EXHIBIT 10F(ii)
AMENDMENT No. 1 ("Amendment No.1") to the Vessel Construction Contract for
Two Vessels dated as of the 30th day of December 1996 by and between
Coastal Ship, Inc. ("Purchaser"), Halter Marine Inc. ("Builder") and
Halter Marine Group, Inc. ("Guarantor") being made by the above parties as
of this ____ day of April 1997.
WITNESSETH:
WHEREAS, as set forth in the Contract, a copy of which is attached
hereto and incorporated as Exhibit A, the parties have agreed to the
construction and purchase of two 408'9" x 100' container deck barges
(individually, a "Vessel" and collectively the "Vessels") and the guaranty
of Builder's performance pursuant to the Contract ; and
WHEREAS, the parties hereto desire to enter into an amendment to the
Contract to recognize the rights and obligations of Trailer Bridge, Inc.,
as assignee of the Contract, to clarify certain conditions and satisfy
the requirements of The United States of America, represented by the
Secretary of Transportation, acting by and through the Maritime
Administration ("Marad") because Marad will finance the construction of
the Vessels pursuant to Title XI of the Merchant Marine Act of 1936, as
amended;
NOW THEREFORE, for good and valuable consideration, receipt of which
is acknowledged, the parties hereto agree as follows:
Notwithstanding anything to the contrary contained in the Contract,
title to all work, materials and components, incorporated in, or to
be incorporated in, each Vessel shall vest in Purchaser on the
earliest of: a) when Purchaser pays Builder for such work, materials
or components, or b) when (i) such work is performed on the hull of
each Vessel, (ii) such materials are installed in the hull of each
Vessel, or (iii) such components are fabricated and installed in the
hull of each Vessel.
Builder and Guarantor hereby agree and acknowledge that the
obligations of Purchaser under the Contract with regard to the
Vessels are separate, distinct and independent of any other
obligation or agreement of Purchaser in favor of Builder or
Guarantor, and that a default by Purchaser under such other
obligation or agreement shall not in any way affect the obligations
of Builder or Guarantor under the Contract with regard to the Vessels
or permit Builder or Guarantor to exercise any right of set-off or
other remedy (all of which Builder and Guarantor expressly agree not
to assert) which could materially adversely affect the Contract, the
Vessels or the construction thereof.
Notwithstanding anything to the contrary contained in the Contract,
the Contract shall not be amended, modified or terminated except in
writing duly signed by the Builder, Guarantor and Purchaser with the
prior written consent of Marad, provided that Marad's prior written
consent shall not be necessary, but written notice to Marad shall be
given, for (a) any mandatory change to the Contract as a result of
any requirements of any governmental agency; or (b) any non-mandatory
changes that Builder and Purchaser desire to make which do not, in
the aggregate, exceed five (5%) percent of the Contract Price (as
defined in the Contract) of the Vessels, and which do not cause the
total Contract Price to be increased more than one (1%) percent or
the delivery and completion date of the Vessels to be extended more
than ten (10) days. Notwithstanding the foregoing, no change shall be
made in the general dimensions and/or characteristics of the Vessels
which would diminish the capacity of the Vessels to perform as
originally intended by the Contract, without the prior written
consent of Marad.
Notwithstanding anything to the contrary contained in the Contract,
Builder agrees to give Marad written notice, concurrent with any
notice given to Purchaser under the Contract of any default by
Purchaser or Builder and hereby grants Marad thirty (30) days from
the receipt of any such notice to cure any default under the
Contract, and Builder agrees to take no action to enforce its rights
pursuant to the Contract until the elapse of said thirty (30) days.
Builder warrants and agrees that all work under the Contract shall
take place at the Builder's shipyard in Pearlington, Mississippi.
Builder further agrees to cooperate with Marad and supply such
information as may be reasonably required by Marad in connection with
the Vessels. Builder acknowledges that such cooperation may include
but is not limited to providing Marad 1) access to the Vessels and
areas of the Shipyard where work related to the Vessels is being
performed by the Builder, its contractors and subcontractors, at all
reasonable times during normal working hours to inspect performance
of the work and to observe trials and other tests, 2) copies of
detailed production schedules for the Vessels along with changes to
such schedules as they occur, 3) access to contract plans and
specifications for the Vessels, 4) reasonable access to Builder's
production manager or supervisor, and 5) access to progress payment
and construction milestone information. Builder further agrees that
requests or xxxxxxxx for periodic payments under this contract shall
be submitted by the Builder to Marad in a form acceptable to Marad,
based on payment milestones set forth in the Contract, after
satisfactory performance is certified by Purchaser and Builder as to
each payment.
Notwithstanding anything to the contrary contained in the Contract,
no changes to the payment milestones shall be made without Marad's
prior written consent.
Article VII of the Contract - INSURANCE shall be deleted and
replaced with the following:
ARTICLE VII - INSURANCE
Until each Vessel has been completed, physically delivered at the
Place of Delivery and accepted by Purchaser, Builder shall cause such
Vessel and all materials, outfitting, equipment and appliances to be
installed in the Vessel including all materials outfitting, equipment and
appliances provided by the Purchaser and delivered to Builder's Yard for
the construction of the Vessels or in the construction thereof, to be
declared under a full form Builder's Risk Policy under the latest American
Institute Builder's Risk From in force and effect at the time that the
construction of the Vessels is commenced when the Vessels' keel is laid,
all at Builder's expense. Such policy(ies) shall name the Builder, the
Purchaser and the United States of America as assureds. The policy(ies)
shall provide that there shall be no recourse against the Purchaser and
the United States of America for payment of premium; provided, however,
the United States of America and Purchaser shall be subject to
cancellation upon 30 days prior written notice as set forth below. The
policy(ies) shall also provide a 30 day prior written notice of
cancellation or material change in the policy to the Purchaser and the
United States of America (U.S. Department of Transportation, Maritime
Administration 000 Xxxxxxx Xx. X.X., Xxxxxxxxxx X.X. 00000 Attention,
Chief, Division of Marine Insurance). The amounts, terms and conditions,
deductibles and underwriters of the Builder's Risk Policy(ies) shall at
all times be satisfactory to the Purchaser and the Secretary.
The Builder's Risk policy(ies) shall provide that all losses in
excess of $100,000 shall be paid to the Secretary of Transportation acting
by and through the Maritime Administrator for distribution by him to
himself, the Builder and the Purchaser in accordance with Section 2.07 c
of the Title XI Security Agreement on the Vessel and the Intercreditor
Agreement between the parties hereto and dated the date hereof.
Builder shall also purchase and maintain, at its expense, during the
life of this Contract, Worker's Compensation Insurance at statutory
amounts, with Longshoreman & Harbor Workers Compensation Act coverage
endorsements, Employer's Liability Insurance in the amount of at least Two
Million Dollars ($2,000,000) and Public Liability Insurance against
property damage, death and bodily injury in the amount of not less than
Two Million Dollars ($2,000,000).
A satisfactory confirmation of insurance outlining the pertinent
terms and conditions of the Builder's Risk Policy(ies) referred to above
shall be provided to Purchaser and the Secretary. The Purchaser shall be
furnished a certificate of insurance for all other policies required
hereunder. The original of the said Builder's Risk Policy shall be
available in the Builder's or Guarantor's office. All of the policies of
insurance and certificates referred to herein shall contain a provision
requiring the insurer at risk to give Purchaser thirty (30) days' notice,
in writing prior to cancellation of any such insurance.
Builder and Purchaser agree to submit to Marad, upon Marad's request,
one set of shipyard plans, in form and substance satisfactory to Marad,
for the Vessels as built.
Guarantor agrees to execute a separate guaranty in the form attached
hereto as Attachment 1.
Builder agrees to provide Purchaser upon delivery with a Certificate
of No Liens and Release in the form attached hereto as Attachment 2.
Any notice or other communication required or permitted to Marad
hereunder shall be sent by certified mail, postage prepaid, by nationally
recognized overnight courier service or by facsimile transmission,
confirmed by certified mail postage prepaid, or nationally recognized
overnight courier service, addressed as follows:
United States Maritime Administration
000 Xxxxxxx Xx. X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Director Office of Ship Financing
ARTICLE XVI - LAW APPLICABLE is amended to read as follows: "Builder
agrees that notwithstanding the first "Whereas" clause of the Contract,
the Vessels will be constructed in the State of Mississippi and the
Contract shall be governed by and interpreted under the law of the State
of Mississippi and, to the extent applicable, federal maritime law."
All references in the Contract to the "Construction and Term Loan
Agreement" are hereby deleted.
Builder, and Guarantor consent to the assignment of all rights under
this Contract from Purchaser to Trailer Bridge, Inc., appearing herein to
accept the benefits and undertake the obligations of Purchaser under the
Contract, and wherever the term "Purchaser" appears in the Contract,
hereafter said term shall refer to Trailer Bridge, Inc. Builder and
Guarantor agree that they have received a satisfactory guaranty in
accordance with Article XVII of the Contract.
This Amendment may be executed in several counterparts, all of which
taken together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their duly authorized representatives all as of the day and
year first above written.
BUILDER:
Halter Marine, Inc.
/s/ Xxxx Xxxx, III _________________________________
By: Xxxx Xxxx, III Witness
Title: President
GUARANTOR:
Halter Marine Group, Inc.
/s/ Xxxx Xxxx, III _________________________________
By: Xxxx Xxxx, III Witness
Title: President
PURCHASER:
Coastal Ship, Inc.
/s/ Xxxx X. XxXxxx _________________________________
By: Xxxx X. XxXxxx Witness
Title: President
ASSIGNEE:
Trailer Bridge, Inc.
/s/ Xxxx X. XxXxxx _________________________________
By: Xxxx X. XxXxxx Witness
Title: Chairman
