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Exhibit 10.52
SEVENTH AMENDING AGREEMENT TO THE
CONVERSION CONTRACT
DATED DECEMBER 3, 2002
(As amended to date)
between
DAVIE MARITIME, INC.
as Builder
and
TORCH EXPRESS L.L.C.
as Owner
April 7, 2004
This SEVENTH AMENDING AGREEMENT is made and entered into the 7th
day
of April 2004, by and between DAVIE
MARITIME, INC., a company organized and
existing under the laws of Canada whose
registered office address is 22 George
D. Davie Rd., Levis, Quebec G6V 8V5 in the
city and judicial district of Quebec,
Province of Quebec, represented by Mr.
Richard Bertrand, duly authorized to act
hereunder, as he so states (the "Builder"),
and TORCH EXPRESS L.L.C., a company
organized and existing under the laws of
Louisiana whose registered office
address is 401 Whitney Ave., Gretna, LA
700056 USA. (the "Owner"),
WHEREAS:
A.
Builder and
Owner entered into a Conversion Contract (the "Original
Contract") dated as of December 3, 2002 providing for the
conversion
of the Midnight Express into an offshore multi-service cargo
vessel
in accordance with a Specification and other Contractual
Documents;
B.
The Original Contract was subsequently amended by six Amending
Agreements, the Original Contract as so amended being herein
called
the "Amended Contract";
C.
Unless otherwise specified, capitalized terms and expressions
used
in this Amending Agreement have the same meaning as those
ascribed
to them by the Amended Contract and references to $ and Dollars
are
to United States dollars unless specified otherwise;
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D.
Pursuant to the Amended Contract, Builder was obligated to
re-deliver the converted Ship on December 26, 2003 for a
Contract
Price and otherwise on the terms and conditions contained in
the
Amended Contract;
E.
Builder did not re-deliver the converted Ship on December 26,
2003
and Owner took the position that, as a consequence of such
non-redelivery, Owner was entitled to Liquidated Damages of
approximately $4.3 million;
F.
On December 8, 2003, Builder delivered to Owner a preliminary
Request for Equitable Adjustment (the "REA") in which Builder
claimed as of December
8th, 2003: (a) additional compensation in the
amount of $14.1 million, and (b) postponement of the
Contractual
Re-Delivery Date until April 24, 2004, which claims were rejected
by
Owner;
G.
On
or about February 11, 2004, Builder advised Owner that as a
result of new pending Change Order Requests, the value of
Builder's
claim as expressed in the REA would be increased and a further
postponement of the Contractual Re-Delivery would be requested;
H.
Builder has advised Owner that Re-Delivery of the converted Ship
in
accordance with the requirements of the Amended Contract can be
accomplished by May 21, 2004, provided Owner is prepared to
make
available certain funds by way of an increase to the Contract
Price
and;
I.
Owner is prepared to make such funds available on the terms and
conditions contained in this Amending Agreement.
WITNESSETH that the parties have agreed as
follows:
1.
BUILDER REPRESENTATIONS AND WARRANTIES
Builder represents and warrants to Owner, it being acknowledged
by
Builder that Owner is relying on such
representations and warranties to induce
it to enter into this Amending
Agreement:
(a)
that Builder,
based on the information known to Builder at the time
of this Amending Agreement, has or will have available to it
sufficient working capital which, when aggregated with the
amounts
payable by Owner, will be sufficient to fund the completion of
the
Work and the Re-Delivery of the Ship not later than the Amended
Re-Delivery Date;
(b)
Builder is not
aware of the existence of any facts or circumstances
that, as at the date hereof, could give rise to a Change Order
Request or any claim, whether at law or in equity, that could
result
in Owner being requested to pay any amount as part of the
Contract
Price other than the balance set out in Exhibit A, together with
any
amounts that may be payable with respect to the Outstanding
Change
Order Requests listed in Exhibit B;
(c)
Builder is not
aware of Change Order Requests other than Change
Order Request No. 247 listed in Exhibit B bearing status "In
preparation" that could form the basis of a claim for
Permissible
Delay which may have the result of extending the Re-Delivery
Date
after May 21, 2004; and
(d)
of the
instalment of $3,600,000 paid on March 5, approximately
Cdn.$3,200,000 was applied to the payment of amounts owning and
payable to suppliers and subcontractors and being 100% of
amounts
owing and payable to suppliers and subcontractors on the said
date.
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2.
OWNER REPRESENTATIONS AND WARRANTIES
Owner represents and warrants to Builder, it being acknowledged
by
Owner that Builder is relying on such
representations and warranties to induce
it to enter this Amending Agreement; that
Owner has made necessary arrangements
with and obtained assurances from its
lenders to be in a position to make
payments to Builder in accordance with
Exhibit C;
3.
CONTRACT PRICE AND CONTRACTUAL RE-DELIVERY DATE
(a)
Owner and
Builder agree that as of the date hereof, after assessment
of all Builder's pending claims and Change Order Requests, save
and
except for any amount that may become payable pursuant to the
Outstanding Change Order Requests listed in Exhibit B, the
Contract
Price payable to Builder is to be increased by $9,350,000
(hereafter
referred to as "Increase in Contract Price") and consequently,
save
and except for any amount that may become payable pursuant to
the
Outstanding Change Order Requests listed in Exhibit B, the
Contract
Price is $51,962,591 as reconciled in Exhibit A.
(b)
Owner and
Builder agree that, as of the date hereof, after
assessment of all Builder's claims and Change Order Requests,
save
and except for Change Order Request No. 247 listed in Exhibit B
bearing status "In preparation" the Contractual Re-Delivery Date
is
extended to May 21st, 2004 (the "Amended Re-Delivery Date"),
which
date includes all periods of Permissible Delay;
(c)
Builder
acknowledges having received from Owner at the date hereof,
the following amounts totalling $5,689,534 as instalments on
payment
of the Increase of Contract Price;
(i)
$1,000,000 on
January 29, 2004;
(ii)
$489,534 on February
18, 2004;
(iii)
$3,600,000 on March 4, 2004;
(iv)
$600,000 on April 5,
2004
(d)
The balance of
the Contract Price will be payable in accordance with
Exhibit C attached, it being understood and agreed that Builder
shall deliver to Owner as a condition of making all such payments
a
"no-lien" certificate in the form prescribed and required by
paragraph 2 of the Fifth Amending Agreement forming part of the
Amended Contract.
4.
RENUNCIATION AND RELEASE
(a)
In consideration
of Owner's agreement to pay the Increase of
Contract Price and in consideration of Owner's agreement to
amend
the Contractual Re-Delivery Date as pro
