AMENDMENT NO. 1 TO VESSEL CONSTRUCTION AGREEMENT OF MARCH 23, 2001
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Exhibit 10.7.2
AMENDMENT NO. 1 TO VESSEL CONSTRUCTION
AGREEMENT OF MARCH 23, 2001
THIS AMENDMENT NO. 1 entered into and effective as of this 23rd day of March, 2001, by and between Xxxxxxxxx Gretna, L.L.C., a Louisiana Limited Liability Company with the current mailing address of 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxx 00000 (hereinafter referred to as "Xxxxxxxxx"), and K-Sea Transportation, L.L.C., a Delaware Limited Liability Company, with the current mailing address of 0000 Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx 00000 (hereinafter referred to as "Buyer").
That, Xxxxxxxxx and Buyer entered into a Vessel Construction Agreement, effective March 23, 2001 (hereinafter referred to as "the Agreement"), for the construction of one 100,000 barrel tank barge, being Xxxxxxxxx Xxxx No. 416, one 80,000 barrel tank barge, being Xxxxxxxxx Hull No. 417, one 80,000 barrel tank barge, being Xxxxxxxxx Xxxx No. 421, and one 100,000 barrel tank barge, being Xxxxxxxxx Hull No. 422 (hereinafter referred to collectively as "Vessel");
WHEREAS, Buyer desires for title to each Vessel to transfer upon execution and delivery of a Protocol of Delivery and Acceptance rather than in accordance with La. R.S. 9:5522;
NOW, THEREFORE, the parties agree to amend Article 2, Section F; the fifth paragraph of Article 3, Section B; the first and second paragraphs of Article 6, Section A; the first paragraph Article 18, Section (A)(z); and Article 18, Section (B)(i) of the Agreement in their entirety, to provide as follows, to-wit:
ARTICLE 2.F. PRICE AND PAYMENT; PERFORMANCE BOND
"X. Xxxxxxxxx agrees to obtain and deliver to Buyer, in exchange for the first payment made by Buyer hereunder and upon receipt of a construction financing commitment letter, a guaranty (the "Guaranty") issued by Xxxxxxxxx Shipyards Lockport, L.L.C. guaranteeing the obligations of Xxxxxxxxx hereunder in favor of Buyer or its assignee or financier, as the case may be, in a form satisfactory to Buyer and its financier."
ARTICLE 3.B. (Fifth Paragraph) DELIVERY AND ACCEPTANCE
"Each date for such delivery of each Hull described in the foregoing four paragraphs is herein called the "Delivery Date" for such Vessel. Delivery shall be evidenced by the execution and delivery by Xxxxxxxxx and Buyer of a Protocol of Delivery and Acceptance substantially in the form attached hereto as Exhibit A. Upon execution and delivery of such Protocol, subject to the terms of Article 6A, title to and risk of damage to or loss of the Vessel shall pass to Buyer. Until delivery is effected by the execution and delivery of such Protocol, title to and risk of damage or loss of the Vessel and its equipment are entirely with Xxxxxxxxx."
ARTICLE 6. Section A (First and Second Paragraphs)
RISK OF LOSS AND INSURANCE
"A. Title to the Work, and all material, machinery and equipment (in each case, other than that furnished by Buyer) shall vest in Buyer upon execution and delivery of a Protocol of Delivery and Acceptance respecting each Vessel. Xxxxxxxxx shall have during construction and until execution and delivery of a Protocol of Delivery and Acceptance, title to and risk of loss or damage to the Vessel and the Work, including all material, machinery, and equipment (in each case, other than that furnished by Buyer), whether or not already attached to or installed in the Vessel. With respect to items (including Buyer-furnished equipment) furnished by parties other than Xxxxxxxxx, Xxxxxxxxx shall have risk of loss or damage commencing at the time such items have been received by Xxxxxxxxx at the Shipyard. Buyer shall report, or cause to be reported as promptly as possible, to Xxxxxxxxx the dates of arrival at Xxxxxxxxx'x facility, of all materials and equipment being furnished by any party other than Xxxxxxxxx and the value thereof for insurance purposes. Title to all Buyer-furnished materials and equipment is at all times recognized by Xxxxxxxxx to be vested in Buyer free and clear of any interest or claim of Xxxxxxxxx or of any other person through Xxxxxxxxx.
Delivery and acceptance of the Vessel by execution and delivery of a Protocol of Delivery and Acceptance by Xxxxxxxxx and Buyer shall transfer title to and risk of loss or damage of the Vessel, and all work, material, machinery, and equipment respecting such Vessel, to Buyer."
A.
"(z) Xxxxxxxxx shall fail to cause to be maintained in full force and effect the Guaranty satisfying the terms of this Agreement respecting a Vessel from and including the dates specified in Article 2(F) hereto to and including the Delivery Date of such Vessel."
B.
"(i) may terminate the employment of Xxxxxxxxx and take possession of all materials, equipment, tools, and machinery thereon owned or furnished by Buyer and stored by Xxxxxxxxx, and may enter the premises of Xxxxxxxxx and, at Buyer's option, remove one Vessel or all Vessels and all components thereof, Buyer-furnished equipment and material relating thereto (and upon such removal title shall be deemed vested in Buyer with respect to all removed Vessels and related components and materials), and may finish the work by whatever method Buyer may deem appropriate at the facilities of Xxxxxxxxx or at another location or facility. If the unpaid balance of the Agreement Price for any Vessel exceeds the costs of finishing the work, including compensation for additional services made necessary thereby, and damages sustained by Buyer, such excess shall be paid to Xxxxxxxxx. If such costs exceed the unpaid balance, Xxxxxxxxx shall pay the difference to Buyer; or"
Except as amended by this Amendment No. 1 to Vessel Construction Agreement of March 23, 2001, all of the provisions of the original Vessel Construction Agreement of March 23, 2001 shall remain in full force and effect.
IN FAITH WHEREOF, Xxxxxxxxx Gretna L.L.C., through its proper officer, has executed this Amendment in duplicate originals at Lockport, Louisiana, as of this 23rd day of March, 2001, in the presence of the undersigned competent witnesses.
| WITNESSES: | Xxxxxxxxx Gretna, L.L.C. | ||
/s/ [ILLEGIBLE] |
By: |
/s/ [ILLEGIBLE] |
|
/s/ XXXXX XXXX XXXXXXXX |
its: |
EVP & COO |
|
IN FAITH WHEREOF, K-Sea Transportation, L.L.C., through its proper officer, has executed this Amendment in duplicate originals at Staten Island, New York, as of this 23rd day of March, 2001 in the presence of the undersigned witnesses.
| WITNESSES: | K-Sea Transportation, L.L.C. | ||
/s/ X.X. XXXXXXXXXX XXXXXXX X. XXXXXXXXXX |
By: |
/s/ XXXX X. XXXXXX |
|
/s/ XXXX X. XXXXXXXX XXXX X. XXXXXXXX |
its: |
Chief Financial Officer |
|
AMENDMENT NO. 1 TO VESSEL CONSTRUCTION AGREEMENT OF MARCH 23, 2001
WITNESSETH
I.
ARTICLE 2.F. PRICE AND PAYMENT; PERFORMANCE BOND
II.
ARTICLE 3.B. (Fifth Paragraph) DELIVERY AND ACCEPTANCE
III.
ARTICLE 6. Section A (First and Second Paragraphs) RISK OF LOSS AND INSURANCE
IV.
ARTICLE 18. DEFAULT
V.
