VESSEL PURCHASE AGREEMENT
dated as of January 6, 1997
between
TRICO MARINE ASSETS, INC.
and
XXXXXXX MARINE, L.L.C.
___________________________
Sale and Purchase
of
M/V Lincoln
M/V Washington
M/V Grant
M/V Madison
M/V Xxxxxx
M/V Xxxxxxx
VESSEL PURCHASE AGREEMENT
This VESSEL PURCHASE AGREEMENT (this "Agreement"),
dated as of January 6, 1997 is by and between Trico Marine
Assets, Inc., a Delaware corporation (the ``Buyer''), and
Xxxxxxx Marine, L.L.C., a Louisiana limited liability
company (the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller is the owner of the five U.S.
flagged supply vessels and one U.S. flagged utility vessel
listed on Exhibit "A" attached hereto and the parts,
equipment, machinery, implements, accessories,
appurtenances, supplies and inventory related to such
vessels (collectively, the "Vessels").
WHEREAS, the Seller desires to sell the Vessels to the
Buyer upon the terms and conditions set forth herein; and
WHEREAS, the Buyer desires to acquire the Vessels upon
such terms.
NOW, THEREFORE, in consideration of the mutual promises
and covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Buyer and Seller hereto
represent and agree as follows:
SECTION 1
SALE AND PURCHASE OF THE VESSELS
1.1 Sale of the Vessels. On the Closing Date (as
hereinafter defined) and subject to the terms of this
Agreement, the Seller does hereby agree to sell to the
Buyer, and the Buyer does hereby agree to purchase from the
Seller, the Vessels and all of Seller's right, title and
interest in and to that certain Blanket Time Charter
Agreement (the "Time Charter'') dated December 19, 1996
between the Seller and O.S.C.A., Inc. ("O.S.C.A."). Other
than the Vessels and the Time Charter, the Buyer shall
acquire no other assets or property, including any goodwill,
intangibles or contractual rights of the Seller. The Buyer
shall acquire no land based facilities, employees,
distribution systems, customers, operating rights or
production techniques of the Seller pursuant to this
Agreement.
1.2 Purchase Price. The Buyer shall, subject to the
terms hereof, pay at the Closing (as hereinafter defined)
$25,000,000 plus an amount equal to Seller's actual cost for
all fuel and lube on the M/V Madison on the Closing Date
belonging to the Seller (such amount, as it may be adjusted
pursuant to this Section 1, the "Purchase Price") to the
Seller in the manner provided in Subsection 2.1. If, prior
to the Closing Date, any Vessel shall become an actual or
constructive total loss, the Purchase Price shall be reduced
by an amount to be determined by the Buyer and Seller as
being equal to the Vessel's fair market value prior to the
loss and such Vessel shall not be sold or transferred to the
Buyer at the Closing.
1.3 "As is, Where is" Sale. Each Vessel shall be sold
on an "as is, where is" basis and the Buyer shall accept
delivery of each Vessel from the Seller in such condition.
Except as set forth in Subsection 3.4, no representations or
warranties, either expressed or implied, are made with
respect to the maintenance, repair, condition, design,
operation, seaworthiness, value, marketability,
merchantability, usefulness or suitability for any purpose,
of any Vessel, including without limitation, (a) any implied
or expressed warranty of merchantability, (b) any implied or
expressed warranty for fitness for a particular purpose, and
(c) any claim by the Buyer for damages because of or related
to any defects, whether known or unknown, with respect to
any Vessel. The Buyer and the Seller intend that the
Vessels shall be conveyed and transferred to the Buyer in
their present condition and state of repair existing on the
Closing Date "as is" and "where is," with all faults. In
accordance with the foregoing and notwithstanding anything
to the contrary in Section 6.1, the Buyer waives each and
every claim for recovery against the Seller for any and all
loss or damage to the Vessels arising from or relating to,
in whole or in part, the maintenance, repair, condition,
seaworthiness or design of the Vessels.
1.4 Closing. The consummation of the sale and
purchase of the Vessels (the "Closing") shall take place in
accordance with the terms of this Agreement on a business
day to be mutually agreed upon by Buyer and Seller (the
"Closing Date") on or before February 7, 1997. On the
Closing Date, the Buyer shall deliver the Purchase Price to
the Seller, the Seller shall cause the Vessels to be
delivered to the Buyer and the Buyer and the Seller shall
each provide the other documents, certificates and
instruments required to be delivered pursuant to Section 2.
Each of the parties agree that time is of the essence and
that it will use its best efforts to satisfy the conditions
to Closing set forth in Section 2 that are within its
control and that are capable of being satisfied prior to the
Closing Date not later than the second business day in
advance of the date the parties establish as the Closing
Date.
1.5 Condition and Access to the Vessels; Time Charter.
(a) Notwithstanding anything to the contrary
herein, the Buyer and the Seller agree that the Vessels
shall, on the Closing Date, be in substantially the same
condition as on the date hereof, ordinary wear and tear
excepted. Prior to the Closing, the Seller shall cause the
modification and upgrading of the M/V Madison to be
completed so that the specifications set forth in Exhibit
"A" for such Vessel are true and accurate. If any Vessel
shall suffer any significant damage or loss (other than an
actual or constructive total loss) prior to the Closing, the
Seller agrees to be responsible for such repairs to the
Vessel suffering such damage or loss as may be necessary to
restore the Vessel to the condition required hereunder. The
Seller agrees to cause the Vessels to continue to be insured
by hull and machinery and protection and indemnity insurance
in the amounts and with the coverages currently in force
until the Closing Date. Prior to the Closing, the Seller
shall provide Buyer with original cover notes evidencing
such insurance covering the Vessels for the three years
prior to Closing or such shorter period that the Buyer has
owned each Vessel.
(b) Prior to the Closing, the Seller shall obtain
the consent of O.S.C.A. to the assignment (or a replacement
charter as provided below) of the Seller's right, title and
interest in (and the release of the Seller from all
obligations under) the Time Charter to Trico Marine
Operators, Inc. on terms which either (i) permit the
delivery of the M/V Xxxxxx following its modification and
upgrading by the Buyer or (ii) confirms O.S.C.A.'s consent
to the substitution of another of the Buyer's supply boats
in lieu thereof. The Buyer agrees to cooperate with and
assist the Seller in taking the actions specified in this
Section 1.5(b), including negotiating a mutually acceptable
charter arrangement to replace the Time Charter if O.S.C.A.
so desires.
(c) The Seller intends to give notice under the
termination provisions of the charter agreements applicable
to the Vessels (other than the M/V Xxxxxx) on or prior to
the Closing Date. If necessary under the applicable charter
agreement between the Seller and its customers (other than
O.S.C.A.), following the Closing, the Buyer will operate
such Vessels for the Seller (in exchange for the charter
hire payable thereunder) to fulfill any termination notice
period under any such agreement.
(d) Prior to the Closing Date, the Seller shall
afford the Buyer's employees and representatives access to
the Vessels and all documents and records relating thereto.
1.6 Governmental Filings.
(a) The Buyer and Seller will coordinate with the
other and will use all reasonable efforts to cause to be
filed as promptly as possible with the Department of Justice
and the Federal Trade Commission any pre-merger
notifications required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and to
obtain the early termination or waiver of the HSR Act
waiting period and any related restriction on consummating
the transactions contemplated by this Agreement.
(b) The Seller will furnish Buyer on a timely
basis such information concerning the Vessels and the
operation thereof as reasonably deemed necessary or
appropriate by the Buyer for inclusion in any report,
application or other statement required by law to be made by
Buyer or to be filed by Buyer with any governmental
authority in connection with or relating to the transactions
contemplated by this Agreement.
SECTION 2
CONDITIONS PRECEDENT
The respective obligations of the Seller to sell the
Vessels and assign the Time Charter to the Buyer and the
Buyer to pay the Purchase Price for the Vessels and assume
the Time Charter are subject to the satisfaction of the
following conditions precedent:
2.1 Deliveries by the Buyer. At the Closing, the
following actions shall have been taken by the Buyer:
(a) Buyer shall deliver to the Seller the
Purchase Price by wire transfer of immediately available
funds to an account designated by the Seller; and
(b) The Buyer shall execute and deliver in
accordance with Section 1.5(b) an assignment (or replacement
charter if O.S.C.A., Inc. so desires) pursuant to which
Trico Marine Operators, Inc. will assume all of the Seller's
right, title and interest in and to (and the Seller shall be
released from all of its obligations under) the Time
Charter.
2.2 Deliveries by Seller. At the Closing, the
following actions shall have been taken by the Seller:
(a) The Seller will deliver bills of sale fully
executed by the Seller in a mutually acceptable form
pursuant to which Seller shall transfer to Buyer all right,
title and ownership of the Vessels sold, transferred,
conveyed, assigned and delivered free and clear of all
Encumbrances (as hereinafter defined);
(b) The Seller shall deliver in accordance with
Section 1.5(b) a duly executed assignment pursuant to which
Seller shall transfer to Trico Marine Operators, Inc. all of
its right, title and interest in and to the Time Charter;
and
(c) The Seller shall deliver to the Buyer all
documentation, certificates and instruments relating to each
Vessel as may be in the Seller's possession and such
documents, certificates and instruments reasonably requested
by Buyer concerning the accuracy and validity of or
compliance with the representations and warranties as Buyer
may reasonably request.
2.3 HSR Act. The waiting period imposed under the HSR
Act shall have expired or been terminated in accordance with
the rules promulgated thereunder.
2.4 Representations and Warranties; Covenants. All
representations and warranties made by Buyer and the Seller
shall be true and correct in all material respects on and as
of the time of the Closing with the same effect as though
made on and as of such date, except to the extent waived in
its sole discretion by the other party. The Buyer and
Seller shall each have performed in all material respects
all covenants and agreements set forth in this Agreement,
except to the extent waived in its sole discretion by the
other party.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller makes the following representations and
warranties to the Buyer:
3.1 Organization, Existence and Power. The Seller is
a limited liability company duly organized, validly existing
and in good standing under the laws of the State of
Louisiana and has all requisite power and authority to
execute, deliver and perform its obligations under this
Agreement and the other documents, certificates and
instruments contemplated hereby and thereby. The Seller has
not been and is not engaged in the business of selling
tangible personal property similar to the Vessels and the
Seller has not and does not hold itself out to be engaged in
such business.
3.2 Authorization and Execution. The execution,
delivery and performance of this Agreement and the other
documents, certificates and instruments contemplated hereby
and thereby and the consummation of the transactions
contemplated hereby and thereby have been duly authorized
and approved by all requisite on the part of the Seller.
This Agreement and, when executed and delivered, each other
document, certificate and instrument required to be
executed, have been duly executed and delivered by the
Seller and constitute the legal, valid and binding
obligations of the Seller enforceable against the Seller in
accordance with the respective terms hereof and thereof.
3.3 Conflict. Neither the execution, delivery or
performance by the Seller of this Agreement nor the
consummation of the transactions contemplated hereby will
violate or contravene the Seller's articles of organization,
operating agreement, or any judgment, decree, order or award
of any court or other governmental agency or any law, rule
or regulation applicable to the Seller or any of its
respective property or assets or conflict with, result in a
breach of or constitute a default under, any agreement,
instrument or contractual obligation to which the Seller is
a party or by which it or its properties are bound.
3.4 Title; No Encumbrance. The Seller has good, valid
and marketable title to each of the Vessels and all of such
Vessels on the Closing Date shall be, free and clear of all
mortgages, security interests, debts, claims, liens, libels
and encumbrances of any kind whatsoever ("Encumbrances").
The Seller will warrant and defend the Buyer's title in and
to the Vessels against the claims and demands of all persons
whomsoever. All of the Vessels are U.S. flagged vessels and
are qualified to engage in the coast wide trade and none has
been disqualified from their intended service by the U.S.
Maritime Administration. At all times the Seller has been
"a citizen of the United States" within the meaning of
Section 2 of the Shipping Act of 1916, as amended. Except
as disclosed in Exhibit "A", the Vessels are duly documented
in the name of the Seller as owning each Vessel with the
U.S. Coast Guard and each of the Vessels has and as of the
Closing Date will have current certificates of inspection
and documentation in effect with the U.S. Coast Guard and an
American Bureau of Shipping loadline certificate, in each
case free of reportable exceptions or notations of record,
and each of the Vessels is currently operating within the
U.S. Gulf of Mexico.
3.5 Litigation. There are no legal actions, suits,
arbitrations, government investigations or other legal or
administrative proceedings, nor any order, decree or
judgement pending, or effect, or threatened against or
relating to the Vessels or the Seller in connection with or
relating to the transactions contemplated by this Agreement.
3.6 Taxes. The Seller has duly and timely prepared
and filed with the appropriate governmental authorities all
returns, reports, information returns or other documents
filed or required to be filed with such governmental
authorities and has paid any taxes or other amounts due in
respect thereof that if unpaid could result in a claim by
any governmental authority against any of the Vessels or the
Buyer.
3.7 No Broker Fees. No finder's or broker's fees or
similar expense has been incurred by the Seller so as to
give rise to any claim by any person against Buyer for a
finder's fee, brokerage commission or similar payment, and
any such fee or other amount payable to Xxxxxxx Rice &
Company L.L.C. shall be the sole responsibility of the
Seller.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as
follows:
4.1 Organization, Existence and Corporate Power. The
Buyer is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of
Delaware, and has all requisite corporate power to execute,
deliver and perform its obligations under this Agreement.
4.2 Authorization and Execution. The execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have
been duly authorized and approved by all requisite corporate
action of the Buyer. This Agreement constitutes the legal,
valid and binding obligation of the Buyer enforceable
against it in accordance with its terms.
4.3 Conflict. Neither the execution, delivery or
performance by the Buyer of this Agreement nor the
consummation of the transactions contemplated hereby will
violate the Buyer's certificate of incorporation or by-laws
or any judgment, decree, order or award of any court or
other governmental agency or any law, rule or regulation
applicable to the Buyer or its property or assets or
conflict with, result in a breach of or constitute a default
under, any contractual obligation of the Buyer.
4.4 Citizenship. The Buyer is a "citizen of the
United States" as such term is defined in Section 2 of the
Shipping Act of 1916, as amended, qualified to engage in the
trade in which each Vessel is, or is contemplated to be,
employed.
4.5 Litigation. There are no legal actions, suits,
arbitrations, government investigations or other legal or
administrative proceedings, nor any order, decree or
judgement pending, or effect, or threatened against the
Buyer in connection with or relating to the transactions
contemplated by this Agreement.
4.6 No Broker Fees. No finder's or broker's fees or
similar expense has been incurred by the Buyer so as to give
rise to any claim by any person against Seller for a
finder's fee, brokerage commission or similar payment.
SECTION 5
TERMINATION
5.1 Termination. This Agreement may, by written
notice given at or prior to the Closing, be terminated: (a)
by mutual consent of the Seller and the Buyer; (b) by the
Seller or the Buyer if there has been a material breach by
the other of any representation, warranty or covenant
contained in this Agreement that shall not have been cured
or waived by the other party prior to the earlier of ten
days following notice of such breach and the Closing Date;
or (c) by the Seller or the Buyer if the conditions to
Closing required by Section 2 shall not have been met or
waived by February 28, 1997, or the Closing has not occurred
by such date; provided, however, that the party whose breach
of its representations and warranties in this Agreement or
whose failure to perform any of its covenants and agreements
under this Agreement has resulted in the failure of the
Closing to occur on or before such date shall not be
entitled to terminate this Agreement pursuant to this
Subsection 5.1(c).
5.2 Effect of Termination; Survival. Upon termination
of this Agreement pursuant to Subsection 5.1, this Agreement
shall be void and of no effect and there shall be no
liability by reason of this Agreement or the termination
thereof on the part of any party except for any liability
arising out of a breach of any covenant in this Agreement
prior to the date of termination or any covenant that
survives pursuant to this Subsection 5.2. The following
provisions shall survive any termination of this Agreement:
Subsections 5.2 and Section 6.
SECTION 6
MISCELLANEOUS
6.1 Indemnification of Buyer by Seller. The Seller
hereby agrees to pay and assume liability for, and does
hereby agree to indemnify, protect, save and keep harmless
the Buyer, from and against any and all liabilities,
obligations, losses, damages, penalties, claims (including
claims by any employee of Seller or any of its servants,
crew or agents), actions, suits and related costs, expenses
and disbursements, including reasonable legal fees and
expenses, of whatsoever kind and nature, imposed on,
asserted against or incurred by Buyer (collectively,
"Losses"), in any way relating to or arising out of or
alleged to be attributable to, related to or arising out of
(a) any inaccuracy in any representation or warranty of the
Seller in this Agreement or any breach or nonfulfillment of
any covenant, agreement or other obligation of the Seller,
(b) Encumbrances arising as a matter of law from events
occurring prior to the Closing Date or (c) subject to
Section 1.3, any Losses sustained by Buyer arising out of or
related to Seller's ownership or operation of the Vessels
prior to the Closing Date.
6.2 Indemnification of Seller by Buyer. Buyer hereby
agrees to pay and assume liability for, and does hereby
agree to indemnify, protect, save and keep harmless the
Seller, from and against any and all Losses imposed on,
asserted against or incurred by the Seller, in any way
relating to or arising out of or alleged to be attributable
to, related to or arising out of (a) any inaccuracy in any
representation or warranty of the Buyer in this Agreement or
any breach or nonfulfillment of any covenant agreement or
other obligation of the Buyer or (b) any Losses sustained by
Seller arising out of or related to the Buyer's ownership or
operation of the Vessels after the Closing Date.
6.3 Expenses. The Buyer and the Seller shall each pay
their own out-of-pocket fees and expenses, including,
without limitation, all legal, accounting, advisory or other
fees and expenses, arising in connection with any
transactions contemplated by this Agreement.
6.4 Negotiations. During the period from the date of
this Agreement until the earlier of the Closing or the
termination of this Agreement, Seller shall cease any
existing negotiations and shall cause its members,
employees, representatives and agents, not to take any
action (or permit any other person acting for or on their
behalf), directly or indirectly, to solicit or initiate or
encourage inquiries or proposals from, or participate in
discussions or negotiations with, or provide any information
to, any corporation, partnership, person or other entity or
group (other than the Buyer) concerning any sale of assets,
sale of membership interests, merger, consolidation or
similar transaction involving the Seller.
6.5 Entire Agreement; Amendments and Waivers. This
Agreement constitutes the entire agreement and understanding
of the parties with respect to the subject matter hereof and
hereby supersedes any other prior agreement of the parties
with respect to the matters set forth herein whether written
or oral. No modification, waiver or amendment of this
Agreement shall be effective unless such modification,
waiver or amendment shall be in writing and executed by the
parties hereto.
6.6 Notices. Except as may otherwise be expressly
provided herein, any notice herein required or permitted to
be given shall be in writing or by telex or facsimile
transmission with subsequent written confirmation, and may
be personally served, sent by United States mail or by
overnight delivery service providing for evidence of receipt
and shall be deemed to have been given upon receipt by the
party notified. For the purposes hereof, the addresses of
the parties hereto (until notice of a change thereof is
delivered as provided in this Subsection 6.6) shall be as
set forth opposite each party's name on the signature page
hereof.
6.7 Survival. All agreements, indemnities, covenants,
representations and warranties made herein shall survive the
execution and delivery of this Agreement and the delivery of
the Vessels for a period commencing on the Closing Date and
continuing through and including three years from the
Closing Date, and shall terminate at the expiration of such
period, except in the case of a Loss that has occurred or a
claim in respect of such Loss that is made under Sections
6.1 or 6.2 prior to such date.
6.8 Severability; Counterparts. In case any provision
of or obligation under this Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired
thereby. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all of such
counterparts shall together constitute one and the same
instrument.
6.9 Governing Law. This agreement shall be construed
in accordance with U.S. maritime law and the substantive
laws of the State of Louisiana.
6.10 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns;
provided, however, that neither Buyer nor the Seller shall
be permitted to assign its rights under this Agreement
without the prior written consent of the other party.
6.11. Publicity. Neither the Buyer, the Seller nor any
of their respective affiliates shall issue any press release
or otherwise make any public announcement or disclosure
regarding this Agreement or the transactions contemplated
hereby. However, the Buyer shall be entitled to make such
disclosures to the extent required by any applicable law or
regulation.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
The Buyer's address is: BUYER:
000 Xxxx Xxxxxx XXXXX MARINE ASSETS, INC.
Xxxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000 By: /s/ Xxxxxx X. Xxxxx
_________________________
Xxxxxx X. Xxxxx
Vice President and
Chief Financial Officer
The Seller's address is: SELLER:
1500 Energy Centre XXXXXXX MARINE, L.L.C.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000 By: /s/ Xxxx Xxxxx Xxxxxxx
_________________________
Xxxx Xxxxx Xxxxxxx, Xx.
Manager
