AMENDMENT NO. 1 TO SHIPBUILDING CONTRACT
(Hull 003)
THIS AMENDMENT NO. 1 TO SHIPBUILDING CONTRACT is made as of
February
18, 2005, by and between KVAERNER
PHILADELPHIA SHIPYARD INC., a corporation
organized under the laws of Pennsylvania,
having its principal office at 2100
Kitty Hawk Avenue, Philadelphia, PA 19112
(the "BUILDER"), and MATSON NAVIGATION
COMPANY, INC., a corporation organized
under the laws of Hawaii, having its
principal office at 555 12th Street,
Oakland, CA 94607 (the "BUYER").
R E C I T A L S
WHEREAS, the parties entered into that certain Shipbuilding
Contract
dated as of February 14, 2005 for the
purchase one (1) Philadelphia CV 2600 type
container vessel, designated as Builder's
Hull No. 003 (the "Shipbuilding
Contract"); and
WHEREAS, the parties wish to amend the Shipbuilding Contract to
correct
a few minor technical errors and to
incorporate additional language agreed to by
the parties.
NOW, THEREFORE, in consideration of the foregoing premises, and
for
other good and valuable consideration, the
receipt and adequacy of which are
acknowledged, the parties hereby agree to
amend the Shipbuilding Contract as
follows:
1. Description of Vessel. Paragraph 1 of Article I of the
Shipbuilding
---------------------
Contract is hereby amended by deleting the
reference to "January 21, 2005" in
the fifth line and replacing it with
"February 3, 2005."
2. Contract Price. Paragraph 1(a) of Article II is hereby deleted
in
--------------
its entirety and replaced with the
following text:
"The purchase price of the VESSEL is ONE HUNDRED FORTY FOUR
MILLION
THREE HUNDRED AND NINETY-ONE THOUSAND DOLLARS ($144,391,000) plus
the
cost incurred by the BUILDER with respect to the construction
period
financing for the VESSEL as provided for in paragraph (c) below,
net
receivable by the BUILDER, which is exclusive of the BUYER's
Supplies
as provided in Article XVIII hereof and shall be subject to upward
or
downward adjustment, if any, as hereinafter set forth in this
Contract
(herein called the "Contract Price"). The Contract Price shall be
paid
upon delivery of the Vessel by wire transfer to an account
specified by
the BUILDER; provided that such payment shall be subject to (i)
deferral of payment of the amounts specified on the PROTOCOL OF
DELIVERY AND
ACCEPTANCE; (ii) the holdback described in Paragraph 4(f)
of Article IX; (iii) disputed amounts deposited in the Disputes
Escrow
Account (as defined herein); and (iv) less any reduction in the
Contract Price pursuant to Article III hereof."
3. Effective Date.
--------------
(a) Paragraph 3(d) of Article II of the Shipbuilding Contract is
hereby
amended by deleting the reference to
"Article V" in the second line and
replacing it with "Article IV."
(b) Paragraph 3(f) of Article II is hereby deleted in its entirety
and
replaced with the following text:
"By February 18, 2005, the BUILDER shall provide the BUYER with
a
guarantee of Kvaerner ASA of (i) the BUILDER's indemnification
obligations under Paragraph 2 of Article XXI hereof, and (ii)
the
BUILDER's obligation under that certain Right of First Refusal
Agreement dated of even date herewith signed by the parties
relating to
certain rights with
respect to future CV 2600 and CV 2500 type
container vessel building positions at the Shipyard (the "Right
of
First Refusal Agreement").
4. Delivery. Paragraph 2 of Article VII of the Shipbuilding
Contract
--------
references a PROTOCOL OF DELIVERY AND
ACCEPTANCE that will be executed by the
parties in connection with the delivery of
the Vessel. The parties agree that
the PROTOCOL OF DELIVERY AND ACCEPTANCE
will be substantially in the form of
Exhibit A attached hereto.
5. Warranty of Quality. Paragraph 4(f) of Article IX is hereby
deleted
-------------------
in its entirety and replaced with the
following text:
"The BUYER may withhold ONE MILLION FIVE HUNDRED THOUSAND
DOLLARS
($1,500,000) from the delivery payment (the "Guarantee Holdback").
At
the time of the delivery of the Vessel, the BUYER shall deposit
the
full amount of the Guarantee Holdback into an escrow account. The
BUYER
shall pay to the
BUILDER the entire Guarantee Holdback, less any amount
to cover any outstanding guarantee deficiency, upon completion of
the
guarantee period for the VESSEL. Any amounts withheld beyond the
end of
the guarantee period pursuant to this paragraph shall be paid to
the
BUILDER upon the correction of all guarantee deficiencies for
which
such amounts were withheld. Any dispute with respect to the
disposition
of the Guarantee Holdback shall be settled pursuant to Article XIV
of
this Contract."
6. Indemnification. Paragraph 2 of Article XXI is hereby deleted in
its
---------------
entirety and replaced with the following
text:
"The BUILDER shall defend, indemnify and hold harmless t
