Bergen vogtwiig.no Oslo Trondheim Singapore 1
Termination of Shipbuilding Contracts Possibilities and pitfalls Erlend Lous, partner Advokatfirmaet Vogt & Wiig AS 2
Background Happy Go Lucky in a booming market. Not too much attention on the contract and specifications, sometimes even signing of contract before Specification is agreed. Not too much attention on formalities during the construction period. - Change Orders - Force Majeure Yards did not have too much focus on the cancellation dates. Buyers were not too concerned on delivered sister vessels or during construction. Supervision during construction Condition on delivery 3
Situation today Extensive delays at yards Fall in Market Values reduces available financing Impossible to get new loans Fall in Market Values means higher contract price than current value Yards and Buyers having financial difficulties 4
Buyer s default Bankruptcy. Failure to fulfil its obligations. Payment default and/or failure to take delivery when ready. - Banks refuse to pay out loan - No loan in place - Failed IPOs Delivery Date will be extended. Yard can, after a remedy period, terminate the contract. 5
Yard s termination Default Interest. Yard will retain prepaid instalments to cover losses, including loss of profit. Can they keep the instalments no matter what? Complete or not complete the vessel. Yard can sell the vessel: - Private sale - Public auction Yard can go after the Buyers for any balance: - Any possibility to coverage SPC, Guarantee (corporate/bank) etc? 6
Buyer does not have funds No financing at all or loss of existing financing due to fall in market values. If no construction is undertaken yet - Yard s loss could be limited to Loss of Profit - Currency swaps - Obligation to mitigate - Only first installment (15% - 20%?) paid in If construction is progressing - Yard s loss will also include steel, equipment, work performed etc. - More installments could have been paid in. If construction is completed - Yard s loss will be equal to the purchase price - Most installments (70% - 80%?) have been paid in - Yard can retain installments and sell the vessel for a low price and still be able to cover all losses. 7
Buyers possibilities to cancel Bankruptcy - Not always included in the contract consequences? - Adjudicated insolvent, Appointment of Receiver, protection from creditors etc. Negotiations with creditors and work out processes not necessarily covered. Vessel is not delivered within the cancellation date - 180/210/240 days - Permissible and non-permissible delays - Total amount of days including Force Majeure but eks. changes Vessel does not comply with specifications Repudiatory breach of Contract 8
Permissible delays Force Majeure Yards try to extend the clause as much as possible - Traditionally Acts of Gods, riots, war etc. - Strikes, local strikes - Shortage of Materials and equipment - Delays caused by sub-contractors or class Notice of delays - Yard must notify Buyer within a fixed date after commencement of such event and provide evidence. Yard shall also advice when it ends and how much delay they will claim. - Failure by yard to notify means no extensions, failure by Buyer to protest within a fixed number of dates means acceptance. 9
Permissible delays Change Orders Modifications and changes shall (or at least should) be made in writing, but can be done by exchanging letters and fax. Documentation is everything. Any extension of the Delivery Date should be agreed at the same time. If no agreement is reached the Yard can continue as per plan and specifications. If no agreement is reached it is very hard for the yard when reaching the cancellation date to claim that there were changes causing permissible delays, if the Buyer has not agreed to any extension of Delivery Date. 10
Vessel does not comply with Specifications Must be contrary to the specifications, not what the Buyer feel should be in the specifications. Some time clauses excluding minor deficiencies. Must be of some substance and value. What if yard offers compensation? What if class is clean? Buyer s representative at the yard: - A right and obligation to inspect the work - Has authority to approve the work performed - Often an obligation to promptly inform the yard if work is not according to contract or specifications - Failure to notify can mean acceptance Acceptance of condition of previous sister vessels. Sea Trials - Yard serves notice when completed and they deem vessel to be ready - Buyer must then reject the vessel within a very short time, otherwise deemed to accept. Can also be linked to completion of Sea Trials only. - Will be repeated if Buyer reject and yard repair. 11
Other reasons for extensions/cancelation Delays in Buyer s Supplies will give extensions, but normally Yard must first notify the Buyer. Yard can request extensions make sure to cancel in time. Arbitration could extend the Delivery Date, but usually up to the Arbitration Award to decide if such extension shall be given. Some contracts have clauses where Yard will be in default if it deliberately undertakes actions which will cause delays of the vessel exceeding a certain number of days, i.e. put new vessels in slots before the ordered vessel s intended slot. However, difficult to prove. Some contracts have clauses where Yard will be in default if it materially defaults its obligations. Again, difficult to prove. 12
Buyer s termination Demand repayment of prepaid instalments with agreed interest. What about value of Buyer s Supplies? - Shipbuilding Contract - Refund Guarantees Demand other losses - Loss of Profit for re-sale, Loss of Bargain etc. Gearbulk Case. - Limitations in the contracts, depending on wording. Claim under Refund Guarantees - First claim the yard and give them opportunity to pay. - Then claim under Refund Guarantee and Refund Guarantor may have a few or several days to pay out depending on the wording of the guarantee. 13
Refund Guarantees Types: - Straight on demand - On demand but postponement in case of Arbitration - Performance Bonds Chinese Guarantees SAFE Approval: - A condition for transfer of funds to foreign beneficiaries - Shall be automatically done by the Refund Guarantor Have no examples that it has not been done Very difficult to get evidence that it has been registered Material Amendments, such as change of Beneficiary (assignment) shall also be SAFE Approved Korean Guarantees: - No special restrictions - No experience in paying out under RGs 14
Dispute of right to terminate Is the Refund Guarantor obliged to pay out before final award?: Will a Refund Guarantee survive an Arbitration: - If Buyer wins - yes - If Buyer loses (no right to cancel the contract) not necessarily, depends on wording of guarantee and wording of arbitration award. - Coverage for the balance to be collected if the Yard sells the vessel due to Buyer s default. Due to the dispute, the Yard declares the Buyer in default and sells the vessel for coverage of losses. - If Buyer wins arbitration, you still have Refund Guarantee as security. - If Buyer loses you risk to have no vessel and no security. - Injunction, arrest etc. to prevent a sale depend on the local jurisdiction. 15
Consequences for Buyer s financing Repayments from Yard/Refund Guarantors could take time - Time allowed in Contract/Guarantees - Time for Arbitration Usually Final Repayment Date of Pre Delivery Facility same as Cancellation Date. Usually a Cancellation will require a Pre-Payment of the Pre-Delivery Facility and a cancellation of Post-Delivery Facility. No right for extensions in case of arbitration. Arbitration and/or cancellation of one vessel can be cross default if several vessels are financed under same facility Banks are usually willing to give a short extension, but longer extensions can be rejected or at least additional terms will apply: - Increased Margin - Additional Security 16
Summary Buyer s list Be aware when drafting and negotiating contract and specification, resist pressure from brokers. Get as good Refund Guarantee as possible. Make sure within the time limits to object to Force Majeure events notified if they are outside the contract or not documented, and try to make the Force Majeure clause as limited as possible. In case of Change Orders, try to document that no extension of Delivery Date is agreed, or document the agreed extension. Make sure Buyer s representative s inspections and approvals are prudent, notify the Yard of deficiencies during construction when revealed. Make sure to comply with time limits in the contract, hereunder in case of completed Sea Trials and requested extension of Delivery Date. If you do not have financing, try to limit the losses. 17
Questions? 18
Thank you! 19