Exhibit 10.33
AMENDMENT NO. 1
TO
PLATFORM CONSTRUCTION AGREEMENT
BETWEEN
XXXXXX OFFSHORE INC.-- HOUSTON TEXAS
AND
AMFELS, INC. - BROWNSVILLE, TEXAS
THIS AMENDMENT NO. 1 TO PLATFORM CONSTRUCTION AGREEMENT (this "Amendment")
is entered into this 31st day of October, 2001, between AMFELS, INC., a Texas
corporation ("Builder"), and XXXXXX OFFSHORE INC., a company organized under
the laws of the State of Delaware ("Owner"), for the construction by Builder
and purchase by Owner of one mobile, self-contained and self-elevating Keppel
FELS MOD V-B class platform (the "Platform"), between Builder and Owner dated
as of April 6, 2000 (the "Original Agreement," and as amended hereby, and as
the same may be further amended and assigned from time to time, (the
"Contract").
RECITALS:
WHEREAS, Owner will issue its United States Government Ship Financing
Obligations, Galileo Series (the "Obligations"), in order to finance the
construction of the Platform, on the closing date relating to such issuance
(the "Closing Date").
WHEREAS, the United States of America, represented by the Secretary of
Transportation, acting by and through the Maritime Administrator (the
"Secretary"), on the Closing Date will guarantee the payment of the outstanding
principal and interest on the Obligations (the "Guarantee") pursuant to Title
XX xx xxx Xxxxxxxx Xxxxxx Xxx, 0000, as amended.
WHEREAS, Owner and Builder, in order to induce the Secretary to issue the
Guarantee, desire to amend the Original Agreement as detailed herein.
NOW, THEREFORE, in consideration of these premises, the mutual benefit set
forth herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Owner and Builder agree as follows:
SECTION 1. PARAGRAPH 3. The following is added as a new sub-paragraph (i) to
Paragraph 3:
(i) Records:
Builder and Owner shall keep records of construction costs paid by or
for Owners' account and furnish the secretary with a detailed
statement of these costs, distinguishing between (i) items paid or
obligated to be paid, and (ii) costs of American and foreign materials
(including services) in the hull and superstructure."
SECTION 2. PARAGRAPH 8. Paragraph 8 is deleted in its entirety and the
following inserted in lieu thereof:
"8. INSURANCE.
A. Prior to the commencement of construction of the Platform, Builder
shall obtain, at its own cost and expense, and furnish certificates
or copies thereof to the Owner, the following policies of insurances:
(i) Worker's compensation (including occupational disease) and
emploer's liability insurance with maritime, In Rem and U.S.
Longshoremens and Harborworkers Act coverage in accordance with
the applicable statutory requirements of the Untied States of
America, with limits on the employer liability coverage of not
less than U.S. $1,000,000 for bodily injury per person, with
umbrella excess liability limits of U.S. $25,000,000;
(ii) Comprehensive public liability, including broad form contractual
liability coverage, with limits of not less than U.S. $500,000
for bodily injury per occurrence, and U.S. $500,000 for property
damage per occurrence with umbrella excess liability limits of
U.S. $25,000,000; and
(iii) Automobile liability insurance covering automobile equipment
used in the performance of the work under this Contract with
limits in accordance with the rules and regulations of U.S.
$10,000,000.
All Builder insurance policies set forth in this paragraph 8A
shall, either on the face thereof or by appropriate endorsement:
(w) name (except for the policy specified in clause (i) herein
above) Builder and Owner as assureds and provide that payments
thereunder shall be made to the extent that their respective
interests may appear, (x) provide that they shall not be
cancelled or their coverage reduced, except upon thirty (30)
days' prior written notice to Builder and Owner (if such
cancellation or reduction should be caused by Builder's failure
to pay any premium when due, Owner shall have the right to pay
any such premium within such thirty (30) days to maintain the
coverage in effect for the benefit of Owner, and Owner retains
the right to be reimbursed by Builder), (y) contain waiver of
subrogation provisions pursuant to which the insurer waives all
express or implied rights of subrogation against Builder and
Owner, Builder and Owner hereby waiving any rights to subrogate
against each other, and (z) be maintained in full force and
effect by Builder from commencement of construction until the
Platform is accepted by Owner at delivery, the obligation to
name Owner as assured and waive subrogation with respect to the
policy specified in clauses (ii) and (iii) herein above shall be
limited to those risks which are covered by Builder's indemnity
obligations under this Contract.
B. From the time the first material destined for inclusion as part of
the Platform becomes at risk and until the Platform has been
physically delivered to and accepted by Owner, the Platform and all
materials, outfit and equipment provided by Builder
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or Owner (including OFE) for and to be used in the construction
thereof, shall be at the risk of the Builder and shall be kept fully
insured under a full form Builder's Risk Policy under the latest
American Institute Builder's Risk Clauses, including loss or damage
caused by strikers, locked-out workmen, or persons taking part in
labor disturbances, or riot or civil commotion, protection and
indemnity clauses and including pre-keel and tests and trial clauses.
The amount of such insurance shall be equal to the aggregate value of
the work done, including material, appurtenances, equipment and
outfit delivered to the Shipyard for the Platform at any time during
the construction period, including any such items furnished by Owner
and expenses of design and inspection, construction period interest
and the Title XI Guarantee Fee. Such coverage shall be maintained in
full force and effect from commencement of construction until the
Platform is accepted by Owner at delivery. The amount of insurance,
the terms of the policies and the underwriters shall at all times be
satisfactory to the Builder, Owner and the Secretary, provided,
however, that the amount of such coverage shall be in an amount at
least equal to the Contract Price and the value of all OFE and shall
be increased as appropriate for change orders and alterations.
The Builder's Risk Policy shall contain the following provisions:
(i) All losses in excess of U.S. $100,000 shall be payable to the
Secretary for distribution by him to himself, Owner and Builder
as their interests may appear in accordance with Section 2.05 of
the Security Agreement between Owner and the United States of
America, represented by the Secretary of Transportation, acting
by and through the Maritime Administrator (the "Secretary"),
Contract No. Ma--13674, dated the date hereof relating to the
Platform (the "Security Agreement").
(ii) Owner, Builder and the United States of America shall be named
assureds.
(iii) The policy shall provide no recourse against the United States
of America for payment of premium.
(iv) At least ten (10) days' prior written notice of any cancellation
or material change in the policy shall be given to the
Secretary, U.S. Department of Transportation, c/o Maritime
Administration, 000 Xxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000, Attention: Chief, Division of Maritime Insurance, and to
Builder and Owner.
(v) There shall be a waiver of subrogation provision pursuant to
which the insurer waives all express and implied rights of
subrogation against Builder and Owner. Builder and Owner hereby
waive any rights to subrogate against each other.
(vi) The deductible or self-insured retention under the Builder's
Risk Policy shall be to the account of Builder in an amount to
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be agreed among Builder, Owner and the Secretary, in any case
not exceeding $100,000 per occurrence, Builder shall cooperate
in providing timelines of increasing values and other
information Owner may require to assure coverage in the required
amount.
D.(i) If the Platform or any OFE shall be damaged by any insured
cause whatsoever prior to acceptance therof by Owner, and such
damage does not constitute an actual, compromised or
constructive total loss of the Platform, insurance proceeds
shall be applied to the repair of the item and paid in
accordance with Section 2.05 of the Security Agreement, and
Owner and Builder shall then seek to mutually agree on new
milestone payments for work which has to be redone as a result
of the damage covered by the Builder's Risk Policy.
(ii) In the event of an actual, compromised or constructive total
loss of the Platform prior to delivery, this Contract shall
automatically be deemed terminated unless Builder, Owner and the
Secretary elect to construct the Platform under the Contract.
Upon any such termination, Builder shall retain all Milestone
Payments made pursuant to this Contract and the price for that
portion of the Platform then constructed for which a Milestone
Payment has not yet been made and all work in progress
(including profit theron to Builder). All proceeds of the
Builder's Risk insurance payable as a result of such loss shall
be paid to the Secretary for distribution to the Secretary,
Owner and Builder, as their interests may appear.
(iii) The parties acknowledge that the Secretary has certain rights
to claim for a constructive total loss and to enter into an
agreement or compromise providing for an agreed or compromised
total loss of the Platform pursuant to Section 2.05 of the
Security Agreement, with the prior written consent of Builder
and (prior to any default thereby) Owner, which consent shall be
deemed to have been given if the surveyor appointed by the
underwriters for the Builder's Risk Policy has determined that
an actual, agreed or compromised, or constructive total loss of
the Platform has occurred."
SECTION 3. PARAGRAPH 5. Changes in the Contract. Notwithstanding anything to
the contrary contained in the Contract, the Contract shall not be amended or
modified except in writing duly signed by the Builder and Shipowner with the
Secretary's prior written consent, provided that with respect to changes made
or contracted for after the Closing Date the Secretary's prior written consent
shall not be necessary, but prior written notice to the Secretary shall be
given, for (a)any mandatory changes to the Contract as a result of any
requirements of any government agency classification society, or (b) any
non-mandatory changes that Builder and Shipowner desire to make which do not
exceed, with respect to any item of the Vessel's construction, one (1%) percent
of the Vessel's Contract Price and which do not, in the aggregate, cause the
Vessel's Contract Price to be increased more than five (5%) percent or the
delivery and completion date of the Vessel to be extended more than ten (10)
days. Notwithstanding the foregoing, Shipowner shall not present or propose to
Builder any change in the general dimensions and/or characteristics of the
Vessel which would
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diminish the capacity of the Vessel to perform as originally intended by the
Contract, without the Secretary's prior written consent. Payment procedures for
all changes pursued and accomplished in accordance with this paragraph shall be
governed by the provisions of paragraph 3(d) and no payment for any change
requiring prior written approval from the Secretary shall be made with proceeds
under the Credit Agreement until such prior written consent shall have been
received.
SECTION 4. NOT USED.
SECTION 5. PARAGRAPH 7. Paragraph 7 is deleted in its entirety and the
following is inserted in lieu thereof:
"7. LIENS.
Provided Builder is paid all amounts owing by Owner to
Builder pursuant to Paragraph 3 hereof, Builder, its agents
and subcontractors agree not to place or create, or permit to
be placed or created, any liens, charges or encumbrances on
or security interests as to, or pledges of, the Platform
(including any item incorporated in or made a part of the
Platform (including any item incorporated in or made part of
the Platform and not yet paid for by Owner,) or any OFE, and
any lien, charge, encumbrance or security interest so placed
or created shall be forthwith released by Builder. In the
event Builder fails to secure the removal of same, Builder
shall reimburse Owner for its costs of securing such
discharge or release (which costs shall include any expenses
incurred in connection therewith) or at Owner's sole option,
by deducting such sum from any payments due or become due to
Builder under this Contract.
Builder agrees and acknowledges that Owner has, as
contemplated by the Security Agreement between the Secretary
and the Owner dated the date hereof, granted a security
interest to the Secretary in the Equipment as defined in
paragraph 9(a) of the Contract. Owner agrees to cooperate to
execute, deliver and file any UCC filing statements or other
documents reasonably necessary or desirable for the
perfection of the Owner's and the Secretary's security
interests.
On the Closing Date, and at the time of delivery of the
Platform, and from time to time as Owner shall submit a
Request for Disbursement under the Credit Agreement to the
Secretary, Builder agrees, on behalf of itself, or any party
claiming through the Builder, to execute certificates of no
liens, in form and substance satisfactory to the Secretaty,
with respect to the applicable Platform, hull or component
parts for which payment is requested or with respect to all
work that has been previously been accomplished and
incorporated in and made part of the Platform."
SECTION 6. SUBORDINATION. The Builder agrees to, and does hereby fully
subordinate to the rights of the Secretary all liens and security rights and
remedies to enforce such rights which the Builder has or may have with respect
to the Equipment, as defined in paragraph 9(a) of the Contract, for which title
has vested in the Owner pursuant to Paragraph 9(a) of the Contract. Prior to
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commencement of any work under this Contract, the Builder shall provide to the
Secretary the release or subordination of any claim to a security interest or
other encumbrance, and the remedies to enforce such rights, held or claimed by
any of the Builder's lenders. Said release or subordination shall be in form
and substance satisfactory to the Secretary. In any financing statement filed
by Builder to perfect Builder's security interest in the Equipment, Builder
will include the following statement: "This security interest in favor of
AMFELS, INC. is fully subordinate to the rights and remedies granted in the
collateral by AMFELS, INC. to Xxxxxx Xxxxxxx LLC pursuant to that certain
Security Agreement between Builder and Owner dated of even date herewith and as
further assigned by Xxxxxx Xxxxxxx LLC to the Secretary of Transportation,
acting by and through the Maritime Administrator, (the "Secretary"), even if
this financing statement is for any reason filed earlier in time than the
financing statement filed by Xxxxxx Xxxxxxx or the Secretary with respect to
the collateral."
SECTION 7. PARAGRAPH 3. The following is added at the end of sub-paragraph (b)
to Paragraph 3:
"Builder shall provide to Owner at the time of the notice
required by the immediately preceding paragraph, all written
substantiation of completion of the relevant Milestone event
to support all payments required to be made hereunder as
Owner may reasonably request in order to make timely
application to obtain the proceeds of the Obligations for
such payments. Upon receipt of such written substantiation
from Builder, Owner shall submit to the Secretary a Request
for Disbursements under the Credit Agreement relating to the
Obligations. Upon receipt of the Secretary's approval to such
Request, Owner shall drawdown the amount pursuant to the
Credit Agreement and payment shall be made directly from the
Lender under the Credit Agreement to Builder."
SECTION 8. PARAGRAPH 4. The following is added as a new last paragraph to
Paragraph 4:
"Builder shall permit inspection by, supply information to
and cooperate with representatives of the Secretary at its
Yard where the assembly of the Platform is taking place and
at such other yards of the Builder, its affiliates and
subcontractors where parts of the Contract or subcontracts
may be performed. Builder acknowledges that such cooperation
may include, but not be limited to, providing the Secretary
(a) access to the Platform and areas of the Yard where work
related to the Platform is being performed by Builder, its
contractors and subcontractors, at all reasonable times
during normal working hours to inspect performance of the
work performed hereunder, and to observe trials and other
tests, (b) copies of detailed construction schedules and
critical paths for the Platform along with changes to such
documents as they occur, and updated schedules of all
Equipment and material received by or delivered to the
Shipyard relating to the Platform, (c) access to contract
plans and specifications for the Platform, (d) reasonable
access to the Yard's production manager or supervisor, (e)
information on the origination and source of materials, (f)
access to progress payment and construction Milestone
information, and
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(g) copies of all notices and correspondence (i) relating to
compliance with the requirements of Paragraph 2(a)(ii)
referred to in Section 3 to Amendment No. 1 to this Contract
(regarding change orders), (iii) referred to in sub-paragraph
(b) of Paragraph 3 (regarding to Milestone Payments), (iv)
referred to in Xxxxxxxxx 00 (xxxxxxxxx Xxxxx Xxxxxxx), (x)
relating to Paragraph 17 (regarding Litigation), (vi)
relating to Paragraph 10 (regarding tests and trials), and
(vii) referred to in Paragraph 16(c)(regarding Owner
default). In conjunction with any such inspections by the
Secretary, Builder will furnish, on a temporary basis,
reasonable space at its Yard for the Secretary's
representatives and communication, copying and other
facilities as appropriate. The Secretary's representatives
shall comply with and follow Builder's safety, traffic and
security rules while at the Yard, and shall not interfere in
Builder's prosecution of the work hereunder."
SECTION 9. PARAGRAPH 18. The following is added after the address of Owner in
Paragraph 18:
"If to the Secretary: United States Maritime Administration
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Office of Ship Financing"
SECTION 10. PARAGRAPH 21. The words "or amended are added after the word
"modified" in the first sentence of Paragraph 21, and the words "and Owner" are
deleted from said first sentence of Paragraph 21, and the following inserted in
lieu thereof: ", Owner and the Secretary."
SECTION 11. PARAGRAPH 9. The first sentence of the sub-paragraph (a) of
Paragraph 9 is deleted and the following substituted therefor:
"Notwithstanding anything to the contrary contained in the
Contract, title to the Platform and all work, materials,
goods, and components, incorporated in, attached to, or
intended to be incorporated in or attached to the hull or the
Platform shall vest in Owner on the earlier of (a) when Owner
makes the next installment payment required by the Contract
to Builder following receipt of the materials, goods, or
components or performance of the work by the Builder (such
items are hereinafter called the "Equipment"), or (b) when
work is performed on any of the Equipment or materials,
goods, or components are incorporated in or attached to any
of the Equipment, whether or not such work, materials, goods,
or components have been paid for by the Shipowner. Title to
OFE paid for by the Owner shall be in the Owner. Risk with
respect to the hull or the Platform and all materials
destined for inclusion as part of the Platform (including
OFE) shall be governed by the provisions of Paragraph 8, as
amended."
SECTION 12. PARAGRAPH 16.
(a) Subparagraph 16(b) is redesignated as subparagraph 16(b)(i) and
the following is added as the last sentence thereof:
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"Notwithstanding anything in this Contract to the contrary,
specifically including but not limited to this Paragraph 16,
Owner may not terminate or cancel this Contract without the
prior written consent of the Secretary."
(b) A new subparagraph 16(b)(ii) is added as follows:
"(b)(ii) Upon the Owner's election to enforce its rights and
remedies under subparagraph (b)(i) of this paragraph 16, the
Owner may, with respect to Equipment for which title has not
yet passed under section 9(a) of the Contract, request that
Builder assign all its right, title and interest in any of
such Equipment and in any of the purchase orders for such
Equipment to the extent in each case that such purchase
orders are assignable. Upon receipt of such an Owner's
request, Builder shall forthwith effectuate the assignments
to the Owner and Owner shall reimburse the Builder for any
amounts that Builder has paid for such Equipment or under
such purchase orders. To the extent that money is owed by the
Builder to the vendors of any Equipment which the Owner
wishes to purchase under an assignment from the Builder
including by assignment of purchase orders, the Owner shall
pay the vendors directly for any balance due. The Builder's
obligations and the Owner's rights under this subparagraph
16(b)(ii) shall survive any termination of this Agreement by
the Owner under subparagraph 16(b)(i) and shall constitute
one of Owner's remedies in the event of a Builder's Default.
Builder agrees not to offer any of the Equipment referred to
herein without first offering to sell the Equipment to Owner
under the conditions stated herein."
SECTION 13. PARAGRAPH 16.
(a) The words "seven (7)" appearing in Paragraph 16(c)(i) are
changed to "ten (10) business."
(b) The following is added as a new first sentence to Paragraph
16(c)(i):
"Builder shall give Owner and the Secretary notice
of any default by Owner under this Paragraph
16(c)(i)."
(c) The following is added as a new sub-paragraph (e) to
Paragraph 16:
"(e) Notwithstanding anything to the contrary
contained in this Contract, Builder hereby grants
the Secretary thirty (30) days from the receipt of
the notice referred to in the first sentence of
clause (i) of sub-paragraph (c) of this Paragraph 16
to cure any default under this Contract, and Builder
agrees to take no action to enforce its rights
pursuant to this Contract, including, without
limitation, its right to terminate pursuant to
sub-paragraph (d) of this Paragraph 16, until the
elapse of said 30 (30) days."
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(d) A new Paragraph 16(f) is added to read as follows:
"(f) Equipment Proceeds. In the event that prior to
delivery of the Platform and following the
occurrence or during the continuation of any
material default by the Builder as defined in
Subparagraph 16(a) of the Construction Contract
which would permit the Owner to terminate the
Construction Contract, the Secretary shall have the
right to sell the Equipment. Any proceeds the
Secretary receives from the sale of the Equipment,
after deducting any fees or costs it incurs in
connection with the enforcement of its rights under
the Security Agreement, shall be distributed
promptly to the Secretary for payment of all amounts
secured by the Security Agreement with any remainder
to be paid to the Builder and the Owner as their
interests appear. In the event that prior to
delivery of the Platform and following the
occurrence or during the continuation of any
material default by the Owner as defined in
Subparagraph 16(b) of the Construction Contract
which would permit the Builder to terminate the
Construction Contract, and provided that the Builder
is not in material default under the Construction
Contract, Builder shall have the right to sell the
Equipment subject to the Secretary's first priority
security interest in all of Owner's right, title and
interest in and to the Equipment to the full extent
and in accordance with all procedures as set forth
in Article 9 of the Texas UCC. Nothing herein shall
relieve Owner or Builder of their respective
obligations and liabilities under Paragraph 16 of
the Construction Contract."
SECTION 14. PARAGRAPH 16. A new Paragraph 16(g) is added to read as follows:
"(g) Notwithstanding anything to the contrary in
sub-paragraphs (b), (c), (d) or (e) of this
Paragraph 16, if a Default exists and is continuing
under the Security Agreement, Owner shall not
exercise any right, remedy or action pursuant to
this Paragraph 16, including, without limitation,
termination of this Contract or any sale or
disposition of the Platform, without the prior
written consent of the Secretary."
SECTION 15. DUTIES, OBLIGATIONS, AND LIABILITIES OF THE OWNER
Nothing in this Amendment shall be construed to modify,
amend, waive or supercede the duties, obligations and liabilities of Owner to
Builder under the Original Agreement, whether accruing prior to or after the
date hereof, including, without limitation, the obligation of the Owner to pay
all amounts owing under the Contract to Builder as and when due. Without
limitation as to the generality of the foregoing, nothing herein shall be
deemed to allow Owner to pay such sums solely from the proceeds of the loan
made under the Credit Agreement.
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SECTION 16. DISTINCT OBLIGATIONS
Builder hereby agrees and acknowledges that the obligations
of Owner under the Contract with regard to the Platform are separate, distinct
and independent of any other obligation or agreement of Owner to or with
Builder in connection with any other transaction, and that a default by Owner
under such other obligation or agreement in connection with any other such
transaction shall not in any way affect the obligations of Builder under the
Contract with regard to the Platform or permit Builder to exercise any right of
set-off or other remedy (all of which Builder expressly waives and agrees not
to assert with respect to the Contract) which could materially adversely affect
the Contract, the Platform or the construction thereof.
SECTION 17. SHIPYARD PLANS. Upon the delivery of the Platform, or earlier if
feasible, upon the Secretary's request, Shipyard and Shipowner agree to submit
to the Secretary one set of Shipyard plans, designs and specifications in form
and substance satisfactory to the Secretary, for the Platform as built.
SECTION 18. ENTIRE AGREEMENT; LIMITATION OF CHANGES. Except as specifically set
forth in this Amendment, the Original Agreement remains unchanged and in full
force and effect, including, without limitation, all provisions regarding
choice of law, forum and dispute resolution. This Amendment and the Original
Agreement constitute the Construction Contract, and contain all of the parties'
agreements and undertakings with respect to the Construction Contract.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on their behalf by their respective duly authorized representatives on
the date first shown above.
AMFELS, INC.
By: /s/ XXXX XXXX
------------------------
Name: Xxxx Xxxx
Title: VP Commercial
XXXXXX OFFSHORE INC.
By: /s/ XXXX XXXXXXXXX
--------------------------
Name:
Title:
