FIRST AMENDMENT TO
JOINT VENTURE AGREEMENT
This First Amendment to Joint Venture Agreement (the "Amendment") is made
as of the 20th day of November, 1997 by and between Transroll Navegacao S.A., a
Brazilian corporation ("TRNSA"), Transroll Maritime Services, Ltd., a Liberian
corporation ("TRN" and all references to TRN in the Agreement referred to below,
shall be references to Transroll Maritime Services, Ltd.), NPR Holding
Corporation, a Delaware corporation ("NPR", TRN and NPR sometimes individually
entitled a "Party," or collectively, the "Parties") and each of the Persons
listed on Schedule 1 attached hereto (together with NPR, the "NPR Group"). All
capitalized terms used herein and not otherwise defined shall have the meanings
specified in the Agreement referred to below.
W I T N E S S E T H :
WHEREAS, NPR and TRNSA are parties to a joint venture agreement made as of
the 6th day of August, 1997 (the "Agreement");
WHEREAS, TRNSA has assigned its interest in the Company to TRN; and
WHEREAS, the parties hereto wish to amend the Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 8.1 of the Agreement is hereby deleted in its entirety and the
following new Section 8.1 shall be inserted in lieu thereof:
"8.1 Except as to (i) affiliates, (ii) transfers by members of the NPR
Group to NPR or its affiliates, (iii) transfers of not more than 10% of the
total outstanding shares of the Company, by NPR to other members of the NPR
Group on or about the date of this Agreement, as reflected in the attached
Schedule I , (iv) transfers of not more than 5% of the total outstanding shares
of the Company, by NPR to other members of the NPR Group, pursuant to the terms
of the Securities Purchase Agreement, dated on or about the date of this
Agreement, by and between certain of the members of the NPR Group and The Xxxx
Group, Inc. as in effect on the date hereof, (v) transfers to certain members of
management of the Company which in any event shall not be more than 2% of the
total outstanding shares of the Company and (vi) except in accordance with
Article 15.6, neither TRN nor any member of the NPR Group shall, directly or
indirectly, sell, assign, transfer, charge or otherwise encumber any part or all
of their shares or voting interest in the Company, without offering to the other
Party and any of its affiliates (i) a right of first refusal to acquire such
shares at the price actually offered by a bona fide offeror; and (ii) the right
to put all of its share in the Company to the bona fide offeror at that same
price. Any attempted transfer without such offers having been made shall be
void. Shares issued by the
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Company shall bear a legend that any transfer thereof is subject to this
provision. The transfers of shares of the Company described in Sections
8.1(iii), (iv) and (v) above shall not vest voting rights in the transferee(s);
rather, voting rights in respect of such shares shall be exercised exclusively
by NPR."
2. Section 10.1 of the Agreement is hereby amended by (a) deleting the
reference to "Brazil" contained therein and (b) inserting in lieu thereof a
reference to "Liberia."
3. Section 13.1 of the Agreement is hereby amended by (a) deleting the
reference to "The Parties" in the first sentence thereof and (b) inserting in
lieu thereof a reference to "Each of TRN and each member of the NPR Group".
4. Section 15.1 of the Agreement is hereby amended by (a) deleting the
reference to "the Parties" in each instance in the second and third sentences
thereof and (b) inserting in lieu thereof a reference to "TRN and each member of
the NPR Group".
5. Section 15.2 of the Agreement is hereby amended by (a) deleting each of
the references to the "Parties" contained therein and (b) inserting in lieu
thereof a reference to "parties to the arbitration."
6. Section 15.3 of the Agreement is hereby amended by (a) deleting the
reference to "The Parties" in the second sentence thereof and (b) inserting in
lieu thereof a reference to "TRN and each member of the NPR Group".
7. Section 15.4 of the Agreement is hereby deleted in its entirety and the
following new Section 15.4 shall be inserted in lieu thereof:
"15.4 Neither TRN nor any member of the NPR Group shall be liable for
special, consequential or punitive damages, including, but not limited to, loss
of profit or business opportunity, provided such damages were not caused by
intentional or willful breach and/or misconduct of a Party."
8. Section 15.5 of the Agreement is hereby deleted in its entirety and the
following new Section 15.5 shall be inserted in lieu thereof:
"15.5 This Agreement may only be amended in whole or in part by an
agreement in writing duly signed and delivered by both TRN and NPR. This
Agreement constitutes the entire Agreement between TRN and each of the members
of the NPR Group and shall supersede all prior agreements and expressions of
intention between TRN and each of the members of the NPR Group. On and after the
effective date of this Agreement, neither TRN nor any member of the NPR Group
shall be bound by any preliminary correspondence or expression of intention or
by anything not in a writing signed by the party to be bound thereby."
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9. Section 15.6 of the Agreement is hereby deleted in its entirety and the
following new Section 15.6 shall be inserted in lieu thereof:
"15.6 Except as provided in Article 21, this Agreement may not be assigned
by either Party, other than to affiliates, whether voluntarily, involuntarily or
by operation or law without the prior written consent of the other Party given
as an amendment of this Agreement. A sale of all or a majority of the shares of
NPR, other than to an affiliate of NPR, shall constitute a violation of this
provision."
10. Section 15.8 of the Agreement is hereby amended by (a) inserting the
following new language, "or as set forth on Schedule 1 attached hereto",
immediately preceding the parenthetical "(or to such other address as the
recipient Party may have specified by notice given to the other Party pursuant
to this provision)," (b) by (i) deleting:
"If to NPR: X.X. Xxx 0000 White & Case
000 Xxxxxxxx Xxx. 0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
908.225.2121 212.819.8200
Attn: President 000.000.0000 (fax)"
and (ii) inserting in lieu thereof:
"If to NPR: X.X. Xxx 0000 Xxxxxx, Xxxxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxx. 0000 Xxx Xxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
908.225.2121 215.981.4000
Attn: President 000.000.0000 (fax)".
and (c) by (i) deleting:
"Av. Almirante Barrosso
139 Grupos 000/000 Xxxxxxx
Xxx xx Xxxxxxx, XX Xxxxxx"
and inserting in lieu thereof:
"Transroll Navegacao S.A.
AV. Almirante Barrosso 139
20.031 Xxx xx Xxxxxxx, XX, Xxxxxx"
00. Section 15.9 is of the Agreement is hereby deleted in its entirety and
is hereby no longer of any force and effect.
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12. The Agreement is hereby amended by adding the following new Section
16.3:
"16.3 TNX shall have the authority to create a Brazilian subsidiary company
("TNX Transportes Ltda" or "TNX Brazil"), of which TNX shall own 99% or more of
this capital, to act as common carrier in the Trade. TNX shall have the
authority to enter into vessel sharing agreements, cross slot charter agreements
and slot charter agreements with TNX Brazil and/or with third parties."
13. The Agreement is hereby amended by adding the following new Section
17.2:
"17.2 In addition to the foregoing, prior to Xxxxxx X. Xxxxxx, Xxxx X.
Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxx X. X'Xxxxxxx, Xxxxxx XxXxxxxx, Xxxxxx X. Xxxxxxx,
Xxxx Xxxxxx Xxx or Xxxx X. Xxxxxx undertaking any of the activities set forth in
Section 17.1(a) of this Agreement resulting in participation in a common carrier
liner service which competes with the Trade or any of the other activities set
forth in Section 17.1(b) through (d) of this Agreement, he must divest himself
of his shares in the Company by selling such shares to NPR."
14. TRNSA hereby represents to each of the members of the NPR Group that
TRNSA has assigned its interest to TRN pursuant to the terms of the second
sentence of Section 21.1 of the Agreement and that TRN is a company, the direct
and indirect shareholders of which are all (a) non-U.S. citizens and (b)
shareholders of TRNSA, or subsidiaries or affiliates of TRNSA shareholders.
15. This Amendment shall become effective on the date on which all of the
parties hereto shall have executed and delivered a counterpart of this Amendment
(including by way of facsimile).
16. Except as expressly amended hereby, the terms and conditions of the
Agreement shall remain unchanged and in full force and effect.
17. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
18. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
* * * * *
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IN WITNESS WHEREOF, this Agreement has been signed on behalf of by each of
the parties hereto or by their duly authorized representatives as of the date
first above written.
TRANSROLL NAVEGACAO S.A.
By /s/ Xxxxxx Xxxxx
--------------------------
Name:
Title:
TRANSROLL MARITIME
SERVICES, LTD.
By /s/ Xxxxxx Xxxxx
--------------------------
Name:
Title:
NPR HOLDING CORPORATION
By /s/ Xxxxxx X. Xxxxxx
--------------------------
Name:
Title:
BERKSHIRE FUND III INVESTMENT
CORP.
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
BERKSHIRE INVESTORS LLC
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
PYRAMID VENTURES, INC.
By /s/ Xxxxxx Xxxx
------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
-------------------------
Xxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
XXXX XXXXXX XXXXXXXX
CUSTODIAN FOR XXXXX
XXXXXXXX XXX ROLLOVER
By /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Branch Manager
/s/ Xxxxxx X. X'Xxxxxxx
--------------------------
Xxxxxx X. X'Xxxxxxx
/s/ Xxxxxx XxXxxxxx
--------------------------
Xxxxxx XxXxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------
Xxxxxx X. Xxxxxxx
XXXX XXXXXX XXXXXXXX
CUSTODIAN FOR XXXX X. XXXXXX
XXX ROLLOVER
By /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President & Branch Manager
/s/ Xxxx Xxxxxx Xxx
--------------------------
Xxxx Xxxxxx Xxx
/s/ Xxxxxx Xxxxx
--------------------------
Xxxxxx Xxxxx
/s/ Xxxxxx Xxxx Del Xxxxx
--------------------------
Xxxxxx Xxxx Del Xxxxx
/s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Xxxxxxx X. Xxxxx, Xx.
/s/ Xxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxxx
