Amendment 2 to the Vehicle Terms and Conditions between All Aboard Florida – Operations LLC and Siemens Industry Inc.
Exhibit 10.60
Amendment 2
to the
Vehicle Terms and Conditions
between
All Aboard Florida – Operations LLC
and
Siemens Industry Inc.
Amendment 2 (“Amendment 2”) dated May 15, 2017 to the Vehicle Terms and Conditions
Agreement (“VTC”) with an effective date of August 15, 2014, by and between All Aboard Florida – Operations LLC, a limited liability
company duly formed and validly existing under the laws of the State of Delaware, with a principal business address of 0000 Xx Xxxxx Xxxx, 0xx Xxxxx; Xxxxx Xxxxxx,
Xxxxxxx 00000 (“AAF” or “Owner”) and Siemens Industry, Inc., a corporation duly formed and validly existing under the laws of the State of Delaware with a principal business address of
0000 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000 (“SII” or “Contractor”) Each of AAF and SII may be referred to
herein as a “party” or collectively as the “parties.”
This Amendment 2 is executed in accordance with Section 45 of the VTC.
WITNESSETH:
Whereas, Owner and Contractor entered into the VTC
pursuant to which Owner agreed to purchase from Contractor, and Contractor agreed to sell to Owner, a new fleet of trains, as amended by Amendment No. 1, dated July 17, 2015;
Whereas, Owner and Contractor have agreed to
further amend the VTC for the purpose of clarifying and correcting certain terms and conditions;
Now, therefore be it resolved, in consideration of
the foregoing and of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the parties hereby agree as follows:
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1.
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Defined Terms. All defined terms expressed in the VTC
shall, unless expressed to the contrary herein or the context otherwise requires, continue to have the same meanings where used in this Amendment 2.
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2. Amendments. Owner and Contractor hereby amend
the VTC as follows:
2.1 Delete Revised and Restated Attachment N to Exhibit 1, in its entirety, and substitute in lieu thereof Second Revised
and Restated attachment N to Exhibit 1, attached hereto. Inasmuch as the Phase 1 special tools price remains unchanged the payment related to special tools for
Milestone Payment No. 1 for the Supplied Equipment shall be calculated on the value of the current agreed itemized special tools list of $1,552,531.08. AAF has already paid Siemens $2,592,500 for special tools, no further payments in regards to the
agreed Special Tools value of $1,552,531.08 is due from AAF. The excess $1,039,968.92 shall be credited against future payments for Phase 1 spare parts due and owing from AAF to Siemens subsequent to the date of this Amendment No. 2. For future
special tools purchases, AAF shall pay Siemens for the full value of the special tools delivered. Inasmuch as the Phase 1 spares price has been reduced from $14,572,759 to $14,239,839, but AAF has already paid $7,286,379.50 for Milestone No. 4 (50%
of Total Spare Parts Pricing) for the Supplied Equipment, the excess $166,460.03 shall be credited against future payments for Phase 1 spare parts due and owing from AAF to Siemens subsequent to the date of this Amendment No. 2.
2.2 For Exhibit 2 (Maintenance Facility Layout and Commissioning Equipment), modify Part 2 Commissioning Equipment to be
Provided by Owner with the attached Exhibit 2 Part 2, which is incorporated herein for reference.
2.3 For Exhibit 5 (Milestones), modify Exhibit 5 (Milestones) and replace the Milestones for Phase I in Exhibit 5
(Milestones) with the attached Milestones for Phase 1, which is incorporated herein by reference.
2.4 A new section 16.5 is added as follows:
Upon transfer of title in the Vehicle, Trains and Supplied Equipment from Contractor to Owner. Contractor shall execute a Xxxx of Sale
in the form attached hereto as Exhibit 16.
2.5 In section 33.1.2 Xxxxxx Xxxxxxxxxxx is deleted and Xxxxx X. Xxxxxx is substituted in lieu thereof.
2.6 Exhibit 11 attached to the VTC is deleted in its entirety, and Revised Exhibit 11 attached hereto, is substituted in
lieu thereof.
3. Full Force and Effect; Conflicts.
This Amendment 2 shall be read in conjunction with the VTC, all terms and conditions of which shall continue to have full force and effect, except to the extent as varied by this Amendment 2. This Amendment No. 2 is executed in accordance with
Section 45 of the VTC. In the event of any conflict or inconsistency between the terms of this Amendment 2 and the VTC, the terms of Amendment 2 will govern.
4. Counterparts. This
Amendment 2 may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In making proof of his Amendment 2, it shall not be necessary to produce or
account for more than one such counterpart.
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In witness whereof, the parties hereto have caused
this Amendment 2 to be executed by their duly authorized representatives as of the date first written above.
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All Aboard Florida – Operations LLC
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Siemens Industry, Inc.
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| By: /s/ [ILLEGIBLE] | /s/ [ILLEGIBLE] | |
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Signature
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Signature
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| Xxxxx X. Xxxxxx |
Xxxxxxx Xxxxxx
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Print Name
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Print Name
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| President |
President, Rolling Stock
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Print Title
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Print Title
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| /s/ [ILLEGIBLE] | ||
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Signature
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| Xxxxxxxxxxx Xxxxxxx | ||
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Print Name
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Vice President, [ILLEGIBLE] B. A.
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Print Title
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