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Contract |
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2000 |
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$43 |
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#290635 |
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{DOCUMENT}
{TYPE}EX-10.3
{SEQUENCE}3
{FILENAME}0003.txt
{DESCRIPTION}MATERIAL CONTRACTS
{TEXT}
CONTRACT
BETWEEN
LURGI LENTJES AG
Hansa Allee 305, D-40549 Dusseldorf
with
LURGI ENERGIE UND ENTSORGUNG GMBH
Berliner Str. 93, D-40880 Ratingen
AND
The nominated subcontracting CONSORTIUM
Heinrich Holter GmbH
D-45964 Gladbeck
as CONSORTIUM Leader
and
Stramproy Projects & Systems B.V.
NL-6039 AP Stramproy
concerning the Project Lot 2 Dryer for
OPEN-END JOINT STOCK COMPANY DONBASSENERGO,
acting under the law of STATUS and having its
principle placo of business at 11, Lenin Prospect
GORLOVKA 338 001 UKRAINE
I
{PAGE}
{TABLE}
{CAPTION}
CONTENTS
{S} {C} {C}
1. PREAMBLE ................................................................................................1
2. DEFINITIONS..............................................................................................2
3. RELATIONSHIP OF THE PARTIES..............................................................................4
4. SCOPES OF WORK AND PRICE.................................................................................6
5. PAYMENT..................................................................................................7
6. CONTRACT PERFORMANCE PHASE
6.1 SCHEDULE.................................................................................................8
6.2 not used.................................................................................................9
6.3 LIQUIDATED DAMAGES (OR "PENALTIES") DUE TO DELAY AND/OR
PERFORMANCE..............................................................................................9
6.4 TAXES....................................................................................................9
6.5 DELAYS AND COSTS DUE TO DELAYS..........................................................................10
6.6 PATENTS.................................................................................................10
6.7 CHANGES.................................................................................................10
6.8 BANKRUPTCY, INSOLVENCY, DISSOLUTION, READJUSTMENT
OF DEBT, LIQUIDATION, REORGANIZATION, ETC...............................................................11
6.9 INSURANCE...............................................................................................12
6.10 WARRANTY AND GUARANTEE CLAIMS...........................................................................12
6.11 FINANCIAL CAPABILITIES..................................................................................12
7 BREACH-DEFAULT..........................................................................................13
8 LIABILITY AND INDEMNIFICATION
8.1 LIABILITY AND INDEMNIFICATION WITH RESPECT TO CLAIMS
OF THE CUSTOMER AND THIRD PARTIES.......................................................................14
8.2 LIABILITY FOR CLAIMS BETWEEN THE PARTIES................................................................15
9 DISPUTES................................................................................................16
10 GENERAL PROVISIONS
10.1 CONFIDENTIALITY OF THIS CONTRACT CORRESPONDENCE,
DATA, DOCUMENTS AND DRAWINGS............................................................................17
10.2 PARTIES TO KEEP EACH OTHER INFORMED.....................................................................17
10.3 CORRESPONDENCE AND NOTICES..............................................................................18
10.4 WAIVER..................................................................................................18
10.5 ASSIGNMENT/SUBCONTRACTING...............................................................................18
{/TABLE}
II
{PAGE}
{TABLE}
{CAPTION}
{S} {C} {C}
10.6 TERM OF CONTRACT........................................................................................19
10.7 EXPULSION...............................................................................................19
10.8 ENTIRE CONTRACT.........................................................................................20
10.9 AMENDMENTS..............................................................................................20
10.10 TITLES..................................................................................................20
10.11 NUMBER OF ORIGINALS.....................................................................................20
10.12 PUBLICITY...............................................................................................20
10.13 REVIEW AND VERIFICATION.................................................................................21
10.14 not used................................................................................................21
APPENDICES:
0 CONTRACT AGREEMENT with CUSTOMER of LLAG/LEE
1 EQUIPMENT AND SERVICES SCOPE OF WORK
1.1 CONSORTIUM SCOPE OF SUPPLY
1.2 CONSORTIUM SCOPE OF SERVICES
1.3 TIME SCHEDULE FOR DATA AND DOCUMENTATION EXCHANGE
2 CONSORTIUM PRICE
3 PROJECT SCHEDULE AND DRAW DOWN SCHEDULE
4 GUARANTEED PLANT PERFORMANCE
5 not used
6 not used
7 COORDINATION OF THE SITE REQUIREMENTS
8 MECHANICAL ERECTION
9 SUPERVISORY SERVICES DURING WARRANTY PERIOD
10 TRAINING OF CUSTOMER'S STAFF/SUPERVISION OF OPERATION
11 TRANSPORT OF EQUIPMENT
12 not used
13 GENERAL PROCEDURE FOR PROOF OF PROGRESS/INVOICING/PAYMENTS/
SECURITIES TO LLAG/LEE, GENERAL PROCEDURE FOR PAYMENTS/
SECURITIES TO LLAG/LEE
14 not used
15 INSURANCE
{/TABLE}
III
{PAGE}
PART 1 - PREAMBLE This Contract is made on July 3rd (degree), 2000 by and
between
LURGI LENTJES AG, a corporation organized and existing under the law of Germany,
with offices at Hansa Allee 305, D-40549 Dusseldorf, Germany (herein "LLAG")
with
LURGI ENERGIE und Entsorgung GmbH (hereinafter LEE") a
corporation organized and existing under the law of Germany
and having a place of business at Berliner Str 93, D-40880
Ratingen, Germany
and the CONSORTIUM
Heinrich Holter GmbH a corporation organized and existing under
the law of Germany with offices at Beisenstr. 39-41, D-45964 Gladbeck /
Stramproy Projects & Systems B V organized and existing under the law of the
Netherlands and having a place of business al Industrieweg 20. NL-6039 AP
Stramproy
with the consortial leaderships of Heinrich Holter GmbH
(hereinafter "the CONSORTIUM")
WHEREAS, OPEN-END JOINT STOCK COMPANY DONBASSENERGO (short "DONBAS"), (herein
"CUSTOMER", has awarded a contract for the Starobeshevo Power Plant
Modernization "turn-key" Project, Lot 2, Dryer (herein the "PROJECT") to LLAG;
1
{PAGE}
WHEREAS, LLAG including LEE and the CONSORTIUM as nominated subcontractor desire
to enter into a Contract on an exclusive basis solely for the limited purpose
for the execution and performance of a CONTRACT AGREEMENT with and for the final
CUSTOMER of LLAG for the design, supply, installation, erection, commissioning
and warranty of the PROJECT to an extent as specified in Appendix 1.
WHEREAS, LLAG including LEE and the CONSORTIUM desire to enter into a Contract
whereby with respect to the internal relationship among LLAG including LEE and
the CONSORTIUM this CONTACT will define their respective rights and obligations
and their respective SCOPES OF WORK; and
NOW THEREFORE, in consideration of the premises and mutual covenants set forth
herein, the PARTIES hereto hereby agree as follows:
PART 2 - DEFINITIONS
For the purpose of this CONTRACT, the following words and phrases shall have the
following meanings:
2.1 CONTRACT - shall mean this document and all of its appendices.
2.2 COST - when used throughout this CONTRACT in reference to circumstances
where costs may be incurred by one PARTY that may be borne, in whole or
in part, by the other PARTY, cost shall mean any additional direct
costs, exclusive of profit and other consequential and/or indirect
costs, which are incurred related to the specific circumstance.
Excluded from this definition are prices negotiated between the PARTIES
for specific services as provided for in the CONTRACT.
2.3 CONTRACT AGREEMENT shall mean the document or documents (including all
amendments thereto) entered into between LLAG and the final CUSTOMER of
LLAG on April 13th, 2000 and executed by LLAG and the CONSORTIUM as
nominated subcontractor which defines the rights and obligations
thereto with respect to the PROJECT.
2.4 CONSORTIUM shall mean the nominated subcontractor Heinrich Holter GmbH
/ Stramproy Projects & Systems B.V.
2.5 not used
2.6 DRAW DOWN SCHEDULE shall mean the schedules of monthly invoicing
substantiated by the supplies, transportation and performance of
services according to the SCHEDULE.
2.7 LEADING PROJECT MANAGER shall mean be a person nominated cy LLAG, to
fulfll the duties set forth in this CONTRACT
2.8 not used
2.9 PARTIES shall mean the parties executing this CONTRACT, that is, LLAG
including LEE on the first part and the CONSORTIUM on the second pan
(and its governed entities and affiliated companies which are involved
in this PROJECT), and their permitted assigns.
2.10 PARTY shall mean one of the PARTIES.
2
{PAGE}
2.11 PROJECT shall mean the design, supply, construction, installation,
erection, commissioning and warranty of the dryer plant and all
associated services and works to be provided under the CONTRACT
AGREEMENT.
2.12 PLANT PERFORMANCE GUARANTEES shall mean those performance guarantees
agreed to in the CONTRACT AGREEMENT.
2.13 PROPOSAL shall mean the formal offer signed by LLAG to the final
CUSTOMER which consists of the first Stage Tender submitted on July 1,
1997 and the Second Stage Tender submitted on January 21, 1993.
2.14 SCHEDULE shall mean the PROJECT SCHEDULES as set forth in Appendix 3
to this CONTRACT or any amendments hereto.
2.15 SCOPE OF WORK shall mean, the sum total of the CONSORTIUM'S supply of
equipment and services as set forth in Appendix 1 to this CONTRACT.
2.16 TENDER DOCUMENTS shall mean the Invitation for Bids, with its integral
parts, if any, issued by the CUSTOMER and any further amendments
thereto including the official correspondence with the CUSTOMER and
protocols of meetings.
2.17 THIRD PARTY shall mean any party, person or other entity other than the
PARTIES and the CUSTOMER.
2.18 PRICE shall mean the amount of moneys for the SCOPE OF WORK of the
CONSORTIUM as agreed in Appendix 2, including all amendments hereto.
3
{PAGE}
PART 3 - RELATIONSHIP OF THE PARTIES
3.0 The PARTIES hereby enter into a CONTACT for the sole and limited
purpose of (1) performing the CONTRACT AGREEMENT and (2) defining the
rights and obligations between the PARTIES in connection with the
performance of the CONTRACT AGREEMENT, and for no other purpose.
3.1 not used
3.2 not used
3.3 Upon the signing of this CONTRACT, each PARTY will appoint by a written
notice to the other PARTY a "representative" fully authorized by such
PARTY to act on its behalf in connection with all matters arising under
this CONTRACT. A PARTY may at any time and from time to time change its
"representative" by written notice to the other PARTY. Each PARTY shall
appoint an alternate representative to act in the absence of its
"representative". Any representative not an employee of a PARTY shall
be subject to approval by the other PARTY
3.4 not used
4
{PAGE}
3.5 Nothing contained in this CONTRACT is intended nor shall it be
construed as creating a partnership or joint venture among the PARTIES
nor as creating or requiring any ongoing or continuing relationship or
commitment among the PARTIES, beyond that relationship specifically
created by this CONTRACT.
3.6 not used
3.7 No PARTY shall be deemed to be a representative, agent or employee of
any other PARTY, by contract, by employment or for any purpose
whatsoever.
3.8 No PARTY shall have the authority or right nor shall any PARTY hold
itself out as having the authority or right to assume, create or
undertake any obligation of any kind whatsoever, expressed or implied,
nor accept service of any legal process on behalf of or in the name of
any other PARTY without the express prior written consent of the other
PARTY.
3.9 not used
3.10 not used
3.11 This CONTRACT contains all of the obligations of the PARTIES to each
other with respect to the PROJECT. Except as stated herein the PARTIES
shall have no other obligations, excluding those implied by mandatory
law, to each other.
3.12 LLAG / LEE shall consult with the other PARTY on all issues affecting
implementation and performance of the CONTRACT AGREEMENT, and LLAG /
LEE shall communicate to the CUSTOMER any decisions involving the
CUSTOMER reached by the PARTIES after such consultation
3.13 not used
5
{PAGE}
PART 4 - SCOPES OF WORK AND PRICE
4.1 Generally it is agreed that the SCOPE of WORK of the CONSORTIUM shall
be complete and that any incompleteness has to be settled inbetween the
CONSORTIUM without any responsibility for LLAG / LEE
The members of the CONSORTIUM shall be jointly and severally liable for
the performance of the SCOPE OF WORK.
4.2 It is expressly understood and agreed that the CONSORTIUM'S SCOPE OF
WORK is subject to and to be performed strictly in accordance with the
terms and conditions of the CONTRACT AGREEMENT signed with the
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