EXHIBIT 10.36
AMENDMENT NO. 4 TO RAILCAR CONSTRUCTION AGREEMENT
BY AND AMONG
XXXXX RAILCAR II, INC., FUN TRAINS, INC. AND XXXXXX X. XXXXX
DATED NOVEMBER 12, 1997
AMENDMENT NO. 4 TO
RAILCAR CONSTRUCTION AGREEMENT
THIS AMENDMENT NO. 4 TO RAILCAR CONSTRUCTION AGREEMENT ("Amendment") is
made and entered into on this 12th day of November, 1997, by and among XXXXX
RAILCAR II, INC. ("Xxxxx"), FUN TRAINS, INC. ("FTI") and XXXXXX X. XXXXX
("TGR").
WHEREAS, on October 23, 1996, Xxxxx and FTI entered into that certain
Railcar Construction Agreement; and
WHEREAS, on December 17, 1996, Xxxxx and FTI entered into that certain
Amendment No. 1 to the Railcar Construction Agreement ("Amendment No. 1"); and
WHEREAS, on December 17, 1996, Xxxxx and FTI entered into that certain
Amendment No. 2 to the Railcar Construction Agreement ("Amendment No. 2"); and
WHEREAS, as of August 22, 1997, Xxxxx and FTI entered into that certain
Amendment No. 3 to the Railcar Construction Agreement ("Amendment No. 3")(the
Railcar Construction Agreement, Amendment Xx. 0, Xxxxxxxxx Xx. 0 and Amendment
No. 3 shall hereafter collectively be referred to as the "Agreement"); and
WHEREAS, Xxxxx has not yet completed construction of the Railcars; and
WHEREAS, Xxxxx and TGR have requested that a portion of the amounts
(the "Escrow Fund") being held pursuant to the Securities Pledge and Escrow
Agreement, dated August 22, 1997, between FTI and TGR and the Supplement to the
Securities Pledge and Escrow Agreement, dated September 24, 1997, between FTI
and TGR, be disbursed to Xxxxx to finance construction of the Railcars; and
WHEREAS, FTI has indicated that it would only release a portion of the
Escrow Fund to Xxxxx to finance construction of the Railcars if title to the
Railcars, together with all parts thereof and therefore were immediately
delivered to FTI.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. RECITALS. The above recitals are true and correct.
2. DEFINITIONS. In addition to the other defined terms contained in
this Amendment, the definitions set forth in the
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Agreement shall apply to this Amendment and shall be substantive provisions of
the Agreement and this Amendment.
3. DELIVERY DATE. Some of the Railcars have not been delivered as
scheduled, and Xxxxx has advised FTI of its present inability to timely deliver
and maintain the Delivery Dates provided for in the Agreement, as modified.
Xxxxx acknowledges and agrees that it is essential for FTI to timely and
expeditiously receive delivery of the Railcars provided for by this Agreement,
as modified.
Xxxxx'x first priority shall be to finish the Railcars that
have been shipped to Florida. Xxxxx'x next priority shall be to finish
construction and ship Railcars C4 and E4. Within three days after the execution
of this Amendment, Xxxxx shall deliver to FTI a time and materials report (the
"Time and Materials Report")for Railcar E4 listing the materials that remain to
be purchased for the Railcars, the status of construction of these Railcars, an
estimate of the remaining time it will take to complete and ship these Railcars,
and the status of any other matters pertaining to the Railcars that FTI may
reasonably request. Within seven business days after execution of this
Amendment, Xxxxx shall deliver to FTI a Time and Materials Report for the
remaining Railcars. The remaining Railcars shall be supplied in accordance with
the schedule set forth in Amendment No. 3.
The shipment of the Railcars pursuant to the Agreement, as
amended hereby, or the transfer of title thereto (as provided in Section 4,
below) shall not constitute acceptance by FTI of any Railcar. This Amendment is
not intended to modify or waive any other provision of the Agreement (including
those concerning payment for the Railcars) or Section 9 regarding the delivery
and acceptance of the Railcars or the Agreement relating to P-1.
4. DELIVERY OF TITLE. Xxxxx and FTI agree that full and Final Payment
has been received from FTI for Railcars C-1, E-1, X- 0, X-0, X-0, X-0, X-0 and
E-4 (the "FTI Railcars") and Xxxxx hereby delivers to FTI title to the FTI
Railcars free from all mortgages, liens, charges, encumbrances and pledges of
all kinds, and releases its security interest in the FTI Railcars. Xxxxx shall
execute the Xxxx of Sale attached hereto as Exhibit "A" to further evidence the
transfer of title to the FTI Railcars to FTI. Xxxxx agrees to execute any and
all instruments necessary to release its security interest in the Railcars. In
addition, Xxxxx agrees to obtain releases from any parties who may have a lien
on or any other interest in the FTI Railcars.
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Xxxxx and FTI further agree that the remaining $681,000 to be paid by
FTI to Xxxxx under the Agreement shall be paid in accordance with the following
schedule:
$143,666.67 shall be paid as the Final Payment for Railcar C-5
$268,666.67 shall be paid as the Final Payment for Railcar C-6
$268,666.66 shall be paid as the Final Payment for Railcar C-7
5. AMENDED WARRANTY PERIOD. FTI and Xxxxx agree to negotiate, in good
faith, an extension of the warranty period; such negotiations to begin no later
than November 17, 1997 and concluded by December 1, 1997.
6. NON-WAIVER OF DEFAULT. Neither Xxxxx nor FTI waive any of their
existing rights or remedies pursuant to the Agreement, or the Agreement relating
to P-1. FTI specifically does not, by virtue of this Amendment, extend the
Delivery Dates for the Railcars, nor waive any aspect of Xxxxx'x performance to
date. Similarly, Xxxxx, by virtue of entering into this Amendment, does not
waive any of its claims or defenses arising pursuant to this Agreement, all such
rights of Xxxxx and FTI being hereby expressly preserved.
7. Except as expressly modified by this Amendment No. 4, all of the
other terms and conditions of the Agreement as heretofore amended remain in full
force and effect.
8. FTI will wire transfer the sum of $200,000 to Xxxxx on November 12,
1997.
9. Notwithstanding anything in the Agreement or its Amendments to the
contrary, the proceeds from the Escrow Fund shall be disbursed to Xxxxx provided
Xxxxx certifies that such cash proceeds will be used solely for the completion
of the FTI Railcars. FTI will, upon receipt of the certification, give notice to
the Escrow Agent within 24 hours to release funds. Such notice or authorization
shall not be unreasonably withheld by FTI.
10. Copies of the titles referenced in Paragraph 4 hereof shall be sent
by fax to FTI on November 12, 1997, to be followed by evidence of transfer to
FTI and original title documents to be sent no later than November 14, 1997.
XXXXX RAILCAR II, INC.,
a Colorado corporation
By:_____________________________________
Xxxx X. Xxxxxx, Senior Vice President
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FUN TRAINS, INC., a Florida corporation
By:_________________________________
Xxxxxx X. Xxxxxxx, Vice President
_________________________________
Xxxxxx X. Xxxxx, individually
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