to Carnival Corporation or to another wholly owned subsidiary
of Carnival Cruise Lines Inc provided that Carnival
Corporation issues an irrevocable and unconditional guarantee
of the obligations of the transferee to the Builder under this
Contract in form and substance identical (mutatis mutandis) to
the guarantee of even date herewith issued by Carnival
Corporation to the Builder in respect of the obligations of
the Owner under this Contract. The Builder's prior approval
will also be required in the event of a merger of the Owner.
Such an approval may be subject to the presentation of an
adequate guarantee.
29.2 The Owner shall be entitled to assign this Contract to a third
party other than Carnival Corporation or a subsidiary of
Carnival Corporation if the assignee is a party whose
financial standing is acceptable to the Builder, to the
financing parties providing finance during the construction
period, and to any other bank or financial institution who may
have agreed to purchase the Promissory Notes issued by the
Owner pursuant to Article 10.1.
29.3 The Owner shall further be entitled to assign its rights to
receive any sum due from the Builder according to this
Contract and its right to take delivery of the Vessel
according to this Contract (but not any of its other rights
hereunder) to a first class bank or financial institution on
behalf of a syndicate of banks and/or financial institutions
subject to such bank or financial institution agreeing to
perform the Owner's financial obligations under this Contract
before, on and after delivery of the Vessel if not so
performed by the Owner.
29.4 The Builder shall not be entitled to assign this Contract to
third parties without the Owner's prior approval Provided that
the Builder shall be entitled (without prior approval) to
assign (as security) the benefit of all, or part, of this
Contract to financial institutions who make available to the
Builder a loan or note purchase facility for the purpose of
assisting the Builder to finance the
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construction of the Vessel. The Owner's approval of the
assignment of this Contract to third parties, other than the
said financial institutions, may be subject to the
presentation of a guarantee of the Builder's performance of
this Contract.
Notice of this assignment will be given to the Owner in the
normal way, and will require to be acknowledged by the Owner.
In that acknowledgment, the Owner will be required to agree to
make the assigned payments directly to the construction
financiers (without deduction, set-off or counterclaim) and
(but without lliability for failure on its part):
(i) to copy directly to the construction financiers any
notice served by it on the Builder notifying the
Builder of any rejection of the Vessel, or the trials,
or of a breach of contract which entitles the Owner to
seek liquidated damages or a price reduction, or to
terminate the Contract, or which may reasonably be
expected to result in a delay in the delivery of the
Vessel;
(ii) to agree to confirm to the construction financiers on
request from time to time that (save as disclosed) no
such breach of contract has occurred.
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ARTICLE 30
Law of the Contract - Disputes
30.1 This Contract and all other agreements relating hereto shall
be construed and interpreted under English law.
30.2 If any dispute of a technical nature arises during the
construction of the Vessel between the parties in regard to
the construction of the Vessel, engines, materials or
workmanship, it shall forthwith be referred to a technical
expert nominated by agreement between the parties hereto and
his decision shall be final and binding upon both parties.
Failing such agreement the dispute shall be referred to
arbitration in accordance with paragraphs 3 to 5 of this
Article.
30.3 Without prejudice to paragraph 2 of this Article, if any
dispute arises between the parties as to any matter regarding
this Contract which cannot be settled by the parties
themselves, the matter in dispute shall be settled by
arbitration by three arbitrators in London. One arbitrator
shall be appointed by each party and the third appointed by
the two arbitrators appointed by the parties. Hearings before
the arbitrators shall be conducted and all evidence given in
the English language.
30.4 The arbitration shall be conducted in accordance with the
English Arbitration Acts 1950-1979 with such modifications as
the parties may agree.
30.5 Judgment upon any award rendered may be entered in any court
having jurisdiction or application may be made to any
competent court or authority for judicial acceptance of any
award and an order of enforcement, as the case may be.
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ARTICLE 31
Addresses for Correspondence
31.1 The Builder shall send all notices, letters and documents for
the Owner in connection with or required under this Contract
to the following addresses:
(A) for all technical matters:
Address: Technical Marine Planning Limited
(T.M.P.)
70, Great Eastern Street
London EC2A 3JL, ENGLAND
Telephone: 44-1-739 3533
Telefax: 44-1-729 1169
(B) for all legal and financial matters:
Address: Carnival Corporation
Koger Center
5225 NW 87th Avenue
3rd Floor
Miami
Florida 33178.2193 - USA
Attention: Captain Vittorio Fabietti (for)
Mr Micky Arison
Telephone: 1-305-471-5777
Telefax: 1-305-471-5778
31.2 The Owner shall send all notices, letters and documents for
the Builder in connection with or required under this Contract
to the following address:
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FINCANTIERI - Cantieri Navali Italiani S.p.A.
Divisione Costruzioni Mercantili
Passeggio S. Andrea 6
34123 - Trieste
Telephone: 39-40-3193111
Telefax: 39-40-376969
Whenever this Contract requires that notice and/or notification shall be given
in writing, such notice and/or notification may validly be given by telefax
confirmed by letter. All approvals or consents required by this Contract shall
be in writing or by telefax except as otherwise provided herein.
Signed by )
)
)
For and on behalf of)
WIND SURF LTD.
in the presence of:-
Signed by )
)
)
for and on behalf of )
FINCANTIERI - Cantieri Navali )
Italiani S.p.A. - )
Divisione Costruzioni Mercantili )
In the presence of:-
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ANNEX 1
-------
Schedule of Payments
--------------------
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ _________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
72
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 1
-------
Schedule of Payments
--------------------
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx
73
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX NO. 2
-----------
PLACE AND DATE OF ISSUANCE
- ------------------------------------------------------------------------------------------------------------------------------------
ON DUE DATE for value received, we promise to pay
- ------------------------------------------------------------------------------------------------------------------------------------
against this promissory note to the order of PAYEE
- ------------------------------------------------------------------------------------------------------------------------------------
the sum of
- ------------
effective payment to be made in CURRENCY WITH WHICH PAYMENT IS MADE , without
- ------------------------------------------------------------------------------------------------------------------------------------
deduction for and free of any taxes, impost, levies or duties present or future of any nature.
- --------------
This promissory note is payable at PLACE OF PAYMENT
- ----------------------------------------------------
- -----------------------------------------------------
NAME AND ADDRESS OF DEBTOR DEBTOR'S STAMP
- ----------------------------------------------------- AND
- ----------------------------------------------------- SIGNATURE
- -----------------------------------------------------
74
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/A
---------
Schedule of Payments
--------------------
(Regarding xx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
75
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/A
---------
Schedule of Payments
--------------------
(Regarding xx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx
76
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/B
---------
Schedule of Payments
--------------------
(Regarding xxxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
77
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/B
---------
Schedule of Payments
--------------------
(Regarding xxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
78
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/C
---------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
79
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/C
---------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx
80
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/D
---------
Schedule of Payments
--------------------
(Regarding xxxxxxxxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
81
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX 3/D
---------
Schedule of Payments
--------------------
(Regarding xxxxxxxxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
82
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL]
Annex 4
-------
LETTER OF INSTRUCTION TO BE SENT BY THE OWNER
---------------------------------------------
TO THE TRUSTEE BANK
-------------------
TO
.................(BANK)
.................
Copy to: Fincantieri Cantieri Navali Italiani S.p.A.
Re: promissory notes/Hull No. 5980
Dear Sirs:
With reference to the contract made and entered into on ........... by
and between us, on the one part, and Finacantieri Cantieri Navali Italiani
S.p.A. on the other part, for the construction and supply of one passenger
cruise ship, we deposit in trust in relation to Hull No. 5980 XX sets of XX
promissory notes each (as per Annex "A", "B", "C" and "D") in favor of
Fincantieri Cantieri Navali Italiani S.p.A. for the total amount of Lit.
XXXXXXXXXXXXXXX.
According to the above shipbuilding contract, we irrevocable instruct you to
release such notes to the beneficiary (Fincantieri Cantieri Navli Italiani
S.p.A.) upon presentation by the same of RINA certificates stating that
construction of the ship has reached the percentage stated in annex "E" to this
letter.
We acknowledge that the Trustee Bank is not liable or responsible for the forms
sufficiency, accuracy, genuiness or legal effect of RINA certificates.
We ask you to acknowledge to the beneficiary:
- - the correctness of signature and powers of persons who signed such
Promissory Notes;
- - that all Notes are issued and duly stamped in accordance with
applicable Law of the place of issuance.
Please confirm your agreement to such irrevocable instructions and that you
will act strictly in accordance therewith.
83
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL]
Please also notify return mail to Fincantieri Cantieri Navali Italiani S.p.A.
- - Trieste your agreement to act accordingly with irrevocable instructions.
Yours faithfully,
Encl: Annex "A", "B", "C", "D" and "E"
84
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "A" to Annex 4
-------------------
Schedule of Payments
--------------------
(Regarding xx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ _________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxx
85
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "A" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx
86
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "B" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
87
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "B" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
88
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "C" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
89
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "C" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
90
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "D" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxxxxxxxxxxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
xx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx
91
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT BY CARNIVAL]
ANNEX "D" to Annex 4
--------------------
Schedule of Payments
--------------------
(Regarding xxxxxxxxxxxxxxxx Set of Promissory Notes)
xxxxxxxxxxx Maturity Principal Interest Total Amount Unpaid Balance
xxxxxxxxxx Date after Component Component Due of Principal
delivery
date It Lire It Lire It Lire It Lire
___________ __________ ________ ________ ________ _________
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
xx xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx
______________ _____________ ______________
xxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx
92
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL]
Annex "E" to Annex 4
--------------------
NOTES TO BE DELIVERED
xxxxxxxxxxxxxx WHEN ACTUAL CONSTRUCTION
xxx PROMISSORY REACHES FOLLOWING
NOTES EACH) STAGE OF COMPLETION
-------------- -------------------------
xxxxx xx% xxxxxxx
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
" xx xx% "
93
MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL]
Annex No. 5
-----------
NOTES TO BE DELIVERED
xxxxxxxxxxxxxx WHEN ACTUAL CONSTRUCTION
xxx PROMISSORY PRINCIPAL REACHES FOLLOWING
NOTES EACH) (AS PERCENTAGE) STAGE OF COMPLETION
_______________ _______________ ________________________
xxxxx xxx% xx% xxxxxxx
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
" xx xxx% xx% "
1
EXHIBIT 10.25
[PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO AN
APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT REQUESTED BY
CARNIVAL CORPORATION]
SHIPBUILDING CONTRACT
FOR HULL NO. 491 AT
KVAERNER MASA-YARDS INC
--------------
Sinclair Roche & Temperley
2
SHIPBUILDING CONTRACT
Between, CARNIVAL CORPORATION., a company organized and existing under the laws
of the Republic of Panama with its principal offices located at 3655 N.W. 87th
Avenue, Miami, Florida, USA 33178 - 2428 hereinafter called the "PURCHASER",
and
KVAERNER MASA-YARDS, INC., a company organized and existing under the laws of
the Republic of Finland with a registered office in Helsinki, Finland
hereinafter called the "CONTRACTOR",
In respect of yard No.491 :
WHEREAS
(i) By a contract dated 15th September 1987 made between Wartsila Marine
Industries Inc. ("WMI") and the PURCHASER, WMI agreed to design, build
and deliver to the PURCHASER a passenger cruise vessel known as hull
no. 1299 (and following the contract referred to in recital (ii) as
480 at the yard of the CONTRACTOR) and after delivery named ms
"ECSTASY".
(ii) By an agreement dated 25th January 1990 the CONTRACTOR agreed to
complete ms "ECSTASY" following the bankruptcy of WMI and has
delivered ms "ECSTASY" to the PURCHASER.
(iii) By a contract dated 15th September 1987 WMI agreed to design, build
and deliver to the PURCHASER a further passenger cruise vessel known
as hull no. 1300 to be named MS "SENSATION" and by a contract dated
12th May 1991 between the CONTRACTOR and the PURCHASER the CONTRACTOR
agreed to complete the construction of ms "SENSATION" (as Hull no.
484) on the terms set out therein.
(iv) By a further contract dated 5th September 1991 the CONTRACTOR agreed
to design build and deliver to the PURCHASER a further passenger
cruise vessel to be known during construction as Hull 487 and on
delivery to be named ms "FASCINATION".
(v) By a further contract dated 25 March 1992 the CONTRACTOR agreed to
design, build and deliver to the PURCHASER a further passenger cruise
vessel to be known during construction as Hull 488 and on delivery to
be named "IMAGINATION".
(vi) By a further contract dated 23 December 1993 the CONTRACTOR agreed to
design, build and deliver to the PURCHASER a further passenger cruise
vessel to be known during construction as Hull 489 and on delivery to
be named "INSPIRATION".
3
(vii) This agreement sets out the terms on which the CONTRACTOR will design
and build for the PURCHASER a further passenger cruise ship to be
known during construction as Hull 491.
IT IS HEREBY AGREED AND STIPULATED AS FOLLOWS:
ARTICLE 1: SUBJECT OF THE CONTRACT
(A) VESSEL'S Description and Main Characteristics
The CONTRACTOR undertakes to design and build and complete at the Building Site
(as hereinafter defined) and to deliver to the PURCHASER, who orders and
undertakes to accept delivery of one passenger cruise ship (hereinafter called
the "VESSEL"), which will be a "carbon-copy" sistership to MS "IMAGINATION",
hull No. 488 as built except that modifications shall be made:-
1. as required to ensure that the VESSEL complies with the laws, rules,
regulations and enactments referred to in paragraph (E) of this
Article 1.
2. as required to ensure that the VESSEL is a repeat of m.s.
"IMAGINATION" (Hull 488) except that the PURCHASER has the freedom to
make decorative changes as in previous ships ordered from the
CONTRACTOR, it being understood that the quality, standard and finish
of such decorative changes will be the same as m.s. "IMAGINATION"
(Hull 488), it being understood that such decorative changes will not
make the building cost higher. All alterations agreed in regard to
Hull 488 to the date of November 10, 1994 will be incorporated in the
VESSEL without any cost additional to the purchase price specified
herein.
The specifications and plans for MS "FASCINATION" as built (modified in
accordance with the foregoing provisions of this paragraph (A) and the
provisions referred to in paragraph (E) of this Article 1) shall hereinafter be
referred to as the "SPECIFICATIONS" and the "PLAN" respectively. Drawings and
specifications for public areas will be agreed within the timetable set out in
the Addendum to this CONTRACT of even date herewith and initialled on behalf of
the CONTRACTOR and the PURCHASER.
Regarding the Makers List, the CONTRACTOR is entitled to make changes as
compared with MS "FASCINATION". The changes will be submitted for technical
approval by the PURCHASER. Such approval shall not be withheld, if the
relevant characteristics of the Specification are fulfilled, and the reputation
of the supplier is acceptable to the PURCHASER.
3
4
[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
In the event of any conflict between this CONTRACT and the SPECIFICATIONS and
the PLAN, the provisions of this CONTRACT shall prevail. In the event of any
conflict between the SPECIFICATIONS and the PLAN, the provisions of the
SPECIFICATIONS shall prevail.
(B) Speed
The VESSEL's speed shall be as follows:-
- (a) Trial Speed
With the propulsion motors
developing each XXXXX at about XXX
RPM and at XXXX Meter draft and
other conditions as per paragraph
XXXXX of the SPECIFICATIONS: XXXX
knots
- (b) Service Speed
With X diesel alternators 8ZAL40S
and X diesel alternators
12ZAV40S developing a total output
not exceeding XXXX percent MCR, at
XXX RPM, and after allowing XXX MW
for the VESSEL'S other electrical
services, the residual power shall
enable the VESSEL to reach XXXX
knots with a margin of XX percent,
at a draught of XXXXm.
(C) Building Site
The Building Site shall be the CONTRACTOR's shipyard at Helsinki, Finland
provided that the CONTRACTOR may have parts of the VESSEL constructed at its
yard at Turku. The CONTRACTOR shall nevertheless be at liberty to carry out
work elsewhere provided that the main work of erection, assembly and
construction of the VESSEL shall take place at the Building Site aforesaid.
(D) Yard Number, Marking of Materials
The VESSEL shall, for the purpose of identification only be known as Yard
No.491.
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As soon as possible after the arrival at the Building Site, all materials,
machinery and other equipment intended to be incorporated in the VESSEL shall
be marked with the above Yard Number for the purpose of identification and
establishing that such materials, machinery and equipment belong to the VESSEL.
The CONTRACTOR may not use any such marked material, machinery, and equipment
for the construction of any other vessel without the approval of the PURCHASER,
such approval not to be unreasonably withheld. The CONTRACTOR may not use for
the construction of the VESSEL materials, machinery and other equipment marked
for use in the construction of any other vessel without the approval of the
PURCHASER, such approval not to be unreasonably withheld.
The CONTRACTOR is obliged to pay all deliveries promptly on or before delivery.
Upon the PURCHASER'S request, the CONTRACTOR shall supply proof of payment
having been properly effected as well as further evidence that it is under no
residual obligations towards its suppliers in respect of other deliveries.
(E) VESSEL'S Classification and Standard
The VESSEL shall comply with the laws, rules, regulations and enactments
published and in force on the date hereof as stated in the SPECIFICATIONS,
including also Stability Regulations for Passenger Vessels (April 1990) and
Fire Protection for Lifeboats and Rafts in way of windows and screens (SOLAS
74, as amended) to the requirements of the Classification Society and the
Panamanian Government. The Vessel shall also comply with the requirements of
the following:
1. U.S.P.H including "Vessel Sanitation Programme - Operation Manual
(edition August 1989) and W.H.O "Guide to Ship Sanitation"; and
2. SOLAS Regulations and Wireless in relation to Global Marine Distress
Signal Systems; and
3. Panamanian Government regulations for registration of vessels under
Panamanian flag. The VESSEL shall be built to class and under survey
of Lloyd's Register of Shipping and, if not otherwise stated in the
SPECIFICATIONS, in accordance with good shipbuilding practice in
Scandinavia for new passenger cruise vessels of the type and general
characteristics and in any event in no respect inferior to the
standards of M.S. "FASCINATION" as built. Classification, survey and
testing and any other charges relating to the CONTRACTOR'S
obligations and items of supply under this CONTRACT shall be for the
account of the CONTRACTOR.
It is understood that the CONTRACTOR shall carry out such work as is
necessary in accordance with this CONTRACT so that the VESSEL on
arrival in the U.S.A is approved by the United States Public Health
authorities.
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(F) Decisions of the Classification Society
The decisions of Lloyds Register of Shipping the ("Classification Society")
shall be final and binding on both contracting parties as to the VESSEL'S
compliance or non-compliance with the rules and regulations, observance of
which is to be controlled by the said Society.
(G) Sub-contracting
Subject to the requirements of Article 1(A) the CONTRACTOR has the right to
sub-contract part of the work to third parties on the Building Site or
elsewhere.
ARTICLE 2: INSPECTION AND APPROVALS
(A) Inspection
The PURCHASER shall have the right to have the VESSEL and all engines,
machinery, outfit and equipment intended for her inspected during construction
by its authorized representative(s) to whom the CONTRACTOR shall grant free
access for such purpose during working hours to the VESSEL and to the
CONTRACTOR'S shipyard and workshops wherever the VESSEL is being built and/or
designed. The CONTRACTOR will obtain for the PURCHASER the right of access to
subcontractors' premises. The inspection will be at the PURCHASER's risk and
expense.
The PURCHASER'S authorized representative(s) whose name(s) and duties are to be
made known in advance, shall observe the works' rules prevailing at the
CONTRACTOR'S and the subcontractors' premises. They shall address their
remarks exclusively to the CONTRACTOR'S appointed representative(s) whose
name(s) shall be made known to the PURCHASER.
Should the PURCHASER elect to entrust the inspection to firms or persons
outside its organisation, such firms or persons and their duties shall be
subject to the CONTRACTOR'S prior approval.
(B) Effect of Approvals
Approval by the PURCHASER or the PURCHASER'S representative of inspections,
tests, trials, documents, or plans shall not relieve the CONTRACTOR of its
obligations under Article 1 of this CONTRACT.
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ARTICLE 3: MODIFICATIONS
(A) Modifications
Either party may request the other in writing to make modifications to the
SPECIFICATIONS and/or PLAN and provided that the CONTRACTOR and the PURCHASER
fully agree in writing within ten days from the dispatch of the CONTRACTOR'S
notification of any (a) appropriate adjustment of price, (b) appropriate
adjustment of delivery date; (c) appropriate adjustment of the deadweight; (d)
appropriate adjustment of speed requirements; and (e) any other appropriate
adjustment of this CONTRACT, the SPECIFICATIONS and the PLAN, the CONTRACTOR
will carry out such modifications.
The CONTRACTOR has the right to continue production on the basis of the
SPECIFICATIONS and the PLAN until agreement has been reached as above stated.
All agreed modifications and alterations shall be subject to the conditions of
this CONTRACT and the SPECIFICATIONS.
(B) Modifications by Regulatory Bodies and Classification Society
In the event that subsequent to the date hereof any modifications, deletions or
additions are made to the laws, rules, regulations and enactments applicable to
the VESSEL or their interpretation or their application (including withdrawal
of provisional approvals of the Classification Society and/or additional
requirements of said Society) as compared with the basis of this CONTRACT
and/or similar measures of other bodies as referred to in Article 1, paragraph
(E), and such modifications, deletions or additions are compulsory for the
VESSEL, the CONTRACTOR will effect them and will notify the (a) adjustment of
price; (b) adjustment of delivery date; (c) adjustment of deadweight; (d)
adjustment of speed requirements; and (e) any other adjustment of the CONTRACT,
SPECIFICATIONS and PLAN, all as may be appropriate in the circumstances.
The PURCHASER may require that the CONTRACTOR shall first apply for a formal
waiver of compliance with such modifications, deletions or additions from the
authority by whom the modifications, deletions or additions have been
promulgated, should the PURCHASER consider that the operation of the VESSEL in
its intended service would permit of such waiver. In such agreement the
CONTRACTOR will fix a reasonable time limit after which if the waiver has not
been obtained, the CONTRACTOR will go on with the required modifications,
deletions or additions. Any additional cost caused by the application for such
waiver whether or not obtained shall be for account of the PURCHASER and the
date of delivery of the VESSEL if actually delayed thereby shall be extended by
the time necessary as a result of the application for waiver.
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Modifications by regulatory bodies and by the Classification Society which are
not compulsory for the VESSEL shall be treated as the PURCHASER'S modifications
according to paragraph (A) above but the CONTRACTOR will in any case advise the
PURCHASER of such modifications as soon as they are published and obtain the
PURCHASER'S approval in writing before proceeding to make such modifications.
(C) Payment of Adjustments of Price
The adjustments of price made under paragraphs (A) and (B) above shall be
settled in accordance with paragraph (D) of Article 7.
(D) Information
When required the CONTRACTOR shall furnish reasonable information relating to
the basis and method of determining any adjustment of price and other effects
of modifications referred to in this Article.
ARTICLE 4: TRIALS
The VESSEL shall run the following tests and trials:
(1) Dock trials as specified in the SPECIFICATIONS.
(2) Official sea-trials as provided for in the SPECIFICATIONS
during which the trial speed, the propulsion machinery plant
output and the propeller revolutions shall be determined in
accordance with Article 1, paragraph (B)(a).
An endurance test as well as all other trials and tests
included in the sea trial program in the SPECIFICATIONS, shall
also be carried out with recording of measurements of all
parameters, enabling determination of performance relevant to
each test.
(3) All other trials specified in the SPECIFICATIONS.
Such speed runs and endurance test shall be run at the draft attainable by
ballasting the VESSEL with ballast water using tanks and compartments intended
for this purpose and as far as practicable the draft shall be as close as
possible to the corresponding draft at which tank model tests have been carried
out.
Should the speed trial draft aforementioned be other than the draft specified
in Article 1(B)(a), the speed, the main engine output and the revolutions
corresponding to the latter draft shall be
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determined by the Netherlands Model Basin in Wageningen by means of data from
their model tests on the basis of the results recorded at the sea trials.
All trials and measurements will be conducted in a manner and to an extent as
prescribed in a detailed schedule based on the SPECIFICATIONS.
The methods to be used will be selected by the CONTRACTOR to suit the VESSEL'S
trial trip programme to the approval of the PURCHASER.
The CONTRACTOR has the right to subcontract speed and power measurements to an
independent model basin or research institute. However, the PURCHASER will be
kept fully informed and allowed to observe and ascertain measurements recorded
during the trials as if the CONTRACTOR had carried out the tests with its own
personnel.
Should conditions which properly qualify to delay delivery as provided in
Article 6 paragraph (D) prevent the CONTRACTOR from carrying out properly the
official trial on the day scheduled therefor, the CONTRACTOR has the right to
postpone the trial or such part of it as deemed necessary. In such case the
CONTRACTOR shall be entitled to an extension of the VESSEL'S delivery time
covering the whole period of postponement.
The CONTRACTOR shall have the right to repeat any trial whatsoever after giving
reasonable notice to the PURCHASER.
All expenses for the trials and adjustments of all the VESSEL'S equipment shall
be borne by the CONTRACTOR who during the sea trials will provide the necessary
crew at its own expense. If, during any sea trial, any breakdowns occur
entailing interruption or irregular performance which can be repaired by the
normal means available on board, the trial shall be continued after repairs and
be valid in all respects.
However, should the VESSEL require to return to a port to enable the breakdown
to be remedied, a further trial shall be undertaken, if necessary at sea, to
prove the outstanding performance and complete demonstrations.
The CONTRACTOR shall give the PURCHASER thirty days notice of the anticipated
date of the first sea trials.
Within seven (7) days from the completion of the sea trial or the above further
trial, the CONTRACTOR shall present the PURCHASER with a full set of results of
the tests carried out during the sea trials and the PURCHASER shall give the
CONTRACTOR within 3 days from the receipt of the results a notice in writing,
or by telex or telefax confirmed in writing, of completion and acceptance of
the trial run, advising whether the PURCHASER considers that the results of the
trial run indicate conformity of the VESSEL to this Contract the SPECIFICATIONS
and the PLAN.
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In the event that the PURCHASER rejects the results of the trial run as not
conforming to this CONTRACT or to the SPECIFICATIONS or the PLAN, the PURCHASER
shall indicate in its notice of rejection in what respect the VESSEL, or any
part or equipment thereof, does not conform to this CONTRACT and/or the
SPECIFICATIONS.
In the event that the PURCHASER fails to notify the CONTRACTOR as aforesaid of
the acceptance of or the rejection, together with the reason therefor, of the
trial within the period as provided above, the PURCHASER shall be deemed to
have accepted the trial run of the VESSEL.
Acceptance of the results of the trial run as above provided shall be final and
binding so far as conformity of the VESSEL to the CONTRACT and the
SPECIFICATIONS and the PLAN to the extent demonstrated on such trial is
concerned and shall preclude the PURCHASER from refusing formal delivery of the
VESSEL as hereinafter provided, on the grounds of non conformity of the VESSEL
in respect of items whose conformity has been demonstrated and accepted during
the trial run, if the CONTRACTOR complies with all other requirements for
delivery as provided in this CONTRACT.
Should any fuel oil lubricating oil, greases and ship's stores, including fresh
water furnished by the CONTRACTOR for the sea trial remain on board the VESSEL
at the time of acceptance thereof by the PURCHASER, the PURCHASER agrees to buy
the same from the CONTRACTOR at the price reasonably paid by the CONTRACTOR and
evidenced by invoices of the supplier and payment by the PURCHASER shall be
effected in accordance with paragraph (D) of Article 7.
ARTICLE 5: GUARANTEE FOR SPEED, DEADWEIGHT AND FUEL
CONSUMPTION
Subject to the provision contained in Article 7 (E) the rights and obligations
of the CONTRACTOR and PURCHASER in regard of the VESSEL'S trial speed,
deadweight and consumption of fuel of the propulsion plant are delimited as
follows:
(A) Speed
For the purpose of determining the VESSEL'S actual trial speed, the speed of
the VESSEL recorded on the official sea trials under Article 4 shall be
adjusted in accordance with Article 4 as if the official sea trials had been
carried out under the conditions specified in Article 1, paragraph (B)(a) and
paragraph 1.2.6 of the SPECIFICATIONS. If the actual trial speed so computed
is less than the adjusted trial speed under Article 1, paragraph (B)(a), the
CONTRACTOR shall pay to the PURCHASER as liquidated damages and not by way of
penalty the following amounts:
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- - for the first two tenths (2/10ths) of a knot of such speed deficiency:
XXXXXXX
- - U.S.$XXXXXX for the third complete tenth of one knot deficiency and
that amount increased by U.S.$XXXXXX for each successive complete one
tenth of a knot of such deficiency, save and except that the
CONTRACTOR shall have the right to remedy the deficiency and repeat
the trial.
If the VESSEL'S trial speed determined or computed as provided in this
paragraph (A) is more than one knot below the adjusted trial speed under
Article 1, paragraph (B)(a), the PURCHASER, as an alternative to receiving the
above mentioned liquidated damages, shall have the option to terminate this
CONTRACT, with the consequences provided for in Article 8 and Article 11, save
and except that the CONTRACTOR shall have the right to remedy the deficiency
and repeat the trial.
Should the actual trial speed of the VESSEL determined or computed as provided
in this paragraph (A) be greater than the adjusted trial speed under Article 1,
paragraph (B)(a), the PURCHASER shall pay to the CONTRACTOR as premiums the
following amounts:
- - for the first two tenths (2/10ths) of the knot of extra speed: XXXXXXX
- - U.S.$XXXXXX for the third complete tenth of one knot of extra speed
and that amount increased by U.S.$XXXXXX for each successive complete
one tenth of a knot up to a maximum extra speed of one half of one
knot.
(B) Deadweight
If the VESSEL'S deadweight determined as stated in the SPECIFICATIONS is more
than XXX metric tons less than the deadweight specified, then the CONTRACTOR
shall pay to the PURCHASER as liquidated damages and not by way of penalty an
amount of US $XXXXX for each full XXX metric tons of such deficiency in excess
of XXX metric tons, save and except that the CONTRACTOR shall have the right to
remedy the deficiency.
If the VESSEL'S deadweight determined as stated in the SPECIFICATIONS is more
than XXX metric tons less than the deadweight specified, the PURCHASER, as an
alternative to receiving the above mentioned liquidated damages, shall have
the option to terminate this CONTRACT with the consequences provided for in
Article 8 and Article 11, save and except that the CONTRACTOR shall have the
right to remedy the deficiency.
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(C) Fuel Consumption
For the main propulsion plant a shop test shall be carried out in accordance
with the SPECIFICATIONS. During such shop test the specified fuel consumption
shall be ascertained and corrected to the design parameters.
The shop test shall be run on heavy fuel oil with each diesel engine developing
XX% MCR at XXX revolutions. The measured fuel consumption shall be corrected
to a reference lower calorific value of XXXXXX kilojoules per kg and ISO
standard conditions. The fuel consumption of the main propulsion plant so
corrected shall not exceed XXXXXXXXXXXXX for engines type 12ZAV40S and
XXXXXXXXXXXXXXXXX for engines type 8ZAL40S.
With respect to any of the engines, should the corrected fuel consumption be in
excess of XXX percent of XXXXXXXXXXXXXXXXX for engines type 12ZAV40S and
XXXXXXXXXXXX for engines type 8ZAL40S, the CONTRACTOR shall pay to the
PURCHASER, as liquidated damages and not by way of penalty, an amount of US
$XXXXXX for each full one percent in excess of XXX percent of XXXXXXXXXXXXXXXXX
for engines type 12ZAV40S and XXXXXXXXXXXXXXXXX for engines type 8ZAL40S, save
and except that the CONTRACTOR shall have the right to remedy any defect
causing such excessive fuel consumption and repeat the trial.
With respect to any of the engines, should the corrected fuel consumption be in
excess of XXX percent of XXXXXXXXXXXXXXXXX for engines type 12ZAV40S and
XXXXXXXXXXXXX for engines type 8ZAL40S, the PURCHASER, as an alternative to
receiving the above mentioned liquidated damages shall have the option to
terminate this CONTRACT with the consequences provided for in Article 8 and
Article 11, save and except that the CONTRACTOR shall have the right to remedy
any defect causing such excessive fuel consumption and repeat the trial.
ARTICLE 6: DELIVERY OF THE VESSEL
(A) Delivery Date and Place of Delivery
The VESSEL shall be delivered to the PURCHASER at the Building Site or other
agreed place.
The date for delivery of the VESSEL (the "Delivery Date") shall be 26 February
1998 subject to permissible extensions as provided in this CONTRACT.
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CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
Six (6) months prior to the date on which the CONTRACTOR expects the VESSEL to
be ready for delivery the CONTRACTOR shall give notice to the PURCHASER in
writing (the "Delivery Notice") specifying the actual expected delivery date.
The PURCHASER shall promptly take delivery of the VESSEL when properly
completed in accordance with this CONTRACT and shall with reasonable dispatch
as applies to a passenger cruise ship remove her from the CONTRACTOR'S
shipyard.
(B) Liquidated Damages for Delayed Delivery
If the VESSEL is not delivered (duly completed in accordance with this
CONTRACT, the SPECIFICATIONS and the PLAN) on or before the Delivery Date (as
extended by virtue of the provisions of this CONTRACT specifically permitting
such extension), the CONTRACTOR shall pay to the PURCHASER by way of liquidated
damages and not by way of penalty the amount of UNITED STATES DOLLARS
XXXXXXXXXXXXXXXX (US$XXXXXXX) for each full calendar day of delay following the
Delivery Date as so extended.
(C) Termination for Delay
If the VESSEL is not delivered (duly completed in accordance with this
CONTRACT, the SPECIFICATIONS and the PLAN), by the date falling twelve (12)
months after the Delivery Date (as extended by virtue of the provisions of this
CONTRACT expressly permitting such extension), the PURCHASER may terminate this
CONTRACT by notice to the CONTRACTOR with the consequences provided for in
Article 8 and Article 11. On such valid termination the CONTRACTOR shall
forthwith also pay to the PURCHASER the liquidated damages payable by virtue of
paragraph (B) above as if the VESSEL had been delivered on the date on which
this CONTRACT is terminated by the PURCHASER under this paragraph.
If the VESSEL is not delivered (duly completed in accordance with this CONTRACT
and the SPECIFICATIONS and the PLAN) by 26 October 1999 then, notwithstanding
the provisions of paragraphs (D) and (E) below which would otherwise operate to
permit the Delivery Date to be extended, the PURCHASER may terminate this
CONTRACT by notice to the CONTRACTOR with the consequences provided for in
Article 8 and Article 11. On such valid termination the CONTRACTOR shall
forthwith also pay to the PURCHASER the liquidated damages payable by virtue of
paragraph (B) above as if the VESSEL had been delivered on the date on which
this CONTRACT is terminated by the PURCHASER under this paragraph.
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(D) Permissible Extensions due to "Force Majeure"
Should the CONTRACTOR be prevented from having the VESSEL constructed for
delivered by the Delivery Date owing to: - Acts of God; engagement in war or
other hostilities, civil war, civil commotions, riots or insurrections;
requirements of civil or military authorities in contemplation of war;
blockades; embargoes, vandalism; sabotage; epidemics; strikes; lockouts;
officially agreed reduction of working hours relating to the Finnish workforce
as a whole; earthquakes; landslides; floods; failure of electric current for a
period of more than three working days; damages by lightning; explosions,
collisions, strandings or fires; damage to the VESSEL and time taken to repair
such damage; shortage of materials and equipment or inability to obtain
delivery thereof, provided that such materials and equipment at the time of
ordering could reasonably be expected by the CONTRACTOR to be delivered in
time; defects in materials and equipment such as castings or forgings which
could not have been detected by the CONTRACTOR or its subcontractors using
reasonable care; delays caused by delay of the Classification Society or other
bodies whose documents are required in issuing such documents; delays caused by
events similar to the foregoing; the effect of the foregoing on the
CONTRACTOR'S other commitments; then and in any such case the Delivery Date of
the VESSEL shall, subject to paragraphs (E) and (F) below, be extended by the
number of calendar days of delay incurred by the CONTRACTOR in completing or
delivering the VESSEL in consequence of any of these events.
(E) Definitive Notice of Delivery
Following the giving of the Delivery Notice by the CONTRACTOR pursuant to
paragraph (A) above the only events which shall be permitted to extend the
Delivery Date (as previously properly extended by virtue of other provisions of
this CONTRACT permitting such extension) shall (subject to paragraph (F) below)
be: Acts of God, engagement in war or other hostilities, civil wars, civil
commotions, riots or insurrections requirements of military authorities in
contemplation of war, blockades, embargoes, vandalism, sabotage, epidemics,
earthquakes, landslides, flood, damage by lightning, explosions, collisions,
strandings, fires or nationwide strikes or lockouts either general or affecting
nationwide a particular sector of the labour force.
(F) Conditions for Claims for Permissible Delays
Not later than 7 days from the date of commencement of any of the above
contingencies on account of which the CONTRACTOR claims that it is entitled to
an extension of the Delivery Date, the CONTRACTOR shall provide the PURCHASER
with telex or telefax advice particularising the date such contingency
commenced and the reasons therefor and the nature thereof, the estimated
duration thereof and the action which is being taken by the CONTRACTOR to
overcome the effect of the contingency. If any such contingency continues for
a period in excess of 30 days the CONTRACTOR shall, at regular fortnightly
intervals thereafter, continue to keep the PURCHASER advised by delivery to the
PURCHASER of further statements containing the particulars specified above.
Within 7 days after the CONTRACTOR becomes aware that such contingency has
ended the CONTRACTOR shall
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specify the period of time by which it claims the Delivery Date is to be
extended by reason of delay due to such contingency.
The CONTRACTOR shall not be entitled to claim any extension of the Delivery
Date in respect of any particular delay unless:
1. The CONTRACTOR has given all the proper notices and statements
required by this paragraph (F) in relation to that particular
item of delay; and
2. that particular item of delay has not in any way been caused
or contributed to by any error, neglect or omission on the
part of the CONTRACTOR; and
3. the CONTRACTOR has, since the date of commencement of the
contingency in question, taken all reasonable steps to remove
the cause of delay and to mitigate its effect on the delivery
of the VESSEL; and
4. the cause of delay could not reasonably have been foreseen by
the CONTRACTOR at the date of this CONTRACT.
In the event of there being any dispute between the parties under this Article
the burden of proof shall be upon the CONTRACTOR to establish the facts
entitling it to an extension of the Delivery Date and that all requirements
specified in this paragraph have been fully satisfied.
(G) Termination of the CONTRACTOR'S Responsibilities
On delivery of the VESSEL to the PURCHASER all risk and every responsibility
for the safety and generally for the condition of the VESSEL is transferred to
the PURCHASER, and thereafter all responsibilities on the part of the
CONTRACTOR shall cease with the exception of the guarantee obligations provided
for in Article 12 and Article 13 hereof and the rights of the parties under
Article 8(A).
If it is not practicable before delivery for the CONTRACTOR to demonstrate the
contractual performance of any of the specified equipment or the contractual
performance of any of the specified technical systems of the VESSEL in their
intended operating conditions, the CONTRACTOR will demonstrate such performance
as soon as practicable, and if not practicable within 180 days of delivery
compliance or non-compliance shall be determined by calculations. In case of
deficiencies in performance the CONTRACTOR will remedy such deficiencies in
performance under the guarantee contained in Article 12.
(H) Protocol of Delivery and Acceptance
At the delivery and acceptance of the VESSEL the PURCHASER and the CONTRACTOR
shall execute, in duplicate, a Protocol of Delivery and Acceptance one original
copy of which is to be retained by each party.
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ARTICLE 7: PRICE AND PAYMENT
(A) Contract Price
The PURCHASER shall pay to the CONTRACTOR the CONTRACT price of UNITED STATES
DOLLARS XXXXXXXXXXXXXXXXXXXXXXXXXX (US $ XXXXX) inclusive of building period
financing cost.
(B) Instalments
Payment of the CONTRACT Price shall be made by the PURCHASER to the CONTRACTOR
by instalments as follows:
- XX% equal to USDXXXXXXXXX on the date of signature of this CONTRACT;
- XX% equal to USDXXXXXXXXXX XXXXXXXXXXXXX after delivery of m.s.
"IMAGINATION" (KMY HULL XXX);
- XX% equal to USDXXXXXXXXXX XXXXXXXXXXXXXX;
- XX% equal to USDXXXXXXXXXXX on delivery of the VESSEL duly
completed in accordance with this CONTRACT, the SPECIFICATIONS
and the PLAN.
(C) Payment Procedures
Except for the first instalment the CONTRACTOR shall notify the PURCHASER at
least 10 days in advance of the estimated dates of the instalment payments
falling due.
All payments to the CONTRACTOR are to be made in U.S. Dollars for same day
value at a bank in Helsinki to be designated by the CONTRACTOR without any
deduction whatsoever on the dates on which the payments are due as aforesaid.
Expenses for remitting payments and any other expenses connected with such
payments shall be for the account of the PURCHASER.
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If for any reason the PURCHASER cannot take delivery of the VESSEL on the date
the CONTRACTOR has notified that the VESSEL will be ready for delivery, the
PURCHASER shall, subject to paragraph (A) of Article 6, nevertheless be liable
to make full and final payment on that date, provided the VESSEL is tendered in
accordance with the terms of this CONTRACT.
(D) Payment for Modifications
The sum due for modifications under Article 3 of this CONTRACT shall be paid by
or credited to the PURCHASER as the case may be to the CONTRACTOR on delivery.
(E) Payment for Liquidated Damages and Premiums
Any amount of liquidated damages or any premiums under Articles 5 and 6 shall
be calculated and determined on delivery of the VESSEL or on termination in
accordance with Article 6(C) or 11(B) and the balance (of one over the other)
shall be paid to the party entitled thereto at the delivery of the VESSEL or,
in the event of termination of this CONTRACT in accordance with Article 6(C) as
provided herein, provided that (notwithstanding any other provision in this
CONTRACT to the contrary) the net amount payable under this paragraph shall not
exceed XXX per cent of the CONTRACT Price referred to in paragraph (A) of this
Article.
Payment of liquidated damages under Article 5 and/or 6 of this CONTRACT shall
be to the exclusion of any other claims in respect of the matters giving rise
to such payment except that this provision shall not affect the rights of the
PURCHASER under Article 6 (C) and Article 11 of this CONTRACT or the
alternative right of the PURCHASER to terminate this CONTRACT in the
circumstances provided in Article 5 of this CONTRACT.
(F) Prompt Payment
The PURCHASER shall not delay any payment of the Contract Price in the event of
any disagreement as to the amount of extras, liquidated damages or premiums, or
in the event of other exceptions or claims the PURCHASER may have asserted or
may intend to assert against the CONTRACTOR, whether in connection with this
CONTRACT or otherwise without prejudice to the PURCHASER'S right to apply
subsequently to arbitration.
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(G) Bank Guarantee
On the date of signature of this CONTRACT in respect of the first instalment
and not less than five (5) business days before the date on which the PURCHASER
is obliged to make payment to the CONTRACTOR of respectively the second and
third instalments of the Contract Price as provided in Article 7(B) and as a
condition precedent to the obligation of the PURCHASER to make payment of such
instalments, the CONTRACTOR shall deliver to the PURCHASER a bank guarantee of
payment by the CONTRACTOR of all amounts which the CONTRACTOR may become liable
to pay to the PURCHASER under Article 11(A) of this CONTRACT.
Each such guarantee shall be issued by a first class bank acceptable to the
PURCHASER in the form of Exhibit A hereto and shall be authenticated in such
manner as the PURCHASER may require. The PURCHASER and the CONTRACTOR shall
share equally the cost of providing and maintaining such guarantees. Each
guarantee shall be for an amount not less than the amount specified with
respect to the relevant instalment below:
Instalment No Amount US$
- ------------- ----------
1 XXXXXXXXX
2 XXXXXXXXXX
3 XXXXXXXXXX
Each such bank guarantee shall be initially valid until 30 April 1998. If, in
the PURCHASER'S opinion the delivery of the VESSEL will for any reason be
postponed beyond such date, the validity of the bank guarantee shall, before 30
April 1998 be extended until 30 November 1999.
Irrespective of the dates indicated in this paragraph (G) the bank/s issuing
the bank guarantee shall be informed that the original bank guarantee will be
returned to the bank/s on the actual date when vessel is delivered and accepted
by the purchaser. The issuing bank/s shall be instructed that fees will be
charged until the date of delivery of vessel.
(H) Statements of Financial Conditions
The CONTRACTOR shall provide to the PURCHASER at four monthly intervals
following the date of this CONTRACT statements of the financial condition of
the CONTRACTOR in such form and substance as the PURCHASER may reasonably
request to enable the PURCHASER to monitor the current financial condition of
the CONTRACTOR during the construction of the VESSEL.
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ARTICLE 8: PROPERTY
(A) General Plans, Specification and Working Drawings
All rights in the SPECIFICATIONS, plans and working drawings, technical
descriptions, calculations, test results and other data, information land
documents concerning the design and constructions of the VESSEL shall belong to
the CONTRACTOR before actual delivery and after actual delivery shall belong
to the PURCHASER provided always that the CONTRACTOR shall be entitled to use
the same to the extent of the hull form and all parts below the main
accommodation decks.
The PURCHASER shall have the right to use the SPECIFICATIONS, plans and working
drawings, technical descriptions, calculations, test results and other data,
information and documents concerning the design and the construction of the
VESSEL prior to delivery of the VESSEL with the consent of the CONTRACTOR, such
consent not to be unreasonably withheld and to be given promptly following the
PURCHASER'S request.
(B) Title to the VESSEL
As from signing of this CONTRACT the PURCHASER has title to:-
1. All materials and equipment for building of the VESSEL
purchased from and delivered by suppliers and sub-contractors.
The title to all such materials and equipment for building of
the VESSEL shall be with the PURCHASER already before such
materials and equipment arrive at the shipyard.
2. All materials and equipment out of the CONTRACTOR'S own stock
allocated for the construction of the VESSEL which for this
purpose shall be stored separately and marked as early as
possible.
3. Parts manufactured from the materials listed above.
4. The VESSEL itself as it is in the course of progressive stages
of construction, together with equipment installed.
Until the CONTRACT Price (as adjusted) has been paid in full the PURCHASER may
not at any time, prior or subsequent to the delivery of the VESSEL transfer,
whether finally or conditionally, or mortgage or hypothecate the VESSEL without
the CONTRACTOR'S written consent in each particular case.
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Subject to the provisions of Article 11 this paragraph shall in no way impair
the CONTRACTOR'S right to retain the VESSEL until the PURCHASER has complied
with its obligations under Article 7 of this CONTRACT.
(C) Effect of Termination on the Title to the VESSEL under Construction
If the CONTRACTOR justly terminates this CONTRACT, the CONTRACTOR becomes the
sole owner of the VESSEL.
If the PURCHASER justly terminates this CONTRACT, the PURCHASER thereby waives
its right to the VESSEL, provided that all amounts payable or repayable to the
PURCHASER by the CONTRACTOR on such termination in accordance with this
CONTRACT shall have been paid or repaid or security satisfactory to the
PURCHASER shall have been provided for such payment or repayment.
ARTICLE 9: INSURANCE
The VESSEL and all materials, machinery and other equipment belonging to the
VESSEL and within the precincts of the Building Site shall until delivery of
the VESSEL (including during trials) be insured by the CONTRACTOR at the
CONTRACTOR'S expense in the joint names of the CONTRACTOR and the PURCHASER
against all risks customarily insured against in the Finnish shipbuilding
industry and in accordance with and subject to the terms of the usual
construction policy for a total of not less than the aggregate of (1) the
amount for the time being paid by the PURCHASER to the CONTRACTOR in respect of
the VESSEL and (2) interest thereon at the rates specified in Article 11 from
the date such payment was made to the CONTRACTOR and (3) the value of equipment
or materials supplied by the PURCHASER and present within the precincts of the
Building Site or already installed in the VESSEL. If considered necessary by
the CONTRACTOR or if required by the PURCHASER, war risks insurance for not
less than the CONTRACT Price is to be effected by the CONTRACTOR up to the date
of delivery to the extent that such insurance is obtainable on the London
insurance market provided, however, that the CONTRACTOR shall effect war risk
insurance at its own expense during sea trials.
In the event of the VESSEL and/or such materials etc. as aforesaid sustaining
damage, including war damage, before delivery of the VESSEL then any monies
received in respect of any insurance effected under this Article shall be
applied by the CONTRACTOR in making good such damage with all due despatch
during ordinary working hours in a reasonable and workmanlike manner and the
PURCHASER shall not on account of any such damage or any repair thereof be
entitled to object to the VESSEL or to make any claim for alleged consequential
loss or depreciation provided that such damage is made good in accordance with
this CONTRACT, the SPECIFICATIONS and the PLAN as if it was the VESSEL'S new
construction.
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Underwriters are entitled to settle claims concerning repairable damage to the
VESSEL directly with the CONTRACTOR, and make all payments on these claims
directly to the CONTRACTOR.
Should the VESSEL at any time from any cause become an actual total loss or an
agreed or compromised constructive total loss under the insurance policy, this
CONTRACT shall thereupon absolutely cease and terminate without any liability
whatsoever on the part of the CONTRACTOR provided that the CONTRACTOR has
complied with its obligations under the preceding provisions of this Article.
In the event of such total loss insurance monies shall be paid to the PURCHASER
for reimbursement (1) of the amounts paid by the PURCHASER to the CONTRACTOR
hereunder and (2) interest thereon at the rates specified in Article 11 from
the dates such payments were made and (3) the value of equipment and materials
supplied by the PURCHASER and within the precincts of the Building Site or
installed on the VESSEL at the time of such total loss; any balance shall
belong to the CONTRACTOR. Under no circumstances shall the CONTRACTOR be
liable to replace the VESSEL.
The CONTRACTOR'S liability to the PURCHASER in respect of damage - including
war damage - or in respect of the actual or constructive total loss of the
VESSEL, shall not in any event extend further or otherwise than provided in
this Article.
The PURCHASER agrees to notify the CONTRACTOR before each item of equipment or
material supplied by the PURCHASER is delivered to the Building Site and to
advise the CONTRACTOR of the value thereof.
ARTICLE 10: DEFAULTS BY THE PURCHASER
(A) Suspension/Termination by the CONTRACTOR
If any of the following events should occur :-
1. the PURCHASER fails to pay to the CONTRACTOR any of the first,
second and third instalments of the CONTRACT Price when such
instalments become due and payable under the provisions of
Article 7 hereof; or
2. the PURCHASER fails to take delivery of the VESSEL when the
VESSEL is duly tendered for delivery by the CONTRACTOR under
the provisions of Article 6 hereof; or
3. a bona fide petition is filed and is not dismissed within
thirty (30) days, or an effective resolution is passed for the
winding up of the PURCHASER (other than for the purpose of a
reconstruction or amalgamation which has received the prior
written approval of the CONTRACTOR); or
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4. a receiver is appointed of the undertaking or property of the
PURCHASER; or
5. the PURCHASER suspends payment of its debts or ceases to carry
on its business or makes any composition with its creditors or
is declared bankrupt or goes into liquidation;
Then:
(a) the delivery date shall be automatically postponed for a
period of continuance of such event in excess of two (2) days.
(b) If such event continues for a period of fifteen (15) days the
CONTRACTOR shall have the option to suspend the CONTRACTOR's
obligations under this CONTRACT until such event has ceased.
(c) If any of the events set out in sub-paragraphs (1) - (4)
above, continues for a period of thirty (30) days after
notice, to the PURCHASER or if any of the events set out in
sub-paragraph, (5) occurs, the CONTRACTOR may, at its option,
terminate this CONTRACT by giving notice of such effect to the
PURCHASER by fax confirmed by letter.
(B) Interest
Should the PURCHASER be in default in payment of any of the first, second,
third or fourth instalments of the CONTRACT Price and/or other amounts due
under this CONTRACT on or before delivery of the VESSEL, then the PURCHASER
shall pay to the CONTRACTOR as from the due date interest thereon at the rate
which is two (2) per cent per annum above the rate certified by Citibank N.A.
to be the rate at which deposits of United States Dollars can be obtained by
Citibank N.A. to fund the defaulted amount from the London Interbank
Eurocurrency market for such periods as may be reasonable in the circumstances.
In case the PURCHASER shall fail to take delivery of the VESSEL as provided
above in this Article, the PURCHASER shall be deemed in default as regards the
fourth instalment of the CONTRACT PRICE and shall pay interest thereon at the
rate aforesaid from and including the day on which the VESSEL is tendered for
delivery by the CONTRACTOR.
(C) CONTRACTOR'S Rights on Termination
1. In the event of such termination of this CONTRACT, the
CONTRACTOR shall be entitled to retain any instalment or
instalments of the CONTRACT price theretofore paid by the
PURCHASER to the CONTRACTOR on account of this CONTRACT to the
extent of proved damages and loses including costs and
expenses permitted by law.
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2. In the event of termination of this CONTRACT as provided in
this Article 10, the CONTRACTOR shall have full right and
power either to complete or not to complete the VESSEL as it
deems fit, and to sell the VESSEL at public or private sale on
such terms and conditions as the CONTRACTOR thinks fit without
being answerable for any loss or damage except as provided in
paragraph (4) below.
3. In the event of the sale of the VESSEL in its completed state,
the proceeds of sale received by the CONTRACTOR shall be
applied firstly to payment of all proven incidental damages
and losses permitted by law attending such sale, and then to
payment of all unpaid instalments of the CONTRACT Price and
interest on such instalments at the rate as provided for above
from the respective due dates thereof to the date of
application.
4. In the event of sale of the VESSEL in its incomplete state,
the proceeds of sale received by the CONTRACTOR shall be
applied firstly to all proven incidental damages and losses
permitted by law attending such sale, and then to payment of
all costs of construction of the VESSEL and compensation to
the CONTRACTOR for a loss of reasonable profit due to the
termination of this CONTRACT together with interest at the
rate as provided for above, less the instalments retained by
the CONTRACTOR.
5. In either of the above events of sale, if the proceeds of sale
exceed the total of amounts to which such proceeds are to be
applied as aforesaid, the CONTRACTOR shall promptly pay the
excess to the PURCHASER without interest.
6. If the proceeds of sale are insufficient to pay to the
CONTRACTOR such total amounts payable as aforesaid, the
PURCHASER shall promptly pay the deficiency to the CONTRACTOR
upon request.
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
ARTICLE 11: DEFAULTS BY THE CONTRACTOR
(A) Termination and Reimbursement and Liquidated Damages
If, in accordance with any of the provisions of Article 5 or 6 or paragraph (B)
of this Article, the PURCHASER properly exercises its option to terminate this
CONTRACT, then the CONTRACTOR shall :-
(1) return to the PURCHASER all equipment and material supplied by
the PURCHASER or pay to the PURCHASER the value thereof and
pay to the PURCHASER the amount of consulting, engineering,
architectural and similar fees and expenses incurred by the
PURCHASER in connection with the construction of the VESSEL up
to a maximum of XXXXXXXXX United States Dollars; and
(2) pay to the PURCHASER any accumulated liquidated damages
payable under Article 6(C); and
(3) repay to the PURCHASER in United States Dollars the amount of
all moneys paid by the PURCHASER for or on account of the
CONTRACT Price of the VESSEL together with interest calculated
from the respective dates such amounts were paid by the
PURCHASER to the CONTRACTOR up to the date of repayment
thereof at the rate certified by Citibank N.A. to be the rate
paid by the Citibank N.A. to depositors for deposits of
amounts equal to the instalments paid by the PURCHASER for the
periods from receipt thereof by the CONTRACTOR to the date of
repayment.
The CONTRACTOR'S liability in the event of such termination shall be limited to
the above which the parties hereto reasonably estimate to be the amount of the
loss which will be sustained by the PURCHASER in the event that this CONTRACT
is terminated by the PURCHASER in accordance with Article 5 or 6 hereof or
paragraph (B) of this Article.
(B) Termination on Bankruptcy, Etc.
In any of the following events:
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(1) a bona fide petition is filed and is not dismissed within
thirty (30) days or an effective resolution is passed for the
winding up of the CONTRACTOR or any other similar proceedings
with similar effect on the CONTRACTOR are instituted in
Finland affecting the CONTRACTOR (other than for the purpose
of a reconstruction or amalgamation which has received the
prior written approval of the PURCHASER); or
(2) the CONTRACTOR merges with any other entity without the prior
written approval of the PURCHASER;
(3) the CONTRACTOR ceases to be controlled by Kvaerner A/S;
(4) a receiver is appointed of the undertaking or property of the
CONTRACTOR; or
(5) the CONTRACTOR suspends payment of its debts or threatens to
do so or ceases to carry on its business or makes any
composition with its creditors or convenes a meeting of its
creditors to propose such compositions or is declared bankrupt
or goes into liquidation; or
(6) the construction of the VESSEL is suspended for a period of
more than thirty days for reasons other than any of the events
specified in Article 6 (D) or, if applicable, Article 6 (E)
and it is apparent that the CONTRACTOR will be unable to
fulfil its obligations hereunder; or
(7) there is a material adverse change in the financial condition
of the CONTRACTOR;
(8) the CONTRACTOR fails to provide any of the guarantees relating
to the first, second or third instalments of the CONTRACT
Price payable in accordance with Article 7(B) within thirty
(30) days of the date on which such guarantee should otherwise
have been delivered to the PURCHASER;
(9) if the CONTRACTOR fails to have the bank guarantees extended
on or before 30 April 1998 if required to do so under the
terms of Article 7(G);
(10) the CONTRACTOR fails to comply with its obligations under
Article 7 (H) and such default continues for a period of
fourteen days after the PURCHASER gives notice to the
CONTRACTOR requiring such default to be remedied.
Then:
the PURCHASER may immediately (without being bound thereto)
terminate this CONTRACT by giving notice in writing to the
CONTRACTOR.
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
(C) The PURCHASER'S Right to Take Possession
If in accordance with the provisions of paragraph (B) above or Article 6 (C),
the PURCHASER is entitled to terminate this CONTRACT but does not do so, then
the PURCHASER shall have an optional right after giving notice to the
CONTRACTOR to take possession of the VESSEL in her then state and all parts,
plans, materials, machinery and equipment appropriated to the VESSEL and remove
the same from the CONTRACTOR'S yard. The PURCHASER agrees that it will, on
taking possession and in consideration of the CONTRACTOR releasing its lien on
the vessel, pay to the CONTRACTOR XXX XXXXXXXXXXXXXXXXXXX UNITED STATES DOLLARS
less the aggregate of:
(1) the total amount of the instalments of the CONTRACT Price paid
by the PURCHASER under Article 7(A) of this CONTRACT; and
(2) the reasonable estimate cost of completing the VESSEL in the
CONTRACTOR'S yard or at another shipyard and of removing to
such other shipyard the VESSEL and all parts, materials,
machinery and equipment appropriated to the Vessel.
If the actual cost of completing the VESSEL exceeds the estimated cost the
CONTRACTOR shall pay the difference to the PURCHASER on completion of the
vessel. If the actual cost of completing the vessel is less than the estimate
cost the PURCHASER shall pay the difference to the CONTRACTOR on completion of
the VESSEL.
(D) Notice of bankruptcy filing
The CONTRACTOR shall not take any steps to obtain the appointment of bankruptcy
trustees under the relevant provisions of Finnish bankruptcy law without first
giving to the PURCHASER at least 30 days notice of its intention to do so.
ARTICLE 12: GUARANTEE
(A) Extent of Guarantee
The CONTRACTOR shall remedy at the Building Site or at any other yard
controlled by the CONTRACTOR and in normal working hours, by repairing or if
necessary replacing,
1. any defect notified in writing by the PURCHASER on the
VESSEL'S delivery; and
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
2. any defect due to faulty design, bad workmanship or use of
defective material and not apparent on delivery which becomes
apparent during the period of XXXXXXXXXXXXXXXXXX from the date
of delivery of the VESSEL provided the defect is notified in
writing as soon as reasonably practicable after its discovery.
If for operational reasons the guarantee drydocking cannot reasonably be
carried out before the expiration of the said XXXXXXXXXXXX period, then in
relation to defects not reasonably discoverable without such drydocking the
guarantee period hereunder shall, subject to paragraph (D) of this Article,
expire on completion of such drydocking but in any event not later than
XXXXXXXXXXXXXXX after delivery of the VESSEL.
Except as provided in paragraph (F) below, the guarantee shall apply only to
the work of and materials and equipment supplied by the CONTRACTOR, its
subcontractors and suppliers.
The CONTRACTOR'S obligations under this Article shall be limited in duration
and extent as herein provided.
(B) Paint
The CONTRACTOR shall provide a guarantee to the PURCHASER in relation to the
paint for the VESSEL on the same terms as that provided by the paint supplier
to the CONTRACTOR. Such guarantee shall be on the basis that the paintwork
shall be carried out under the supervision of and to the satisfaction of
authorised representatives of the paint supplier.
(C) Liability for Consequential Loss or Damage
The Guarantee contained in this Article is in lieu of and excludes any other
liability, guarantee, warranty and/or condition imposed or implied by law
custom, statute, tort or otherwise by reason of the construction or sale of the
VESSEL by the CONTRACTOR for and to the PURCHASER.
Except as provided in this Article and Article 8(A) and Article 13 after
delivery the CONTRACTOR shall not under any circumstances have any liability,
whether arising from claims for breach of warranty or guarantee, negligence or
strict liability, for any consequential damages or for loss of time, cost of
capital, loss of profit or earnings, demurrage, claims of third parties, or for
any other kind whatsoever of consequential, contingent or incidental damages
directly or indirectly occasioned by the CONTRACTOR'S activities pertinent to
this CONTRACT.
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
The CONTRACTOR shall however be liable under the guarantee contained in this
Article for damage to any part of the VESSEL (including her equipment) caused
directly by defects to which paragraph (A) above applies provided that the
CONTRACTOR'S liability in respect of damage so caused shall be limited to
UNITED STATES DOLLARS XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX.
(D) Extensions of Guarantee Period
The time during which the VESSEL is not available for service on account of
defects which the CONTRACTOR is liable to make good under paragraph (A) above
and the time required to remedy such defects shall be added to extend the
guarantee period specified in paragraph (A) above up to a maximum of
XXXXXXXXXXXXXXXXXX after delivery.
If the CONTRACTOR itself makes good any defects during the guarantee period
specified in paragraph (A) above (as extended if appropriate by the preceding
sub-paragraph of this paragraph (D)) or such defects are remedied elsewhere in
accordance with paragraph (F) below under the supervision and with the approval
of the CONTRACTOR, then the provisions of paragraph (A) shall apply to the
parts repaired or replaced and the repair or replacement work for a period of
XXXXXXXXXXXXX after the repair or replacement was completed up to a maximum of
XXXXXXXXXXXXXXXXXX after delivery.
(E) Investigation of Recurrent Defects
The CONTRACTOR agrees within the terms of this Article to investigate the cause
of any recurrent defect to which paragraph (A) applies with a view to providing
a satisfactory remedy therefor.
(F) Guarantee Work Outside Building Site
If in the PURCHASER'S opinion the replacements or repairs under this Article
cannot be conveniently made at the Building Site or at any other yard
controlled by the CONTRACTOR, the PURCHASER may have such repairs and/or
replacements carried out elsewhere; in such a case the CONTRACTOR is discharged
from the guarantee under this Article in respect of the repairs or replacements
carried out by the third party unless carried out under the supervision and
with the approval of the CONTRACTOR. Provided the guarantee work is contracted
for in a businesslike manner having regard to the nature, urgency and extent of
the defect to be remedied, the CONTRACTOR shall reimburse the PURCHASER the
documented expenses incurred by the PURCHASER in effecting such repairs and/or
replacements including expenses of independent contractors in travelling to the
VESSEL and the cost of transportation of materials and equipment (including by
air freight if the PURCHASER reasonably so requires).
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In any case, the VESSEL shall be taken at the PURCHASER'S cost and
responsibility to the place elected for the work to be carried out ready in
all respects for the guarantee work to be commenced.
(G) Assignment of Suppliers' and Sub-contractors' Guarantees
In the event that the guarantee stipulated by manufacturers or suppliers of
machinery, material, equipment, appurtenances and outfit furnished to the
CONTRACTOR and embodied in the VESSEL exceeds the guarantee given by the
CONTRACTOR to the PURCHASER hereunder, such extended guarantee rights are to be
assigned and made available to the PURCHASER by the CONTRACTOR.
(H) Verification of Guarantee Claims
The CONTRACTOR, at its own cost, is to have the right to investigate the
validity of the PURCHASER'S claim either by the attendance aboard the VESSEL
(at its point of service) of an accredited representative or, if in the opinion
of the CONTRACTOR it is practicable to do so after suitable replacement is
made, by the removal from the VESSEL and the transportation to the Building
Site of the defective part.
(I) Guarantee Engineer
During any time of the guarantee period the CONTRACTOR shall have the option to
place on board one Guarantee Engineer who shall act as the CONTRACTOR'S
observer and to whom every assistance shall be granted for the fulfilment of
his tasks. Should this option be exercised then such Guarantee Engineer shall
not be discharged by the PURCHASER without the CONTRACTOR'S approval, otherwise
the PURCHASER shall immediately forfeit its rights under the guarantee in this
Article.
The PURCHASER shall ensure the said Engineer a status on board not inferior to
the chief engineer and provide accommodation in an officer's cabin. The
PURCHASER shall pay the CONTRACTOR a remuneration to be agreed upon in respect
of the Guarantee Engineer.
Notification of defects to the Guarantee Engineer shall be deemed to be notice
to the CONTRACTOR for the purposes of this Article. The PURCHASER agrees to
give prompt confirmation in writing of such notice to the CONTRACTOR.
The presence on board of the Guarantee Engineer shall in no way affect the
CONTRACTOR'S and the PURCHASER'S responsibility as provided for in this
CONTRACT. The duties and responsibilities of the Guarantee Engineer shall be
specified in writing by the CONTRACTOR to the PURCHASER at the time the
Guarantee Engineer is appointed.
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ARTICLE 13: PATENTS
The CONTRACTOR shall indemnify the PURCHASER against any infringement of patent
rights in connection with the construction of the VESSEL at the Building Site
but no such liability shall lie with the CONTRACTOR with regard to components
and/or equipment and/or design supplied by the PURCHASER.
ARTICLE 14: LAW OF THE CONTRACT, REFERENCE TO EXPERT
AND ARBITRATION
(A) Law of the CONTRACT
This CONTRACT and all other agreements relating thereto shall be construed and
interpreted under the laws of England.
(B) Reference to Expert
If, save as provided in Article 1 paragraph (F), any dispute of a technical
nature arises during the construction of the VESSEL between the parties in
regard to the construction of the VESSEL, engines, material or workmanship, it
shall forthwith be referred to a technical expert nominated by agreement
between the parties hereto and his decision shall be final and binding upon
both parties. Failing such agreement the dispute shall be referred to
arbitration in accordance with paragraph (C) of this Article 14.
(C) Arbitration
In the event of any dispute between the parties hereto as to any matter arising
out of or relating to this CONTRACT or any stipulation herein or with respect
thereto which cannot be settled by the parties themselves, such dispute shall
be resolved by arbitration in London, England in accordance with the Laws of
England. Either party may demand arbitration of any such dispute by giving
written notice to the other party. Any demand for arbitration by either of the
parties hereto shall state the name of the arbitrator appointed by such party
and shall also state specifically the question or questions as to which such
party is demanding arbitration. Within twenty (20) days after receipt of
notice of such demand for arbitration, the other party shall in turn appoint a
second arbitrator. The two arbitrators thus appointed shall thereupon select a
third arbitrator, and the three arbitrators so named shall constitute the board
of arbitration (hereinafter called the "Arbitration Board") for the settlement
of such dispute.
In the event however, that said other party should fail to appoint a second
arbitrator as aforesaid within twenty (20) days following receipt of notice of
demand of arbitration, it is agreed that
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such party shall thereby be deemed to have accepted and appointed as its own
arbitrator the one already appointed by the party demanding arbitration, and
the arbitration shall proceed forthwith before this sole arbitrator, who alone,
in such event, shall constitute the Arbitration Board. And in the further
event that the two arbitrators appointed the parties hereto as aforesaid should
be unable to agree to the third arbitrator within twenty (20) days from the
date on which the second arbitrator is appointed, either party of the said two
arbitrators may apply to any court in England or other official organisation
having jurisdiction in such matter to appoint the third arbitrator. The award
of the arbitration made by the sole arbitrator or by the majority of the three
arbitrators as case may be shall be final, conclusive and binding upon the
parties hereto.
Judgment upon any award rendered may be entered in any court having
jurisdiction or application may be made to any competent court or authority for
a judicial acceptance of any award and an order of enforcement, as the case may
be.
ARTICLE 15: ADDRESSES FOR CORRESPONDENCE
For all practical purposes, without it being a legal requirement, the
CONTRACTOR shall send all notices, letters and documents for the PURCHASER in
connection with or required under this CONTRACT to the following address :
(a) for all technical matters :
Address : Technical Marine Planning Limited
70 Great Eastern Street
London EC2A 3JL
Telephone: 44-71-739-3533
Telefax: 44-71-729-1169
(b) for all legal and financial matters :
Address : Carnival Corporation
Koger Center
5225 NW 87th Avenue
3rd Floor,
Miami
Florida 33178-2193
U.S.A.
Attention : Captain Vittorio Fabietti (for)
Mr. Micky Arison
Telephone : (305) 471-5777
Telefax: (305) 471-5778
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For all practical purposes without it being a legal requirement the PURCHASER
shall send all notices, letters and documents for the CONTRACTOR in connection
with or required under this CONTRACT to the following address :
Address : Kvaerner Masa-Yards, Inc.
Helsinki New Shipyard
Munkisaarenkatu 1
SF-00150 Helsinki, Finland
Attention : Jukka Jaatinen
Telephone : 358-0-1941
Telefax : 358-0-170 132
All mail shall be sent by air.
Whenever this CONTRACT requires that notification shall be given in writing,
such notification may validly be given by telefax. All approvals or consents
required by this CONTRACT shall be in writing, by telefax. All such messages,
if sent by telefax, shall also be confirmed by official letter.
ARTICLE 16: ASSIGNMENT
The CONTRACTOR shall not transfer, assign and/or pledge this CONTRACT or any
rights hereunder without the prior written consent of the PURCHASER which the
PURCHASER shall have full liberty to withhold.
The PURCHASER may assign to any bank or financial institution any or all of its
rights under this CONTRACT.
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IN WITNESS WHEREOF, parties hereto have duly signed and executed this CONTRACT
in triplicate counterparts.
Date : December 7, 1994
----------------
[signed] H. Frank [signed] Martti Saarikaagas/ Antti Pankakoski
- ---------------------------- ---------------------------------------------
CARNIVAL CORPORATION KVAERNER MASA-YARDS, INC.
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EXHIBIT "A"
BANK GUARANTEE/DRAFT
[BANK LETTERHEAD]
To: Carnival Corporation
PANAMA
GUARANTEE NO.
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Dear Sirs,
We refer to the shipbuilding contract dated 1994 (the
"Shipbuilding Contract") made between (1) yourselves and (2) Kvaerner
Masa-Yards Inc. (the "Contractor") in respect of the construction of Yard
No.491.
In consideration of the receipt from you of Ten United States Dollars and other
good and valuable consideration, receipt whereof is hereby acknowledged, we
hereby irrevocably and unconditionally guarantee to you the payment by the
Contractor of all amounts which the Contractor may be liable to pay to you
under the Shipbuilding Contract and undertake to pay to you such amounts
forthwith on presentation of your certificate confirming that (A) you have duly
terminated the Shipbuilding Contract and that either (1) the Contractor has not
within fourteen days of your notice of termination to the Contractor applied to
arbitration contesting your right to terminate the Shipbuilding Contract or (2)
the arbitration board appointed to determine your entitlement to terminate the
Shipbuilding Contract has issued a final award confirming that you are so
entitled or (B) the Contractor has become the subject of bankruptcy (konkurs)
administration.
We shall not be exonerated from our obligations hereunder by:
1. Any irregularity, unenforceability or invalidity of the Shipbuilding
Contract (to the intent that the obligations hereunder shall remain in
full force and effect and this guarantee shall be constructed as if
there were no such irregularity, unenforceability or invalidity); or
2. Any amendment to or variation of the Shipbuilding Contract; or
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3. Any other matter which may constitute a legal or equitable discharge
of a surety or guarantor.
We hereby waive all or any of our rights as surety which may at any time be
inconsistent with any of the provisions of this guarantee and in particular,
but without prejudice to the foregoing, any right which we may have to compel
you to proceed to enforce a claim against the Contractor before enforcing this
guarantee against us.
All payments by us hereunder shall be made in United States Dollars without
set-off or counter-claim free and clear from all taxes. Our liability under
this guarantee is, however, limited to a maximum amount of [ ]
United States Dollars.
This guarantee shall terminate upon the date on which the Vessel is delivered
to and accepted by you under the Shipbuilding Contract.
All claims under this guarantee shall, however, be made to us in writing latest
on 30 April 1998 in order to be taken into consideration.
This guarantee shall be governed by and construed in accordance with the laws
of England. We hereby submit to the non-exclusive jurisdiction of the English
courts and agree if required to appoint an agent in England for service of any
proceedings before such courts.
Helsinki, , 199
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EXHIBIT 10.26
[PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO AN
APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT REQUESTED BY
CARNIVAL CORPORATION]
SHIPBUILDING CONTRACT
FOR HULL NO. 494 AT
KVAERNER MASA-YARDS INC
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Sinclair Roche & Temperley
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SHIPBUILDING CONTRACT 494
Between, CARNIVAL CORPORATION., a company organized and existing under the laws
of the Republic of Panama with its principal offices located at 3655 N.W. 87th
Avenue, Miami, Florida, USA 33178 - 2428 hereinafter called the "PURCHASER",
and
KVAERNER MASA-YARDS, INC., a company organized and existing under the laws of
the Republic of Finland with a registered office in Helsinki, Finland
hereinafter called the "CONTRACTOR",
In respect of yard No.494 :
WHEREAS
(i) By a contract dated 15th September 1987 made between Wartsila Marine
Industries Inc. ("WMI") and the PURCHASER, WMI agreed to design, build
and deliver to the PURCHASER a passenger cruise vessel known as hull
no. 1299 (and following the contract referred to in recital (ii) as
480 at the yard of the CONTRACTOR) and after delivery named ms
"ECSTASY".
(ii) By an agreement dated 25th January 1990 the CONTRACTOR agreed to
complete ms "ECSTASY" following the bankruptcy of WMI and has
delivered ms "ECSTASY" to the PURCHASER.
(iii) By a contract dated 15th September 1987 WMI agreed to design, build
and deliver to the PURCHASER a further passenger cruise vessel known
as hull no. 1300 to be named MS "SENSATION" and by a contract dated
12th May 1991 between the CONTRACTOR and the PURCHASER the CONTRACTOR
agreed to complete the construction of ms "SENSATION" (as Hull no.
484) on the terms set out therein.
(iv) By a further contract dated 5th September 1991 the CONTRACTOR agreed
to design build and deliver to the PURCHASER a further passenger
cruise vessel to be known during construction as Hull 487 and on
delivery to be named ms "FASCINATION".
(v) By a further contract dated 25 March 1992 the CONTRACTOR agreed to
design, build and deliver to the PURCHASER a further passenger cruise
vessel to be known during construction as Hull 488 and on delivery to
be named "IMAGINATION".
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(vi) By a further contract dated 23 December 1993 the CONTRACTOR agreed to
design, build and deliver to the PURCHASER a further passenger cruise
vessel to be known during construction as Hull 489 and on delivery to
be named "INSPIRATION".
(vii) By a further contract dated 7 December 1994 the CONTRACTOR agreed to
design, build and deliver to the PURCHASER a further passenger cruise
vessel to be known during construction as Hull 491.
(viii) This agreement sets out the terms on which the CONTRACTOR will design
and build for the PURCHASER a further passenger cruise ship to be
known during construction as Hull 494.
IT IS HEREBY AGREED AND STIPULATED AS FOLLOWS:
ARTICLE 1: SUBJECT OF THE CONTRACT
(A) VESSEL'S Description and Main Characteristics
The CONTRACTOR undertakes to design and build and complete at the Building Site
(as hereinafter defined) and to deliver to the PURCHASER, who orders and
undertakes to accept delivery of one passenger cruise ship, whose keel was laid
on July 4, 1994 (hereinafter called the "VESSEL"), which will be a
"carbon-copy" sistership to MS "FASCINATION", hull No. 487 as built except that
modifications shall be made:-
1. as required to ensure that the VESSEL complies with the laws, rules,
regulations and enactments referred to in paragraph (E) of this
Article 1.
2. as required to ensure that the VESSEL is a repeat of m.s.
"IMAGINATION" (Hull 488) except that the PURCHASER has the freedom to
make decorative changes as in previous ships ordered from the
CONTRACTOR, it being understood that the quality, standard and finish
of such decorative changes will be the same as m.s. "IMAGINATION"
(Hull 488), it being understood that such decorative changes will not
make the building cost higher. All alterations agreed in regard to
Hull 488 to the date of November 10, 1994 will be incorporated in the
VESSEL without any cost additional to the purchase price specified
herein.
The specifications and plans for MS "FASCINATION" as built (modified in
accordance with the foregoing provisions of this paragraph (A) and the
provisions referred to in paragraph (E) of this Article 1) shall hereinafter be
referred to as the "SPECIFICATIONS" and the
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
PLAN" respectively. Drawings and specifications for public areas will be
agreed within the timetable set out in the Addendum to this CONTRACT of even
date herewith and initialled on behalf of the CONTRACTOR and the PURCHASER.
Regarding the Makers List, the CONTRACTOR is entitled to make changes as
compared with MS "FASCINATION". The changes will be submitted for technical
approval by the PURCHASER. Such approval shall not be withheld, if the
relevant characteristics of the Specification are fulfilled, and the reputation
of the supplier is acceptable to the PURCHASER.
In the event of any conflict between this CONTRACT and the SPECIFICATIONS and
the PLAN, the provisions of this CONTRACT shall prevail. In the event of any
conflict between the SPECIFICATIONS and the PLAN, the provisions of the
SPECIFICATIONS shall prevail.
(B) Speed
The VESSEL's speed shall be as follows:-
- (a) Trial Speed
With the propulsion motors
developing each XXXXX at about XXX
RPM and at XXXX Meter draft and
other conditions as per paragraph
1.26. of the SPECIFICATIONS: XXXX
knots
- (b) Service Speed
With XX diesel alternators 8ZAL40S
and XX diesel alternators
12ZAV40S developing a total output
not exceeding XXXX percent MCR, at
XXX RPM, and after allowing XXX MW
for the VESSEL'S other electrical
services, the residual power shall
enable the VESSEL to reach XXXX
knots with a margin of XX percent,
at a draught of XXXXm.
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(C) Building Site
The Building Site shall be the CONTRACTOR's shipyard at Helsinki, Finland
provided that the CONTRACTOR may have parts of the VESSEL constructed at its
yard at Turku. The CONTRACTOR shall nevertheless be at liberty to carry out
work elsewhere provided that the main work of erection, assembly and
construction of the VESSEL shall take place at the Building Site aforesaid.
(D) Yard Number, Marking of Materials
The VESSEL shall, for the purpose of identification only be known as Yard
No.494.
As soon as possible after the arrival at the Building Site, all materials,
machinery and other equipment intended to be incorporated in the VESSEL shall
be marked with the above Yard Number for the purpose of identification and
establishing that such materials, machinery and equipment belong to the VESSEL.
The CONTRACTOR may not use any such marked material, machinery, and equipment
for the construction of any other vessel without the approval of the PURCHASER,
such approval not to be unreasonably withheld. The CONTRACTOR may not use for
the construction of the VESSEL materials, machinery and other equipment marked
for use in the construction of any other vessel without the approval of the
PURCHASER, such approval not to be unreasonably withheld.
The CONTRACTOR is obliged to pay all deliveries promptly on or before delivery.
Upon the PURCHASER'S request, the CONTRACTOR shall supply proof of payment
having been properly effected as well as further evidence that it is under no
residual obligations towards its suppliers in respect of other deliveries.
(E) VESSEL'S Classification and Standard
The VESSEL shall comply with the laws, rules, regulations and enactments
published and in force on the date hereof as stated in the SPECIFICATIONS,
including also Stability Regulations for Passenger Vessels (April 1990) and
Fire Protection for Lifeboats and Rafts in way of windows and screens (SOLAS
74, as amended) to the requirements of the Classification Society and the
Panamanian Government. The Vessel shall also comply with the requirements of
the following:
1. U.S.P.H including "Vessel Sanitation Programme - Operation Manual
(edition August 1989) and W.H.O "Guide to Ship Sanitation"; and
2. SOLAS Regulations and Wireless in relation to Global Marine Distress
Signal Systems; and
3. Panamanian Government regulations for registration of vessels under
Panamanian flag. The VESSEL shall be built to class and under survey
of Lloyd's Register of Shipping
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and, if not otherwise stated in the SPECIFICATIONS, in accordance with
good shipbuilding practice in Scandinavia for new passenger cruise
vessels of the type and general characteristics and in any event in
no respect inferior to the standards of M.S. "FASCINATION" as built.
Classification, survey and testing and any other charges relating to
the CONTRACTOR'S obligations and items of supply under this CONTRACT
shall be for the account of the CONTRACTOR.
It is understood that the CONTRACTOR shall carry out such work as is
necessary in accordance with this CONTRACT so that the VESSEL on
arrival in the U.S.A. is approved by the United States Public Health
authorities.
(F) Decisions of the Classification Society
The decisions of Lloyds Register of Shipping the ("Classification Society")
shall be final and binding on both contracting parties as to the VESSEL'S
compliance or non-compliance with the rules and regulations, observance of
which is to be controlled by the said Society.
(G) Sub-contracting
Subject to the requirements of Article 1(C) the CONTRACTOR has the right to
sub-contract part of the work to third parties on the Building Site or
elsewhere.
ARTICLE 2: INSPECTION AND APPROVALS
(A) Inspection
The PURCHASER shall have the right to have the VESSEL and all engines,
machinery, outfit and equipment intended for her inspected during construction
by its authorized representative(s) to whom the CONTRACTOR shall grant free
access for such purpose during working hours to the VESSEL and to the
CONTRACTOR'S shipyard and workshops wherever the VESSEL is being built and/or
designed. The CONTRACTOR will obtain for the PURCHASER the right of access to
subcontractors' premises. The inspection will be at the PURCHASER's risk and
expense.
The PURCHASER'S authorized representative(s) whose name(s) and duties are to be
made known in advance, shall observe the works' rules prevailing at the
CONTRACTOR'S and the subcontractors' premises. They shall address their
remarks exclusively to the CONTRACTOR'S appointed representative(s) whose
name(s) shall be made known to the PURCHASER.
Should the PURCHASER elect to entrust the inspection to firms or persons
outside its organisation, such firms or persons and their duties shall be
subject to the CONTRACTOR'S prior approval.
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(B) Effect of Approvals
Approval by the PURCHASER or the PURCHASER'S representative of inspections,
tests, trials, documents, or plans shall not relieve the CONTRACTOR of its
obligations under Article 1 of this CONTRACT.
ARTICLE 3: MODIFICATIONS
(A) Modifications
Either party may request the other in writing to make modifications to the
SPECIFICATIONS and/or PLAN and provided that the CONTRACTOR and the PURCHASER
fully agree in writing within ten days from the dispatch of the CONTRACTOR'S
notification of any (a) appropriate adjustment of price, (b) appropriate
adjustment of delivery date; (c) appropriate adjustment of the deadweight; (d)
appropriate adjustment of speed requirements; and (e) any other appropriate
adjustment of this CONTRACT, the SPECIFICATIONS and the PLAN, the CONTRACTOR
will carry out such modifications.
The CONTRACTOR has the right to continue production on the basis of the
SPECIFICATIONS and the PLAN until agreement has been reached as above stated.
All agreed modifications and alterations shall be subject to the conditions of
this CONTRACT and the SPECIFICATIONS.
(B) Modifications by Regulatory Bodies and Classification Society
In the event that subsequent to the date hereof any modifications, deletions or
additions are made to the laws, rules, regulations and enactments applicable to
the VESSEL or their interpretation or their application (including withdrawal
of provisional approvals of the Classification Society and/or additional
requirements of said Society) as compared with the basis of this CONTRACT
and/or similar measures of other bodies as referred to in Article 1, paragraph
(E), and such modifications, deletions or additions are compulsory for the
VESSEL, the CONTRACTOR will effect them and will notify the (a) adjustment of
price; (b) adjustment of delivery date; (c) adjustment of deadweight; (d)
adjustment of speed requirements; and (e) any other adjustment of the CONTRACT,
SPECIFICATIONS and PLAN, all as may be appropriate in the circumstances.
The PURCHASER may require that the CONTRACTOR shall first apply for a formal
waiver of compliance with such modifications, deletions or additions from the
authority by whom the modifications, deletions or additions have been
promulgated, should the PURCHASER consider that the operation of the VESSEL in
its intended service would permit of such waiver. In such agreement the
CONTRACTOR will fix a reasonable time limit after which if the waiver has not
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been obtained, the CONTRACTOR will go on with the required modifications,
deletions or additions. Any additional cost caused by the application for such
waiver whether or not obtained shall be for account of the PURCHASER and the
date of delivery of the VESSEL if actually delayed thereby shall be extended by
the time necessary as a result of the application for waiver.
Modifications by regulatory bodies and by the Classification Society which are
not compulsory for the VESSEL shall be treated as the PURCHASER'S modifications
according to paragraph (A) above but the CONTRACTOR will in any case advise the
PURCHASER of such modifications as soon as they are published and obtain the
PURCHASER'S approval in writing before proceeding to make such modifications.
(C) Payment of Adjustments of Price
The adjustments of price made under paragraphs (A) and (B) above shall be
settled in accordance with paragraph (D) of Article 7.
(D) Information
When required the CONTRACTOR shall furnish reasonable information relating to
the basis and method of determining any adjustment of price and other effects
of modifications referred to in this Article.
ARTICLE 4: TRIALS
The VESSEL shall run the following tests and trials:
(1) Dock trials as specified in the SPECIFICATIONS.
(2) Official sea-trials as provided for in the SPECIFICATIONS
during which the trial speed, the propulsion machinery plant
output and the propeller revolutions shall be determined in
accordance with Article 1, paragraph (B)(a).
An endurance test as well as all other trials and tests
included in the sea trial program in the SPECIFICATIONS, shall
also be carried out with recording of measurements of all
parameters, enabling determination of performance relevant to
each test.
(3) All other trials specified in the SPECIFICATIONS.
Such speed runs and endurance test shall be run at the draft attainable by
ballasting the VESSEL with ballast water using tanks and compartments intended
for this purpose and as far as
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practicable the draft shall be as close as possible to the corresponding draft
at which tank model tests have been carried out.
Should the speed trial draft aforementioned be other than the draft specified
in Article 1(B)(a), the speed, the main engine output and the revolutions
corresponding to the latter draft shall be determined by the Netherlands Model
Basin in Wageningen by means of data from their model tests on the basis of the
results recorded at the sea trials.
All trials and measurements will be conducted in a manner and to an extent as
prescribed in a detailed schedule based on the SPECIFICATIONS.
The methods to be used will be selected by the CONTRACTOR to suit the VESSEL'S
trial trip programme to the approval of the PURCHASER.
The CONTRACTOR has the right to subcontract speed and power measurements to an
independent model basin or research institute. However, the PURCHASER will be
kept fully informed and allowed to observe and ascertain measurements recorded
during the trials as if the CONTRACTOR had carried out the tests with its own
personnel.
Should conditions which properly qualify to delay delivery as provided in
Article 6 paragraph (D) prevent the CONTRACTOR from carrying out properly the
official trial on the day scheduled therefor, the CONTRACTOR has the right to
postpone the trial or such part of it as deemed necessary. In such case the
CONTRACTOR shall be entitled to an extension of the VESSEL'S delivery time
covering the whole period of postponement.
The CONTRACTOR shall have the right to repeat any trial whatsoever after giving
reasonable notice to the PURCHASER.
All expenses for the trials and adjustments of all the VESSEL'S equipment shall
be borne by the CONTRACTOR who during the sea trials will provide the necessary
crew at its own expense. If, during any sea trial, any breakdowns occur
entailing interruption or irregular performance which can be repaired by the
normal means available on board, the trial shall be continued after repairs and
be valid in all respects.
However, should the VESSEL require to return to a port to enable the breakdown
to be remedied, a further trial shall be undertaken, if necessary at sea, to
prove the outstanding performance and complete demonstrations.
The CONTRACTOR shall give the PURCHASER thirty days notice of the anticipated
date of the first sea trials.
Within seven (7) days from the completion of the sea trial or the above further
trial, the CONTRACTOR shall present the PURCHASER with a full set of results of
the tests carried out during the sea trials and the PURCHASER shall give the
CONTRACTOR within 3 days from
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the receipt of the results a notice in writing, or by telex or telefax
confirmed in writing, of completion and acceptance of the trial run, advising
whether the PURCHASER considers that the results of the trial run indicate
conformity of the VESSEL to this Contract the SPECIFICATIONS and the PLAN.
In the event that the PURCHASER rejects the results of the trial run as not
conforming to this CONTRACT or to the SPECIFICATIONS or the PLAN, the PURCHASER
shall indicate in its notice of rejection in what respect the VESSEL, or any
part or equipment thereof, does not conform to this CONTRACT and/or the
SPECIFICATIONS.
In the event that the PURCHASER fails to notify the CONTRACTOR as aforesaid of
the acceptance of or the rejection, together with the reason therefor, of the
trial within the period as provided above, the PURCHASER shall be deemed to
have accepted the trial run of the VESSEL.
Acceptance of the results of the trial run as above provided shall be final and
binding so far as conformity of the VESSEL to the CONTRACT and the
SPECIFICATIONS and the PLAN to the extent demonstrated on such trial is
concerned and shall preclude the PURCHASER from refusing formal delivery of the
VESSEL as hereinafter provided, on the grounds of non conformity of the VESSEL
in respect of items whose conformity has been demonstrated and accepted during
the trial run, if the CONTRACTOR complies with all other requirements for
delivery as provided in this CONTRACT.
Should any fuel oil lubricating oil, greases and ship's stores, including fresh
water furnished by the CONTRACTOR for the sea trial remain on board the VESSEL
at the time of acceptance thereof by the PURCHASER, the PURCHASER agrees to buy
the same from the CONTRACTOR at the price reasonably paid by the CONTRACTOR and
evidenced by invoices of the supplier and payment by the PURCHASER shall be
effected in accordance with paragraph (D) of Article 7.
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
ARTICLE 5: GUARANTEE FOR SPEED, DEADWEIGHT AND FUEL
CONSUMPTION
Subject to the provision contained in Article 7 (E) the rights and obligations
of the CONTRACTOR and PURCHASER in regard of the VESSEL'S trial speed,
deadweight and consumption of fuel of the propulsion plant are delimited as
follows:
(A) Speed
For the purpose of determining the VESSEL'S actual trial speed, the speed of
the VESSEL recorded on the official sea trials under Article 4 shall be
adjusted in accordance with Article 4 as if the official sea trials had been
carried out under the conditions specified in Article 1, paragraph (B)(a) and
paragraph 1.2.6 of the SPECIFICATIONS. If the actual trial speed so computed
is less than the adjusted trial speed under Article 1, paragraph (B)(a), the
CONTRACTOR shall pay to the PURCHASER as liquidated damages and not by way of
penalty the following amounts:
- - for the first two tenths (2/10ths) of a knot of such speed deficiency:
XXXX
- - XXXXXXXXXXX for the third complete tenth of one knot deficiency and
that amount increased by U.S.XXXXXXX for each successive complete one
tenth of a knot of such deficiency, save and except that the
CONTRACTOR shall have the right to remedy the deficiency and
repeat the trial.
If the VESSEL'S trial speed determined or computed as provided in this
paragraph (A) is more than one knot below the adjusted trial speed under
Article 1, paragraph (B)(a), the PURCHASER, as an alternative to receiving the
above mentioned liquidated damages, shall have the option to terminate this
CONTRACT, with the consequences provided for in Article 8 and Article 11, save
and except that the CONTRACTOR shall have the right to remedy the deficiency
and repeat the trial.
Should the actual trial speed of the VESSEL determined or computed as provided
in this paragraph (A) be greater than the adjusted trial speed under Article 1,
paragraph (B)(a), the PURCHASER shall pay to the CONTRACTOR as premiums the
following amounts:
- - for the first two tenths (2/10ths) of the knot of extra speed: XXXXX
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
- - XXXXXXXXXXX for the third complete tenth of one knot of extra speed
and that amount increased by XXXXXXXXXXX for each successive complete
one tenth of a knot up to a maximum extra speed of one half of one
knot.
(B) Deadweight
If the VESSEL'S deadweight determined as stated in the SPECIFICATIONS is more
than XXX metric tons less than the deadweight specified, then the CONTRACTOR
shall pay to the PURCHASER as liquidated damages and not by way of penalty an
amount of US XXXXXX for each full XXX metric tons of such deficiency in excess
of XXX metric tons, save and except that the CONTRACTOR shall have the right to
remedy the deficiency.
If the VESSEL'S deadweight determined as stated in the SPECIFICATIONS is more
than XXX metric tons less than the deadweight specified, the PURCHASER, as an
alternative to receiving the above mentioned liquidated damages, shall have
the option to terminate this CONTRACT with the consequences provided for in
Article 8 and Article 11, save and except that the CONTRACTOR shall have the
right to remedy the deficiency.
(C) Fuel Consumption
For the main propulsion plant a shop test shall be carried out in accordance
with the SPECIFICATIONS. During such shop test the specified fuel consumption
shall be ascertained and corrected to the design parameters.
The shop test shall be run on heavy fuel oil with each diesel engine developing
XX% MCR at XXX revolutions. The measured fuel consumption shall be corrected
to a reference lower calorific value of XXXXX kilojoules per kg and ISO
standard conditions. The fuel consumption of the main propulsion plant so
corrected shall not exceed XXXXXXXXXXXXXXXXX for engines type 12ZAV40S and
XXXXXXXXXXXXXXXXX for engines type 8ZAL40S.
With respect to any of the engines, should the corrected fuel consumption be in
excess of XXX percent of XXXXXXXXXXXXXXXXX for engines type 12ZAV40S and
XXXXXXXXXXXXXXXXX for engines type 8ZAL40S, the CONTRACTOR shall pay to the
PURCHASER, as liquidated damages and not by way of penalty, an amount of US
XXXXXXX for each full one percent in excess of XXX percent of XXXXXXXXXXXXXXXXX
for engines type 12ZAV40S and XXXXXXXXXXXXXXXXX for engines type 8ZAL40S, save
and except that the CONTRACTOR shall have the right to remedy any defect
causing such excessive fuel consumption and repeat the trial.
With respect to any of the engines, should the corrected fuel consumption be in
excess of XXX percent of XXXXXXXXXXXXXXXXX for engines type 12ZAV40S and
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER FOR
CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
XXXXXXXXXXXXXXXXX for engines type 8ZAL40S, the PURCHASER, as an alternative to
receiving the above mentioned liquidated damages shall have the option to
terminate this CONTRACT with the consequences provided for in Article 8 and
Article 11, save and except that the CONTRACTOR shall have the right to remedy
any defect causing such excessive fuel consumption and repeat the trial.
ARTICLE 6: DELIVERY OF THE VESSEL
(A) Delivery Date and Place of Delivery
The VESSEL shall be delivered to the PURCHASER at the Building Site or other
agreed place.
The date for delivery of the VESSEL (the "Delivery Date") shall be 30 November
1998 subject to permissible extensions as provided in this CONTRACT.
Six (6) months prior to the date on which the CONTRACTOR expects the VESSEL to
be ready for delivery the CONTRACTOR shall give notice to the PURCHASER in
writing (the "Delivery Notice") specifying the actual expected delivery date.
The PURCHASER shall promptly take delivery of the VESSEL when properly
completed in accordance with this CONTRACT and shall with reasonable dispatch
as applies to a passenger cruise ship remove her from the CONTRACTOR'S
shipyard.
(B) Liquidated Damages for Delayed Delivery
If the VESSEL is not delivered (duly completed in accordance with this
CONTRACT, the SPECIFICATIONS and the PLAN) on or before the Delivery Date (as
extended by virtue of the provisions of this CONTRACT specifically permitting
such extension), the CONTRACTOR shall pay to the PURCHASER by way of liquidated
damages and not by way of penalty the amount of UNITED STATES DOLLARS
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX for each full calendar day of delay following
the Delivery Date as so extended.
(C) Termination for Delay
If the VESSEL is not delivered (duly completed in accordance with this
CONTRACT, the SPECIFICATIONS and the PLAN), by the date falling twelve (12)
months after the Delivery
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Date (as extended by virtue of the provisions of this CONTRACT expressly
permitting such extension), the PURCHASER may terminate this CONTRACT by notice
to the CONTRACTOR with the consequences provided for in Article 8 and Article
11. On such valid termination the CONTRACTOR shall forthwith also pay to the
PURCHASER the liquidated damages payable by virtue of paragraph (B) above as if
the VESSEL had been delivered on the date on which this CONTRACT is terminated
by the PURCHASER under this paragraph.
If the VESSEL is not delivered (duly completed in accordance with this CONTRACT
and the SPECIFICATIONS and the PLAN) by 30 May 2000 then, notwithstanding the
provisions of paragraphs (D) and (E) below which would otherwise operate to
permit the Delivery Date to be extended, the PURCHASER may terminate this
CONTRACT by notice to the CONTRACTOR with the consequences provided for in
Article 8 and Article 11. On such valid termination the CONTRACTOR shall
forthwith also pay to the PURCHASER the liquidated damages payable by virtue of
paragraph (B) above as if the VESSEL had been delivered on the date on which
this CONTRACT is terminated by the PURCHASER under this paragraph.
(C) Permissible Extensions due to "Force Majeure"
Should the CONTRACTOR be prevented from having the VESSEL constructed and
delivered by the Delivery Date owing to: - Acts of God; engagement in war or
other hostilities, civil war, civil commotions, riots or insurrections;
requirements of civil or military authorities in contemplation of war;
blockades; embargoes, vandalism; sabotage; epidemics; strikes; lockouts;
officially agreed reduction of working hours relating to the Finnish workforce
as a whole; earthquakes; landslides; floods; failure of electric current for a
period of more than three working days; damages by lightning; explosions,
collisions, strandings or fires; damage to the VESSEL and time taken to repair
such damage; shortage of materials and equipment or inability to obtain
delivery thereof, provided that such materials and equipment at the time of
ordering could reasonably be expected by the CONTRACTOR to be delivered in
time; defects in materials and equipment such as castings or forgings which
could not have been detected by the CONTRACTOR or its subcontractors using
reasonable care; delays caused by delay of the Classification Society or other
bodies whose documents are required in issuing such documents; delays caused by
events similar to the foregoing; the effect of the foregoing on the
CONTRACTOR'S other commitments; then and in any such case the Delivery Date of
the VESSEL shall, subject to paragraphs(E) and (F) below, be extended by the
number of calendar days of delay incurred by the CONTRACTOR in completing or
delivering the VESSEL in consequence of any of these events.
(D) Definitive Notice of Delivery
Following the giving of the Delivery Notice by the CONTRACTOR pursuant to
paragraph (A) above the only events which shall be permitted to extend the
Delivery Date (as previously properly extended by virtue of other provisions of
this CONTRACT permitting such extension) shall (subject to paragraph (F) below)
be: Acts of God, engagement in war or other hostilities,
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civil wars, civil commotions, riots or insurrections requirements of military
authorities in contemplation of war, blockades, embargoes, vandalism, sabotage,
epidemics, earthquakes, landslides, flood, damage by lightning, explosions,
collisions, strandings, fires or nationwide strikes or lockouts either general
or affecting nationwide a particular sector of the labour force.
(E) Conditions for Claims for Permissible Delays
Not later than 7 days from the date of commencement of any of the above
contingencies on account of which the CONTRACTOR claims that it is entitled to
an extension of the Delivery Date, the CONTRACTOR shall provide the PURCHASER
with telex or telefax advice particularising the date such contingency
commenced and the reasons therefor and the nature thereof, the estimated
duration thereof and the action which is being taken by the CONTRACTOR to
overcome the effect of the contingency. If any such contingency continues for
a period in excess of 30 days the CONTRACTOR shall, at regular fortnightly
intervals thereafter, continue to keep the PURCHASER advised by delivery to the
PURCHASER of further statements containing the particulars specified above.
Within 7 days after the CONTRACTOR becomes aware that such contingency has
ended the CONTRACTOR shall specify the period of time by which it claims the
Delivery Date is to be extended by reason of delay due to such contingency.
The CONTRACTOR shall not be entitled to claim any extension of the Delivery
Date in respect of any particular delay unless:
1. The CONTRACTOR has given all the proper notices and statements
required by this paragraph (F) in relation to that particular
item of delay; and
2. that particular item of delay has not in any way been caused
or contributed to by any error, neglect or omission on the
part of the CONTRACTOR; and
3. the CONTRACTOR has, since the date of commencement of the
contingency in question, taken all reasonable steps to remove
the cause of delay and to mitigate its effect on the delivery
of the VESSEL; and
4. the cause of delay could not reasonably have been foreseen by
the CONTRACTOR at the date of this CONTRACT.
In the event of there being any dispute between the parties under this Article
the burden of proof shall be upon the CONTRACTOR to establish the facts
entitling it to an extension of the Delivery Date and that all requirements
specified in this paragraph have been fully satisfied.
(F) Termination of the CONTRACTOR'S Responsibilities
On delivery of the VESSEL to the PURCHASER all risk and every responsibility
for the safety and generally for the condition of the VESSEL is transferred to
the PURCHASER, and
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thereafter all responsibilities on the part of the CONTRACTOR shall cease
with the exception of the guarantee obligations provided for in Article 12 and
Article 13 hereof and the rights of the parties under Article 8(A).
If it is not practicable before delivery for the CONTRACTOR to demonstrate the
contractual performance of any of the specified equipment or the contractual
performance of any of the specified technical systems of the VESSEL in their
intended operating conditions, the CONTRACTOR will demonstrate such performance
as soon as practicable, and if not practicable within 180 days of delivery
compliance or non-compliance shall be determined by calculations. In case of
deficiencies in performance the CONTRACTOR will remedy such deficiencies in
performance under the guarantee contained in Article 12.
(G) Protocol of Delivery and Acceptance
At the delivery and acceptance of the VESSEL the PURCHASER and the CONTRACTOR
shall execute, in duplicate, a Protocol of Delivery and Acceptance one original
copy of which is to be retained by each party.
ARTICLE 7: PRICE AND PAYMENT
(A) Contract Price
The PURCHASER shall pay to the CONTRACTOR the CONTRACT price of UNITED STATES
DOLLARS XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX inclusive of building period financing
cost.
(B) Instalments
Payment of the CONTRACT Price shall be made by the PURCHASER to the CONTRACTOR
by instalments as follows:
- XX% equal to USDXXXXXXXXX on the date of signature of this
CONTRACT;
- XX% equal to USDXXXXXXXXXX XXXXXXXXXXXXX after delivery of
m.s. "INSPIRATION" (KMY HULL 489);
- XX% equal to USDXXXXXXXXXX on XXXXXXXXXXXXXX;
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- XX% equal to USDXXXXXXXXXXX on delivery of the VESSEL duly
completed in accordance with this CONTRACT, the SPECIFICATIONS
and the PLAN.
(C) Payment Procedures
Except for the first instalment the CONTRACTOR shall notify the PURCHASER at
least 10 days in advance of the estimated dates of the instalment payments
falling due.
All payments to the CONTRACTOR are to be made in U.S. Dollars for same day
value at a bank in Helsinki to be designated by the CONTRACTOR without any
deduction whatsoever on the dates on which the payments are due as aforesaid.
Expenses for remitting payments and any other expenses connected with such
payments shall be for the account of the PURCHASER.
If for any reason the PURCHASER cannot take delivery of the VESSEL on the date
the CONTRACTOR has notified that the VESSEL will be ready for delivery, the
PURCHASER shall, subject to paragraph (A) of Article 6, nevertheless be liable
to make full and final payment on that date, provided the VESSEL is tendered in
accordance with the terms of this CONTRACT.
(D) Payment for Modifications
The sum due for modifications under Article 3 of this CONTRACT shall be paid by
or credited to the PURCHASER as the case may be to the CONTRACTOR on delivery.
(E) Payment for Liquidated Damages and Premiums
Any amount of liquidated damages or any premiums under Articles 5 and 6 shall
be calculated and determined on delivery of the VESSEL or on termination in
accordance with Article 6(C) or 11(B) and the balance (of one over the other)
shall be paid to the party entitled thereto at the delivery of the VESSEL or,
in the event of termination of this CONTRACT in accordance with Article 6(C) as
provided herein, provided that (notwithstanding any other provision in this
CONTRACT to the contrary) the net amount payable under this paragraph shall not
exceed XXX per cent of the CONTRACT Price referred to in paragraph (A) of this
Article.
Payment of liquidated damages under Article 5 and/or 6 of this CONTRACT shall
be to the exclusion of any other claims in respect of the matters giving rise
to such payment except that this provision shall not affect the rights of the
PURCHASER under Article 6 (C) and Article 11
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of this CONTRACT or the alternative right of the PURCHASER to terminate this
CONTRACT in the circumstances provided in Article 5 of this CONTRACT.
(F) Prompt Payment
The PURCHASER shall not delay any payment of the Contract Price in the event of
any disagreement as to the amount of extras, liquidated damages or premiums, or
in the event of other exceptions or claims the PURCHASER may have asserted or
may intend to assert against the CONTRACTOR, whether in connection with this
CONTRACT or otherwise without prejudice to the PURCHASER'S right to apply
subsequently to arbitration.
(G) Bank Guarantee
On the date of signature of this CONTRACT in respect of the first instalment
and not less than five (5) business days before the date on which the PURCHASER
is obliged to make payment to the CONTRACTOR of respectively the second and
third instalments of the Contract Price as provided in Article 7(B) and as a
condition precedent to the obligation of the PURCHASER to make payment of such
instalments, the CONTRACTOR shall deliver to the PURCHASER a bank guarantee of
payment by the CONTRACTOR of all amounts which the CONTRACTOR may become liable
to pay to the PURCHASER under Article 11(A) of this CONTRACT.
Each such guarantee shall be issued by a first class bank acceptable to the
PURCHASER in the form of Exhibit A hereto and shall be authenticated in such
manner as the PURCHASER may require. The PURCHASER and the CONTRACTOR shall
share equally the cost of providing and maintaining such guarantees. Each
guarantee shall be for an amount not less than the amount specified with
respect to the relevant instalment below:
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Instalment No Amount US$
- ------------- ----------
1 XXXXXXXXX
2 XXXXXXXXXX
3 XXXXXXXXXX
Each such bank guarantee shall be initially valid until 30 January 1999. If,
in the PURCHASER'S opinion the delivery of the VESSEL will for any reason be
postponed beyond such date, the validity of the bank guarantee shall, before 30
January 1999 be extended until 30 August 2000.
Irrespective of the dates indicated in this paragraph (G) the bank/s issuing
the bank guarantee shall be informed that the original bank guarantee will be
returned to the bank/s on the actual date when vessel is delivered and accepted
by the purchaser. The issuing bank/s shall be instructed that fees will be
charged until the date of delivery of vessel.
(H) Statements of Financial Conditions
The CONTRACTOR shall provide to the PURCHASER at four monthly intervals
following the date of this CONTRACT statements of the financial condition of
the CONTRACTOR in such form and substance as the PURCHASER may reasonably
request to enable the PURCHASER to monitor the current financial condition of
the CONTRACTOR during the construction of the VESSEL.
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ARTICLE 8: PROPERTY
(A) General Plans, Specification and Working Drawings
All rights in the SPECIFICATIONS, plans and working drawings, technical
descriptions, calculations, test results and other data, information land
documents concerning the design and constructions of the VESSEL shall belong to
the CONTRACTOR before actual delivery and after actual delivery shall belong
to the PURCHASER provided always that the CONTRACTOR shall be entitled to use
the same to the extent of the hull form and all parts below the main
accommodation decks.
The PURCHASER shall have the right to use the SPECIFICATIONS, plans and working
drawings, technical descriptions, calculations, test results and other data,
information and documents concerning the design and the construction of the
VESSEL prior to delivery of the VESSEL with the consent of the CONTRACTOR, such
consent not to be unreasonably withheld and to be given promptly following the
PURCHASER'S request.
(B) Title to the VESSEL
As from signing of this CONTRACT the PURCHASER has title to:-
1. All materials and equipment for building of the VESSEL
purchased from and delivered by suppliers and sub-contractors.
The title to all such materials and equipment for building of
the VESSEL shall be with the PURCHASER already before such
materials and equipment arrive at the shipyard.
2. All materials and equipment out of the CONTRACTOR'S own stock
allocated for the construction of the VESSEL which for this
purpose shall be stored separately and marked as early as
possible.
3. Parts manufactured from the materials listed above.
4. The VESSEL itself as it is in the course of progressive stages
of construction, together with equipment installed.
Until the CONTRACT Price (as adjusted) has been paid in full the PURCHASER may
not at any time, prior or subsequent to the delivery of the VESSEL transfer,
whether finally or conditionally, or mortgage or hypothecate the VESSEL without
the CONTRACTOR'S written consent in each particular case.
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Subject to the provisions of Article 11 this paragraph shall in no way impair
the CONTRACTOR'S right to retain the VESSEL until the PURCHASER has complied
with its obligations under Article 7 of this CONTRACT.
(C) Effect of Termination on the Title to the VESSEL under Construction
If the CONTRACTOR justly terminates this CONTRACT, the CONTRACTOR becomes the
sole owner of the VESSEL.
If the PURCHASER justly terminates this CONTRACT, the PURCHASER thereby waives
its right to the VESSEL, provided that all amounts payable or repayable to the
PURCHASER by the CONTRACTOR on such termination in accordance with this
CONTRACT shall have been paid or repaid or security satisfactory to the
PURCHASER shall have been provided for such payment or repayment.
ARTICLE 9: INSURANCE
The VESSEL and all materials, machinery and other equipment belonging to the
VESSEL and within the precincts of the Building Site shall until delivery of
the VESSEL (including during trials) be insured by the CONTRACTOR at the
CONTRACTOR'S expense in the joint names of the CONTRACTOR and the PURCHASER
against all risks customarily insured against in the Finnish shipbuilding
industry and in accordance with and subject to the terms of the usual
construction policy for a total of not less than the aggregate of (1) the
amount for the time being paid by the PURCHASER to the CONTRACTOR in respect of
the VESSEL and (2) interest thereon at the rates specified in Article 11 from
the date such payment was made to the CONTRACTOR and (3) the value of equipment
or materials supplied by the PURCHASER and present within the precincts of the
Building Site or already installed in the VESSEL. If considered necessary by
the CONTRACTOR or if required by the PURCHASER, war risks insurance for not
less than the CONTRACT Price is to be effected by the CONTRACTOR up to the date
of delivery to the extent that such insurance is obtainable on the London
insurance market provided, however, that the CONTRACTOR shall effect war risk
insurance at its own expense during sea trials.
In the event of the VESSEL and/or such materials etc. as aforesaid sustaining
damage, including war damage, before delivery of the VESSEL then any monies
received in respect of any insurance effected under this Article shall be
applied by the CONTRACTOR in making good such damage with all due despatch
during ordinary working hours in a reasonable and workmanlike manner and the
PURCHASER shall not on account of any such damage or any repair thereof be
entitled to object to the VESSEL or to make any claim for alleged consequential
loss or depreciation provided that such damage is made good in accordance with
this CONTRACT, the SPECIFICATIONS and the PLAN as if it was the VESSEL'S new
construction.
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Underwriters are entitled to settle claims concerning repairable damage to the
VESSEL directly with the CONTRACTOR, and make all payments on these claims
directly to the CONTRACTOR.
Should the VESSEL at any time from any cause become an actual total loss or an
agreed or compromised constructive total loss under the insurance policy, this
CONTRACT shall thereupon absolutely cease and terminate without any liability
whatsoever on the part of the CONTRACTOR provided that the CONTRACTOR has
complied with its obligations under the preceding provisions of this Article.
In the event of such total loss insurance monies shall be paid to the PURCHASER
for reimbursement (1) of the amounts paid by the PURCHASER to the CONTRACTOR
hereunder and (2) interest thereon at the rates specified in Article 11 from
the dates such payments were made and (3) the value of equipment and materials
supplied by the PURCHASER and within the precincts of the Building Site or
installed on the VESSEL at the time of such total loss; any balance shall
belong to the CONTRACTOR. Under no circumstances shall the CONTRACTOR be
liable to replace the VESSEL.
The CONTRACTOR'S liability to the PURCHASER in respect of damage - including
war damage - or in respect of the actual or constructive total loss of the
VESSEL, shall not in any event extend further or otherwise than provided in
this Article.
The PURCHASER agrees to notify the CONTRACTOR before each item of equipment or
material supplied by the PURCHASER is delivered to the Building Site and to
advise the CONTRACTOR of the value thereof.
ARTICLE 10: DEFAULTS BY THE PURCHASER
(A) Suspension/Termination by the CONTRACTOR
If any of the following events should occur :-
1. the PURCHASER fails to pay to the CONTRACTOR any of the first,
second and third instalments of the CONTRACT Price when such
instalments become due and payable under the provisions of
Article 7 hereof; or
2. the PURCHASER fails to take delivery of the VESSEL when the
VESSEL is duly tendered for delivery by the CONTRACTOR under
the provisions of Article 6 hereof; or
3. a bona fide petition is filed and is not dismissed within
thirty (30) days, or an effective resolution is passed for the
winding up of the PURCHASER (other than for the purpose of a
reconstruction or amalgamation which has received the prior
written approval of the CONTRACTOR); or
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4. a receiver is appointed of the undertaking or property of the
PURCHASER; or
5. the PURCHASER suspends payment of its debts or ceases to carry
on its business or makes any composition with its creditors or
is declared bankrupt or goes into liquidation;
Then:
(a) the delivery date shall be automatically postponed for a
period of continuance of such event in excess of two (2) days.
(b) If such event continues for a period of fifteen (15) days the
CONTRACTOR shall have the option to suspend the CONTRACTOR's
obligations under this CONTRACT until such event has ceased.
(c) If any of the events set out in sub-paragraphs (1) - (4)
above, continues for a period of thirty (30) days after
notice, to the PURCHASER or if any of the events set out in
sub-paragraph, (5) occurs, the CONTRACTOR may, at its option,
terminate this CONTRACT by giving notice of such effect to the
PURCHASER by fax confirmed by letter.
(B) Interest
Should the PURCHASER be in default in payment of any of the first, second,
third or fourth instalments of the CONTRACT Price and/or other amounts due
under this CONTRACT on or before delivery of the VESSEL, then the PURCHASER
shall pay to the CONTRACTOR as from the due date interest thereon at the rate
which is two (2) per cent per annum above the rate certified by Citibank N.A.
to be the rate at which deposits of United States Dollars can be obtained by
Citibank N.A. to fund the defaulted amount from the London Interbank
Eurocurrency market for such periods as may be reasonable in the circumstances.
In case the PURCHASER shall fail to take delivery of the VESSEL as provided
above in this Article, the PURCHASER shall be deemed in default as regards the
fourth instalment of the CONTRACT PRICE and shall pay interest thereon at the
rate aforesaid from and including the day on which the VESSEL is tendered for
delivery by the CONTRACTOR.
(C) CONTRACTOR'S Rights on Termination
1. In the event of such termination of this CONTRACT, the
CONTRACTOR shall be entitled to retain any instalment or
instalments of the CONTRACT price theretofore paid by the
PURCHASER to the CONTRACTOR on account of this CONTRACT to the
extent of proved damages and loses including costs and
expenses permitted by law.
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2. In the event of termination of this CONTRACT as provided in
this Article 10, the CONTRACTOR shall have full right and
power either to complete or not to complete the VESSEL as it
deems fit, and to sell the VESSEL at public or private sale on
such terms and conditions as the CONTRACTOR thinks fit without
being answerable for any loss or damage except as provided in
paragraph (4) below.
3. In the event of the sale of the VESSEL in its completed state,
the proceeds of sale received by the CONTRACTOR shall be
applied firstly to payment of all proven incidental damages
and losses permitted by law attending such sale, and then to
payment of all unpaid instalments of the CONTRACT Price and
interest on such instalments at the rate as provided for above
from the respective due dates thereof to the date of
application.
4. In the event of sale of the VESSEL in its incomplete state,
the proceeds of sale received by the CONTRACTOR shall be
applied firstly to all proven incidental damages and losses
permitted by law attending such sale, and then to payment of
all costs of construction of the VESSEL and compensation to
the CONTRACTOR for a loss of reasonable profit due to the
termination of this CONTRACT together with interest at the
rate as provided for above, less the instalments retained by
the CONTRACTOR.
5. In either of the above events of sale, if the proceeds of sale
exceed the total of amounts to which such proceeds are to be
applied as aforesaid, the CONTRACTOR shall promptly pay the
excess to the PURCHASER without interest.
6. If the proceeds of sale are insufficient to pay to the
CONTRACTOR such total amounts payable as aforesaid, the
PURCHASER shall promptly pay the deficiency to the CONTRACTOR
upon request.
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ARTICLE 11: DEFAULTS BY THE CONTRACTOR
(A) Termination and Reimbursement and Liquidated Damages
If, in accordance with any of the provisions of Article 5 or 6 or paragraph (B)
of this Article, the PURCHASER properly exercises its option to terminate this
CONTRACT, then the CONTRACTOR shall :-
(1) return to the PURCHASER all equipment and material supplied by
the PURCHASER or pay to the PURCHASER the value thereof and
pay to the PURCHASER the amount of consulting, engineering,
architectural and similar fees and expenses incurred by the
PURCHASER in connection with the construction of the VESSEL up
to a maximum of XXXXXXXXX United States Dollars; and
(2) pay to the PURCHASER any accumulated liquidated damages
payable under Article 6(C); and
(3) repay to the PURCHASER in United States Dollars the amount of
all moneys paid by the PURCHASER for or on account of the
CONTRACT Price of the VESSEL together with interest calculated
from the respective dates such amounts were paid by the
PURCHASER to the CONTRACTOR up to the date of repayment
thereof at the rate certified by Citibank N.A. to be the rate
paid by the Citibank N.A. to depositors for deposits of
amounts equal to the instalments paid by the PURCHASER for the
periods from receipt thereof by the CONTRACTOR to the date of
repayment.
The CONTRACTOR'S liability in the event of such termination shall be limited to
the above which the parties hereto reasonably estimate to be the amount of the
loss which will be sustained by the PURCHASER in the event that this CONTRACT
is terminated by the PURCHASER in accordance with Article 5 or 6 hereof or
paragraph (B) of this Article.
(B) Termination on Bankruptcy, Etc.
In any of the following events:
(1) a bona fide petition is filed and is not dismissed within
thirty (30) days or an effective resolution is passed for the
winding up of the CONTRACTOR or any
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other similar proceedings with similar effect on the CONTRACTOR
are instituted in Finland affecting the CONTRACTOR (other than
for the purpose of a reconstruction or amalgamation which has
received the prior written approval of the PURCHASER); or
(2) the CONTRACTOR merges with any other entity without the prior
written approval of the PURCHASER;
(3) the CONTRACTOR ceases to be controlled by Kvaerner A/S;
(4) a receiver is appointed of the undertaking or property of the
CONTRACTOR; or
(5) the CONTRACTOR suspends payment of its debts or threatens to
do so or ceases to carry on its business or makes any
composition with its creditors or convenes a meeting of its
creditors to propose such compositions or is declared bankrupt
or goes into liquidation; or
(6) the construction of the VESSEL is suspended for a period of
more than thirty days for reasons other than any of the events
specified in Article 6 (D) or, if applicable, Article 6 (E)
and it is apparent that the CONTRACTOR will be unable to
fulfil its obligations hereunder; or
(7) there is a material adverse change in the financial condition
of the CONTRACTOR;
(8) the CONTRACTOR fails to provide any of the guarantees relating
to the first, second or third instalments of the CONTRACT
Price payable in accordance with Article 7(B) within thirty
(30) days of the date on which such guarantee should otherwise
have been delivered to the PURCHASER;
(9) if the CONTRACTOR fails to have the bank guarantees extended
on or before 30 January 1999 if required to do so under the
terms of Article 7(G);
(10) the CONTRACTOR fails to comply with its obligations under
Article 7 (H) and such default continues for a period of
fourteen days after the PURCHASER gives notice to the
CONTRACTOR requiring such default to be remedied.
Then:
the PURCHASER may immediately (without being bound thereto)
terminate this CONTRACT by giving notice in writing to the
CONTRACTOR.
(C) The PURCHASER'S Right to Take Possession
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If in accordance with the provisions of paragraph (B) above or Article 6 (C),
the PURCHASER is entitled to terminate this CONTRACT but does not do so, then
the PURCHASER shall have an optional right after giving notice to the
CONTRACTOR to take possession of the VESSEL in her then state and all parts,
plans, materials, machinery and equipment appropriated to the VESSEL and remove
the same from the CONTRACTOR'S yard. The PURCHASER agrees that it will, on
taking possession and in consideration of the CONTRACTOR releasing its lien on
the vessel, pay to the CONTRACTOR XXXXXXXXXXXXXXXXXXX UNITED STATES DOLLARS
less the aggregate of :
(1) the total amount of the instalments of the CONTRACT Price paid
by the PURCHASER under Article 7(A) of this CONTRACT; and
(2) the reasonable estimate cost of completing the VESSEL in the
CONTRACTOR'S yard or at another shipyard and of removing to
such other shipyard the VESSEL and all parts, materials,
machinery and equipment appropriated to the Vessel.
If the actual cost of completing the VESSEL exceeds the estimated cost the
CONTRACTOR shall pay the difference to the PURCHASER on completion of the
vessel. If the actual cost of completing the vessel is less than the estimate
cost the PURCHASER shall pay the difference to the CONTRACTOR on completion of
the VESSEL.
(D) Notice of bankruptcy filing
The CONTRACTOR shall not take any steps to obtain the appointment of bankruptcy
trustees under the relevant provisions of Finnish bankruptcy law without first
giving to the PURCHASER at least 30 days notice of its intention to do so.
ARTICLE 12: GUARANTEE
(A) Extent of Guarantee
The CONTRACTOR shall remedy at the Building Site or at any other yard
controlled by the CONTRACTOR and in normal working hours, by repairing or if
necessary replacing,
1. any defect notified in writing by the PURCHASER on the
VESSEL'S delivery; and
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2. any defect due to faulty design, bad workmanship or use of
defective material and not apparent on delivery which becomes
apparent during the period of XXXXXXXXXXX months from the date
of delivery of the VESSEL provided the defect is notified in
writing as soon as reasonably practicable after its discovery.
If for operational reasons the guarantee drydocking cannot reasonably be
carried out before the expiration of the said XXXXXXXXXXXX period, then in
relation to defects not reasonably discoverable without such drydocking the
guarantee period hereunder shall, subject to paragraph (D) of this Article,
expire on completion of such drydocking but in any event not later than
XXXXXXXXXXXXXXX after delivery of the VESSEL.
Except as provided in paragraph (F) below, the guarantee shall apply only to
the work of and materials and equipment supplied by the CONTRACTOR, its
subcontractors and suppliers.
The CONTRACTOR'S obligations under this Article shall be limited in duration
and extent as herein provided.
(B) Paint
The CONTRACTOR shall provide a guarantee to the PURCHASER in relation to the
paint for the VESSEL on the same terms as that provided by the paint supplier
to the CONTRACTOR. Such guarantee shall be on the basis that the paintwork
shall be carried out under the supervision of and to the satisfaction of
authorised representatives of the paint supplier.
(C) Liability for Consequential Loss or Damage
The Guarantee contained in this Article is in lieu of and excludes any other
liability, guarantee, warranty and/or condition imposed or implied by law
custom, statute, tort or otherwise by reason of the construction or sale of the
VESSEL by the CONTRACTOR for and to the PURCHASER.
Except as provided in this Article and Article 8(A) and Article 13 after
delivery the CONTRACTOR shall not under any circumstances have any liability,
whether arising from claims for breach of warranty or guarantee, negligence or
strict liability, for any consequential damages or for loss of time, cost of
capital, loss of profit or earnings, demurrage, claims of third parties, or for
any other kind whatsoever of consequential, contingent or incidental damages
directly or indirectly occasioned by the CONTRACTOR'S activities pertinent to
this CONTRACT.
The CONTRACTOR shall however be liable under the guarantee contained in this
Article for damage to any part of the VESSEL (including her equipment) caused
directly by defects to
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which paragraph (A) above applies provided that the CONTRACTOR'S liability in
respect of damage so caused shall be limited to UNITED STATES DOLLARS
XXXXXXXXXXXXXXXXXXXX (USD XXXXXXX).
(D) Extensions of Guarantee Period
The time during which the VESSEL is not available for service on account of
defects which the CONTRACTOR is liable to make good under paragraph (A) above
and the time required to remedy such defects shall be added to extend the
guarantee period specified in paragraph (A) above up to a maximum of
XXXXXXXXXXXXXXXXXXXX after delivery.
If the CONTRACTOR itself makes good any defects during the guarantee period
specified in paragraph (A) above (as extended if appropriate by the preceding
sub-paragraph of this paragraph (D)) or such defects are remedied elsewhere in
accordance with paragraph (F) below under the supervision and with the approval
of the CONTRACTOR, then the provisions of paragraph (A) shall apply to the
parts repaired or replaced and the repair or replacement work for a period of
XXXXXXXXXXXXX after the repair or replacement was completed up to a maximum of
XXXXXXXXXXXXXXXXXX after delivery.
(E) Investigation of Recurrent Defects
The CONTRACTOR agrees within the terms of this Article to investigate the cause
of any recurrent defect to which paragraph (A) applies with a view to providing
a satisfactory remedy therefor.
(F) Guarantee Work Outside Building Site
If in the PURCHASER'S opinion the replacements or repairs under this Article
cannot be conveniently made at the Building Site or at any other yard
controlled by the CONTRACTOR, the PURCHASER may have such repairs and/or
replacements carried out elsewhere; in such a case the CONTRACTOR is discharged
from the guarantee under this Article in respect of the repairs or replacements
carried out by the third party unless carried out under the supervision and
with the approval of the CONTRACTOR. Provided the guarantee work is contracted
for in a businesslike manner having regard to the nature, urgency and extent of
the defect to be remedied, the CONTRACTOR shall reimburse the PURCHASER the
documented expenses incurred by the PURCHASER in effecting such repairs and/or
replacements including expenses of independent contractors in travelling to the
VESSEL and the cost of transportation of materials and equipment (including by
air freight if the PURCHASER reasonably so requires).
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In any case, the VESSEL shall be taken at the PURCHASER'S cost and
responsibility to the place elected for the work to be carried out ready in
all respects for the guarantee work to be commenced.
(G) Assignment of Suppliers' and Sub-contractors' Guarantees
In the event that the guarantee stipulated by manufacturers or suppliers of
machinery, material, equipment, appurtenances and outfit furnished to the
CONTRACTOR and embodied in the VESSEL exceeds the guarantee given by the
CONTRACTOR to the PURCHASER hereunder, such extended guarantee rights are to be
assigned and made available to the PURCHASER by the CONTRACTOR.
(H) Verification of Guarantee Claims
The CONTRACTOR, at its own cost, is to have the right to investigate the
validity of the PURCHASER'S claim either by the attendance aboard the VESSEL
(at its point of service) of an accredited representative or, if in the opinion
of the CONTRACTOR it is practicable to do so after suitable replacement is
made, by the removal from the VESSEL and the transportation to the Building
Site of the defective part.
(I) Guarantee Engineer
During any time of the guarantee period the CONTRACTOR shall have the option to
place on board one Guarantee Engineer who shall act as the CONTRACTOR'S
observer and to whom every assistance shall be granted for the fulfilment of
his tasks. Should this option be exercised then such Guarantee Engineer shall
not be discharged by the PURCHASER without the CONTRACTOR'S approval, otherwise
the PURCHASER shall immediately forfeit its rights under the guarantee in this
Article.
The PURCHASER shall ensure the said Engineer a status on board not inferior to
the chief engineer and provide accommodation in an officer's cabin. The
PURCHASER shall pay the CONTRACTOR a remuneration to be agreed upon in respect
of the Guarantee Engineer.
Notification of defects to the Guarantee Engineer shall be deemed to be notice
to the CONTRACTOR for the purposes of this Article. The PURCHASER agrees to
give prompt confirmation in writing of such notice to the CONTRACTOR.
The presence on board of the Guarantee Engineer shall in no way affect the
CONTRACTOR'S and the PURCHASER'S responsibility as provided for in this
CONTRACT. The duties and responsibilities of the Guarantee Engineer shall be
specified in writing by the CONTRACTOR to the PURCHASER at the time the
Guarantee Engineer is appointed.
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ARTICLE 13: PATENTS
The CONTRACTOR shall indemnify the PURCHASER against any infringement of patent
rights in connection with the construction of the VESSEL at the Building Site
but no such liability shall lie with the CONTRACTOR with regard to components
and/or equipment and/or design supplied by the PURCHASER.
ARTICLE 14: LAW OF THE CONTRACT, REFERENCE TO EXPERT
AND ARBITRATION
(A) Law of the CONTRACT
This CONTRACT and all other agreements relating thereto shall be construed and
interpreted under the laws of England.
(B) Reference to Expert
If, save as provided in Article 1 paragraph (F), any dispute of a technical
nature arises during the construction of the VESSEL between the parties in
regard to the construction of the VESSEL, engines, material or workmanship, it
shall forthwith be referred to a technical expert nominated by agreement
between the parties hereto and his decision shall be final and binding upon
both parties. Failing such agreement the dispute shall be referred to
arbitration in accordance with paragraph (C) of this Article 14.
(C) Arbitration
In the event of any dispute between the parties hereto as to any matter arising
out of or relating to this CONTRACT or any stipulation herein or with respect
thereto which cannot be settled by the parties themselves, such dispute shall
be resolved by arbitration in London, England in accordance with the Laws of
England. Either party may demand arbitration of any such dispute by giving
written notice to the other party. Any demand for arbitration by either of the
parties hereto shall state the name of the arbitrator appointed by such party
and shall also state specifically the question or questions as to which such
party is demanding arbitration. Within twenty (20) days after receipt of
notice of such demand for arbitration, the other party shall in turn appoint a
second arbitrator. The two arbitrators thus appointed shall thereupon select a
third arbitrator, and the three arbitrators so named shall constitute the board
of arbitration (hereinafter called the "Arbitration Board") for the settlement
of such dispute.
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In the event however, that said other party should fail to appoint a second
arbitrator as aforesaid within twenty (20) days following receipt of notice of
demand of arbitration, it is agreed that such party shall thereby be deemed to
have accepted and appointed as its own arbitrator the one already appointed by
the party demanding arbitration, and the arbitration shall proceed forthwith
before this sole arbitrator, who alone, in such event, shall constitute the
Arbitration Board. And in the further event that the two arbitrators appointed
the parties hereto as aforesaid should be unable to agree to the third
arbitrator within twenty (20) days from the date on which the second
arbitrator is appointed, either party of the said two arbitrators may apply to
any court in England or other official organisation having jurisdiction in such
matter to appoint the third arbitrator. The award of the arbitration made by
the sole arbitrator or by the majority of the three arbitrators as case may be
shall be final, conclusive and binding upon the parties hereto.
Judgment upon any award rendered may be entered in any court having
jurisdiction or application may be made to any competent court or authority for
a judicial acceptance of any award and an order of enforcement, as the case may
be.
ARTICLE 15: ADDRESSES FOR CORRESPONDENCE
For all practical purposes, without it being a legal requirement, the
CONTRACTOR shall send all notices, letters and documents for the PURCHASER in
connection with or required under this CONTRACT to the following address :
(a) for all technical matters :
Address : Technical Marine Planning Limited
70 Great Eastern Street
London EC2A 3JL
Telephone: 44-71-739-3533
Telefax: 44-71-729-1169
(b) for all legal and financial matters :
Address : Carnival Corporation
Koger Center
5225 NW 87th Avenue
3rd Floor,
Miami
Florida 33178-2193
U.S.A.
Attention : Captain Vittorio Fabietti (for)
Mr. Micky Arison
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Telephone : (305) 471-5777
Telefax: (305) 471-5778
For all practical purposes without it being a legal requirement the PURCHASER
shall send all notices, letters and documents for the CONTRACTOR in connection
with or required under this CONTRACT to the following address :
Address : Kvaerner Masa-Yards, Inc.
Helsinki New Shipyard
Munkisaarenkatu 1
SF-00150 Helsinki, Finland
Attention : Jukka Jaatinen
Telephone : 358-0-1941
Telefax : 358-0-170 132
All mail shall be sent by air.
Whenever this CONTRACT requires that notification shall be given in writing,
such notification may validly be given by telefax. All approvals or consents
required by this CONTRACT shall be in writing, including by telefax. All such
messages, if sent by telefax, shall also be confirmed by official letter.
ARTICLE 16: ASSIGNMENT
The CONTRACTOR shall not transfer, assign and/or pledge this CONTRACT or any
rights hereunder without the prior written consent of the PURCHASER which the
PURCHASER shall have full liberty to withhold.
The PURCHASER may assign to any bank or financial institution any or all of its
rights under this CONTRACT.
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IN WITNESS WHEREOF, parties hereto have duly signed and executed this CONTRACT
in triplicate counterparts.
Date : 1995
----------------------
- ------------------------------------- -------------------------------------
CARNIVAL CORPORATION KVAERNER MASA-YARDS, INC.
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EXHIBIT "A"
-----------
BANK GUARANTEE/DRAFT
[BANK LETTERHEAD]
To: Carnival Corporation
PANAMA
GUARANTEE NO.
------------------
Dear Sirs,
We refer to the shipbuilding contract dated 1995 (the
"Shipbuilding Contract") made between (1) yourselves and (2) Kvaerner
Masa-Yards Inc. (the "Contractor") in respect of the construction of Yard
No.494.
In consideration of the receipt from you of Ten United States Dollars and other
good and valuable consideration, receipt whereof is hereby acknowledged, we
hereby irrevocably and unconditionally guarantee to you the payment by the
Contractor of all amounts which the Contractor may be liable to pay to you
under the Shipbuilding Contract and undertake to pay to you such amounts
forthwith on presentation of your certificate confirming that (A) you have duly
terminated the Shipbuilding Contract and that either (1) the Contractor has not
within fourteen days of your notice of termination to the Contractor applied to
arbitration contesting your right to terminate the Shipbuilding Contract or (2)
the arbitration board appointed to determine your entitlement to terminate the
Shipbuilding Contract has issued a final award confirming that you are so
entitled or (B) the Contractor has become the subject of bankruptcy (konkurs)
administration.
We shall not be exonerated from our obligations hereunder by:
1. Any irregularity, unenforceability or invalidity of the Shipbuilding
Contract (to the intent that the obligations hereunder shall remain in
full force and effect and this guarantee shall be constructed as if
there were no such irregularity, unenforceability or invalidity); or
2. Any amendment to or variation of the Shipbuilding Contract; or
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3. Any other matter which may constitute a legal or equitable discharge
of a surety or guarantor.
We hereby waive all or any of our rights as surety which may at any time be
inconsistent with any of the provisions of this guarantee and in particular,
but without prejudice to the foregoing, any right which we may have to compel
you to proceed to enforce a claim against the Contractor before enforcing this
guarantee against us.
All payments by us hereunder shall be made in United States Dollars without
set-off or counter-claim free and clear from all taxes. Our liability under
this guarantee is, however, limited to a maximum amount of [ ]
United States Dollars.
This guarantee shall terminate upon the date on which the Vessel is delivered
to and accepted by you under the Shipbuilding Contract.
All claims under this guarantee shall, however, be made to us in writing latest
on 30 January 1999 in order to be taken into consideration.
This guarantee shall be governed by and construed in accordance with the laws
of England. We hereby submit to the non-exclusive jurisdiction of the English
courts and agree if required to appoint an agent in England for service of any
proceedings before such courts.
Helsinki, , 199
-----------------------
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1
EXHIBIT 10.27
[PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO AN
APPLICATION FOR AN ORDER FOR CONFIDENTIAL TREATMENT REQUESTED
BY CARNIVAL CORPORATION]
SHIPBUILDING CONTRACT
Between, CARNIVAL CRUISE LINES, INC., a company organized and existing under
the laws of the Republic of Panama with its principal offices located at 3655
N.W. 87th Avenue, Miami, Florida, USA 33178 - 2428 hereinafter called the
"PURCHASER",
and
KVAERNER MASA-YARDS, INC., a company organized and existing under the laws of
the Republic of Finland with a registered office in Turku, Finland hereinafter
called the "CONTRACTOR",
In respect of yard No.: 488.
WHEREAS
(i) By a contract dated 15th September 1987 made between Wartsila
Marine Industries Inc. ("WMI") and the PURCHASER, WMI agreed to
design, build and deliver to the PURCHASER a passenger cruise vessel
known as hull no. 1299 (and following the Contract referred to in
recital (ii) as 480 at the yard of the CONTRACTOR) and after delivery
named ms "ECSTASY".
(ii) By an agreement dated 25th January 1990 the CONTRACTOR agreed to
complete ms "ECSTASY" following the bankruptcy of WMI and has
delivered ms "ECSTASY" to the PURCHASER.
(iii) By contract dated 15th September 1987 WMI agreed to design, build and
deliver to the PURCHASER a further passenger cruise vessel known as
hull no. 1300 to be named ms "SENSATION" and by a contract dated 12th
May 1991 between the CONTRACTOR and the PURCHASER the CONTRACTOR
agreed to complete the construction of ms "SENSATION" (as Hull no.
484) on the terms set out therein.
(iv) By a further contract dated 5th September 1991 the CONTRACTOR agreed
to design build and deliver to the PURCHASER a further passenger
cruise vessel to be known during construction as Hull 487 and on
delivery to be named ms "FASCINATION".
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(v) This agreement sets out the terms on which the CONTRACTOR will design
and build for the PURCHASER a further passenger cruise ship to be
known during construction as Hull 488.
IT IS HEREBY AGREED AND STIPULATED AS FOLLOWS:
ARTICLE 1: SUBJECT OF THE CONTRACT
(a) VESSEL'S Description and Main Characteristics
The CONTRACTOR undertakes to design and build and complete at the Building Site
(as hereinafter defined) and to deliver to the PURCHASER, who orders and
undertakes to accept delivery of one passenger cruise ship (hereinafter called
the "VESSEL") , which will be a "carbon-copy" sistership to MS "ECSTASY", hull
No. 480 as built except that modifications shall be made:
(1) as set out in Addendum to the SPECIFICATIONS of even date herewith and
signed by the parties hereto and
(2) as required to ensure that the Vessel complies with the laws, rules,
regulations and enactments referred to in paragraph (e) of this
Article 1.
(3) as required to ensure that the Vessel incorporates all changes to ms
"ECSTASY" as built agreed on at the date hereof to be made in relation
to the design and construction of ms "FASCINATION" without any cost
additional to the purchase price specified herein.
The specifications and plans for MS "ECSTASY" as built (modified in accordance
with the foregoing provisions of this paragraph (a) and the provisions referred
to in paragraph (e) of this Article 1) shall hereinafter be referred to as the
"SPECIFICATIONS" and the "PLAN" respectively.
Regarding the Makers List, the CONTRACTOR is entitled to make changes as
compared with MS "ECSTASY". The changes will be submitted for technical
approval by the PURCHASER. Such approval shall not be withheld, if the
relevant characteristics of the specification are fulfilled, and the reputation
of the supplier is acceptable.
In the event of any conflict between this CONTRACT and the SPECIFICATIONS and
the PLAN, the provisions of this CONTRACT shall prevail. In the event of any
conflict between the SPECIFICATIONS and the PLAN, The provisions of the
SPECIFICATIONS shall prevail.
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER
FOR CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
(b) Speed
The VESSEL's speed shall be as follows:
(i) Trial Speed
With the propulsion motors developing each XX MW at about XXX RPM and
at XXXX Meter draft and other conditions as per paragraph 1.26. of the
SPECIFICATIONS: XXXX knots
(ii) Service Speed
With X diesel alternators 8ZAL40S and X diesel alternators 12ZAV40S
developing a total output not exceeding XXXX percent MCR, at XXX RPM,
and after allowing XXX MW for the VESSEL'S other electrical services,
the residual power shall enable the VESSEL to reach XXXX knots with a
margin of XX percent, at a draught of XXXXM.
(c) Building Site
The Building Site shall be the CONTRACTOR'S shipyard at Helsinki, Finland
provided that the CONTRACTOR may have parts of the VESSEL constructed at its
yard at Turku. The CONTRACTOR shall nevertheless be at liberty to carry out
work elsewhere provided that the main work of erection, assembly and
construction of the VESSEL shall take place at the Building Site aforesaid. In
the event that the forward half and the aft half of the hull are assembled and
constructed separately as independent units, the operation of joining the two
parts shall be carried out in a suitable drydock at Helsinki or Turku, to the
PURCHASER'S approval provided that the joining of the two halves may be carried
out afloat if the method and procedure to be used for this purpose are approved
by the PURCHASER.
(d) Yard Number, Marking of Materials
The VESSEL shall, for the purpose of identification only be known as Yard No.
488.
As soon as possible after the arrival at the Building Site, all materials,
machinery and other equipment intended to be incorporated in the VESSEL shall
be marked with the above Yard Number for the purpose of identification and
establishing that such materials, machinery and equipment belong to the VESSEL.
The CONTRACTOR may not use any such marked material, machinery, and equipment
for the construction of any other vessel without the approval of the PURCHASER,
such approval not to be unreasonably withheld. The CONTRACTOR may not use for
the construction of the VESSEL materials, machinery and other equipment marked
for use in
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the construction of any other vessel without the approval of the PURCHASER,
such approval not to be unreasonably withheld.
The CONTRACTOR is obliged to pay all deliveries promptly on or before delivery.
Upon the PURCHASER'S request, the CONTRACTOR shall supply proof of payment
having been properly effected as well as further evidence that it is under no
residual obligations towards its suppliers in respect of other deliveries.
(e) VESSEL'S Classification and Standard
The VESSEL shall comply with the laws, rules, regulations and enactments
published and in force on the date hereof as stated in the SPECIFICATIONS,
including also Stability Regulations for Passenger Vessels (April 1990) and
Fire Protection for Lifeboats and Rafts in way of windows and screens (SOLAS
74, as amended) to the requirements of the Classification Society and the
Panamanian Government. The Vessel shall also comply with the requirements of
the following:
(1) U.S.P.H including "Vessel Sanitation Programme - Operation Manual
(edition August 1989) and W.H.0 "Guide to Ship Sanitation"; and
(2) Solas Regulations and Wireless in relation to Global Marine Distress
Signal Systems; and
(3) Panamanian government regulations for registration of vessels under
Panamanian flag.
The VESSEL shall be built to class and under survey of Lloyd's
Register of Shipping and, if not otherwise stated in the
SPECIFICATIONS, in accordance with good shipbuilding practice. in
Scandinavia for new passenger cruise vessels of the type and general
characteristics, and in any event in no respect inferior to the
standards of, M.S. 'ECSTASY". Classification, survey and testing and
any other charges relating to the CONTRACTOR'S obligations and items
of supply under this CONTRACT shall be for the account of the
CONTRACTOR.
It is understood that the CONTRACTOR shall carry out such work as is
necessary in accordance with this CONTRACT so that the VESSEL on
arrival in the U.S.A. is approved by the United States Public Health
authorities.
(f) Decisions of the Classification Society
The decisions of the Classification Society shall be final and binding on both
contracting parties as to the VESSEL'S compliance or non-compliance with the
rules and regulations, observance of which is to be controlled by the said
Society.
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(g) Sub-contracting
Subject to the requirements of Article 1(a) the CONTRACTOR has the right to
sub-contract part of the work to third parties on the Building Site or
elsewhere.
ARTICLE 2: INSPECTION AND APPROVALS
(a) Inspection
The PURCHASER shall have the right to have the VESSEL and all engines,
machinery, outfit and equipment intended for her inspected during construction
by its authorized representative(s) to whom the CONTRACTOR shall grant free
access for such purpose during working hours to the VESSEL and to the
CONTRACTOR'S shipyard and workshops wherever the VESSEL is being built and/or
designed. The CONTRACTOR will obtain for the PURCHASER the right of access to
subcontractors' premises. The inspection will be at the PURCHASER's risk and
expense.
The PURCHASER'S authorized representative(s) whose name(s) and duties are to be
made known in advance, shall observe the works' rules prevailing at the
CONTRACTOR'S and the subcontractors premises. They shall address their remarks
exclusively to the CONTRACTOR'S appointed representative(s) whose name(s) shall
be made known to the PURCHASER.
Should the PURCHASER elect to entrust the inspection to firms or persons
outside its organization, such firms or persons and their duties shall be
subject to the CONTRACTOR'S prior approval.
(b) Effect of Approvals
Approval by the PURCHASER or the PURCHASER'S representative of inspections,
tests, trials, documents, or plans shall not relieve the CONTRACTOR of its
obligations under Article 1 of this CONTRACT.
ARTICLE 3: MODIFICATIONS
(a) Modifications
Either party may request the other in writing to make modifications to the
SPECIFICATIONS and/or PLAN and provide that the CONTRACTOR
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and the PURCHASER fully agree in writing within ten days from the dispatch of
the CONTRACTOR'S notification of any (a) appropriate adjustment of price; (b)
appropriate adjustment of delivery date; (c) appropriate adjustment of the
deadweight; (d) appropriate adjustment of speed requirements; and (e) any other
appropriate adjustment of this CONTRACT, the SPECIFICATIONS and the PLAN, the
CONTRACTOR will carry out such modifications.
The CONTRACTOR has the right to continue production on the basis of the
SPECIFICATIONS and the PLAN until agreement has been reached as above stated.
All agreed modifications and alterations shall be subject to the conditions of
this CONTRACT and the SPECIFICATIONS.
(b) Modifications by Regulatory Bodies and Classification Society
In the event that subsequent to the date hereof any modifications, deletions or
additions are made to the laws, rules, regulations and enactments applicable to
the VESSEL or their interpretation or their application (including withdrawal
of provisional approvals of the Classification Society and/or additional
requirements of said Society) as compared with the basis of this CONTRACT
and/or similar measures of other bodies as referred to in Article 1, paragraph
(e), and such modifications, deletions or additions are compulsory for the
VESSEL, the CONTRACTOR will effect them and will notify the (a) adjustment of
price; (b) adjustment of delivery date; (c) adjustment of deadweight; (d)
adjustment of speed requirements; and (e) any other adjustment of the CONTRACT,
SPECIFICATIONS and PLAN, all as may be appropriate in the circumstances.
The PURCHASER may require that the CONTRACTOR shall first apply for a formal
waiver of compliance with such modifications, deletions or additions from the
authority by whom the modifications, deletion" or additions have been
promulgated, should the PURCHASER consider that the operation of the VESSEL in
its intended service would permit of such waiver. In such agreement the
CONTRACTOR will fix a reasonable time limit after which if the waiver has not
beer obtained, the CONTRACTOR will go on with the required modifications,
deletions or additions. Any additional cost caused by the application for such
waiver whether or not obtained shall be for account of the PURCHASER and the
date of delivery of the VESSEL if actually delayed thereby shall be extended by
the time necessary as a result of the application for waiver.
Modifications by regulatory bodies and by the Classification Society which are
not compulsory for the VESSEL shall be treated as the PURCHASER'S modifications
according to paragraph (a) above but the CONTRACTOR will in any case advise the
PURCHASER of such modifications as soon as they are published and obtain the
PURCHASER'S approval before proceeding to make such modifications.
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(c) Payment of Adjustments of Price
The adjustments of price made under paragraphs (a) and (b) above shall be
settled in accordance with paragraph (f) of Article 7.
(d) Information
When required the CONTRACTOR shall furnish reasonable information relating to
the basis and method of determining adjustment of price and other effects of
modifications referred to in this Article.
ARTICLE 4: TRIALS
The VESSEL shall run the following tests and trials:
(1) Dock trials as specified in the SPECIFICATIONS.
(2) Official sea-trials as provided for in the SPECIFICATIONS
during which the trial speed, the propulsion machinery plant
output and the propeller revolutions shall be determined in
accordance with Article 1, paragraph (b)(i).
An endurance test as well as all other trials and tests
included in the sea trial program in the SPECIFICATIONS, shall
also be carried out with recording of measurements of all
parameters, enabling determination of performance relevant to
each test.
(3) All other trials specified in the SPECIFICATIONS.
Such speed runs and endurance test shall be run at the draft attainable by
ballasting the VESSEL with ballast water using tanks and compartments intended
for this purpose and as far as practicable the draft shall be as close as
possible to the corresponding draft at which tank model tests have been carried
out.
Should the speed trial draft aforementioned be other than the draft specified
in Article 1 (b) (i), the speed, the main engine output and the revolutions
corresponding to the latter draft shall be determined by the Netherlands Model
Basin in Wageningen by means of data from their model tests on the basis of the
results recorded at the sea trials.
All trials and measurements will be conducted in a manner and to an extent as
prescribed in a detailed schedule based on the SPECIFICATIONS.
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The methods to be used will be selected by the CONTRACTOR to suit the VESSEL'S
trial trip programme to the approval of the PURCHASER.
The CONTRACTOR has the right to subcontract speed and power measurements to an
independent model basin or research institute. However, the PURCHASER will be
kept fully informed and allowed to observe and ascertain measurements recorded
during the trials as if the CONTRACTOR had carried out the tests with its own
personnel.
Should conditions which properly qualify to delay delivery as provided in
Article 6 paragraph (e) prevent the CONTRACTOR from carrying out properly the
official trial on the day scheduled therefore, the CONTRACTOR has the right: to
postpone the trial or such part of it as deemed necessary. In such case the
CONTRACTOR shall be entitled to an extension of the VESSEL'S delivery time
covering the whole period of postponement.
The CONTRACTOR shall have the right to repeat any trial whatsoever after giving
reasonable notice to the PURCHASER.
All expenses for the trials and adjustments of all the VESSEL'S equipment shall
be borne by the CONTRACTOR who during the sea trials will provide the necessary
crew at its own expense. If, during any sea trial, any breakdowns occur
entailing interruption or irregular performance which can be repaired by the
normal means available on board, the trial shall be continued after repairs and
be valid in all respects.
However, should the VESSEL require to return to a port to enable the breakdown
to be remedied, a further trial shall be undertaker if necessary at sea, to
prove the outstanding performance and complete demonstrations.
The CONTRACTOR shall give the PURCHASER thirty days notice of the anticipated
date of the first sea trials.
Within seven (7) days from the completion of the sea trial or the above further
trial, the CONTRACTOR shall present the PURCHASER with a full set of results of
the tests carried out during the sea trials and the PURCHASER shall give the
CONTRACTOR within 3 days from the receipt of the results a notice in writing,
or by telex or telefax conformed in writing, of completion and acceptance of
the trial run, advising whether the PURCHASER considers that the results of the
trial run indicate conformity of the VESSEL to this Contract the SPECIFICATIONS
and the PLAN.
In the event that the PURCHASER rejects the results of the trial run as not
conforming to this CONTRACT or to the SPECIFICATIONS or the PLAN, the PURCHASER
shall indicate in its notice of rejection in what respect the VESSEL, or any
part or equipment thereof, does not conform to this CONTRACT and/or the
SPECIFICATIONS and/or the PLAN.
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In the event that the PURCHASER fails to notify the CONTRACTOR as aforesaid of
the acceptance of or the rejection, together with the reason therefor, of the
trial within the period as provided above, the PURCHASER shall be deemed to
have accepted the trial run of the VESSEL.
Acceptance of the results of the trial run as above provided shall be final and
binding so far as conformity of the VESSEL to the CONTRACT and the
SPECIFICATIONS and the PLAN to the extent demonstrated on such trial is
concerned and shall preclude the PURCHASER from refusing formal delivery of the
VESSEL as hereinafter provided, on the grounds of non conformity of the VESSEL
in respect of items whose conformity has been demonstrated and accepted during
the trial run, if the CONTRACTOR complies with all other requirements for
delivery as provided in this CONTRACT.
Should any fuel oil lubricating oil, greases and ship's stores, including fresh
water furnished by the CONTRACTOR for the sea trial remain on board the VESSEL
at the time of acceptance thereof by the PURCHASER, the PURCHASER agrees to buy
the same from the CONTRACTOR at the price reasonably paid by the CONTRACTOR and
evidenced by invoices of the supplier and payment by the PURCHASER shall be
effected in accordance with paragraph (f) of Article 7.
ARTICLE 5: GUARANTEE FOR SPEED, DEADWEIGHT AND FUEL CONSUMPTION
Subject to the provision contained in Article 7 (e) the rights and obligations
of the CONTRACTOR and PURCHASER in regard of the VESSEL'S trial speed,
deadweight and consumption of fuel of the propulsion plant are delimited as
follows:
(a) Speed
For the purpose of determining the VESSEL'S actual trial speed, the speed of
the VESSEL recorded on the official sea trials under Article 4 shall be
adjusted in accordance with Article 4 as if the official sea trials had been
carried out under the conditions specified in Article 1, paragraph (b) (i) and
paragraph 1.2.6 of the SPECIFICATIONS. If the actual trial speed so computed
is less than the adjusted trial speed under Article 1, paragraph (b) (i), the
CONTRACTOR shall pay to the PURCHASER as liquidated damages and not by way of
penalty the following amounts:
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[MARKED TEXT OMITTED PURSUANT TO AN APPLICATION FOR AN ORDER
FOR CONFIDENTIAL TREATMENT BY CARNIVAL CORPORATION]
- - for the first two tenths (2/10ths) of a knot of such speed deficiency:
XXXXXXX
- - U.S. $XXXXXX for the third complete tenth of one knot deficiency and
that amount increased by U.S. $XXXXXX for each successive complete one
tenth of a knot of such deficiency, save and except that the
CONTRACTOR shall have the right to remedy the deficiency and repeat
the trial.
If the VESSEL's trial speed determined or computed as provided in this
paragraph (a) is more than one knot below the adjusted trial speed under
Article 1, paragraph (b)(i), the PURCHASER, as an alternative to receiving the
above mentioned liquidated damages, shall have the option to terminate this
contract, with the consequences provided for in Article 8 and Article 11, save
and except that the CONTRACTOR shall have the right to remedy the deficiency
and repeat the trial.
Should the actual trial speed of the VESSEL determined or computed as provided
in this paragraph (a) be greater than the adjusted trial speed under Article 1,
paragraph (b) (i), the PURCHASER shall pay to the CONTRACTOR as premiums the
following amounts:
- - for the first two tenths (2/10ths) of one knot of extra speed: XXXXXXX
- - U.S. $XXXXXX for the third complete tenth of one knot of extra speed
and that amount increased by U.S. $XXXXXX for each successive complete
one tenth of a knot up to a maximum extra speed of one half of one
knot.
(b) Deadweight
If the VESSEL'S deadweight determined as stated in the SPECIFICATIONS is more
than XXX metric tons less than the deadweight specified in Article 1, then the
CONTRACTOR shall pay to the PURCHASER as liquidated damages and not by way of
penalty an amount of U.S. $XXXXX for each full XXX metric tons of such
deficiency in excess of XXX metric tons, save and except that the CONTRACTOR
shall have the right to remedy the deficiency.
If the VESSEL's deadweight determined as stated in the SPECIFICATIONS is more
than XXX metric tons less than the deadweight specified in Article 1, the
PURCHASER, as an alternative to receiving the above mentioned liquidated
damages, shall have the option to terminate this CONTRACT with the consequences
provided for in Article 8 and Article 11, save and except that the CONTRACTOR
shall have the right to remedy the deficiency.
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(c) Fuel Consumption
For the main propulsion plant a shop test shall be carried out in accordance
with the SPECIFICATIONS. During such shop test the specified fuel consumption
shall be ascertained and corrected to the design parameters.
The shop test shall be run on heavy fuel oil with each diesel engine developing
XX% MCR at XXX revolutions. The measured fuel consumption shall be corrected
to a reference lower calorific value of XXXXX kilojoules per kg and ISO
standard conditions. The fuel consumption of the main propulsion plant so
corrected shall not exceed XXXXXXXXXXXXXXXXX for engines type 12ZAV40S and
XXXXXXXXXXXX for engines type 8ZAL40S.
With respect to any of the engines, should the corrected fuel consumption be in
excess of XXX percent of XXXXXXXXXXXXXXXXX for engines type 12ZAV40S and
XXXXXXXXXXXXXXXXX for engines type 8ZAL40S, the CONTRACTOR shall pay to the
PURCHASER, as liquidated damages and not by way of penalty, an amount of U.S.
$XXXXXX for each full XXX percent in excess of XXX percent of XXXXXXXXXXXXXXXXX
for engines type 12ZAV40S and XXXXXXXXXXXXXXXXX for engines type 8ZAL40S, save
and except that the CONTRACTOR shall have the right to remedy any defect
causing such excessive fuel consumption and repeat the trial.
With respect to any of the engines, should the corrected fuel consumption be in
excess of XXX percent of XXX XXXXXXXXXXXXX for engines type 12ZAV40S and
XXXXXXXXXXXXXX for engines type 8ZAL40S, the PURCHASER, as an alternative to
receiving the above mentioned liquidated damages shall have the option to
terminate this CONTRACT with the consequences provided for in Article 8 and
Article 11, save and except that the CONTRACTOR shall have the right to remedy
any defect causing such excessive fuel consumption and repeat the trial.
ARTICLE 6: DELIVERY OF THE VESSEL
(a) Delivery Date and Place of Delivery
The VESSEL shall be delivered to the PURCHASER at the Building Site or other
agreed place.
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The date for delivery of the VESSEL (the "Delivery Date") shall be 31st October
1995 subject to permissible extensions as provided in this CONTRACT.
Six (6) months prior to the date on which the CONTRACTOR expects the VESSEL to
be ready for delivery the CONTRACTOR shall give notice to the PURCHASER in
writing (the "Delivery Notice") specifying the actual expected delivery date.
The PURCHASER shall promptly take delivery of the VESSEL when properly
completed in accordance with this CONTRACT and shall with reasonable dispatch
as applies to a passenger cruise ship remove her from the CONTRACTOR'S shipyard
provided that the PURCHASER shall not be obliged to take delivery of the VESSEL
before 31st October 1995 nor before the date specified in the Delivery Notice
(b) Liquidated Damages for Delayed Delivery
If the VESSEL is not delivered (duly completed in accordance with this
CONTRACT, the SPECIFICATIONS and the PLAN) on or before the Delivery Date (as
extended by virtue of the provisions of this CONTRACT specifically permitting
such extension), the CONTRACTOR shall pay to the PURCHASER by way of liquidated
damages and not by way of penalty the amount of UNITED STATES DOLLARS
XXXXXXXXXX XXXXXXXX (U.S. $XXXXXX) for each full calendar day of delay
following the Delivery Date as so extended.
(c) Termination for Delay
If the VESSEL is not delivered (duly completed in accordance with
this CONTRACT, the SPECIFICATIONS and the PLAN), by the date
falling twelve (12) months after the Delivery Date (as extended by virtue of
the provisions of this CONTRACT expressly permitting such extension), the
PURCHASER may terminate this CONTRACT by notice to the CONTRACTOR with the
consequences provided for in Article 8 and Article 11. On such valid
termination the CONTRACTOR shall forthwith also pay to the PURCHASER the
liquidated damages payable by virtue of paragraph (b) above as if the VESSEL
had been delivered on the date on which this CONTRACT is terminated by the
PURCHASER under this paragraph.
If the VESSEL is not delivered (duly completed in accordance with the CONTRACT
and the SPECIFICATION) by 31st March 1997 then, notwithstanding the provisions
of paragraphs (d) and (e) below which would otherwise operate to permit the
Delivery Date to be extended, the PURCHASER may terminate this CONTRACT by
notice to the CONTRACTOR with the consequences provided for in Article 8 and
Article 11. on such valid termination the CONTRACTOR shall forthwith
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also pay to the PURCHASER the liquidated damages payable by virtue of paragraph
(b) above as if the VESSEL had been delivered on the date on which this
CONTRACT is terminated by the PURCHASER under this paragraph.
(d) Permissible Extensions due to "Force Majeure"
Should the CONTRACTOR be prevented form having the VESSEL constructed or
delivered by the Delivery Date owing to - Acts of God; engagement in war or
other hostilities, civil war, civil commotions, riots or insurrections;
requirements of civil or military authorities in contemplation of war;
blockades; embargoes, vandalism; sabotage; epidemics; strikes; lockouts;
officially agreed reduction of working hours relating to the Finnish workforce
as a whole; earthquakes; landslides; floods; failure of electric current for a
period of more than three working days; damage by lightning; explosions,
collisions, stranding or fires; damage to the VESSEL and time taken to repair
such damage; shortage of materials and equipment or inability to obtain
delivery thereof, provided that such materials and equipment at the time of
ordering could reasonably be expected by the CONTRACTOR to be delivered in
time; defects in materials and equipment such as castings or forgings which
could not have been detected by the CONTRACTOR or its subcontractors using
reasonable care; delays caused by delay of the Classification Society or other
bodies whose documents are required in issuing such documents; delays caused by
events similar to the foregoing; the effect of the foregoing on the
CONTRACTOR'S other commitments; then and in any such case the Delivery Date of
the VESSEL shall, subject to paragraphs (e) and (f) below, be extended by the
number of calendar days of delay incurred by the CONTRACTOR in completing or
delivering the VESSEL in consequence of any of these events.
(e) Definitive Notice of Delivery
Following the giving of the Delivery Notice by the CONTRACTOR pursuant to
paragraph (a) above the only events which shall be permitted to extend the
Delivery Date (as previously properly extended by virtue of other provisions of
this CONTRACT permitting such extension) shall (subject to paragraph (f) below)
be: Acts of god, engagement in war or other hostilities, civil wars, civil
commotion, riots or insurrections requirements of military authorities in
contemplation of war, blockades, embargoes, vandalism, sabotage, epidemics,
earthquakes, landslides, flood, damage by lightning, explosions, collisions,
stranding, fires or nationwide strikes or lockouts either general or affecting
nationwide a particular sector of the labor force.
(f) Conditions for Claims for Permissible Delays
Not later than 7 days from the date of commencement of any of the above
contingencies on account of which the CONTRACTOR claims that
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it is entitled to an extension of the Delivery Date, the CONTRACTOR shall
provide the PURCHASER with telefax advice particularizing the date such
contingency commenced and the reasons therefor and the nature thereof, the
estimated duration thereof and the action which is being taken by the
CONTRACTOR to overcome the effect of the contingency. If any such contingency
continues for a period in excess of 30 days the CONTRACTOR shall, at regular
fortnightly intervals thereafter, continue to keep the PURCHASER advised by
delivery to the PURCHASER of further statements containing the particulars
specified above. Within 7 days after the CONTRACTOR becomes aware that such
contingency has ended the CONTRACTOR shall specify the period of time by which
it claims the Delivery Date is to be extended by reason of delay due to such
contingency.
The CONTRACTOR shall not be entitled to claim any extension of the Delivery
Date in respect of any particular delay unless:
(1) The CONTRACTOR has given all the proper notices and statements
required by this paragraph (f) in relation to that particular
item of delay; and
(2) that particular item of delay has not in any way been caused
or contributed to by any error, neglect or omission on the
part of the CONTRACTOR; and
(3) the CONTRACTOR has, since the date of commencement of the
contingency in question, taken all reasonable steps to remove
the cause of delay and to mitigate its effect on the delivery
of the VESSEL; and
(4) the cause of delay could not reasonably have been foreseen by
the CONTRACTOR at the date of this CONTRACT.
In the event of there being any dispute between the parties under this Article
the burden of proof shall be upon the CONTRACTOR to establish the facts
entitling it to an extension of the Delivery Date and that all requirements
specified in this paragraph have been fully satisfied.
(g) Termination of the CONTRACTOR'S Responsibilities
On delivery of the VESSEL to the PURCHASER all risk and every responsibility
for the safety and generally for the condition of the Vessel is transferred to
the PURCHASER, and thereafter all responsibilities on the part of the
CONTRACTOR shall cease with the exception of the guarantee obligations provided
for in Article 12 hereof and the obligations of the parties under Article 8(a).
If it is not practicable before delivery for the CONTRACTOR to demonstrate the
contractual performance of any of the specified equipment or the contractual
performance of any of the specified technical systems of the VESSEL in their
intended operating
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conditions, the CONTRACTOR will demonstrate such performance as soon as
practicable, and if not practicable within 180 days of delivery compliance or
non-compliance shall be determined by calculations. In case of deficiencies in
performance the CONTRACTOR will remedy such deficiencies in performance under
the guarantee contained in Article 12.
(h) Protocol of Delivery and Acceptance
At the delivery and acceptance of the VESSEL the PURCHASER and the CONTRACTOR
shall execute, in duplicate, a Protocol of Delivery and Acceptance one original
copy of which is to be retained by each party.
ARTICLE 7: PRICE AND PAYMENT
(a) Contract Price
The PURCHASER shall pay to the CONTRACTOR the CONTRACT price of FINNISH MARKKA
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (FIM XXXXXXXXXXXXX), inclusive of
building period financing cost.
(b) Installments
Payment of the CONTRACT Price shall be made by the PURCHASER to the CONTRACTOR
by installments as follows:
- XX% equal to FIM XXXXXXXXXX on the date of signature of this
CONTRACT;
- XX% equal to FIM XXXXXXXXXX on 1st XXXXXXXXXXXXXX;
- XX% equal to FIM XXXXXXXXXX on XXXXXXXXXXXXXXXXXX;
- XX% equal to FIM XXXXXXXXXX on XXXXXXXXXXXXXXXXXX;
- XX% equal to FIM XXXXXXXXXXXXX on XXXXXXXXXXXXXXXXX or, if
after, on delivery of the VESSEL duly completed in accordance
with this CONTRACT, the SPECIFICATIONS and the PLAN.
(c) Payment Procedures
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Except for the first installment the CONTRACTOR shall notify the PURCHASER at
least 10 days in advance of the estimated dates of the installment payments
falling due.
All payments to the CONTRACTOR are to be made in Finnish Markka for same day
value at a bank in Helsinki to be designated by the CONTRACTOR without any
deduction whatsoever on the dates on which the payments are due as aforesaid.
Expenses for remitting payments and any other expenses connected with such
payments shall be for the account of the PURCHASER.
If for any reason the PURCHASER cannot take delivery of the VESSEL on the date
the CONTRACTOR has notified that the VESSEL will be ready for delivery, the
PURCHASER shall nevertheless be liable to make full and final payment on that
date, provided the VESSEL is tendered in accordance with the terms of this
CONTRACT.
(d) Payment for Modification
The sum due for modifications under Article 3 of this CONTRACT shall be paid by
or credited to the PURCHASER or as the case may be to the CONTRACTOR on
delivery.
(e) Payment for Liquidated Damages and Premiums
Any amount of liquidated damages or any premiums under Articles 5 and 6 shall
be calculated and determined on delivery of the VESSEL or, on termination in
accordance with Article 6(c) or 11(b) and the balance (of one over the other)
shall be paid to the party entitled thereto at the delivery of the VESSEL or,
in the event of termination of this CONTRACT in accordance with Article 6(c) as
provided herein, provided that (notwithstanding any other provision in this
CONTRACT to the contrary) the net amount payable under this paragraph shall not
exceed ten per cent of the CONTRACT Price referred to in paragraph (a) of this
Article.
Payment of liquidated damages under Article 5 and/or 6 of this CONTRACT shall
be to the exclusion of any other claims in respect of the matters giving rise
to such payment except that this provision shall not affect the rights of the
PURCHASER under Article 6 (c) and Article 11 of this CONTRACT or the
alternative right of the PURCHASER to terminate this CONTRACT in the
circumstances provided in Article 5 of this CONTRACT.
(f) Prompt Payment
The PURCHASER shall not delay any payment of the Contract Price in the event of
any disagreement as to the amount of extras, liquidated damages or premiums, or
in the event of other exceptions or claims the PURCHASER may have asserted or
may intend to assert against the CONTRACTOR, whether in connection with this
CONTRACT or otherwise
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without prejudice to the PURCHASER'S right to apply subsequently to
arbitration.
(g) Bank Guarantee
On the date of signature of this CONTRACT in respect of the first installment
and not less than five (5) business days before the date on which the PURCHASER
is obliged to make payment to the CONTRACTOR of respectively the second, third
and fourth installments of the contract Price as provided in Article 7(b) and
as a condition precedent to the obligation of the PURCHASER to make payment of
such installments, the CONTRACTOR shall deliver to the PURCHASER a bank
guarantee of payment by the CONTRACTOR of all amounts which the CONTRACTOR may
become liable to pay to the PURCHASER UNDER Article 11(a) of this CONTRACT.
Each such guarantee shall be issued by a first class bank acceptable to the
PURCHASER in the form of Exhibit A hereto and shall be authenticated in such
manner as the PURCHASER m a y require. The PURCHASER and the CONTRACTOR shall
share equally the cost of providing and maintaining such guarantees. Each
guarantee shall be for an amount not less than XXXXXXXXXXXXXXXXXX FINNISH
MARKKA (FIM XXXXXXXXXX) except the first which shall be for an amount not less
than XXXXXXXXXXXXXXXX FINNISH MARKKA (FIM XXXXXXXXXX) and the second which
shall be for an amount not less than XXXXXXXXXXXXX MILLION FINNISH MARKKA (FIM
XXXXXXXXXX)
(h) The CONTRACTOR shall provide to the PURCHASER at four monthly
intervals following the date of this CONTRACT statements of the financial
condition of the CONTRACTOR in such form and substance as the PURCHASER may
reasonably request to enable the PURCHASER to monitor the current financial
condition of the CONTRACTOR during the construction of the VESSEL.
ARTICLE 8: PROPERTY
(a) General Plans, Specification and Working Drawings
All rights in the SPECIFICATIONS, plans and working drawings, technical
descriptions, calculations, test results and other data, information and
documents concerning the design and constructions of the VESSEL shall belong to
the CONTRACTOR before actual delivery and after actual delivery shall belong to
the PURCHASER provided always
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that the CONTRACTOR shall be entitled to use the same to the extent of the hull
form and all parts below the main accommodation decks.
The PURCHASER shall have the right to use the SPECIFICATIONS, plans and working
drawings, technical descriptions, calculations, test results and other data,
information and documents concerning the design and the construction of the
VESSEL prior to delivery of the VESSEL with the consent of the CONTRACTOR, such
consent not to be unreasonably withheld and to be given promptly following the
PURCHASER's request.
(b) Title to the VESSEL
As from signing of this CONTRACT the PURCHASER has title to:
(1) All materials and equipment for building of the VESSEL
purchased from and delivered by suppliers and subcontractors.
The title to all such materials and equipment for building of
the VESSEL shall be with the PURCHASER already before such
materials and equipment arrive at the shipyard.
(2) All materials and equipment out of the CONTRACTOR's own stock
allocated for the construction of the VESSEL which for this
purpose shall be stored separately and marked as early as
possible.
(3) Parts manufactured from the materials listed above.
(4) The VESSEL itself as it is in the course of progressive stages
of construction, together with equipment installed.
Until the Contract Price (as adjusted) has been paid in full the PURCHASER may
not at any time, prior or subsequent to the delivery of the VESSEL transfer,
whether finally or conditionally, or mortgage or hypothecate the VESSEL without
the CONTRACTOR'S written consent in each particular case.
Subject to the provisions of Article 11 this paragraph shall in no way impair
the CONTRACTOR'S right to retain the VESSEL until the PURCHASER has complied
with its obligations under Article 7 of this CONTRACT.
(c) Effect of Termination on the Title to the VESSEL under Construction
If the CONTRACTOR justly terminates this CONTRACT, the CONTRACTOR becomes the
sole owner of the VESSEL.
If the PURCHASER justly terminates this CONTRACT, the PURCHASER thereby waives
its right to the VESSEL, provided that all amounts
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payable or repayable to the PURCHASER by the CONTRACTOR on such termination in
accordance with this CONTRACT shall have been paid or repaid or security
satisfactory to the PURCHASER shall have been provided for such payment or
repayment.
ARTICLE 9: INSURANCE
The VESSEL and all materials, machinery and other equipment belonging to the
VESSEL and within the precincts of the Building Site shall until delivery of
the VESSEL (including during trials) be insured by the CONTRACTOR at the
CONTRACTOR'S expense in the joint names of the CONTRACTOR and the PURCHASER
against all risks customarily insured against in the Finnish shipbuilding
industry and in accordance with and subject to the terms of the usual
construction policy for a total of not less than the aggregate of (1) the
amount for the time being paid by the PURCHASER to the CONTRACTOR in respect of
the VESSEL and (2) interest thereon at the rates specified in Article 11 from
the date such payment was made to the CONTRACTOR and (3) the value of equipment
or materials supplied by the PURCHASER and present within the precincts of the
Building Site or already installed in the vessel. If considered necessary by
the CONTRACTOR or if required by the PURCHASER, war risks insurance for not
less than the Contract Price is to be effected by the CONTRACTOR up to the date
of delivery to the extent that such insurance is obtainable on the London
insurance market provided, however, that the CONTRACTOR shall effect war risk
insurance at its own expense during sea trials.
In the event of the VESSEL and/or such materials etc. as aforesaid sustaining
damage, including war damage, before delivery of the VESSEL then any monies
received in respect of any insurance effected under this Article shall be
applied by the CONTRACTOR in making good such damage with all due despatch
during ordinary working hours in a reasonable and workmanlike manner and the
PURCHASER shall not on account of any such damage or any repair thereof be
entitled to object to the VESSEL or to make any claim for alleged consequential
loss or depreciation provided that such damage is made good in accordance with
this contract, the SPECIFICATIONS and PLAN as if it was the VESSEL's new
construction.
Underwriters are entitled to settle claims concerning repairable damage to the
VESSEL directly with the CONTRACTOR, and make all payments on these claims
directly to the CONTRACTOR.
Should the VESSEL at any time from any cause become an actual total loss or an
agreed or compromised constructive total loss under the
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insurance policy, this CONTRACT shall thereupon absolutely cease and terminate
without any liability whatsoever on the part of the CONTRACTOR provided that
the CONTRACTOR has complied with its obligations under the preceding provisions
of this Article. In the event of such total loss insurance monies shall be
paid to the PURCHASER for reimbursement (1) of the amounts paid by the
PURCHASER to the CONTRACTOR hereunder and (2) interest thereon at the rates
specified in Article 11 from the dates such payments were made and (3) the
value of equipment and materials supplied by the PURCHASER and within the
precincts of the Building Site or installed on the VESSEL at the time of such
total loss; any balance shall belong to the CONTRACTOR. Under no circumstances
shall the CONTRACTOR be liable to replace the VESSEL.
The CONTRACTOR'S liability to the PURCHASER in respect of damage including war
damage - or in respect of the actual or constructive total loss of the VESSEL,
shall not in any event extend further or otherwise than provided in this
Article.
The PURCHASER agrees to notify the CONTRACTOR before each item of equipment or
material supplied by the PURCHASER is delivered to the Building Site and to
advise the CONTRACTOR of the value thereof.
ARTICLE 10: DEFAULTS BY THE PURCHASER
(a) Suspension/Termination by the CONTRACTOR
If any of the following events should occur:
(1) the Purchaser fails to pay to the CONTRACTOR any of the first,
second, third, fourth and fifth installments of the CONTRACT
Price when such installments become due and payable under the
provisions of Article 7 hereof; or
(2) the PURCHASER fails to take delivery of the VESSEL when the
VESSEL is duly tendered for delivery by the CONTRACTOR under
the provisions of Article 6 hereof; or
(3) a bona fide petition is filed and is not dismissed within
thirty (30) days, or an effective resolution is passed for the
winding up of the PURCHASER (other than for the purpose of a
reconstruction or amalgamation which has received the prior
written approval of the CONTRACTOR); or
(4) a receiver is appointed of the undertaking or property of the
PURCHASER; or
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(5) the PURCHASER suspends payment of its debts or ceases to carry
on its business or makes any composition with its creditors or
is declared bankrupt or goes into liquidation.
(6) any obligation of the PURCHASER for borrowed money in a
principal amount exceeding USD $XXXXXXXXXX is properly
declared immediately due and payable by the creditor in
respect thereof by reason of the PURCHASER'S default.
Then:
(a) the delivery date shall be automatically postponed for a
period of continuance of such event in excess of two (2) days.
(b) If such event continues for a period of fifteen (15) days the
CONTRACTOR shall have the option to suspend the CONTRACTOR'S
obligations under this CONTRACT until such event has ceased.
(c) If any of the events set out in sub-paragraphs (1) - (3)
above, continues for a period of thirty (30) days after
notice, to the PURCHASER or if any of the events set forth in
sub-paragraphs (4), (5), or (6) occurs, the CONTRACTOR may, at
its option, terminate this CONTRACT by giving notice of such
effect to the PURCHASER by fax confirmed in writing.
(b) Interest
Should the PURCHASER be in default in payment of any of the first, second,
third or fourth installments of the CONTRACT Price and/or other amounts due
under this CONTRACT on or before delivery of the VESSEL, then the PURCHASER
shall pay to the CONTRACTOR as from the due date interest thereon at the rate
which is two (2) per cent per annum above the rate certified by Union Bank of
Finland to be the rate at which deposits of Finnish Markka can be obtained by
Union Bank of Finland to fund the defaulted amount from the London Interbank
Eurocurrency market for such periods as may be reasonable in the circumstances.
In case the PURCHASER shall fail to take delivery of the VESSEL as provided
above in this Article, the PURCHASER shall be deemed in default as regards the
fifth installment of the contract price and shall pay interest thereon at the
rate aforesaid from and including the day on which the VESSEL is tendered for
delivery by the CONTRACTOR.
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(c) CONTRACTOR'S Rights on Termination
(1) In the event of such termination of this CONTRACT, the
CONTRACTOR shall be entitled to retain any installment or
installments of the contract price theretofore paid by the
PURCHASER to the CONTRACTOR on account of this CONTRACT to the
extent of proved damages and losses including costs and
expenses permitted by law.
(2) In the event of termination of this CONTRACT as provided in
this Article 10, the CONTRACTOR shall have full right and
power either to complete or not to complete the VESSEL as it
deems fit, and to sell the VESSEL at public or private sale on
such terms and conditions as the CONTRACTOR thinks fit without
being answerable for any loss or damage except as provided in
paragraph (4) below.
(3) In the event of the sale of the VESSEL in its completed state,
the proceeds of sale received by the CONTRACTOR shall be
applied firstly to payment of all proven incidental damages
and losses permitted by law attending such sale, and then to
payment of all unpaid installments of the contract price and
interest on such installments at the rate as provided for
above from the respective due dates thereof to the date of
application.
(4) In the event of sale of the VESSEL in its incomplete state,
the proceeds of sale received by the CONTRACTOR shall be
applied firstly to all proven incidental damages and losses
permitted by law attending such sale, and then to payment of
all costs of construction of the VESSEL and compensation to
the CONTRACTOR for a loss of reasonable profit due to the
termination of this CONTRACT together with interest at the
rate as provided for above, less the installments retained by
the CONTRACTOR.
(5) In either of the above events of sale, if the proceeds of sale
exceed the total of amounts to which such proceeds are to be
applied as aforesaid, the CONTRACTOR shall promptly pay the
excess to the PURCHASER without interest.
(6) If the proceeds of the sale are insufficient to pay to the
CONTRACTOR such total amounts payable as aforesaid, the
PURCHASER shall promptly pay the deficiency to the CONTRACTOR
upon request.
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ARTICLE 11: DEFAULTS BY THE CONTRACTOR
(a) Termination and Reimbursement and Liquidated Damages
If, in accordance with any of the provisions of Article 5 or 6 or paragraph (b)
of this Article, the PURCHASER properly exercises its option to terminate this
CONTRACT, then the CONTRACTOR shall:
(1) return to the PURCHASER all equipment and material supplied by
the PURCHASER or pay to the PURCHASER the value thereof and
pay to the PURCHASER the amount of consulting, engineering,
architectural and similar fees and expenses incurred by the
PURCHASER in connection with the construction of the VESSEL up
to a maximum of XXXXXXXXXX Finnish Markka; and
(2) pay to the PURCHASER any accumulated liquidated damages
payable under Article 6(c); and
(3) repay to the PURCHASER in Finnish Markka the amount of all
moneys paid by the PURCHASER for or on account of the CONTRACT
Price of the VESSEL together with interest calculated from the
respective dates such amounts were paid by the PURCHASER to
the CONTRACTOR up to the date of repayment thereof at the rate
certified by Union Bank of Finland, Ltd. to be the rate paid
by the Union Bank of Finland, Ltd. to depositors for deposits
of amounts equal to the installments paid by the PURCHASER for
the periods from receipt thereof by the CONTRACTOR to the date
of repayment.
The CONTRACTOR'S liability in the event of such termination shall be limited to
the above which the parties hereto reasonably estimate to be the amount of the
loss which will be sustained by the PURCHASER in the event that this CONTRACT
is terminated by the PURCHASER in accordance with Article 5 or 6 hereof or
paragraph (b) of this Article.
(b) Termination on Bankruptcy, Etc,
In any of the following events:
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(1) a bona fide petition is filed and is not dismissed within thirty (30)
days or an effective resolution is passed for the winding up of the
CONTRACTOR or any other similar proceedings with similar effect on the
CONTRACTOR are instituted in Finland affecting the CONTRACTOR (other
than for the purpose of a reconstruction or amalgamation which has
received the prior written approval of the PURCHASER); or
(2) the CONTRACTOR merges with any other entity without the prior written
approval of the PURCHASER;
(3) the CONTRACTOR ceases to be controlled by Kvaerner A/S;
(4) a receiver is appointed of the undertaking or property of the
CONTRACTOR; or
(5) the CONTRACTOR suspends payment of its debts or threatens to do so or
ceases to carry on its business or makes any composition with its
creditors or convenes a meeting of its creditors to propose such
composition or is declared bankrupt or goes into liquidation; or
(6) the construction of the VESSEL is suspended for a period of more than
thirty days for reasons other than any of the events specified in
Article 6 (d) or, if applicable, Article 6 (e) and it is apparent that
the CONTRACTOR will be unable to fulfill its obligations hereunder; or
(7) there is a material adverse change in the financial condition of the
CONTRACTOR;
(8) the CONTRACTOR fails to provide any of the guarantees relating to the
first, second, third and fourth installments of the CONTRACT Price
payable in accordance with Article 7(b) within thirty (30) days of the
date on which such guarantee should otherwise have been delivered to
the PURCHASER;
(9) the CONTRACTOR fails to comply with its obligations under Article 7
(h) and such default continues for a period of fourteen days after the
PURCHASER gives notice to the CONTRACTOR requiring such default to be
remedied.
Then:
the PURCHASER may immediately (without being bound thereto) terminate
this CONTRACT by giving notice in writing to the CONTRACTOR.
(c) The PURCHASER'S Right to Take Possession
If in accordance with the provisions of paragraph (b) above or Article 6 (c),
the PURCHASER is entitled to terminate this CONTRACT
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but does not do so, then the PURCHASER shall have an optional right after
giving notice to the CONTRACTOR to take possession of the VESSEL in her then
state and all parts, plans, materials, machinery and equipment appropriated to
the VESSEL and remove the same from the CONTRACTOR'S yard. The PURCHASER
agrees that it will, on taking possession and in consideration of the
CONTRACTOR releasing its lien on the VESSEL, pay to the CONTRACTOR,
XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX FINNISH MARKKA less the aggregate
of:
(1) the total amount of the installments of the CONTRACT Price
paid by the PURCHASER under Article 7(a) of this CONTRACT; and
(2) the reasonable estimate cost of completing the VESSEL in the
CONTRACTOR'S yard or at another shipyard and of removing the
VESSEL to such other shipyard.
If the actual cost of completing the VESSEL exceeds the estimated cost the
CONTRACTOR shall pay the difference to the PURCHASER on completion of the
VESSEL. If the actual cost of completing the vessel is less than the estimate
cost the PURCHASER shall pay the difference to the CONTRACTOR on completion of
the VESSEL.
(d) Notice of bankruptcy filing
The CONTRACTOR shall not take any steps to obtain the appointment of bankruptcy
trustees under the relevant provisions of Finnish bankruptcy law without first
giving to the PURCHASER at least 30, days notice of its intention to do so.
ARTICLE 12: GUARANTEE
(a) Extent of Guarantee
The CONTRACTOR shall remedy at the Building Site or at any other yard
controlled by the CONTRACTOR and in normal working hours, by repairing or if
necessary replacing,
(1) any defect notified in writing by the PURCHASER on the
VESSEL'S delivery; and
(2) any defect due to faulty design, bad workmanship or use of
defective material and not apparent on delivery which becomes
apparent during the period of XXXXXXXXXXXXXXXXXX
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from the date of delivery of the VESSEL provided the defect is
notified in writing as soon as reasonably practicable after its
discovery.
If for operational reasons the guarantee drydocking cannot reasonably be
carried out before the expiration of the said XXXXXX XXXXX period, then in
relation to defects not reasonably discoverable without such drydocking the
guarantee period hereunder shall, subject to paragraph (d) of this Article,
expire on completion of such drydocking but in any event not later than
XXXXXXXXXXXXXXX after delivery of the VESSEL.
Except as provided in paragraph (f) below, the guarantee shall apply only to
the work of and materials and equipment supplied by the CONTRACTOR, its
subcontractors and suppliers.
The CONTRACTOR'S obligations under this Article shall be limited in duration
and extent as herein provided.
(b) Paint
The CONTRACTOR shall provide a guarantee to the PURCHASER in relation to the
paint for the VESSEL on the same terms as that provided by the paint supplier
to the CONTRACTOR. Such guarantee shall be on the basis that the paintwork
shall be carried out under the supervision of and to the satisfaction of
authorized representatives of the paint supplier.
(c) Liability for Consequential Loss or Damage
The Guarantee contained in this Article is in lieu of and excludes any other
liability, guarantee, warranty and/or condition imposed or implied by law
custom, statute, tort or otherwise by reason of the construction or sale of the
VESSEL by the CONTRACTOR for and to the PURCHASER.
Except as provided in this Article and Article 8 (a) after delivery the
CONTRACTOR shall not under any circumstances have any liability, whether
arising from claims for breach of warranty or guarantee, negligence or strict
liability, for any consequential damages or for loss of time, cost of capital,
loss of profit or earnings, demurrage, claims of third parties, or for any
other kind whatsoever of consequential, contingent or incidental damages
directly or indirectly occasioned by the CONTRACTOR'S activities pertinent to
this CONTRACT.
The CONTRACTOR shall however be liable under the guarantee contained in this
Article for damage to any part of the VESSEL (including her
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equipment) caused directly by defects to which paragraph (a) above applies
provided that the CONTRACTOR'S liability in respect of damage so caused shall
be limited to UNITED STATES DOLLARS XXX XXXXXXXXXXXXXXXX (U.S. $XXXXXXXXXX).
(d) Extensions of Guarantee Period
The time during which the VESSEL is not available for service on account of
defects which the CONTRACTOR, is liable to make good under paragraph (a) above
and time required to remedy such defects shall be added to extend the guarantee
period specified in paragraph (a) above up to a maximum of twenty four months
after delivery.
If the CONTRACTOR itself makes good any defects during the guarantee period
specified in paragraph (a) above (as extended if appropriate by the preceding
sub-paragraph of this paragraph (d)) or such defects are remedied elsewhere in
accordance with paragraph (f) below under the supervision and with approval of
the CONTRACTOR, then the provisions of paragraph (a) shall apply to the parts
repaired or replaced and the repair or replacement work for a period of twelve
months after repair or replacement was completed up to a maximum of twenty four
months after delivery.
(e) Investigation of Recurrent Defects
The CONTRACTOR agrees within the terms of this Article to investigate the cause
of any recurrent defect to which paragraph (a) applies with a view to providing
a satisfactory remedy therefor.
(f) Guarantee Work Outside Building Site
If in the PURCHASER'S opinion the replacements or repairs under this Article
cannot be conveniently made at the Building Site or at any other yard
controlled by the CONTRACTOR, the PURCHASER may have such repairs and/or
replacements carried out elsewhere; in such a case the CONTRACTOR is discharged
from the guarantee under this Article in respect of the repairs or replacements
carried out by the third party unless carried out under the supervision and
with the approval of the CONTRACTOR. Provided the guarantee work is contracted
for in a businesslike manner having regard to the nature, urgency and extent of
the defect to be remedied, the CONTRACTOR shall reimburse the PURCHASER the
documented expenses incurred by the PURCHASER in effecting such repairs and/or
replacements including expenses of independent contractors in travelling to the
VESSEL and the cost of transportation of materials and equipment (including by
air freight if the PURCHASER reasonably so requires).
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In any case, the VESSEL shall be taken at the PURCHASER'S cost and
responsibility to the place elected for the work to be carried out ready in all
respects for the guarantee work to be commenced.
(g) Assignment of Suppliers' and Sub-contractors' Guarantees
In the event that the guarantee stipulated by manufacturers or suppliers of
machinery, material, equipment, appurtenances and outfit furnished to the
CONTRACTOR and embodied in the VESSEL exceeds the guarantee given by the
CONTRACTOR to the PURCHASER hereunder, such extended guarantee rights are to be
assigned and made available to the PURCHASER by the CONTRACTOR.
(h) Verification of Guarantee Claims
The CONTRACTOR, at its own cost, is to have the right to investigate the
validity of the PURCHASER'S claim either by the attendance aboard the VESSEL
(at its point of service) of an accredited representative or, if in the opinion
of the CONTRACTOR it is practicable to do so after suitable replacement is
made, by the removal from the VESSEL and the transportation to the Building
Site of the defective part.
(i) Guarantee Engineer
During any time of the guarantee period the CONTRACTOR shall have the option to
place on board one Guarantee Engineer who shall act as the CONTRACTOR'S
observer and to whom every assistance shall be granted for the fulfillment of
his tasks. Should this option be exercised then such Guarantee Engineer shall
not be discharged without the CONTRACTOR'S approval, otherwise the PURCHASER
shall immediately forfeit its rights under the guarantee in this Article.
The PURCHASER shall ensure the said Engineer a status on board not inferior to
the chief engineer and provide accommodation in an officer's cabin. The
PURCHASER shall pay the CONTRACTOR a remuneration to be agreed upon in respect
of the Guarantee Engineer.
Notification of defects to the Guarantee Engineer shall be deemed to be notice
to the CONTRACTOR for the purposes of this Article. The PURCHASER agrees to
give prompt confirmation in writing of such notice to the CONTRACTOR.
The presence on board of the Guarantee Engineer shall in no way affect the
CONTRACTOR'S and the PURCHASER'S responsibility as provided for in this
CONTRACT. The duties and responsibilities of the Guarantee Engineer shall be
specified in writing by the CONTRACTOR to the PURCHASER at the time the
Guarantee Engineer is appointed.
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ARTICLE 13: PATENTS
The CONTRACTOR shall indemnify the PURCHASER against any infringement of patent
rights in connection with the construction of the VESSEL at the Building Site
but no such liability shall lie with the CONTRACTOR with regard to components
and/or equipment and/or design supplied by the PURCHASER.
ARTICLE 14: LAW OF THE CONTRACT, REFERENCE TO EXPERT AND
ARBITRATION
(a) Law of the CONTRACT
This CONTRACT and all other agreements relating thereto shall be construed and
interpreted under the laws of England.
(b) Reference to Expert
If, save as provided in Article 1 paragraph (f), any dispute of a technical
nature arises during the construction of the VESSEL between the parties, in
regard to the construction of the VESSEL, engines, material or workmanship, it
shall forthwith be referred to a technical expert nominated by agreement
between the parties hereto and his decision shall be final and binding upon
both parties. Failing such agreement the dispute shall be referred to
arbitration in accordance with paragraph (c) of this Article 14.
(c) Arbitration
In the event of any dispute between the parties hereto as to any matter arising
out of or relating to this CONTRACT or any stipulation herein or with respect
thereto which cannot be settled by the parties themselves, such dispute shall
be resolved by arbitration in London, England in accordance with the Laws of
England. Either party may demand arbitration of any such dispute by giving
written notice to the other party. Any demand for arbitration by either of the
parties hereto shall state the name of the arbitrator appointed by such party
and shall also state specifically the question or questions as to which such
party is demanding arbitration. Within twenty (20) days after receipt of
notice of such demand for arbitration, the other party shall in turn appoint a
second arbitrator. The two arbitrators thus appointed shall thereupon select a
third arbitrator, and the three arbitrators
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so named shall constitute the board of arbitration (hereinafter called the
"Arbitration Board") for the settlement of such dispute.
In the event however, that said other party should fail to appoint a second
arbitrator as aforesaid within twenty (20) days following receipt of notice of
demand of arbitration, it is agreed that such party shall thereby be deemed to
have accepted and appointed as its own arbitrator the one already appointed by
the party demanding arbitration, and the arbitration shall proceed forthwith
before this sole arbitrator, who alone, in such event, shall constitute the
Arbitration Board. And in the further event that the two arbitrators appointed
by the parties hereto as aforesaid should be unable to agree to the third
arbitrator within twenty (20) days from the date on which the second arbitrator
is appointed, either party or the said two arbitrators may apply to any court
in England or other official organization having jurisdiction in such matter to
appoint the third arbitrator. The award of the arbitration made by the sole
arbitrator or by the majority of the three arbitrators as case may be shall be
final, conclusive and binding upon the parties hereto.
Judgment upon any award rendered may be entered in any court having
jurisdiction or application may be made to any competent court or authority for
judicial acceptance of any award and an order of enforcement, as the case may
be.
ARTICLE 15: ADDRESSES FOR CORRESPONDENCE
For all practical purposes, without it being a legal requirement, the
CONTRACTOR shall send all notices, letters and documents for the PURCHASER in
connection with or required under this CONTRACT to the following address:
(i) for all technical matters:
Address: Technical Marine Planning Limited
70 Great Eastern Street
London EC2A3JL
Telephone: 44-71-739-3533
Telex: 887194 TECRO
Telefax: 44-71-729-1169
(ii) for all legal and financial matters:
Address: Carnival Cruise Lines Inc.
100 Southeast 2nd Street
32nd Floor
Miami
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Florida 33131-2136
U.S.A.
Attention: Captain Vittorio Fabietti (for)
Mr. Micky Arison
Telephone: (305) 577-8200
Telefax: (305) 375-9361 or 9363
For all practical purposes without it being a legal requirement the PURCHASER
shall send all notices, letters and documents for the CONTRACTOR in connection
with or required under this CONTRACT to the following address:
Address: Kvaerner Masa-Yards, Inc.
Helsinki New Shipyard
Munkisaarenkatu
SF-00150 Helsinki, Finland
Attention: Jukka Jaatinen
Telephone: 358-0-1941
Telex: 121246 MASAH SF
Telefax: 358-0-170 132
All mail shall be sent by air.
Whenever this CONTRACT requires that notification shall be given in writing,
such notification may validly be given by telex or telefax. All approvals or
consents required by this CONTRACT shall be in writing, or telefax. All such
messages if sent by telefax, shall also be confirmed by official letter.
ARTICLE 16: ASSIGNMENT
The CONTRACTOR shall not transfer, assign and/or pledge this CONTRACT or any
rights hereunder without the prior written consent of the PURCHASER which the
PURCHASER shall have full liberty to withhold.
The PURCHASER may assign to any bank or financial institution any or all of its
rights under this CONTRACT.
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ARTICLE 17: EFFECTIVE DATE
This CONTRACT will become effective on satisfaction of all the following
conditions:
(1) the PURCHASER having notified to the CONTRACTOR that it has
made satisfactory arrangements to hedge for United States
Dollars the price of the VESSEL denominated in Finnish Markka
so that the cost of the VESSEL to the PURCHASER in United
States Dollars will not be more than USD XXXXXXXXXXX.
(2) the PURCHASER having notified to the CONTRACTOR that it has
received an offer offinance on terms satisfactory to the
PURCHASER from Finnish Export Credit Ltd. offering to lend to
the PURCHASER on delivery of the VESSEL an amount in United
States Dollars equivalent to the amount in Finnish Markka of
the balance of the Contract Price of the VESSEL payable on
delivery calculated at an exchange rate acceptable to the
PURCHASER, repayable by equal semi-annual installments over
XXX years from delivery with interest at XX% per annum.
If all the above conditions have not been satisfied on or before 30th April,
1992 or such later date as may be agreed in writing between the CONTRACTOR and
the PURCHASER, this CONTRACT shall be null and void and neither the CONTRACTOR
nor the PURCHASER shall have any further obligations to the other hereunder
save that the CONTRACTOR shall forthwith return to the PURCHASER the amount of
the installment paid to the CONTRACTOR on signature of this CONTRACT, together
with interest thereon from the date hereof under the date of repayment at the
rate specified in Article 11(a) (3) hereof.
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IN WITNESS WHEREOF, parties hereto have duly signed and executed this CONTRACT
in duplicate, one for each party.
Date: Date:
-------------------- ----------------------
- --------------------------- ----------------------------
CARNIVAL CRUISE LINES, INC. KVAERNER MASA-YARDS, INC.
Vittorio Fabietti M. Saarikangas
Attorney-in-fact and
A. Pankakoski
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EXHIBIT "A"
BANK GUARANTEE/DRAFT
Carnival Cruise Lines, Inc.
PANAMA
GUARANTEE NO._____________
Dear Sirs,
We refer to the shipbuilding contract dated _________________ 1992 (the
"Shipbuilding Contract") made between (1) yourselves and (2) Kvaerner
Masa-Yards Inc. (the "Contractor")in respect of the construction of Yard No.
487.
In consideration of the receipt from you of Ten Finnish Markka and other good
and valuable consideration of the receipt whereof is hereby acknowledged, we
hereby irrevocably and unconditionally guarantee to you the payment by the
Contractor of all amounts which the Contractor may be liable to pay to you
under the Shipbuilding Contract and undertake to pay to you such amounts
forthwith on presentation of your certificate confirming that (A) you have duly
terminated the Shipbuilding Contract and that either (1) the Contractor has not
within fourteen days of your notice of termination to the Contractor applied to
arbitration contesting your right to terminate the Shipbuilding Contract or (2)
the arbitration board appointed to terminate the Shipbuilding Contract has
issued a final award confirming that you are so entitled or (B) the Contractor
has become the award confirming that you are so entitled or (B) the Contractor
has become the subject of bankruptcy (konkurs) administration or first
installment only (C) after [ ] 1992 confirming that the Shipbuilding
Contract has not become effective by that date.
We shall not be exonerated from our obligations hereunder by:
1. Any irregularity, unenforceability of invalidity of the Shipbuilding
Contract (to the intent that the obligations hereunder shall remain in
full force and effect and this guarantee shall be constructed as if
there were no such irregularity, unenforceability or invalidity); or
2. Any amendment to or variation of the Shipbuilding Contract; or
3. Any other matter which may constitute a legal or equitable discharge
of a surety or guarantor.
We hereby waive all or any of our rights as surety which may at any time be
inconsistent with any of the provisions of this guarantee and in particular,
but without prejudice to the foregoing, any right
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which we may have to compel you to proceed to enforce a claim against
the Contractor before enforcing this guarantee against us.
All payments by us hereunder shall be made in the United States
Dollars without set-off or counter-claim free and clear from all
taxes. Our liability under this guarantee is, however, limited to a
maximum amount of FIM[ ] ([ ] million Finnish
Markka).
This guarantee shall terminate upon the date on which the Vessel is
delivered to and accepted by you under the Shipbuilding Contract.
All claims under this guarantee shall, however, be made to us in
writing latest on 31st July, 1997 in order to be taken into
consideration.
This guarantee shall be governed by and construed in accordance with
the laws of England. We hereby submit to the non-exclusive
jurisdiction of the English courts and agree if required to appoint an
agent in England for service of any proceedings before such courts.
Helsinki, ___________________ 199__
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