VESSEL PURCHASE AGREEMENT
dated as of August 1, 1996
among
TRICO MARINE ASSETS, INC.
and
XXX XXXXX, INC.
K&B BOAT RENTALS, INC.
XXXXX BOAT SERVICE, INC.
___________________________
Sale and Purchase
of
M/V MISS XXXXXXX
M/V XX. XXXXXX
M/V XXXXX XXXXX
M/V XXXX XXXXXXX
M/V KENT
M/V XX. XXXX
M/V XX. XXXXX
VESSEL PURCHASE AGREEMENT
This VESSEL PURCHASE AGREEMENT (this "Agreement"), dated
as of August 1, 1996, is by and among Trico Marine Assets,
Inc., a Delaware corporation (the "Buyer"), and Xxx Xxxxx,
Inc., a Louisiana corporation, K&B Boat Rentals, Inc., a
Louisiana corporation, and Xxxxx Boat Service, Inc., a
Louisiana corporation (collectively, the "Sellers" and,
individually, a "Seller").
W I T N E S S E T H:
WHEREAS, the Sellers are the owners of the U.S. flagged
supply vessels listed on Exhibit "A" and the parts, equipment,
machinery, implements, accessories, appurtenances, supplies
and inventory related to the Vessels (collectively, the
"Vessels").
WHEREAS, the Sellers desire 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 Sellers 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), the Sellers do hereby agree to sell to
the Buyer, and the Buyer does hereby agree to purchase from
the Sellers, the Vessels. Other than the Vessels, the Buyer
shall acquire no other assets or property, including any
goodwill, intangibles or contractual rights of the Sellers.
The Buyer shall acquire no land based facilities, employees,
distribution systems, customers, operating rights or
production techniques of the Sellers pursuant to this
Agreement.
1.2 Deposit and Purchase Price. (a) Contemporaneously
with the execution hereof, the Buyer shall deliver to the
Sellers $500,000 as a deposit (which shall be credited towards
the Purchase Price (as hereinafter defined) at the Closing) to
secure the performance of its obligations under this
Agreement. If this Agreement is terminated prior to the
Closing by the Sellers pursuant to Section 5.1(d), then the
Sellers shall retain this deposit as full and final liquidated
damages suffered by the Sellers as a result of the Buyer's
failure to close the transactions contemplated hereby. If
this Agreement is terminated prior to the Closing pursuant to
Subsections 5.1(a), 5.1(b) or 5.1(c) by the Buyer, the Sellers
shall promptly, after such termination, return this deposit to
the Buyer.
(b) The Buyer shall, subject to the terms hereof,
pay at the Closing (as hereinafter defined) $32,000,000 (as it
may be adjusted pursuant to this Section 1, the "Purchase
Price") to the Sellers 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 $4,500,000 for each such Vessel 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 Sellers 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 Sellers 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, the Buyer waives each and every claim for recovery
against the Sellers 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 Sellers (the "Closing Date")
on or before August 20, 1996. On the Closing Date, the Buyer
shall deliver the Purchase Price to the Sellers, the Sellers
shall cause the Vessels to be delivered to the Buyer and the
Buyer and the Sellers each shall 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.
(a) Notwithstanding anything to the contrary
herein, the Buyer and the Sellers 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. If any Vessel shall suffer any damage or loss
(other than an actual or constructive total loss) prior to the
Closing, the Sellers agree 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 Sellers agree 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 Sellers shall provide Buyer with original cover
notes evidencing such insurance covering the Vessels for the
three years prior to Closing.
(b) The Buyer shall, at its option, have a period
of ten business days from the date hereof to conduct a
reasonable due diligence investigation of each of the Vessels
and the documentation related thereto, which inspection must
be satisfactory to the Buyer. If the Buyer finds (i) any
condition that would cause the representations made in
Subsection 3.4 to be untrue or (ii) any of (A) the hull or
material pieces of machinery or equipment reflected in Exhibit
"A" to be inoperable or missing or (B) the specifications set
forth in Exhibit "A" to be materially inaccurate, then the
Buyer may terminate this Agreement in accordance with Section
5 if the Sellers do not agree to remedy the condition to the
Buyer's reasonable satisfaction.
1.6 Governmental Filings.
(a) The Buyer and Sellers 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 Sellers 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 Sellers to sell the
Vessels to the Buyer and the Buyer to pay the Purchase Price
for the Vessels 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 Sellers the
remaining portion of the Purchase Price not previously paid
pursuant to Subsection 1.2(a) by wire transfer of immediately
available funds to an account designated by the Sellers; and
(b) The Buyer shall deliver the Employment
Agreement in the form attached hereto as Exhibit "B."
2.2 Deliveries by Sellers. At the Closing, the
following actions shall have been taken by the Sellers:
(a) The Sellers will deliver bills of sale fully
executed by the Seller owning each Vessel in a mutually
acceptable form pursuant to which such 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); and
(b) The Sellers shall deliver to the Buyer all
documentation, certificates and instruments relating to each
Vessel as may be in the Sellers' 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. Any 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. All representations
and warranties made by Buyer and the Sellers 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 recipient of the representation and warranty.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF SELLERS
The Sellers make the following representations and
warranties to the Buyer:
3.1 Organization, Existence and Corporate Power. Each
of the Sellers is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Louisiana and has all requisite corporate 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 Sellers have
not been and are not engaged in the business of selling
tangible personal property similar to the Vessels and the
Sellers have not and do not hold themselves 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 corporate action on the part of each
of the Sellers. This Agreement and, when executed and
delivered, each other document, certificate and instrument
required to be executed, have been duly executed and delivered
by each of the Sellers and constitute the legal, valid and
binding obligations of each of the Sellers enforceable against
each of them in accordance with the respective terms hereof
and thereof.
3.3 Conflict. Neither the execution, delivery or
performance by the Sellers of this Agreement nor the
consummation of the transactions contemplated hereby will
violate or contravene any of the Seller's articles of
incorporation or any judgment, decree, order or award of any
court or other governmental agency or any law, rule or
regulation applicable to any of the Sellers or any of their
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 any of the
Sellers is a party or by which it or its properties are bound.
3.4 Title; No Encumbrance. The Seller reflected in
Exhibit "A" as owing each Vessel has good, valid and
marketable title to 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
Sellers 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 coastwide trade and none has
been disqualified from their intended service by the U.S.
Maritime Administration. At all times each of the Sellers has
been "a citizen of the United States" within the meaning of
Section 2 of the Shipping Act of 1916, as amended. The
Vessels are duly documented in the name of the Sellers
reflected in Exhibit "A" 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 Sellers in connection with or relating to the
transactions contemplated by this Agreement.
3.6 Taxes. The Sellers have 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.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Sellers 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.
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 Sellers and the Buyer; (b) by the
Sellers 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; (c) by
the Buyer in accordance with Subsection 1.5(b) following the
completion of its due diligence investigation specified
therein; or (d) by the Sellers or the Buyer if the conditions
to Closing required by Section 2 shall not have been met or
waived by September 13, 1996, 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(d).
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 1.2(a) and 5.2 and
Section 6.
SECTION 6
MISCELLANEOUS
6.1 Indemnification of Buyer by Sellers. The Sellers
hereby agree to pay and assume liability for, and do 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 such Sellers 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 Sellers in this Agreement or any breach or
nonfulfillment of any covenant, agreement or other obligation
of the Sellers, (b) Encumbrances arising as a matter of law
from events occurring prior to the Closing Date or (c) any
Losses sustained by Buyer arising out of or related to
Sellers' ownership or operation of the Vessels prior to the
Closing Date.
6.2 Indemnification of Sellers by Buyer. Buyer hereby
agrees to pay and assume liability for, and does hereby agree
to indemnify, protect, save and keep harmless the Sellers,
from and against any and all Losses imposed on, asserted
against or incurred by the Sellers, 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 Sellers arising
out of or related to the ownership or operation of the Vessels
after the Closing Date.
6.3 Expenses. The Buyer and the Sellers 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, Sellers shall cease any
existing negotiations and shall cause their respective
officers, 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 shares of capital stock, merger, consolidation or
similar transaction involving any of the Sellers.
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.
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 either Sellers 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 Sellers 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; provided that (a) the condition
specified in Subsection 1.5(b) has been satisfied by the
Buyer and (b) the Buyer shall first consult in good faith
with the Sellers regarding the necessity and scope of such
disclosure.
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. Xxxxxxx
___________________________
Xxxxxx X. Xxxxxxx
President
The Sellers' address is: SELLERS:
West 21st Street XXX XXXXX, INC.
Xxxxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000 By: /s/ Xxxxx Xxxxx
___________________________
Xxxxx Xxxxx
President
K&B BOAT RENTALS, INC.
By: /s/ Xxxxx Xxxxx
___________________________
Xxxxx Xxxxx
President
XXXXX BOAT SERVICE, INC.
By: /s/ Xxxxx Xxxxx
____________________________
Xxxxx Xxxxx
President
