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SHIP LOADER CONSTRUCTION AND ERECTION

AGREEMENT

DATED AS OF _______________

FOR

ONE (1) SHIP LOADER

AT

MCDUFFIE COAL TERMINAL DOCK NO. 1

MOBILE, ALABAMA

FOR

BY

____________________________________.

Revision: 0

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TABLE OF CONTENTS

Page SECTION 1 - GENERAL REQUIREMENTS............................................................................ 1-1 1.1 DEFINITIONS................................................................................................................. 1-1 1.2 INTENT, OPTIONS ........................................................................................................ 1-5 1.3 GENERAL DESCRIPTION............................................................................................ 1-6 1.4 RESPONSIBILITY FOR LOSS OR DAMAGE TO THE SHIP LOADER AND ALL

COMPONENTS THEREOF ........................................................................................... 1-6 1.5 BONDS............................................................................................................................ 1-6 1.6 TRACEABILITY OF MATERIALS .............................................................................. 1-7 1.7 OWNERSHIP OF JOINT DEVELOPMENT ................................................................. 1-7 1.8 USE OF CONTRACTORS DRAWINGS....................................................................... 1-7 1.9 WAIVER OF LIENS ....................................................................................................... 1-8 1.10 CONFIDENTIALITY...................................................................................................... 1-8 1.11 ITEMS REQUIRING OWNER’S CONSENT................................................................ 1-8 SECTION 2 - SPECIFIC REQUIREMENTS ............................................................................. 2-1 2.1 TIME OF DELIVERY..................................................................................................... 2-1 2.2 PERMISSIBLE DELAYS ............................................................................................... 2-2 2.3 ADDITIONAL WORK EFFORT.................................................................................... 2-3 2.4 CHANGES, MODIFICATIONS, AND EXTRA WORK............................................... 2-3 2.5 CONSTRUCTION SCHEDULE..................................................................................... 2-4 2.6 INSURANCE................................................................................................................... 2-5 2.7 INDEMNIFICATION OF LIABILITY........................................................................... 2-9 2.8 TAXES, FEES AND DUTIES ........................................................................................ 2-9 2.9 ARBITRATION ............................................................................................................ 2-10 2.10 GOVERNING LAWS ................................................................................................... 2-10 2.11 NOTICES....................................................................................................................... 2-11 2.12 TERMINATION............................................................................................................ 2-11 2.13 CANCELLATION......................................................................................................... 2-12 2.14 RIGHT OF ASSIGNMENT .......................................................................................... 2-13 2.15 COMPLIANCE WITH LAWS, RULES AND REGULATIONS ................................ 2-13 2.16 REGULATORY CHANGES, LICENSES.................................................................... 2-13 2.17 WARRANTY ................................................................................................................ 2-14 2.18 PATENT INDEMNIFICATION ................................................................................... 2-15 2.19 CONFLICT OF INTEREST.......................................................................................... 2-16 2.20 DESIGN RESPONSIBILITY........................................................................................ 2-17 2.21 DESIGN GENERAL ..................................................................................................... 2-18 2.22 CONTRACTOR'S DRAWINGS, CALCULATIONS AND CATALOG

INFORMATION............................................................................................................ 2-19 2.23 OPERATING INSTRUCTIONS, MAINTENANCE AND INSPECTION MANUALS.................................................................................. 2-22 2.24 SPARE PARTS.............................................................................................................. 2-23 2.25 TRAINING OF OWNER'S PERSONNEL ................................................................... 2-23

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2.26 TERMS OF PAYMENT................................................................................................ 2-24 2.27 SHIP LOADER DELIVERY......................................................................................... 2-25 2.28 EXISTING CONDITIONS............................................................................................ 2-26 2.29 FACILITIES FURNISHED TO OWNER..................................................................... 2-26 2.30 FACILITIES FURNISHED TO CONTRACTOR ........................................................ 2-26 2.31 ADDRESSES................................................................................................................. 2-26 2.32 U.S. FOREIGN CORRUPT PRACTICES ACT ........................................................... 2-27 2.33 ENGLISH LANGUAGE ............................................................................................... 2-27 2.34 TIME OF THE ESSENCE ............................................................................................ 2-27 2.35 AMENDMENT, WAIVER............................................................................................ 2-27 2.36 INTERPRETATION/CONSTRUCTION...................................................................... 2-28 2.37 PRECEDENCE.............................................................................................................. 2-28 2.38 BUSINESS DAYS......................................................................................................... 2-29 2.39 SURVIVAL ................................................................................................................... 2-29 2.40 ENTIRE AGREEMENT................................................................................................ 2-29 2.41 COUNTERPARTS ........................................................................................................ 2-29 APPENDIX A – PERFORMANCE BOND............................................................................... A-1 APPENDIX B - MAINTENANCE BOND .................................................................................B-1 APPENDIX C – SUPPLEMENT A-1 SHIP LOADER ..............................................................C-1 APPENDIX D – SHIP LOADER SPECIFICATIONS .............................................................. D-2 APPENDIX E – CONDITIONAL ACCEPTANCE CERTIFICATE.........................................E-1 APPENDIX F - PRE-SHIPMENT REQUEST CERTIFICATE.................................................F-1

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SHIP LOADER CONSTRUCTION AND ERECTION AGREEMENT

THIS SHIP LOADER CONSTRUCTION AND ERECTION AGREEMENT is made and entered into as of , 2009 by and between Alabama State Port Authority, an Agency of the State of Alabama (hereinafter referred to as “Owner”), and _______________________________., a corporation organized and existing under the laws of __________________________________ (hereinafter referred to as the “Contractor”).

WITNESSETH: WHEREAS, Owner is operating a marine terminal facility located at the McDuffie Coal Terminal, Mobile, Alabama (the “Facility”); and WHEREAS, Owner will require one (1) Ship Loader in order to efficiently and expeditiously operate the Facility; and WHEREAS, Contractor has represented that it is a competent contractor and can provide Owner the SHIP LOADER in strict accordance with the terms and conditions set forth herein. NOW, THEREFORE, it is hereby agreed between Owner and the Contractor as follows:

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SECTION 1 GENERAL REQUIREMENTS 1.1 DEFINITIONS Acceptance Document - Refers to the memorandum, executed by Owner and

the Contractor, that attests, with respect to a Ship Loader, all conditions necessary for the Actual Delivery Date of such Ship Loader to occur have occurred, in each case in accordance with this Agreement.

Actual Delivery Date - Refers, with respect to a Loader, to the date after

Substantial Completion for such Ship Loader upon which all deliveries by the Contractor required by such date with respect to such Ship Loader have occurred, including all training, and all Punch List Items for such Ship Loader are corrected and completed as approved in writing by Owner.

Affiliate - Refers, in respect of any person or entity, any other

person or entity that directly or indirectly controls or is controlled by or is under common control with such person or entity through ownership of more than 50% of the equity interests of such person or entity, by contract or otherwise.

Agreement - Refers to this Agreement and shall include the

Appendices hereto and all other documents that are specifically described herein as forming a part hereof, all of which are incorporated herein by this reference.

Any Other Owner - Refers to any party to whom Owner may

subsequently sell or otherwise transfer the Ship Loader.

Change Order - Refers to a change in, or a modification of, the

Work as ordered in writing by Owner as more fully discussed in Section 2.4.

Construction Schedule - Refers to a network analysis of the Critical Path

Method (CPM) type that clearly details the Contractor’s plan for the orderly completion of the Work and attached hereto as, as updated pursuant to Section 2.5.

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Contractor - ___________________________________, the

prime contractor, who is responsible for the entire Turnkey Operation including all of its subcontractors.

Contractor’s Drawings - Refers to the Contractor’s drawings, calculations

and information required by Section 2.22. Contract Plans - Refers to the plans, issued as part of this

Agreement, which identify critical dimensions for the Ship Loader.

Contractor’s Engineer - Refers to the Contractor’s qualified “Project

Engineer” who is responsible for all phases of the Project from design through acceptance. This person is the Contractor’s representative and Owner’s Engineer will deal solely with this person.

Contract Price - Refers, with respect to a Ship Loader, to the

Contract Price set forth in the Supplement for such Ship Loader.

Days, Weeks or Months - Refers to calendar periods of time. All days, weeks,

and/or months referenced in this Agreement are calendar days, weeks, and months.

Delivery Date - Refers, with respect to a Ship Loader, to the date

specified as such in such Ship Loader’s Supplement on which Substantial Completion is scheduled to occur.

Dollar(s) or $ - Refers to the monetary unit of the United States,

equal to 100 cents. Equal or Approved Equal - Refers to an item specified by proprietary name, the

decision as to a proposed item being equal will be solely Owner’s, and its decision will be final.

Erect or Erection - Refers, with respect to a Ship Loader, to offloading

such Ship Loader completely erecting and assembling all components of such Ship Loader to make ready for testing and operation, having such

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Ship Loader certified, removing erection equipment and cleaning up the Erection Site.

Erection Engineer - Refers to the Contractor’s qualified Erection

Engineer at the Erection Site. This person is the Contractor’s representative at the Erection Site and Owner’s Engineer will deal solely with this person.

Erection Schedule - Refers to the Contractor’s detailed plan, CPM type,

for the orderly Erection of the Ship Loader at the Erection Site, including the Contractor’s plan and analysis limiting its interference with the normal working of Owner at such Erection Site.

Erection Site - Refers to the rails at the Terminal’s facility where

such Ship Loader shall be delivered, erected, tested, adjusted, and/or put into operation as determined by Owner.

Fabrication Site - Refers to the place(s) as designated in the

Supplements at which the Ship Loader or any major component(s) is fabricated, shop assembled and made ready for packing, loading and delivery for transportation to the Erection Site.

Final Acceptance Date - Refers to the date when Acceptance Documents

have been issued for the Ship Loader. Inspection - Refers to programs of inspection required for

quality control of the fabrication, Erection and testing and acceptance of the Ship Loader included in the Specifications and other inspection programs recommended by the Contractor as indicated herein, e.g., structural inspection program.

Ship Loader - Refers to the one (1) Ship Loader to be furnished

and Erected pursuant to this Agreement with the options for each such Ship Loader as indicated in its Supplement.

Notice to Proceed - Refers to a written instrument from Owner that

directs the Contractor to proceed with the Work. Owner’s Engineer - Refers to Owner’s agent as its duly appointed

reviewing engineer, the name of whom will be made known to the Contractor.

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Owner’s Representative - Refers to any company or person Owner authorizes

to act on its behalf, which initially shall be ASPA. Punch List Items - Refers, with respect to the Ship Loader, to the

punch list items for such Ship Loader to be attached to its Conditional Acceptance Certificate, provided that such punch list items are, individually and in the aggregate, minor in nature and that the Contractor and Owner have agreed upon the date by which the Contractor shall complete each such punch list item.

Specifications - Refers, with respect to the Ship Loader, to the

specifications for such Ship Loader attached hereto as Appendix D.

Subcontractor - Refers to any company or person that the Contractor

may engage to furnish services to complete one or more parts of the Work. Subcontractors will be subject to acceptance by Owner.

Substantial Completion - Refers, with respect to a Ship Loader, to the

fulfillment of all of the following conditions: (i) such Ship Loader has been Erected at the

Erection Site; (ii) such Ship Loader is capable of safe handling

of materials without restriction; (iii) such Ship Loader complies with all

applicable laws, codes and regulations and all required permits;

(iv) such Ship Loader has been successfully

tested and certified for material handling use by the applicable regulatory bodies having jurisdiction;

(v) all other Work, including delivery of all

documents and manuals, required by the Substantial Completion Date for such Ship Loader shall have been completed, subject only to completion of the Punch List Items for such Ship Loader; and

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(vi) Contractor shall have delivered to Owner a

notice signed by Contractor certifying that all of the preceding conditions have been satisfied.

Substantial Completion Date - Refers, with respect to a Ship Loader, to the date on

which Substantial Completion occurs for such Ship Loader, within seven (7) days of which date Owner shall deliver to Contractor a Conditional Acceptance Certificate in the form attached hereto as Appendix E, provided that Owner and the Contractor have agreed upon the Punch List to be attached thereto.

Supplement - Refers, with respect to a Ship Loader, to the

Supplement for such Ship Loader attached to this Agreement in Appendix C. The Supplement for a Ship Loader will include for such Ship Loader: type and serial number, Fabrication Site, Erection Site, Delivery Date and the Contract Price.

Turnkey Operation - Refers to the design, fabrication (manufacturing),

shipping, erection and all testing required to turn over to Owner the Ship Loader capable of loading coal to vessels on a repetitive basis with only routine maintenance required.

Vendor - Refers to any company or person supplying

equipment that forms a part, parts, or assemblies on any completed Ship Loader.

Work - Refers to the design, fabrication (manufacturing),

shipping, erection, testing, and placing into operation at the Erection Site of the Ship Loader.

1.2 INTENT; OPTIONS

It is the intent of this Agreement, including the Specifications, the Supplements and Contract Plans, forming a part hereof, to provide for the construction of the Ship Loader of modern design, suitable for safe, efficient and profitable loading of coal from/to coal stockpiles.

The Contractor will be responsible for the design of the Ship Loader. Any item not specifically mentioned in the Specifications or Contract Plans, but which is necessary to make the Ship Loader complete in all respects will be furnished by the Contractor.

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Owner is purchasing the expertise of the Contractor. The Contractor is invited to point out elements of the Specifications that are inconsistent with good design and selection of materials, quality and schedule control, operating practice and other contractual considerations. Owner desires to work with the Contractor to gain the benefit of its expertise. Owner’s intent is to purchase the Ship Loader with all appurtenances and capital and consumable spare parts needed for its maintenance and operation; however, the Contractor recognizes Owner’s right, at any time or from time to time, to replace any part of the Ship Loader directly from the subcontractor or vendor of Owner’s choosing. The Contractor agrees that it has not made nor will it make any agreement with any subcontractor or vendor which would nullify or restrict Owner’s right hereunder. Safety and reliability of the Ship Loader is paramount. Maintainability is critical. Low energy consumption and durability of operation are of the utmost concern. Harmonic filtering and power factor correction equipment (if required) shall be provided to conform to the requirements of the applicable Alabama electric power utility. It is foreseeable that the Ship Loader will be used to unload approximately twenty-four (24) hours per day (when not subjected to prescribed maintenance) during all but the most adverse conditions of weather.

1.3 GENERAL DESCRIPTION

The Ship Loader described by the Specifications will include one (1) rail mounted, traveling, electric, gantry tower, cantilever boom type (or shuttle boom type), complete with all necessary cable reels, boom and trailing conveyors, tripper, chutes, telescoping spout and all other items necessary for service at the McDuffie Coal Terminal, Mobile, Alabama.

1.4 RESPONSIBILITY FOR LOSS OR DAMAGE TO THE SHIP LOADER AND ALL

COMPONENTS THEREOF

The Contractor will assume the sole responsibility for any loss or damage to the Ship Loader and all components thereof, regardless of how such loss or damage occurs (subject to the Contractor’s warranty obligations), until commercial operation and/or Final Acceptance for such Ship Loader. The Contractor shall also be responsible for the protection of his equipment and for any damage to existing facilities, including underground facilities, during the course of Erection of the Ship Loader. Any damage resulting from the Contractor’s performance of the Work shall be properly repaired or replaced to Owner’s satisfaction at the expense of the Contractor.

1.5 BONDS

The Contractor will, after Notice of Award and prior to Contract Signing/NTP, deliver to Owner a Performance Bond in the form of Appendix A attached hereto issued by an insurer or bonding company mutually acceptable to the parties, guaranteeing:

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Contractor’s performance of the terms of this Agreement in an amount equal to forty percent (40%) of the Contract Price for the Ship Loader until the Final Acceptance Date, and

Prior to Final Acceptance of the Ship Loader, the Contractor must deliver to Owner a Maintenance Bond in the form of Appendix B attached hereto issued by an insurer or bonding company mutually acceptable to the parties, guaranteeing: Maintenance of the warranties set forth in Section 2.17 in an amount equal to 2.5% of the Contract Price for the Ship Loader from the Final Acceptance Date until the fifth anniversary of the Final Acceptance Date.

Owner shall not be obligated to make any payment to the Contractor if, at such time, the foregoing bonds are not maintained in accordance with the terms of this Section 1.5.

1.6 TRACEABILITY OF MATERIALS

The intent of Owner requiring structural materials be designated on the Contractor’s Drawings and making them traceable from the prime mill source to the finished part is to protect the Contractor’s and Owner’s interest in questions arising from whether or not the specified material was used from fabrication to certification of the Ship Loader, in accordance with Section 2.20, and during operation by Owner. Random sample destruction tests may be conducted to validate the mill test reports.

1.7 OWNERSHIP OF JOINT DEVELOPMENTS

All developments that are the result of an Owner suggestion or an Owner requirement will be the sole property of Owner. Any development through a joint effort will be the joint property of Owner and Contractor.

The Contractor may request Owner approval to use such developments in its production of Ship Loader for others; however, the Contractor may not utilize such developments unless prior written approval is given by Owner, which approval will not be unreasonably withheld.

1.8 USE OF CONTRACTOR’S DRAWINGS

Upon specific request by Owner, Contractor shall provide on a timely basis at no additional cost, all design drawings, calculations, catalogue information, and/or shop detail drawings needed by Owner for internal operation, relocation, maintenance, or upgrading activities. Owner may, itself or through subcontractors, use the Contractor’s calculations and drawings for internal operation, maintenance and upgrading activities, but shall not make such calculations or drawings available for the purpose of enabling third parties to construct future Ship Loader. However, if the Contractor should refuse to enter into a future contract with Owner for substantially the same Ship Loader on substantially the same terms as provided herein and at a reasonable price and upon a reasonable delivery schedule (e.g., those obtainable in the free market system), then

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Owner and the Contractor will negotiate in good faith for alternative third party uses of such calculations and drawings.

1.9 WAIVER OF LIENS

No Contractor, Subcontractor, Vendor or other person or entity furnishing labor or materials for the Work, or for any alterations or additions thereto, shall have any right to file any mechanic’s lien, or claim of any sort or kind, against the Ship Loader, the Erection Site or any part thereof. Contractor will include the following language in all contracts and purchase orders of any Subcontractor, Vendor or other person or entity furnishing labor or materials for the Work and a copy of each contract or purchase order issued by the Contractor and accepted (signature) by each such Subcontractor, Vendor and other person or entity will be furnished by Contractor to Owner at its notice address in Section 2.31:

“No subcontractor, vendor or other person or entity furnishing labor or materials for the work herein provided for or additions thereto shall have any right to file any mechanic’s lien, or claim of any sort or kind, against the Ship Loader being manufactured for ASPA (or its assignees), the site where such Ship Loader will be erected and operated, or any part thereof, all of which rights are hereby waived.”

1.10 CONFIDENTIALITY

The Contractor shall not use the name, logos, trademarks, service marks, trade names or trade secrets of Owner or any of its Affiliates in any way without the Owner’s prior written consent (which may be granted or withheld in the Owner’s sole discretion), and Owner shall not be deemed to have granted the Contractor a license of, or granted the Contractor any rights in, any of the foregoing by entering into this Agreement. The Contractor shall not make any announcement, give any photographs, or release any information concerning all or any portion of the Work or this Agreement to any member of the public, press, trade or technical paper, other person or any official body, without the Owner’s prior written consent (which may be granted or withheld in the Owner’s sole discretion), except as may be contemplated by this Agreement for the necessary execution of the Work and except for references to this Agreement (but not the details of it) and pictures of the Ship Loader (but not the details of them) in its regular experience lists and general promotional materials.

1.11 ITEMS REQUIRING OWNER’S CONSENT

The following is a non-exclusive list of items that require Owner’s consent (such consent not to be unreasonably withheld):

1.11.1. Subcontractor(s) (Refer to 1.1)

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1.11.2. Equal or Approved Equal (Refer to 1.1) 1.11.3. Use of joint developments (Refer to 1.7) 1.11.4. Public disclosure (Refer to 1.10) 1.11.5. Extension of time or price change (Refer to 2.2) 1.11.6. Changes, modification or extra work (Refer to 2.4) 1.11.7. Construction Schedule (Refer to 2.5) 1.11.8. Insurance (Refer to 2.6) 1.11.9. Arbitration body (Refer to 2.9) 1.11.10. Deviations from the specified concepts, systems or components proposed by

the Contractor (Refer to 2.20) 1.11.11. Conflicts between Contract Plans, Contractor data sheet information and

written specifications (Refer to 2.21.4) 1.11.12. Design, drawings, calculations, catalog information and shop detail drawings

(Refer to 2.22) 1.11.13. Shipping and Erection Plan (Refer to 2.22) 1.11.14. Operating instructions, maintenance, repair and inspection manuals (Refer to

2.23) 1.11.15. Progress payments (Refer to 2.26) 1.11.16. General arrangement 1.11.17. Painting and protective treatments 1.11.18. Tripper design 1.11.19. Gear boxes and Gearing 1.11.20. Boom Telescoping Design

1.11.21. Boom Hoist design 1.11.22. Main structure

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1.11.23. Layout of footways and stairways 1.11.24. Machinery House/Electrical House 1.11.25. Field test procedure 1.11.26. The use of Owner’s name in any test or advertising 1.11.27. Electrical single line diagram 1.11.28. Outline dimension drawing of major Ship Loader drive equipment 1.11.29. Layout of electrical equipment 1.11.30. Data for Foundation Design 1.11.31. Radiographic Test and Air Test Plan 1.11.32. Structural calculations 1.11.33. Electrical Pick Up Points 1.11.34. Spare parts 1.11.35. Electrical Control System

1.11.36. Boom Shuttle Design (If Used)

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SECTION 2 SPECIFIC REQUIREMENTS 2.1 TIME OF DELIVERY

2.1.1. COMMENCEMENT

The Contractor confirms that it will commence the performance of the Work upon its receipt of the Notice to Proceed/Contract Execution. Contractor shall continuously and diligently perform the Work in accordance with the Construction Schedule.

2.1.2. DELIVERY DATE/LATE DELIVERY AND LIQUIDATED DAMAGE

The Contractor will complete the Work with respect to Ship Loader in accordance with the requirements of this Agreement by the Delivery Date for such Ship Loader, including delivery of such Ship Loader to Owner at the Erection Site. The Contractor acknowledges and agrees that Owner will incur substantial damages if the Work in accordance with the requirements of this Agreement to be performed by the Delivery Date for the Ship Loader is not completed by the Delivery Date for such Ship Loader. The parties agree that it would be extremely difficult and impracticable under the presently known and anticipated facts and circumstances to ascertain and fix the actual damages that Owner would incur under these circumstances, and, accordingly, the parties agree that Owner’s remedy shall be to recover from the Contractor as liquidated damages, and not as a penalty:

one-half percent (0.5%) per Ship Loader per week after the Delivery Date for such Ship Loader until the Substantial Completion Date for such Ship Loader, provided that the aggregate, maximum liquidated damages shall be five percent (5%).

However, the Owner shall provide essential facilities (such as the power supply, materials) for the Contractor’s testing, commissioning and certification of the Ship Loader. Otherwise, the days delayed by the default of the Owner shall be extended to the Delivery Date. The liquidated damages identified in this Section relate solely to the Contractor’s delay in completing the Work in accordance with the requirements of this Agreement by the Delivery Date for the Ship Loader and not to other breaches, actions or omissions of the Contractor. The liquidated damages identified in this Section shall not limit Owner’s remedies for other breaches, actions or omissions of Contractor, including termination for failure to complete the Work. The liquidated damages specified herein for a Loader shall be due and payable by the Contractor to Owner within ten (10) days after written demand by Owner

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provided at any time following the Delivery Date for such Ship Loader. In addition to its other rights and remedies, Owner shall have the right to offset the amount of any unpaid liquidated damages against any amounts due or that may become due Contractor under this Agreement.

2.2 PERMISSIBLE DELAYS

If the Contractor is delayed at any time in the progress of the Work by any act or neglect of Owner, Owner’s Engineer or any separate contractor employed by Owner, or by port authorities having jurisdiction over the Erection Site or subcontractors of such port authority or by changes in the scope of the Work to be performed thereunder that have been authorized by Owner in writing, or by strike, lockout, fire, unusual delay in transportation or unavoidable casualties or any other cause beyond the Contractor’s control, then the Delivery Date for the affected Ship Loader will be correspondingly extended for such reasonable time as Owner may decide.

In the event that the Erection Site or the rails upon which the Ship Loader is to be erected is not available or ready to receive the components of such Ship Loader on the date upon which Erection is scheduled to commence for such Ship Loader, then the Delivery Date for such Ship Loader will be extended for a period of time at least equal to the period from the date upon which the Contractor is ready and able to commence Erection of such Ship Loader (but no earlier than the date upon which Erection is scheduled to commence for such Ship Loader) to the date upon which the Erection Site or such dock becomes available or ready to receive the components of such Ship Loader.

In the event Owner’s plans for services involving the Ship Loader is delayed and Owner requests in writing a delay in delivery of such Ship Loader, the Delivery Date for such Ship Loader will be extended for the time required by Owner. In this case the written request for delay shall be provided to the Contractor in sufficient time to allow the Contractor to re-schedule the Delivery Date.

Should extra handling or storage costs be incurred by the Contractor as a result of any extension requested by Owner or of the failure of the Erection Site and the dock upon which such Ship Loader is to be erected to be available or ready by the date upon which Erection is scheduled to commence for such Ship Loader, the Contractor will be reimbursed for such additional costs, provided that:

2.2.1. the Contractor gives written notice to Owner within fourteen (14) days of the

commencement of the delay of the reasonable costs involved, and

2.2.2. Owner concurs with the reason for the delay and accepts the costs involved.

Such concurrence and acceptance of the extension by Owner will be made known to the Contractor by Owner issuing a Change Order to this Agreement extending the Delivery Date for the affected Ship Loader and modifying its Contract Price, if applicable.

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The Contractor will make written claim to Owner or Owner’s Engineer for any extension of the Delivery Date due to any of the foregoing causes within fourteen (14) days following the initial date of the occurrence giving rise to Contractor’s delay and, if Contractor fails to give such notice, any claim for extension will be deemed waived.

2.3 ADDITIONAL WORK EFFORT

In the event that the Work is behind the Construction Schedule required by Section 2.5, and such failure to meet the Construction Schedule, including plans of the Contractor to correct the problem, appears to result in a delay of the Delivery Date, Owner may call such matter to the Contractor’s attention. The Contractor and Owner will attempt to determine whether the reported failure to meet any individual part or all of the Construction Schedule, together with the Contractor’s plans for correction, will, in fact, result in failure of the Contractor to meet the Delivery Date for the Ship Loader.

The Contractor will, in addition to other remedies, if required to meet the Delivery Date for the Ship Loader, work such additional shifts and employ such additional resources as are necessary, at no additional cost to Owner, in order to regain compliance with the Construction Schedule sufficiently to meet said Delivery Date. In the event that Owner and the Contractor do not agree that additional work effort is required to meet the Delivery Date for such Ship Loader, then such matter may be brought to the attention of the Owner’s Representative who may direct the Contractor, in writing, to work such additional shifts and employ such additional men, at no additional cost to Owner, as necessary to meet said Delivery Date. The Contractor will comply with such written instructions.

2.4 CHANGES, MODIFICATIONS, AND EXTRA WORK

Owner or Owner’s Engineer will each have the right to order changes in, or modifications of the Work, in writing. If any such changes or modifications are made pursuant to such orders, adjustments in the Delivery Date and Contract Price (to the extent applicable) will be negotiated in good faith by the parties.

In the event of a dispute as to the amount of any such adjustment, the Contractor will, nevertheless, proceed with the work directed in the Change Order, when and as directed, maintaining a complete supporting cost record of all such changes or modifications. No such changes or modifications will become effective until reduced to writing as a Change Order. Any claim by the Contractor for compensation for extra work due to differences arising out of or in connection with this Agreement shall be made in writing to Owner or Owner’s Engineer within fourteen (14) days of the occurrences giving rise to the claim. If Contractor fails to give such written notice, any claim will be deemed waived.

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2.5 CONSTRUCTION SCHEDULE

The Construction Schedule will be a network analysis of the Critical Path Method (CPM) type, in the form of a network diagram and activity listing as attached hereto as Appendix F. The network diagram will show in detail and in orderly sequence, all activities, events and major milestones, their descriptions, durations, dependencies or constraints, including shop drawings, approvals, fabricating and delivering supplies and materials, and testing necessary to complete the Work. The activity listing will display for each activity on the network diagram the following minimum items:

2.5.1. Identification by code numbers and description.

2.5.2. Duration. 2.5.3. Earliest start and finish dates or expected date. 2.5.4. Latest start and finish dates or allowed date. 2.5.5. Total float or slack time. 2.5.6. Percent completion. 2.5.7. Responsibility code.

Without altering, revising or otherwise changing the Delivery Date, the Contractor shall, on or before the tenth day of each month, submit to Owner an updated Construction Schedule (three (3) hard copies and one electronic copy compatible with Owner’s computer systems), including each of the items listed above, for Owner’s Engineer’s review and approval. All network data will reflect the current status of the Work and project plan and schedule as of that date. The updated Construction Schedule will clearly detail the Contractor’s expected operations during the following one hundred (100) days, including calculations, shop drawings, approvals and special supply and delivery problems. The remainder of the Construction Schedule need only indicate the Contractor’s general approach and major activities and events that must be accomplished to complete the Work, including meeting the Delivery Date.

Each updated Construction Schedule will be subject to approval by Owner’s Engineer as to the Contractor’s compliance with this Agreement, including the Specifications, and will be revised by the Contractor as necessary to insure such compliance. Each updating will be accompanied by a narrative report by the Contractor explaining delays, if any, in the schedule and the corrective action taken to comply with the requirements of this Agreement. Negative reports are required if applicable. If serious delays occur, a more frequent than monthly updating may be required by Owner’s Engineer until such delays have been alleviated.

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2.6 INSURANCE

2.6.1. Without limiting its obligations under Section 2.7 or elsewhere, the Contractor will, for the Ship Loader, cause to be carried and maintained on such Ship Loader, and on all components thereof, and covering all of the Work and other services and activities to be performed under the provisions of this Agreement relating thereto, insurance in the amounts and with such terms and conditions as required and approved by Owner and with such insurance companies, underwriters or funds as reasonably approved by Owner. Approval for the insurance by Owner will not relieve or decrease the liability of the Contractor hereunder. The Contractor agrees that none of its subcontractors will be allowed to commence work on the project until (a) the subcontractor has obtained all similar applicable insurance, or (b) the Contractor has provided coverage for the subcontractor. Without limiting the generality of the foregoing, unless Owner otherwise approves, the Contractor will maintain insurance as follows:

2.6.2. An All Risks Erection and Installation Floater Policy including Debris Removal

in an amount not less than one hundred percent (100%) of the aggregate replacement value of the Ship Loader and all components thereof. The coverage for the Ship Loader must be in effect before the beginning of pre-erection at the Fabrication Site (and is to apply at the Fabrication Site and Erection Site until risk of loss or damage has passed to Owner pursuant to Section 1.4 for such Ship Loader. This policy shall at least include coverage against damage or loss caused by earth movement, fire, lightning, extended coverage, theft, vandalism and malicious mischief, earthquake, collapse, water damage (including flood), demolition occasioned by enforcement of applicable law, equipment accidents, all operational and performance testing and other perils as may be required by Owner. Such insurance shall be on a completed value form, with no periodic reporting requirements, insuring for the full replacement cost and providing (i) coverage for insuring the Work, (ii) transit coverage including ocean transit with sub-limits sufficient to insure full replacement value of any Work not stored at the Site, (iii) removal of debris with a per occurrence and an aggregate limit sufficient to cover the Ship Loader for at least $600,000 and (iv) coverage for foundations and other property below the surface of the ground. The policy shall not contain an exclusion for resultant damage caused by faulty workmanship, design or materials. As required by Section 2.6.12, the policy shall contain a loss payable to Owner clause.

2.6.3. An All Risks Cargo Insurance Policy including war, riot, strike and civil commotion coverage (or the nearest equivalent thereto which is commercially available) on the Ship Loader, but in no event covering for less than an all risk basis during loading and unloading, and all components thereof while being transported between sites. Sites include, but are not limited to, the Fabrication Site and Erection Site. This coverage must be in effect before the beginning of any loading activities at the Fabrication Site and remain in force until completion of all offloading activities of the Ship Loader and all components at the Erection

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Site. As required by Section 2.6.12, the policy shall contain a loss payable to Owner clause.

2.6.4. Commercial General Liability, Business Automobile Liability, and Workers Compensation and Employers Liability Insurance policies, as outlined below: a. Commercial General Liability insurance with limits of not less than

$5,000,000.00, combined single limit, for any one occurrence for bodily injury, including death, and property damage liability, and including the following coverages: Products and completed operations, fire legal liability, explosion/collapse/underground property damage liability, broad form property damage liability, professional liability including design (with a limit of not less than $1,000,000.00), stevedore’s legal liability if applicable, blanket contractual liability coverage which will specifically refer to the indemnification clauses under Section 2.7. Commercial General Liability and Professional Liability insurances, including design, must be in effect prior to commencement of any Work under this Contract.

b. Business Automobile Liability insurance with limits of not less than

$1,000,000, combined single limit, each accident, for bodily injury, including death and property damage liability shall be required and provided if any of Contractor’s personnel or subcontractors drives on Owner’s property. Coverage must extend to “any auto”.

c. A Statutory Workers Compensation Insurance, (or local law equivalent

covering Work at the Fabrication Site), and Coverage B Employers Liability, (or local law equivalent covering Work at the Fabrication Site), limit not less than $5,000,000 per accident encompassing Work at the Erection Site in Alabama. Coverage must be in effect prior to Work at the Fabrication Site and the Erection Site, as applicable.

d. If Owner requests in writing that insurance for risks other than those described

above or other special hazards be included in the property insurance policies (such as, but not limited to boiler and machinery insurance), the Contractors will, if possible, include such insurance.

2.6.5. The Contractor shall maintain the foregoing insurance until the Final Acceptance

Date, or until risk of loss or damage with respect to the specific coverage has passed as specifically described.

2.6.6. Each of the insurance policies referred to in Section 2.6 will be taken out in the

name of the Contractor as the principal insured party and Owner, Owner’s Representative, Owner’s Engineer and their respective Affiliates as primary and non-contributory additional insureds (with the additional insured requirement for general liability policy being on an ISO form CG20-10, 11/85 edition, or

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equivalent). All policies will contain a clause stating that each such policy is “Primary”.

2.6.7. Insurance required in this Agreement shall be placed with insurers acceptable to

the Owner. The existence of any self-insured retentions (SIRS) over which the required policies apply must be disclosed to and approved by Owner. Each policy shall require the insurer to give Owner at least 30 days prior notice in the event of any cancellation of, modification to or difficulty (if any) in extending, renewing or reinstating such insurance. All policies shall include waivers of any right of subrogation of the insurers against Owner (and against the Owner’s Affiliates and any other parties reasonably requested by Owner (including lenders) as directed by Owner), unless expressly waived by Owner. No policies of insurance shall be on a claims made basis unless approved in writing by Owner, nor shall Contractor permit the insurers the right to deny claims because such claims were noticed after the period of the applicable policy ended. However, claims shall be noticed no later than two years of date of occurrence.

2.6.8. Before permitting any Subcontractor to perform any Work, the Contractor shall

obtain Certificate of Insurance or other such evidence that the Subcontractor has obtained the required insurance coverages and shall make such evidence available to the Owner upon request.

2.6.9. The Contractor will furnish or cause to be furnished to Owner, as the various

coverages become due as specified in 2.6.2, 2.6.3 and 2.6.4 herein, a report signed by a firm of independent insurance brokers and agent of insurance carried and maintained in accordance with the requirement of this Section 2.7, including certificates of insurance, together with their opinion addressed to Owner as to the adequacy thereof. The Contractor will cause such firm to agree to advise Owner promptly of any default in the payment of any premium as herein required (whether for new insurance or for insurance replacing, renewing, or extending existing insurance) and of any other act or omission on the part of the Contractor of which they have knowledge and which might invalidate, materially change or render unenforceable or cause a lapse of, or prevent the renewal or extension of, in whole or in part, any of the required insurance in the English language. The Contractor will further furnish or cause to be furnished to Owner, current detailed information with respect to such insurance carried and maintained, including certificates of insurance. All insurance policies will contain a provision to provide Owner with thirty (30) days prior written notice in the event of cancellation or nonrenewal change to reduce or restrict the coverage of insurance. The Owner reserves the right to require certified copies of any policies of insurance as required in this Section 2.6.

2.6.10. In the event that any of the insurance required under this Agreement shall be

directly or indirectly depleted by twenty-five percent or more (whether due to payment of insurance proceeds, creation of a reserve or otherwise), the Contractor shall obtain from the insurer a reinstatement to each such policy at least equal to

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the depleted amount. The insurer shall send to Owner a notice of such reinstatement.

2.6.11. If the Contractor fails to effect and keep in force any of the insurance required

under this Agreement, or fails to provide satisfactory evidence, policies and receipts in accordance with this Agreement, Owner shall have the right but not the obligation, without prejudice to any other right or remedy, to effect insurance for the coverage relevant to such default, and pay the premiums due. Such payments shall be recoverable from the Contractor by Owner, and may be deducted by Owner from any monies due, or to become due, to the Contractor.

2.6.12. All insurance policies or certificates will provide that losses thereunder will be

payable to Owner’s Representative for distribution by it to Owner, Owner’s Representative, Owner’s lender, Owner’s Engineer and their respective Affiliates and the Contractor as their respective interests may appear. However, the policies or certificates may provide that, unless the underwriters will have been otherwise instructed by notice in writing from Owner’s Representative:

a. Any loss or claim under any public liability insurance may be paid directly to

the person or entity to whom any liability covered by such insurance has been incurred, or to Owner, Owner’s Representative, Owner’s Engineer or the Contractor to reimburse it for any loss, damage or expense incurred by it and covered by such insurance, provided that in the latter event the underwriter will have evidence that the liability insured against has been discharged; and

b. In the case of any loss or claim (other than a loss or claim covered by clause

(a) above or other than a total or constructive total loss of the Ship Loader, or other than a loss resulting from a requisition of title to the Ship Loader under any insurance with respect to the Ship Loader or any of its components, or any liability in respect thereof) the underwriters may pay directly for the repaid liability or other charges involved or, if repaired, the damage and the paid cost thereof or discharge the liability of other paid charges and, if the underwriters will have first received evidence thereof, may pay the Contractor as reimbursement therefor; provided, however, if such damage or liability involves a loss or claim in excess of $10,000 the underwriters will not make such payment without first obtaining the written consent of Owner’s Representative which consent will not be unreasonably withheld.

Owner will be given notification of any claim arising out of liability or damage to the Ship Loader.

2.6.13. In the event of loss of the Ship Loader or parts thereof, the Contractor will

undertake the repair, salvage, and recovery thereunder, at its sole cost and expense, on a timetable reasonably acceptable to Owner and will assume the sole responsibility, direction and control of such undertaking, keeping Owner advised of all developments. However, the Contractor will conduct such operations as

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expeditiously as possible and in a manner that will not interfere with Owner’s normal operations and will comply with Owner’s reasonable requests in this regard.

2.6.14. The Contractor agrees that it will not do any act or suffer of permit any act to be

done whereby any insurance required hereunder will or may be suspended, impaired, or defeated.

2.6.15. Nothing in this Section 2.6 limits the obligations, liabilities or responsibilities of

the Contractor set forth in this Agreement, at law or in equity. The cost of insurance under this Section 2.6 is included in the Contract Price for the Ship Loader.

2.7 INDEMNIFICATION OF LIABILITY

The Contractor will indemnify, hold harmless and defend Owner, Owner’s Representative, Owner’s Engineer, their respective Affiliates, and the officers, employees and agents of any of them against and from any claims, suits, judgements, losses and expenses for injury or death of any person, or for damage to the property (including loss of use) of any person, caused by or resulting from the following (regardless of whether or not it is caused in part by a party indemnified hereunder):

2.7.1. Any act or omission of the Contractor, or of its employees, agents or

subcontractors, in respect to any of the matters covered by this Agreement, or arising out of the presence or continued presence of such employees, agents, or subcontractors (or their employees or agents) in the United States; or

2.7.2. Any defect in the Ship Loader or any components thereof.

The Contractor will indemnify, hold harmless and defend Owner, Owner’s Representative, Owner’s Engineer, their respective Affiliates, and the officers, employees and agents of any of them against and from all claims, costs, expenses, losses or damages resulting from any liens or claims filed by creditors, Vendors, Subcontractors or others for the Work performed on or property supplied for the Ship Loader.

2.8 TAXES, FEES AND DUTIES

The Owner shall obtain all import permits or licenses required by any governmental authority in Alabama or any subdivision thereof so that Contractor may import the Ship Loader into Alabama to the Erection Site. The Contractor shall certify the Ship Loader for operation.

Any and all taxes, duties and fees imposed by any governmental authority in the USA in connection with this Agreement, including taxes, duties and fees associated with the delivery or erection of the Ship Loader in Alabama, shall be for the account of the

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Owner. Owner will not charge the Contractor dockage or wharfage fees associated with offloading the Ship Loader or its parts (assemblies). Any and all taxes, duties and fees imposed by any governmental authority outside the USA due to fabrication, commissioning, transportation and/or commissioning of the Ship Loader shall be for the account of the Contractor.

2.9 ARBITRATION

Each party understands and appreciates that their long term mutual interests will be best served by affecting a rapid and fair resolution of any claims or disputes that may arise out of or relate to this Agreement. Therefore, each party agrees to use all reasonable efforts to resolve all such disputes as rapidly as possible on a fair and equitable basis in accordance with this Article. In the event that a dispute arises over the interpretation or application of any provision of this Agreement or the grounds for termination thereof, the dispute shall be handled exclusively as provided in this paragraph. Any party may request that the parties meet in person or by telephone within 10 days of such request and seek to resolve the dispute by negotiation of the appropriate officers of each party. Such meeting shall be attended in person or by telephone by individuals with decision-making authority to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies.

If the parties have not succeeded in negotiating a resolution of the dispute within 45 days after the first such meeting and either party wishes to submit the dispute to binding resolution, such party shall submit the dispute for final and binding arbitration by the American Arbitration Association under its International Arbitration Rules (the “Rules”). Such arbitration shall be held in Mobile, Alabama and conducted in English by one arbitrator selected in accordance with the Rules. The decision and award of the arbitrator shall be in writing. All costs and expenses (including arbitrator’s fees and expenses and attorney’s fees and expenses) of the prevailing party shall be borne by the losing party or, in the event that the prevailing party has not prevailed entirely on its claim(s), then such costs and expenses shall be awarded in proportion to the award as the arbitrator, in his sole discretion, may determine. The arbitration award shall be final and binding upon the parties and shall not be subject to further review by any court or other judicial or governmental body in any jurisdiction within or outside Alabama.

Nothing in this Section shall prevent any party from seeking injunctive relief (or similar relief in any applicable jurisdiction) in a judicial proceeding if interim relief from a court is necessary to preserve the status quo pending resolution or to prevent serious and irreparable injury to that party or others, provided that the underlying dispute is resolved pursuant to the provisions of this Section.

2.10 GOVERNING LAW

This Agreement and the rights and obligations of the parties hereunder shall be governed and construed in accordance with the laws of the State of Alabama, USA.

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2.11 NOTICES

2.11.1. The Contractor will notify Owner of the mode of transport to the Erection Site to

be used for the Ship Loader to be constructed under this Agreement and will notify Owner of such designation at least ninety (90) days prior to the schedule date for shipment of such Ship Loader from the Fabrication Site to the Erection Site.

2.11.2. The Contractor will give Owner at least twenty-one (21) days prior notice by

telecopier (fax) of the following events and will confirm or rescind said notice seven (7) days prior to the then established notice days. If rescinded, such notice shall be resubmitted in accordance with the foregoing sentence unless and to the extent waived by Owner.

a. When the Ship Loader components/assemblies will be ready for final

inspection at the Fabrication Site in accordance with the Contractor’s Inspection procedures and as set forth in the Specifications.

b. Provision by Contractor to Owner of three (3) copies of its detailed Erection

Schedule (See Section 2.21) for such Ship Loader.

c. When such Ship Loader components/assemblies will be ready for shipment from the Fabrication Site to the Erection Site.

d. When the Contractor will start Erection of such Ship Loader at the Erection

Site.

e. When each Ship Loader will be ready for final inspection and testing at the Erection Site in accordance with the contractor’s Inspection and testing procedures and as set forth in the Specifications.

f. When such Ship Loader will be Substantially Completed. g. When any event occurs, or is likely to occur, which in the Contractor’s

reasonable judgment will materially adversely affect the Contractor’s performance and will extend the time for delivery of such Ship Loader. This notice will be given in accordance with Section 2.2 and will specify the nature of the event and the anticipated delay and extension of the Delivery Date.

2.12 TERMINATION

Owner will have the right, from time to time or at any time and without reason, to cancel this Agreement or any portion of the Work as of the date of written notice thereof to the Contractor from Owner or any subsequent date as may be specified in such notice as the date of cancellation. Any cancellation of any portion of Work pursuant to this Section

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will not affect the rights, interests, duties or obligations of either of the parties with respect to any portions hereof which have not been canceled.

2.13 CANCELLATION

In the event that Owner cancels this Agreement or any portion of the Work pursuant to Section 2.12 other than due to a breach of this Agreement by the Contractor or the bankruptcy, insolvency, liquidation or similar occurrence with respect to the Contractor, Owner will pay to the Contractor the following as the Contractor’s sole and exclusive remedy:

2.13.1. One hundred percent (100%) of the value of materials, equipment, components,

supplies and the like actually procured exclusively for the Work that cannot be returned for a refund (at the election of Owner, with or without a cancellation or return charge, provided that Owner will be responsible for such cancellation or return charge) and the labor and services actually rendered in the performance of such Work (in each case based on the Contract Price).

2.13.2. Reasonable and necessary demobilization expenses incurred by the Contractor

after such cancellation date, including the aggregate amount that the Contractor must expend in meeting required cancellation charges from its Subcontractors and Vendors, and should Owner so specifically direct, the Contractor’s costs incurred in storing the Ship Loader or any components thereof at the Fabrication Site and removing same from the Fabrication Site to a location so designated by Owner, less the aggregate amount of all payments theretofore made by Owner under this Agreement.

In the event Owner wishes to dispose of any cancelled, partially completed Ship Loader or components thereof within two years from such cancellation date, and to the extent that the Contractor in its reasonable opinion is able to utilize the materials, equipment, components and supplies for which Owner has paid, in the course of completing a Ship Loader order for Owner or others, the Contractor will pay to Owner for such materials, components, etc., the fair market value of such materials, equipment, components and supplies in their then state of fabrication and manufacture, provided that to the extent that Owner has paid the Contractor for such materials, equipment, components and supplies pursuant to Section 2.13.1, the fair market value of such materials, equipment, components and supplies shall conclusively be deemed to be the amount so paid. The Contractor and Owner will, at the time of cancellation, jointly review the material and labor expenditures and agree on the then fair market value of such materials, equipment, components and supplies.

Payments to the Contractor under this Section will be made within thirty (30) days after presentation of the agreed upon invoices to Owner for the cancellation charges as set forth above. Payments to Owner under this Section will be made within sixty (60) days after the award by Owner to the Contractor or other third party for the Ship Loader that will incorporate the materials, equipment, components and supplies that Owner desires to

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dispose. Title to such materials, equipment, components and supplies shall pass to the purchaser thereof upon such payment.

With respect to any cancellation pursuant to this Section, the Contractor agrees that Owner or any of its duly authorized representatives will, for a period of six (6) months after final settlement, under the terms of cancellation hereof, have, at reasonable times, free access to and the right to examine, audit and make copies of all relevant and pertinent books, documents, papers and records pertaining to that part of the Work or this Agreement that was cancelled.

2.14 RIGHT OF ASSIGNMENT

This Agreement will be binding upon and inure to the benefit of Owner and the Contractor and their respective successors and assigns, except that neither party will assign or transfer this Agreement or any of their respective rights or obligations hereunder without the prior written consent of the other party, which consent will not be unreasonably withheld, except that Owner may assign its right and obligations under this Agreement to any Affiliate of Owner or, after delivery of the Acceptance Document, to any other person or entity and the consent of the Contractor to such assignment shall hereby be deemed given. Notwithstanding the foregoing, the Contractor agrees to execute such documents as may be reasonably required by the senior lenders of Owner as would be customarily required of material vendors of capital equipment in a project finance deal, which documents will require, among other things, (i) in the event of a default by Owner of the loan or related documents the consent of the Contractor to the assignment of this Agreement to such senior lenders or such other entity as may be approved by the senior lenders to continue the project being financed and (ii) assignment of proceeds payable to Owner from insurance and bonds required by this Agreement. In the event of any such assignment prior to final payment hereunder, Owner will remain liable for the faithful performance of this Agreement.

2.15 COMPLIANCE WITH LAWS, RULES AND REGULATIONS

Each of the Contractor and Owner will comply with all applicable laws, rules and regulations.

2.16 REGULATORY CHANGES; LICENSES

In the event of change in requirements of pertinent regulatory bodies between the date of this Agreement and the date of delivery at the Erection Site, the Contractor will undertake to meet the changed requirements and will negotiate with Owner for a reasonable Change Order as made necessary by such subsequent changes in regulations.

The Contractor will be responsible for procuring, and will, with due diligence, procure, all approvals, licenses, permits, priorities, authorizations, waivers, etc. as required by or issued by each governmental authority having jurisdiction of the Erection Site or

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otherwise so that the Ship Loader may be delivered to the Erection Site, Erected and used for their intended purposes.

2.17 WARRANTY

The Contractor warrants that during the Warranty Period (as defined below) the Ship Loader and each component of the Ship Loader shall (i) be free from errors, defects and damage in design, material and workmanship, (ii) conform to the requirements of this Agreement, including the Specifications and the Contract Plans, (iii) be new unless Owner agrees otherwise in writing, (iv) be of good quality and good condition and (v) be delivered, handled, stored (whether at the Erection Site, the Fabrication Site or otherwise) and installed in accordance with all manufacturer’s instructions and in a manner that does not void or impair manufacturer warranties. The “Warranty Period” for the Ship Loader shall be for (i) the period of two (2) years from the Substantial Completion Date for such Ship Loader for the electrical equipment supplied by the drive manufacturer, (ii) the period stated in the manufacturer’s warranty for components that are purchased by the Contractor from the manufacturer thereof and covered by the manufacturer’s warranty, which period will not commence until Substantial Completion of the Ship Loader containing such components and will last at least until the first anniversary of Substantial Completion, and (iii) the period of five (5) years from the Substantial Completion Date for such Ship Loader for the remainder (including the structure and all other mechanisms and components), provided that the warranty period for any replacement or repair occurring during either such two (2) year period or such five (5) year period, as applicable, will last until the later of (x) six (6) months after such replacement or repair occurs and (y) the remaining unused portion of such two (2) year period or five (5) year period, as applicable. The Contractor shall use its best efforts to obtain written warranties for the benefit of the Contractor and Owner from each supplier, vendor and Subcontractor in relation to its portion of the Work that (a) are consistent with Contractor’s warranty to Owner herein and (b) warrant against defects and deficiencies in any supplier’s, vendor’s and Subcontractor’s work or goods. Contractor shall provide promptly to Owner copies of all Subcontractor warranties Contractor obtains. Those warranties shall provide that they survive any tests by Owner and the Contractor, inspections and approvals and shall be assignable to Owner. For the avoidance of doubt, this warranty does not extend to consumables.

If within the Warranty Period deviations from, breaches of, or failures of the foregoing warranties (“Defects”) are found, the Contractor shall, at its sole expense and promptly upon being given notice thereof, correct, repair, modify or replace those Defects, including repair, disassembly, removal, transportation, re-assembly or re-performance of any affected portion of the Ship Loader and the Work and shall demonstrate to the satisfaction of Owner that the Defects have been properly corrected. The Contractor shall remedy any failure or breach of any warranty so as to minimize revenue loss to Owner and to avoid disruption of Owner’s operations at the Facility. If Contractor fails to initiate and diligently take steps to pursue corrective action upon the Contractor’s receipt of Owner’s notice and to pursue that corrective action continuously thereafter, Owner may undertake or arrange corrective action at the Contractor’s expense. If Owner makes

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a good faith determination that corrective action is necessary in a shorter time than that provided in this Section or as may be provided by the Contractor, it shall immediately notify the Contractor of such need and Owner may undertake or arrange corrective action at the Contractor’s expense. The correction of a Defect by Owner pursuant to the previous sentences shall not limit or void the Contractor’s warranties, provided that the correction of the Defect by Owner is in accordance with generally accepted industry practices.

For any applicable warranty to be enforceable by Owner against the Contractor, with respect to any Defect, such Defect must not have occurred as a result of the applicable Ship Loader: (i) not having been maintained by Owner to the reasonable standards provided by Contractor to Owner in writing, (ii) not having been operated and maintained by competent personnel of Owner, (iii) having been overloaded or stressed beyond Specifications or (iv) having suffered casualty by force majeure (to the extent that the Specifications do not cover the risk of such force majeure), or negligent, wanton, military or unlawful act of any party (other than the Contractor, any Subcontractor and any person for whom the Contractor or any Subcontractor is responsible).

Owner may negotiate and enter into with the Contractor a yearly inspection or maintenance service agreement which will reflect the Contractor’s continuing interest in proper maintenance and overhaul of the Ship Loader. In the event later inspection demonstrates that a Defect did not exist or that the Contractor was not liable for such Defect, the costs of remedying such Defect, whether made by the Contractor or others, will be for Owner’s account, and Owner will further reimburse the Contractor for its substantiated necessary costs incurred by the Contractor in making its inspection. In the interest of confirming proper initial set-up and Ship Loader operation, Contractor will provide on-site support at the Erection Site for a minimum of three (3) months after the Final Acceptance Date.

2.18 PATENT INDEMNIFICATION

The Contractor represents and warrants that neither the design of nor any components of nor any completed Ship Loader will infringe on any patent owned or controlled by any person, firm, corporation, association or other entity. To the extent that such design or components of the Ship Loader incorporate or utilize in any fashion any inventions covered by a patent (whether foreign or domestic) owned or controlled by the Contractor, Owner and Any Other Owner will have a perpetual, royalty-free license in respect of such inventions in connection with the use, operation, repair and maintenance of such Ship Loader. This royalty-free license will apply to any and all future improvements (“upgrades”) to such Ship Loader made by the Contractor.

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The Contractor will indemnify Owner, Owner’s Representative, Owner’s Engineer, Any Other Owner, their respective Affiliates and their respective officers, agents and employees against any liability, including costs, claims or suits or judgments resulting from infringement or any alleged infringement of any existing valid foreign or domestic patent, arising out of the manufacture, delivery, repair, modification, alteration, operation or upgrades or use of the Ship Loader. In the event that suit for infringement is brought, or a claim for such infringement is made against Owner, Owner’s Representative, Owner’s Engineer, Any Other Owner, any of their respective Affiliates or any of their respective officers, agents or employees, Owner will, forthwith, upon receiving notice of the filing of such suit or the making of the claim, promptly give the Contractor written notice thereof.

The Contractor will thereupon, through its own counsel reasonably acceptable to Owner, assume control of said claim or suit and, at its own expense, defend the same; however, Owner will, at its own expense, have the right to be represented by counsel of its own choice in such suit. The Contractor will have the sole right to settle any such suit or claim for infringement as it sees fit, provided that such settlement is solely for money damages and the Contractor procures for Owner the right to continue to use the Ship Loader as before or modifies the Ship Loader so that they are no longer infringing but conform in all respects to the requirements of this Agreement, including the Specifications. This indemnification will not cover changes, upgrades, modifications or alterations to the Ship Loader made by Owner unless such changes, upgrades, modifications or alterations are approved in writing by the Contractor.

2.19 CONFLICT OF INTEREST

The Contractor represents and warrants that:

2.19.1. No third party has been employed or retained or solicited to secure this Agreement for the Contractor upon an agreement or understanding for the payment to such third party of a commission, percentage, brokerage, contingent fee or other thing of value;

2.19.2. No third party had, or will be admitted to, any share or part of this Agreement or

to any benefit or profit that may arise therefrom; 2.19.3. No officer, agent or employee of Owner, Owner’s Representative or any

Affiliate of Owner or Owner’s Representative was employed, retained or solicited to secure this Agreement for the Contractor, and

2.19.4. No officer, agent or employee of Owner or any Affiliate of Owner has a

beneficial interest in the Contractor or this Agreement or has or will receive anything of value as a result of or arising from this Agreement.

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For breach or violation of these representations and warranties, Owner will have the right to seek restitution to the extent it has been damaged from the Contractor and its officers and directors jointly, together with its reasonable expenses (including attorney’s fees) incurred in collecting such sums.

2.20 DESIGN RESPONSIBILITY

THE CONTRACTOR SHALL BE RESPONSIBLE FOR THE DESIGN OF THE SHIP LOADER. Owner is not and does not purport to be the design agent, and no consent, review, comment or approval of Owner (including any of the same pursuant to Sections 1.11, 2.22 and 2.23) shall relieve the Contractor of its responsibilities hereunder.

The Contractor will design and shop detail the Ship Loader which will comply with the space limitations, loading performance requirements and design criteria shown on the Contract Drawing or Plans and called for in the Specifications and shall perform its obligations hereunder with due care that would be expected of a firm of professional engineers experienced in the manufacture of Ship Loader. The Ship Loader shall be fit for the purposes intended by Owner as contemplated by Section 1.2.

The design concept and detail components of the Ship Loader where specifically shown and mentioned herein establishes a minimum required level of quality and performance and it is in no other way binding on the Contractor. Should the Contractor choose to use any or all of the design, he will assume full responsibility for same, as if he had conceived that part or all of the design. Deviations from the specified concepts, systems or components proposed by the Contractor will be individually brought to Owner’s attention. Owner reserves the right of refusal of such proposals based solely on its own overall best interest. In the event of such refusal, the Contractor will, without delay diligently pursue alternate state of the art designs. Where the Contractor can show evidence of benefit to Owner, Owner will not unduly delay acceptance of such concepts, systems of components.

The Contractor will prepare complete design calculations. All calculations will be made by a qualified professional engineer of Contractor, who shall be registered in the U.S.A. or country of manufacture, and will be stamped with such engineer’s stamp, which will show the branch of engineering in which registered, registration number, and will also be signed and dated by such engineer. All drawings, both assembly and detail, will also be stamped, signed and dated by the Contractor’s Engineer showing that the Contractor’s Engineer has reviewed the drawing and that they accurately reflect the conclusions of that person’s design calculations. The Contractor’s Engineer will insure that shop work meets the quality that its design requires. The Contractor will obtain approval of the Ship Loader design from all regulatory bodies having jurisdiction over the certification of the Ship Loader at the Erection Site as a Ship

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Loader of the capacity specified in the Specifications, and the Contractor will submit to those bodies all necessary calculations, drawings and data necessary for such approval.

2.21 DESIGN GENERAL

2.21.1. DESCRIPTION

The Ship Loader will be constructed as described in the Specifications and as shown on the Contract Plans. The Ship Loader when fully erected (assembled) at the Erection site will consist of:

a. A gantry frame with trucks supported and traveling on rails (furnished and

installed by others) and equipped with a cantilever type boom (or shuttle type boom) that may be raised and lowered (shuttled in/out) for loading operations;

b. A telescoping system to allow boom/spout positioning for loading coal;

c. A telescoping spout system for loading coal;

d. A conveyor system for retrieving coal from dock conveyor and discharging to

boom system;

e. A boom conveyor system for discharging to telescoping spout; f. An operator’s cab;

g. A tripper for interface with dock conveyor;

h. A tie-downs, stowage pins and devices necessary for securing and protecting

such Ship Loader and its parts from storm wind conditions as described in the Specifications; and;

i. All other parts and appurtenances necessary for continuous coal loading

operations and maintenance.

2.21.2. INTENT OF THE DESIGN REQUIREMENTS

The intended purposes of the design requirements are (i) to provide a coal Ship Loader that:

a. is provided with adequate safety devices to protect personnel, the Ship

Loader, and the rails from injury or damage during service;

b. is highly reliable (but economical for the purpose intended) through the use of conservative design factors;

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c. is highly productive in periodic continuous operation for an estimated twenty-five (25) years useful life (Owner recognizes periodic needs for repair/ replacement of rotating equipment and periodic inspection and repair of structures);

d. will require a minimum of maintenance; and e. can withstand variations in the weather during operation without damage or

deterioration (other than paint).

2.21.3. WHEEL LOADS OF SHIP LOADER

In addition to and included in any of the general and specific design requirements placed upon the Contractor under this Agreement, including the Specifications and Contract Plans, the Contractor is responsible for the actual wheel loads of the Ship Loader being within the design specifications which have been approved by Owner. Should the wheel load of the Ship Loader in actual operation exceed the wheel load specification of this Agreement, the Contractor will take all such steps as may be necessary in order to insure that the Ship Loader as Erected and as operated during the test period comply with the Specifications with respect to wheel loads. Steps to be taken by the Contractor in order to comply with the requirements of this Section may include a redesign or reconstruction of the Ship Loader so that the number of wheels or bogies would be increased or such other steps upon which the Contractor and Owner might agree. The Contractor will not permit the Ship Loader to be operated during the Erection and test period if actual wheel loads exceed the safe working limit of the wharf or dock. Any and all costs of such compliance will be for the account of the Contractor and any delays incurred as a result of non-compliance with Specifications will be a non-permissible delay for the account of the Contractor.

2.21.4. CONTRACT PLAN

Owner and the Contractor agree that the Contract Plans and Specifications will be used as a guide by the Contractor in the development of the Ship Loader design. If a conflict exists between the Contract Plans and the Specifications, the Specifications will govern.

2.22 CONTRACTOR’S DRAWINGS, CALCULATIONS AND CATALOG

INFORMATION

The Contractor shall submit for review by Owner’s Engineer copies of all design drawings, calculations, catalog information and shop detail drawings used by the Contractor to design, manufacture and erect the Ship Loader. No deviations from the specified concepts, systems or components proposed by the Contractor shall be included in this review unless specifically called to the attention of Owner’s Engineer in writing and approved in writing.

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The sole purpose of the review is to verify compliance of the design concept with the requirements of the Specifications. It is not to be construed as a check of the adequacy of the Contractor’s design and in no way relieves Contractor of its responsibility to conform to all the requirements of the Specifications and to guarantee the adequacy of the equipment furnished for the intended purpose.

Shop drawings shall indicate the method of weld inspection and the Contractor’s weld inspection procedure shall be submitted as part of the shop drawing submittals. Drawings and calculations submitted for review will have been thoroughly checked, signed, dated, and stamped as required by Section 2.20 prior to submittal. Structural drawings will have been checked, signed, dated, and stamped by the Contractor’s chief structural engineer. Revisions to previously reviewed drawings will be initiated by the Contractor’s Engineer to attest to his review and approval of the revision, and will be resubmitted in accordance herewith.

Drawings and calculations will be in the English language and dimensioning throughout will be in the metric system. The information will be clearly presented so that Owner’s Engineer may check all details for conformance with the Specifications. Drawings and calculations will be submitted in a logical order so they may be checked as they are received against previous information submitted. Within thirty (30) days after Notice to Proceed, the Contractor will submit a schedule of drawings together with the anticipated dates upon which they will be submitted. Owner’s Engineer will be the sole judge of the adequacy of information presented.

The Contractor grants Owner unlimited rights to use all calculations and drawings for erecting, maintaining, trouble-shooting, operating, modifying and repairing the Ship Loader; however, Owner will protect the Contractor’s proprietary rights and information if the above necessitates disclosure of the same to third parties. All drawings and data submitted, reviewed and approved will form a part of this Agreement. The sequence of submission of drawings shall be such that all information is available for checking each drawing when it is received.

Each submission of drawings and data by the Contractor must be accompanied by a letter of transmittal containing a list of drawings giving titles and numbers. Decisions on these drawing and data will be given by Owner by letter. Owner’s Engineer will respond via email/fax to the Contractor with all comments and/or questions within thirty (30) days after receipt of drawings and data. All items which are noted “No Exceptions Taken” or “Make Corrections Noted” will authorize the Contractor to proceed with the fabrications of the material and equipment covered by such drawings. When prints of drawings and calculations have a comment of "Amend and Resubmit," the Contractor shall make the necessary revisions on the drawings and calculations and shall resubmit prints within 15 days after receipt. Resubmitted drawings and calculations shall be reviewed in the same

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routine as before and only after drawings which are noted “No Exceptions Taken” or “Make Corrections Noted” will authorize the Contractor to proceed with the fabrications of the material and equipment covered by such drawings, subject to the corrections, if any, indicated thereon or described in the response. Every revision made during the life of the Agreement shall be shown by number, date, and subject in a revision block and a notation shall be made in the drawing margin to permit rapid location of the revision. The time consumed by the Contractor in submitting and obtaining review action on drawings and data shall be included in the time allowed for the achievement of Substantial Completion of Ship Loader by the relevant Delivery Date. The Contractor shall comply with comments provided by or the amendments required by Owner’s Engineer however, the submission of drawings and data to Owner’s Engineer as contemplated by this Section and the incorporation of the comments and amendments of Owner’s Engineer shall not relieve the Contractor from any of its obligations under this Agreement.

All of the applicable requirements of this Section with reference to drawing submittals shall apply equally to design calculations, catalog cuts, illustrations, printed specifications, weld qualifications, mill tests or other required data. All correspondence, drawings, literature, instruction books, data and nameplates shall be in the English language. Four (4) copies of all the information under this Section will be submitted for review. Distribution will be as follows:

• Two (2) copies to: Owner

Alabama State Port Authority Attn: Brad Ojard P.O. Box 1588 McDuffie Terminal, 1901 Ezra Trice Boulevard Mobile, AL 36603 BOjard@asdd.com

• Two (2) copies to: Owner’s Engineer

Shaw GBB, LLC. Attn: P.E. Bridges 3600 Springhill Business Park Suite 200 Mobile, AL 36608-1212 Paul.Bridges@shawgrp.com

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Within thirty (30) days after Notice to Proceed, the Contractor will submit a facility interface drawing for Owner’s review and use. The drawing will show the location, magnitude and direction of all loads imposed by the Ship Loader on the rails, including those imposed by such Ship Loader’s wheels, stowage pins, rail friction, parking brakes, tie downs and bumpers.

Not later than ninety (90) days prior to the date for shipment of the Ship Loader from the Fabrication Site to the Erection Site, the Contractor will submit to Owner’s Engineer for approval four (4) complete sets of its plans for shipping and Erection of such Ship Loader. Distribution will be as listed above. Such plans will include drawings showing the weight, manner of installing such Ship Loader on the rails, a sequence of operations, and the Erection Schedule, including a detailed schedule of the complete Erection and testing operation complying with Section 2.5. Such plans will provide for conditions peculiar to the particular Erection Site, i.e., soil pressure conditions, weather allowances, labor conditions, etc. The plans for the Erection will be compatible with the Erection Site and with other activities which may be concurrently in progress at the Facility. When revised and agreed upon by the Contractor and Owner, the plans for shipping and Erection of the Ship Loader will be the basis for Owner planning and coordination of concurrent activities, i.e., other contractor’s work, Owner operations, etc.

The plans for shipping and Erection of the Ship Loader will be fully coordinated with Owner’s Engineer, the Contractor and the Contractor’s Erection subcontractor. The plans will be reviewed and commented on by Owner’s Engineer not later than forty-two (42) days prior to the date for shipment of such Ship Loader from the Fabrication Site to the Erection Site. On the Actual Delivery Date, the Contractor will deliver to Owner at the Notice Address, the following revised “As Built”:

All Calculations Two (2) Sets, with index, in hard cover binding.

One (1) Set of Compact Disks Containing all of the above All Detail Shop Drawings, Bill of Materials, Shipping and Erection Drawings

One (1) Set of Compact Disks Containing all of the above, compatible with the latest version of Autocad.

All compact disks provided by the Contractor pursuant to this Agreement shall be accompanied by any software that is required in order to access the information thereon if Owner does not then have such software.

2.23 OPERATING INSTRUCTIONS, MAINTENANCE AND INSPECTION MANUALS

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Not later than thirty (30) days prior to the date for shipment of the Ship Loader from the Fabrication Site to the Erection Site, the Contractor shall submit to Owner four (4) copies of the proposed printed Operating Instructions, Maintenance and Inspection Manuals in English, covering the operation, maintenance and inspection of such Ship Loader, including routine and major maintenance of mechanical and electrical equipment, lubrication recommendations and both routine and major inspections of the structure shall be furnished (see Structural Maintenance Program in the Specifications). Also, periods of inspection and lubrication must be clearly indicted.

All references to spare part numbers and description are to be the original manufacturer’s part number unless the Contractor is the original manufacturer. The Contractor’s number and description may be provided in addition to the required information. The manuals shall be fully illustrated and shall include spare parts schedules, electrical schematics and wiring diagrams, hydraulic circuit diagrams and a fully detailed fault finding chart. Such manuals will be reviewed and commented on by Owner’s Engineer promptly after receipt by Owner’s Engineer.

Not later than fourteen (14) days prior to the Substantial Completion Date for the Ship Loader, the Contractor shall furnish to Owner eight (8) copies of the agreed upon Operating Instructions and Maintenance and Inspection Manuals described above for such Ship Loader. One (1) copy shall be sent to Owner, one (1) copy to Owner’s Engineer, and the remaining copies to the Erection Site. The Ship Loader Operator’s instructions shall be bound separately and all manuals shall contain an index and shall have a hard cover binding. On the Actual Delivery Date, the Contractor shall deliver to Owner, Owner’s Engineer, and the Erection Site one (1) set each of the above instructions and manuals on Compact Disks. Notwithstanding the foregoing, Owner shall be entitled to reject any manuals referred to in this Section 2.23 that do not conform to the requirements hereof, in which case the Contractor shall resubmit a revised manual that shall conform to the requirements hereof.

2.24 SPARE PARTS

In addition to any spare parts to be provided by the Contractor as identified in Section 11.2 of the Specifications, the Contractor shall recommend to Owner a list of spare parts to adequately support the Ship Loader. Spares as delivered shall be clearly identified and a detailed packing list shall accompany shipment. The packing list shall identify shipping boxes and shall show for each part the quantity, part name, part number, intended use and the shipping box in which it is stowed. All spare parts shall be wrapped, packed and otherwise protected against deterioration or damage by moisture, condensation, dust, rodents, etc., under extreme climate conditions.

2.25 TRAINING OF OWNER’S PERSONNEL

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Recognizing the vital importance of the proper training program for the operators and maintenance personnel for Ship Loader, the Contractor shall provide at the Facility the following training program, at no cost to Owner, immediately after the Substantial Completion Date (but prior to the Actual Delivery Date):

2.25.1. Five eight hour classes, including time on such Ship Loader for operators on

Ship Loader features, performance criteria, duty cycle, safety/emergency considerations, by using the specified operator’s instruction book.

2.25.2. Five eight hour classes for maintenance personnel on Ship Loader features,

performance criteria, structural/mechanical/electrical and electronic component outlines, including lubrication, paint characteristics, and fault diagnostic approach along with inspection procedures by using maintenance and inspection manuals.

2.25.3. In addition to the classes above, the manufacturer of the electronic control

equipment shall provide a minimum two week training program at the Terminal, during the assembly and testing, to train maintenance engineering personnel.

The instructors shall be fully qualified and knowledgeable of such Ship Loader’s operational and maintenance requirements and shall be representatives of the Ship Loader manufacturer. They shall be completely fluent in technical English.

2.26 TERMS OF PAYMENT

2.26.1. CONTRACT PRICE PAYMENTS

Owner shall pay the Contractor for the Work and all other services in accordance with the following schedule which shall apply separately to the Ship Loader:

CONTRACT PRICE PAYMENT FOR SUCH NO. LOADER EVENT 1 20% Down payment within thirty days after the

contract signing 2 30% After the fabrication is started 3 20% Shipment

4 20% Substantial completion 5 10% Final acceptance.

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Invoices will be paid within thirty (30) days of the receipt by Owner of an agreed form of invoice after the occurrence of the event referred to above for which payment is being sought. If the payment is delayed by the Owner, the Owner shall pay for the delayed part of price to the Contractor at the effective interest rate of One Month LIBOR plus 3, but not to exceed 8.00%.

2.26.2. RIGHT TO OPERATE AND USE UNSATISFACTORY MATERIALS AND

EQUIPMENT

After a Ship Loader has been erected and tested and is acceptable to Owner as substantially complete but with Punch List Items, Owner may take delivery of such Ship Loader and will have the right to operate and use such Ship Loader for such time as Owner may require. The Contractor shall use its best efforts to complete the Punch List Items as expeditiously as possible and at times that are convenient to Owner in order that the operations of Owner are not interfered, but in no event later than the dates indicated on the agreed upon list of Punch List Items.

2.26.3. FINAL PAYMENT

Notwithstanding the foregoing, Owner shall have no obligation to make the final payment if the Contractor has not furnished to Owner a certificate executed by an executive officer of the Contractor stating that the applicable Ship Loader is free and clear of any and all liens, claims and encumbrances arising from the Work and that all outstanding invoices from all Vendors and Subcontractors have been paid in full by the Contractor.

2.26.4. PASSAGE OF TITLE

Title to the Ship Loader will be deemed to have passed from the Contractor to Owner on the Substantial Completion Date for such Ship Loader.

2.26.5. WARRANTY AND LIABILITY AFTER FINAL PAYMENT

Final acceptance and payment by Owner with respect to the Ship Loader and passage of title and risk of loss or damage from the Contractor to Owner will not release the Contractor from any of its liabilities or responsibilities under any of the warranties or representations or any of the terms of this Agreement with respect to such Ship Loader, all of which shall survive such final acceptance and payment and passage of title and risk of loss or damage.

2.27 SHIP LOADER DELIVERY

The Ship Loader shall be delivered to the Erection Site pre-assembled to the fullest practical extent and the time between commencement of Erection and the Substantial Completion Date shall be held to an absolute minimum.

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2.28 EXISTING CONDITIONS

It shall be the Contractor’s responsibility to ascertain all conditions existing at the Erection Site to ensure interface of the Ship Loader with existing rails, power supply and other related factors.

2.29 FACILITIES FURNISHED TO OWNER

At no additional costs to Owner and until shipment of the Ship Loader from the Fabrication Site, the Contractor will furnish to Owner’s Representative, as reasonably requested by Owner, at the Fabrication Site, suitable housing with utilities paid, transportation to and from the Fabrication Site and a private office equipped with:

2.29.1. lockable desk(s), 2.29.2. chair(s), 2.29.3. lockable file cabinet(s), and 2.29.4. telephone(s).

Telephone, telecopier and reproduction services will be available for the use of Owner’s Representative at cost. The Contractor will allow use of its cafeteria, if any, by Owner’s Representative.

2.30 FACILITIES FURNISHED TO CONTRACTOR

Owner will supply to Contractor at the Erection Site, from vessel arrival until issuance of the Acceptance Document a designated Work Area. All Contractor’s activities, tools, equipment, offices, etc. shall be kept within this designated area. The space and duration required shall be agreed upon prior to Execution of the Contract.

2.31 ADDRESSES

All notices provided for hereunder will, unless otherwise specified herein, be in writing and delivered by hand, reputable international courier that guarantees delivery, telecopier (fax) or electronic transmission (e-mail), addressed as follows:

To Owner: Alabama State Port Authority Attn: Brad Ojard P.O. Box 1588

McDuffie Terminal, 1901 Ezra Trice Boulevard

Mobile, AL 36603 +1(251) 441-7132

Email: BOjard@ASDD.com

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To the Contractor:

or to such other address, facsimile number or e-mail address as the party to which such notice is directed may have designated in writing to the other party pursuant to this Section.

2.32 U.S. FOREIGN CORRUPT PRACTICES ACT

Owner has chosen the Contractor to perform its obligations under this Agreement on the basis of the Contractor’s experience and qualifications, including the Contractor’s reputation for ethical business conduct and compliance with applicable laws. Accordingly, the Contractor agrees that it shall not pay any bribe, kickback or other illegal or improper payment to influence the procurement or award of any business, contract or order to Owner or any of its Affiliates, including any facilitating payment to any governmental official intended to influence any discretionary decision of that governmental official. If in doubt, the Contractor shall ask Owner whether any payment should be considered “improper”. If any funds paid to the Contractor by Owner are so used, the Contractor shall refund to Owner the amount of such payments. If any funds, regardless of source, are so used, Owner shall have the right, despite any other provision, to terminate this Agreement immediately without liability.

2.33 ENGLISH LANGUAGE

All notices, documents, reports, certificates, manuals and specifications delivered pursuant to this Agreement shall be in the English language in addition to any other language as may be required by this Agreement. If this Agreement is translated into any other language, the original English language version shall control.

2.34 TIME OF THE ESSENCE

The parties acknowledge and agree that time is of the essence of this Agreement. 2.35 AMENDMENT; WAIVER

No change, modification or purported waiver in or of this Agreement or any provisions hereof shall be of any effect unless in writing, duly signed by both parties and expressly referencing this Agreement as an amendment hereto. No failure or delay on the part of either party to exercise any right, power or privilege hereunder or otherwise with respect to this Agreement shall operate as a waiver of any such right, power or privilege, nor shall any such failure or delay preclude any other or further exercise thereof.

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2.36 INTERPRETATION/CONSTRUCTION

2.36.1. HEADINGS

The titles and headings in this Agreement are inserted for convenience only and shall not be used for the purposes of construing or interpreting this Agreement.

2.36.2. PLURAL/SINGULAR/GENDER

Words importing the singular also include the plural and vice versa. Words importing one gender include the other gender.

2.36.3. REFERENCES

References to “Sections” are references to Sections of this Agreement unless the context otherwise requires. References to “Appendix” are references to an Appendix attached to this Agreement.

2.36.4. WITHOUT LIMITATION

The words “include” and “including” are not words of limitation and shall be deemed to be followed by the words “without limitation.”

2.36.5. INDUSTRY MEANINGS

Words and abbreviations not defined in this Agreement which have well-known technical or design, engineering or construction industry meanings in the United States are used in this Agreement in accordance with those recognized meanings.

2.36.6. DRAFTING

In the event of an ambiguity or question of intent or interpretation arises, neither party shall assert or claim a presumption disfavoring the other party by virtue of the fact that this Agreement was drafted primarily by legal counsel for the other party, and this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

2.37 PRECEDENCE

This Agreement (without reference to the Appendices) and the Appendices shall be considered complementary, and what is required by one shall be binding as if required by all. The failure to list a requirement specifically in one document, once that requirement is specifically listed in another, shall not imply the inapplicability of that requirement, and Contractor shall provide as part of this Agreement all items required to conform the

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Ship Loader to the Specifications and the standards in this Agreement. In the event of a conflict between this Agreement (without reference to the Appendices) and the Appendices, this Agreement (without reference to the Appendices) shall control.

2.38 BUSINESS DAYS

If a payment obligation falls due on a Saturday, Sunday or legal holiday recognized by the State of Alabama, USA, the obligation shall be deemed to be due on the following day that is not a Saturday, Sunday or legal holiday recognized by the State of Alabama, USA.

2.39 SURVIVAL

Sections 1.7, 1.8, 1.9, 2.7, 2.9, 2.14, 2.31, 2.33 through 2.41, inclusive, shall survive the termination or expiration of this Agreement.

2.40 ENTIRE AGREEMENT

This Agreement, including the Appendices, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, between the parties with respect to the subject matter hereof.

2.41 COUNTERPARTS

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of each of the parties reflected herein as signatories.

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IN WITNESS WHEREOF, the parties hereto, with intent to be legally bound, have caused this Agreement to be executed as of the date first above written. ALABAMA STATE PORT AUTHORITY By:___________________________________ Name:_________________________________ Title: _________________________________ Attest: ________________________________ Name: ___________________________ Title: ____________________________ By:___________________________________ Name:_________________________________ Title: _________________________________ Attest: ________________________________ Name: ___________________________ Title: ____________________________

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APPENDIX A

This Appendix forms part of the Agreement.

PERFORMANCE BOND That ________________________________________________________________________ (Insert here name and address or legal title of contractor) as Principal, hereinafter called Contractor, and ____________________ as Surety, hereinafter called Surety, are held and firmly bound unto (Here insert the name and address or legal title of the Obligee) as Obligee, hereinafter called Obligee, the amount of United States dollars (USD$ ), for the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Contractor has by written agreement dated , entered into that certain Ship Loader Construction and Erection Agreement with the Obligee for in accordance with Specifications prepared by (Here insert full name and title) which Specifications are by reference made a part of such Ship Loader Construction and Erection Agreement, hereinafter called the Contract. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS such that if Contractor shall promptly and faithfully perform said Contract, then this obligation shall be null and void upon Final Acceptance of the Ship Loader; otherwise it shall remain in full force and effect until all obligations under the Contract have been satisfied. The Surety hereby waives notice of any alteration or extension of time made by Obligee. Whenever Contractor shall be, and shall be declared by Obligee to be, in default under the Contract, the Obligee having performed Obligee’s Obligations thereunder, the Surety may promptly remedy the default, or shall promptly: (1) Complete the Contract in accordance with its terms and conditions, or (2) Obtain a bid or bids for submission to Obligee for completing the Contract in accordance

with its terms and conditions, and upon determination by Obligee and Surety of the lowest responsible bidder, arrange for a contract between such bidder and Obligee and make available as work progresses sufficient funds to pay the cost of completion of such Contract less the balance of the aggregate Contract Price (as defined in the Contract), but not exceeding the amount of this Bond as set forth above.

No right of action shall accrue on this Bond to or for the use of any person or entity other than the Obligee named herein or the successors or assigns of Obligee.

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Signed and sealed this day of A.D. in the presence of

(Principal)

By As Its

(Title) (Seal) By As Its

(Attorney)

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APPENDIX B

This Appendix forms part of the Agreement.

MAINTENANCE BOND

Bond No. Amount $

KNOW ALL MEN BY THESE PRESENTS, That we, ____________, corporation duly organized under the laws of _______________ with a place of business at ________________________________ as Principal (hereinafter called the “Principal”), and _______________________ a corporation duly organized under the laws of _________________ with a place of business at ________________________________ as Surety (hereinafter called the “Surety”), are held firmly bound unto ______________________, a corporation duly organized under the laws of _______________________ with a place of business at __________________________________ (hereinafter called the “Obligee”), in the sum of ____________________ United States Dollars (USD$ ) for the period ___________________ through and including ___________________ and in the further sum of ____________________ United States Dollars (USD$ ) for the period ___________________ through and including __________________ for the payment of which sum will and truly to be made, we the said Principal and the said Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. Sealed with our seals and dated this day of A.D. Two Thousand and Nine. WHEREAS, the said Principal has heretofore entered into that certain Ship Loader Construction and Erection Agreement with said Obligee dated as of , for the design, fabrication (manufacturing), shipping, erection, testing, and placing into operation at the Obligee’s marine terminal facility in ALABAMA STATE PORT AUTHORITY, Mobile, Alabama of One (1) Ship Loader

and, WHEREAS, the said Principal is required to guarantee the Ship Loader under said Agreement, against Defects (as defined in said Agreement), which may develop during the applicable Warranty Period (as defined in said Agreement). NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal shall faithfully carry out and perform the said guarantee, and shall, on due notice, repair and make good at its own expense any and all such Defects which may appear or develop

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during such applicable Warranty Period or shall pay over, or make good and reimburse to the said Obligee all loss and damage which said Obligee may sustain by reason of failure or default of said Principal so to do, then this obligation shall be null and void; otherwise shall remain in full force and effect, subject only to mutual agreement by Principal and Obligee that the guarantee is due and owing.

(Principal)

By As Its

(Title) (Seal) By As Its

(Attorney)

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APPENDIX C

This Appendix forms part of the Agreement.

SUPPLEMENT A-1 SHIP LOADER

SHIP LOADER EVENTS SERIAL NOS. - TYPE OF CRANE - Ship Loader. FABRICATION SITE - ERECTION SITE - Alabama State Port Authority, Mobile, Alabama. ARRIVAL DATE AT ASPA - DELIVERY DATE - COMPLETION OF PUNCH LIST ITEMS - The Punch List Items shall be completed within three (3)

months after the Delivery Date. CONTRACT PRICE - LIQUIDATED DAMAGES - See Section 2.1.2 (Delivery Date/Late Delivery and

Liquidated Damage) OPTIONS INCLUDED IN CONTRACT PRICE - Spare Parts Allowance – USD$

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APPENDIX D

This Appendix forms part of the Agreement.

SHIP LOADER SPECIFICATIONS

SPECIFICATIONS

FOR

ONE (1) SHIP LOADER

AT

MCDUFFIE COAL TERMINAL DOCK NO. 1

MOBILE, ALABAMA

FOR

ALABAMA STATE PORT AUTHORITY

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APPENDIX E

This Appendix forms part of the Agreement.

CONDITIONAL ACCEPTANCE CERTIFICATE

[Date] (CONTRACTOR) Re: Construction and Erection Agreement, dated ________________ (the “Contract”),

between ASPA and ____________________________. Ship Loader (Serial No. ______) (the “Subject Ship Loader”) Sir: The Work performed under the Contract with respect to the Subject Ship Loader has been reviewed and the Subject Ship Loader has been found, to the knowledge, information and belief of the Owner’s Representative, to have achieved Substantial Completion. The date of Substantial Completion for the Subject Ship Loader is hereby established as _____________________________. The Punch List Items for the Subject Ship Loader, as agreed upon and signed by the Contractor and Owner, is attached hereto, together with the dates by which the Contractor has committed to complete such Punch List Items. The issuance of this Conditional Acceptance Certificate or the failure to include any items in the Punch List Items shall not alter or otherwise affect the responsibility of the Contractor to complete all Work and fulfill all of its other obligations, including warranty obligations, in accordance with the Contract or prejudice any rights or remedies that Owner may have in respect thereof. Capitalized terms not otherwise defined herein shall have the same meanings as defined in the Contract. Yours very truly, For and on behalf of Alabama State Port Authority

By: ______________________________

Name: ____________________________

Title: _____________________________

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APPENDIX F

This Appendix forms part of the Agreement.

PRE-SHIPMENT REQUEST CERTIFICATE In accordance with the Specifications and the Supplements included in the Ship Loader Construction and Erection Agreement, dated _________________________, between Alabama State Port Authority and ___________________________________________., the Contractor’s Engineer, on behalf of the Contractor, hereby confirms that, after conducting inspection of the component assemblies for Ship Loader (Serial No. ______) at the Fabrication Site, to the best of his knowledge, it is reasonable to expect that the Substantial Completion Date will occur within 60 days after such Ship Loader arrival at Alabama State Port Authority, Mobile, Alabama, and hereby requests commencement of delivery of such Crane component assemblies to the Erection Site. For and on behalf of ___________________________________ By: ____________________________________________ Name: __________________________________________ Title: ___________________________________________ Owner’s Representative hereby grants the request by the Contractor’s Engineer, on behalf of the ASPA, to commence delivery of such Crane to the Erection Site. For and on behalf of Alabama State Port Authority By: ____________________________________________ Name: __________________________________________ Title: ___________________________________________