PURCHASE AGREEMENT
AGREEMENT OF PURCHASE AND SALE dated as of December 3, 1996,
among (A) SEACOR MARINE, INC., a Delaware corporation ("Purchaser"),
(B) SEACOR HOLDINGS, INC., a Delaware corporation ("SEACOR Holdings"),
(C) WAVELAND MARINE SERVICE, INC., a Louisiana corporation ("Seller"),
and (D) X.X. Xxxxxxxxx, Xxxxxx Xxxxxxxxx, D. Xxx Xxxxxxxxx, and Xxxxxx
X. Xxxxxxxxx (each individually a Stockholder and collectively the
"Stockholders").
1. SALE OF ASSETS AND BUSINESS OF THE SELLERS.
(a) Upon the terms and subject to the provisions of Section
7(f) hereof and subject to the other provisions set forth in this
Agreement, the Seller will sell, convey, assign, transfer and deliver
to Purchaser, and Purchaser will purchase from the Seller, all the
assets set forth in Schedule 1.1 hereto (such assets, excluding the
Excluded Assets (as hereinafter defined), being hereinafter called
the "Purchased Assets"). The Purchased Assets include, without
limitation, those assets referred to and listed in Schedules 1.1, 3.1,
7.1, and 9.7 (except for the name "Waveland").
(b) Anything hereinabove contained to the contrary
notwithstanding, the Purchased Assets shall not include any assets of
the Seller not listed on one of the aforementioned Schedules,
including the following (hereinafter collectively called the "Excluded
Assets"):
i) cash on hand and cash equivalents;
ii) cash value of life insurance;
(iii) accounts and notes receivable;
(iv) prepaid expenses, utility and similar deposits;
(v) any insurance policies;
(vi) the capital construction fund accounts; and
(vii) any interest in real property.
(c) After the Closing, all books and records of Seller
related to the Purchased Assets shall be maintained at the office
building at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, to be leased by
Acadian Offshore Services, Inc. (the "Office Building") and shall be
available at all times for inspection and copying by officers,
attorneys, accountants and other authorized representatives of
Purchaser. If Seller shall desire to dispose of any such books and
records (which it shall have the right to do after the expiration of
six years after the Closing Date) or remove any such books and records
from the Office Building, Seller shall, before making such disposition
or so removing such books and records, give Purchaser a reasonable
opportunity, at Purchaser s cost and expense, to copy such books and
records as it may select.
2. PURCHASE PRICE, PAYMENT, ALLOCATION, RISK OF LOSS.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, Purchaser will pay to Seller at the closing on the
Closing Date, subject to the provisions of Section 7(c) hereof, as the
aggregate purchase price for the Purchased Assets listed on Schedule
1.1 hereof, cash in the amount of $15,400,000 (which shall be paid by
wire transfer
received before the close of banking business on the Closing Date to
an account or accounts designated by Seller to Purchaser in writing
prior to the Closing Date), subject to adjustment, credit and reserves
as follows:
i) the purchase price shall be adjusted upward to
reflect all of the Seller s costs, to the date of
closing, associated with that certain supply boat,
Shipyard Hull No. 113 (the "Supply Boat"),
currently under construction at Houma Fabricators
shipyard. The adjustment shall consist of:
a) reimbursement for all progress payments made
by or, to the extent that Seller has a
reimbursement obligation with respect to any
payment made on its behalf, on behalf of
Seller under the contract under which the
Supply Boat is being constructed;
b) reimbursement for all reasonable and
documented out-of-pocket costs, as listed on
Schedule 2.1 hereto, incurred by or, to the
extent that Seller has a reimbursement
obligation with respect to any payment made
on its behalf, on behalf of Seller in
connection with the financing and
construction of the Supply Boat;
c) interest on the amounts reimbursed under (a)
and (b) above, calculated at an annual rate
of 8.5 percent from the date on which the
funds were advanced until the Closing Date;
d) a premium equal to 10 percent of the amounts
reimbursed under (a) and (b) above (but
excluding any funds expended on or after
October 24, 1996).
In exchange, Purchaser shall acquire all of
Seller s right, title and interest in and under
all contracts relating to the construction and
outfitting of said Supply Boat. Purchaser shall
also assume all of Seller s obligations under such
construction and outfitting contracts; and
ii) the purchase price shall be adjusted for
certain events of loss as provided in
Section 2(c) hereof.
In addition, as to all personal property taxes which have actually
been prepaid by Seller, the Purchaser shall reimburse Seller on the
Closing Date for all such prepaid property taxes, prorated from the
Closing Date to reflect the fact that Purchaser shall be responsible
for such taxes from and as of the Closing Date and Seller shall be
responsible for such taxes to the Closing Date. Purchaser shall be
responsible for all sales, use, and ad valorem taxes arising as a
consequence of the purchase of the Purchased Assets.
(b) The Purchaser and Seller have agreed upon the
allocation of the purchase price to the various assets included in the
Purchased Assets, as set forth in Schedule 1.1 hereto.
(c) As of and after the time at which the transactions
contemplated by this Agreement are consummated (the "Closing"), risk
of loss of the Purchased Assets purchased by Purchaser shall be borne
by Purchaser. Prior to the Closing, risk of loss of the Purchased
Assets shall be borne by Seller. In the event of an actual,
constructive, agreed or compromised total loss ("Total Loss") of any
Purchased Asset prior to the Closing, the purchase price shall be
reduced by 114.29% of the allocated purchase price of the asset so
lost as set forth in Schedule 1.1 hereto, which Schedule 1.1 shall be
conclusive for the purposes of allocating purchase price in the event
of a Total Loss. In such event, all insurance proceeds in connection
with such casualty shall be for the sole account of Seller, and
Purchaser shall have no claim whatsoever to same. The purchase price
shall not be reduced in the event any of the Purchased Assets sustains
a loss or other casualty other than a Total Loss prior to the Closing,
it being understood and agreed that the sale and purchase of the
Purchased Assets shall be, except as otherwise set forth in this
Agreement, on an as is, where is basis at the time of inspection of
such assets (as set forth on Schedule 10.1 hereto), subsequent
ordinary wear and tear excepted. However, in the event of a loss of
or casualty to a Purchased Asset other than a Total Loss prior to the
Closing, the Seller agrees to arrange and pay for any repair to such
asset, or if appropriate and with the consent of Purchaser, assign to
Purchaser any claim
relating to such asset under Seller s insurance policies, any
insurance proceeds received by or owed to Seller on account of such
asset, and any other claim or cause of action relating to such asset,
together with funds sufficient to cover any self-insured or deductible
amount payable in connection with such casualty or loss. Purchaser
shall have the opportunity to make a full investigation of each
Purchased Asset prior to the Closing Date, and Purchaser accepts title
to the Purchased Assets without any warranty on the part of Seller as
to fitness for any intended purpose, merchantability, or condition
except as otherwise provided herein.
3. ASSUMPTION OF CERTAIN CONTRACTS AND INDEMNITIES.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, Purchaser will assume on the Closing Date by
appropriate instruments and will pay, perform and discharge, or cause
to be paid, performed and discharged, only such debts, obligations,
contracts and liabilities of Seller incurred up to and including the
Closing Date (A) arising under uncompleted orders entered into by
Seller for the purchase of materials, supplies and equipment for the
requirements of the Seller s business in the ordinary course and which
are ordinarily expended, (B) arising under such contracts, leases,
plans and other commitments set forth in Schedule 3.1 hereto, and (C)
arising under contracts the assignments of which are subject to the
provisions of Section 7(f) hereof, but only to the extent that, under
the terms of any such completed orders or other instruments referred
to in (A), (B) and (C), payment or performance by Seller under the
terms thereof is required after (and not prior to) the Closing
Date (such assumed obligations to the extent so assumed, being
hereinafter referred to collectively as the "Assumed Liabilities").
Seller shall be fully indemnified by Purchaser against any such
Assumed Liabilities in accordance with the provisions of Section 14 of
this Agreement. It is expressly understood and agreed that, except
for the Assumed Liabilities, Purchaser has not agreed to and shall not
assume any other debts, obligations, contracts, or liabilities of any
of the Seller (the "Retained Liabilities"), including but not limited
to, any of the following:
i) any obligations or liabilities of Seller under
this Agreement;
ii) any debts, obligations, contracts or liabilities
for expenses, taxes and fees incident to the
preparation of this Agreement or the consummation
of the transactions contemplated hereby (other
than as provided elsewhere in this Agreement)
including, without limitation, all counsel and
special auditing fees and brokerage commissions,
if any;
iii) any debts, obligations, contracts or liabilities
in respect of taxes, and reserves for deferred
taxes, in each case relating only to periods
ending on or before the Closing Date;
iv) any Environmental Costs and Liabilities (as that
term is defined in Section 9) of Seller or any
predecessors or affiliated companies of Seller
resulting from, caused by, or arising out of,
directly or
indirectly, the conduct of the business of the
Seller or the Seller s ownership, operation, or
lease of any properties or assets or any assets
previously used in the business by Seller or any
predecessor or affiliated companies of Seller at
any time prior to or on the Closing Date, provided
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that, nothing herein is intended to affect any
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rights that Seller may have against any
predecessor of Seller;
(v) any and all liabilities and obligations of Seller
arising from or relating to the employment or
termination of employment of any person with
respect to the business on or prior to the Closing
Date;
(vi) any liability or obligation of Seller arising
under or in respect of any agreements,
undertakings or commitments to the extent that
payment or performance thereof is required, by the
terms thereof, prior to the Closing Date;
(vii) any liabilities of the business of the Seller
relating to the Purchased Assets or arising out of
the operation of Seller s business prior to the
Closing Date; and
(viii) any debt, contract, liability, or obligation
of Seller not expressly assumed by Purchaser
pursuant to this Section 3 and any matter
not to be assumed as expressly set forth in any of
the Schedules hereto.
(b) All debts, obligations, contracts and liabilities of
the Seller not specifically assumed by the Purchaser pursuant to the
first sentence of Section 3(a) hereof shall remain the sole
responsibility of the Seller, and Purchaser shall be fully indemnified
against such debts, obligations, contracts, and liabilities by Seller
in accordance with the provisions of Section 14 of this Agreement.
4. ALTERNATE FORMS OF TRANSACTION; GUARANTEE.
(a) Purchaser may elect, by written notice to Seller prior
to the Closing Date, to effect the purchase of assets and assumption
of obligations as contemplated by this Agreement through one or more
direct or indirect subsidiaries (either presently existing or
established for that purpose) of SEACOR Holdings, the parent of
Purchaser. In such event, any transfers to and assumptions by the
Purchaser contemplated hereby shall, to the extent specified in such
election, be made to and by such subsidiaries.
(b) Purchaser may elect, by written notice to Seller prior
to the Closing Date, to effect the purchase of assets and assumption
of obligations as contemplated by this Agreement through one or more
qualified intermediaries, as that term is defined under Section 1031
of the Internal Revenue Code. In such event, any transfers to and
assumptions by the Purchaser contemplated hereby shall, to the extent
specified in such election, be made to and by such qualified
intermediaries.
(c) In the event of an election pursuant to paragraph (a)
or (b) above, the provisions of this Agreement shall be deemed to be
amended to the extent necessary to permit the carrying out of such
election or exercise.
(d) Notwithstanding any election or lack of election made
pursuant to this Section 4, SEACOR Holdings agrees to guarantee the
indemnification obligations of the Purchaser to Seller pursuant to
Section 14 hereof; provided, however, that Seller shall not seek to
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enforce the above guarantee of SEACOR Holdings unless and until Seller
has first sought performance of those obligations from Purchaser and
Purchaser shall have refused or been unable to fulfill those
obligations.
5. ACCESS TO PLANTS, PROPERTIES AND RECORDS.
(a) From and after the date of this Agreement, Seller shall
afford to the Purchaser and its officers, attorneys, accountants,
environmental consultants, and other authorized representatives of
Purchaser reasonable access to all offices, plants, properties,
equipment, files, contracts, agreements, books of account, tax returns
of Seller, and other books and records of Seller in order that
Purchaser may have the opportunity to make such further investigation
as it shall desire to make of the affairs of Seller, and Purchaser
shall be permitted to make extracts from, or copies of, such books and
records; and Seller shall furnish or cause to be furnished to
Purchaser such financial and operating data and other information as
to the businesses and properties of Seller, including, but not limited
to, current operating information, financial statements, capital
budgets, management forecasts, ledgers, marketing
reports, customer sales/revenue breakdowns, compensation levels of all
employees and employment agreements, personnel files and records,
vessel charter contracts, and basic and master agreements and owner
operating agreements as Purchaser shall reasonably request.
Notwithstanding the foregoing, Seller shall not be obliged to provide
access to Purchaser to any contracts which it is contractually bound
to keep confidential, provided that Seller shall inform Purchaser as
to the existence of such contractual requirement and shall use best
efforts to obtain a release from the same for the benefit of
Purchaser. If the transactions contemplated by this Agreement shall,
for any reason, not be consummated, then Purchaser will treat as
confidential all information received from Seller pursuant to this
Section 5 or otherwise and will return to Seller all documents
received or copies made by Purchaser in accordance herewith.
(b) The Seller agrees to replace or repair spare parts
customarily carried aboard the Vessels which are taken out of spare
and used as a replacement on any Vessel prior to delivery of such
Vessel to Purchaser hereunder.
6. CLOSING DATE.
The purchase and sale provided for in this Agreement shall take
place at the offices of Xxxxxx Xxxxxx, L.L.P., counsel for Seller, at
10:00 a.m., Central time, on January 3, 1997 (such time and date being
herein called the Closing Date), or such earlier date as the parties
may mutually agree. Notwithstanding the foregoing, the Closing Date
may be postponed to 10:00 a.m., Central time, on a date on or before
January 31, 1997, at the request of Purchaser
if Purchaser is unable to comply by the Closing Date with any of the
conditions referred to in Section 12 or 13 hereof, as the case may be,
or at the request of Seller if it is, after the exercise of best
efforts, unable, by January 3, 1997, to obtain the consent of the
Maritime Administration to the sale of the Vessels that are subject to
restrictions under a Capital Construction Fund, which are conditions
precedent to the obligation of the other party to close the
transaction (unless such conditions are waived by such other party).
7. INSTRUMENTS OF TRANSFER, ETC.
(a) Subject to the provisions of Section 7(c) hereof, the
sale and transfer of the Purchased Assets shall be made at Purchaser s
expense (except as otherwise provided in this Agreement) on the
Closing Date by bills of sale, assignments and other instruments of
conveyance and transfer as shall be appropriate to carry out the
intent of this Agreement and as shall be sufficient to convey to
Purchaser all the right, title and interest of Seller to, and the
right to full custody and control of, the Purchased Assets, free and
clear of any and all liens, charges, mortgages, encumbrances and
security interests whatsoever. All sales, use, and ad valorem taxes
and all filing and recording fees in connection with such instruments
of transfer shall be borne by Purchaser. In the case of assignment of
any right, contract, license, lease or other instrument requiring the
consent of another party thereto, Seller will use its best efforts to
obtain such consent prior to the Closing Date, subject to the
provisions of Section 7(f) hereof.
i) Without limiting the generality of the foregoing,
Seller shall deliver the documents described
below, more specifically described and enumerated
in Schedule 7.1 hereto:
A. Customary bills of sale in recordable form,
transferring ownership of the Vessels owned
by it, including all appurtenances, stores,
outfitting, lubes, and fuel on board or on
shore or on order, broached or unbroached,
all navigational aids, and all spares on
board, warranting title to such Vessels, free
and clear of liens, mortgages, rights in rem
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or any other encumbrances whatsoever other
than certain trading restrictions as
specified in the respective schedules
attached hereto; and
B. Such other customary bills of sale,
assignments, documents and instruments as
more fully set forth in Schedule 7.1 hereto.
(ii) The Seller shall deliver any and all consents,
including resolutions and shareholder consents,
necessary for the sale and transfer of the
Purchased Assets and any and all consents,
permits, licenses, and other authorizations held
by Seller that are
necessary for the continuing use and operation of
the Purchased Assets by the Purchaser as
contemplated hereby.
(b) On the Closing Date, Purchaser will deliver an
instrument substantially in the form of Schedule 7.2 hereto evidencing
its assumption of the obligations being assumed by it hereunder.
(c) Notwithstanding the foregoing, each Vessel to be
delivered hereunder shall be delivered to Purchaser at the time of
Closing on the Closing Date immediately following the receipt by
Seller of the funds to be wire transferred pursuant to Section 2(a) of
this Agreement, wherever the Vessel shall then be located, provided,
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however, that should such delivery be impossible or unsafe due to
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adverse weather conditions or some damage casualty to the Vessel in
question, such delivery shall be delayed until such adverse weather
subsides or such damage casualty is repaired. Seller warrants that
all of the Vessels are presently documented with the United States
Coast Guard. At the time of Closing, Seller shall furnish to its
counsel, viz: Xxxxxx Xxxxxx, L.L.P., for each Vessel the original and
one copy of a duly executed Xxxx of Sale on the standard U.S. Coast
Guard form (CG-1340), in recordable form, which document shall be held
in escrow and in trust with respect to each respective Vessel pending
receipt of the cash consideration as specified in this contract with
respect to that Vessel. Xxxxxx Xxxxxx, L.L.P., shall, upon receipt by
Seller of the stated consideration with respect to each such Vessel,
be fully authorized to deliver the documents with respect to that
particular Vessel in whatever manner and fashion and to whomever they
deem appropriate. The original Certificate of Documentation of each
Vessel should either be aboard the Vessel or in the possession of
Xxxxxx Xxxxxx, L.L.P., at the time of Delivery, and each such
Certificate of Documentation shall become the property of Purchaser at
the time of Delivery, with the understanding and agreement that such
Certificates of Documentation will be surrendered to the United States
Coast Guard at the time each Vessel is redocumented in the name of
Purchaser. In addition, Seller shall provide to Purchaser an opinion
of counsel for Seller in form and substance satisfactory to Purchaser.
(d) On the Closing Date, Seller will by appropriate
instrument constitute and appoint Purchaser, its successors and
assigns, and its true and lawful attorney or attorneys, with full
power of substitution, in the name of Seller but on behalf of and for
the benefit of and at the expense of Purchaser, to institute,
prosecute, defend, and compromise any and all actions, suits, or
proceedings in respect of any Purchased Asset, but only if and to the
extent that Seller does not or cannot, after demand and presentment,
indemnify Purchaser against any occurrence indemnifiable pursuant to
Section 14(b) hereof. The foregoing power is coupled with an interest
and shall be irrevocable by Seller or by its dissolution or in any
manner or for any reason. Purchaser shall retain for its own account
any amounts collected pursuant to the foregoing powers, including any
sums payable as interest in respect thereof, and Seller will pay to
Purchaser, when received, any amounts which shall be received by
Seller in respect of Purchaser's efforts pursuant to this paragraph.
(e) At any time and from time to time after the Closing
Date, Seller will, upon the request and at the expense of Purchaser
(except as to subsequent deeds as provided in paragraph (c) above),
do, execute, acknowledge and deliver, or will cause to be done,
executed, acknowledged or delivered, all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney or assurances
as may be required for the better assigning, transferring, granting,
conveying, assuring and confirming to Purchaser, or for aiding and
assisting in the collection of or reducing to possession by Purchaser,
any of the Purchased Assets.
(f) Nothing contained in this Agreement shall be construed
as an attempt to assign (i) any contract which is in law nonassignable
without the consent of the other party or parties thereto unless such
consent shall have been given, or (ii) any contract or claim as to
which all the remedies for the enforcement thereof enjoyed by Seller
would not, as a matter of law, pass to Purchaser as an incident of the
assignments provided for by this Agreement. In order, however, that
the full value of every contract and claim of the character described
in clauses (i) and (ii) of the preceding sentence and all claims and
demands on such contracts may be realized, Seller, by itself or by its
agents, will, at the request and expense and under the direction of
Purchaser, in the name of Seller or otherwise as Purchaser shall
specify and as shall be permitted by law, take all such actions and do
or cause to be done all such things as shall in the opinion of
Purchaser be necessary or proper (x) in order that the rights and
obligations of Seller under such contracts shall be preserved and (y)
for, and to facilitate, the
collection of the moneys due and payable, and to become due and
payable, to Seller in and under every such contract and claim and in
respect of every such claim and demand, and Seller shall hold the same
for the benefit of and shall pay the same over to Purchaser. The
foregoing covenant shall survive indefinitely.
8. OTHER ACTIONS BY THE SELLER AND THE STOCKHOLDERS.
The Purchaser reserves the right to retain the names of all
acquired Vessels.
9. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to, and covenants and
agrees with, Purchaser, as of the date hereof and as of the Closing
Date, that:
(a) Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Louisiana, having its principal place of business and its registered
office at 000 Xxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxxx 00000.
Seller has full power and authority to own or hold its properties and
to conduct its business as presently conducted. Seller is licensed or
qualified to do business as a foreign corporation or entity, as the
case may be, and in good standing in all jurisdictions wherein its
failure to be so licensed or qualified would have a material adverse
effect on the Purchased Assets.
(b) The execution and delivery of this Agreement by Seller,
the performance by Seller of its covenants and agreements hereunder
and the consummation by Seller of the transactions contemplated hereby
have been duly authorized by all necessary actions (corporate and
other) of Seller. This Agreement has been duly executed and delivered
by Seller and the
Stockholders and constitutes a valid and legally binding obligation of
Seller and each Stockholder, enforceable against Seller and each
Stockholder in accordance with its terms.
(c) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, violates
any provision of the articles of incorporation or by-laws of the
Seller or any applicable statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency, or conflicts
with or will result in any breach of, or accelerate the performance
required by, any of the terms of or constitute a default under or
result in the termination of or the creation of any lien pursuant to
the terms of any contract or agreement to which the Seller is a party
or by which it or any of the Purchased Assets is bound.
(d) Ninety-four and one-half percent (94.5%) of the
outstanding shares of capital stock of Seller is owned by the
Stockholders. All of the outstanding shares of capital stock of the
Seller have been validly issued and are fully paid and non-assessable.
There are no subscriptions, warrants, options, calls, commitments or
agreements to which Seller is bound relating to the issuance or sale
of shares of its capital stock or other securities.
(e) The Purchased Assets include all of the vessels of
Seller, along with the related operating assets of Seller, excluding
real property, used in or related in any way to the offshore service
business of Seller as presently conducted, and such assets constitute
substantially all of the assets used by Seller during the last three
fiscal years in the conduct of such business. Seller has good and
marketable title to the Purchased Assets owned by it, free
and clear of any defect in title and free and clear of all liens,
charges, encumbrances, mortgages or security interests whatsoever,
except as set forth in Schedule 7.1. Seller has the right to sell and
transfer its Purchased Assets to Purchaser, and upon transfer of the
Purchased Assets to Purchaser pursuant hereto, Purchaser will acquire
good and marketable title and all of Seller s right, title, and
interest in and to the Purchased Assets, free and clear of any defect
in title and free and clear of all liens, charges, encumbrances,
mortgages, or security interests whatsoever, except for certain
trading restrictions imposed on some of the Vessels and set forth in
Schedule 7.1. All of the Vessels have valid USCG Certificates of
Inspection, and the Vessels designated in Part II of Schedule 7.1 as
ABS classed, are in class as provided in said Schedule, free of
recommendations.
(f) Seller delivered to Purchaser its balance sheet as of
December 31, 1995, together with the related statements of operations,
retained earnings and changes in financial position, including the
notes thereto, if any, all for the year then ended, which audited
financial statements have been reported on by Xxxxxxx-Xxxxx and
Company, the certified public accountants for Seller (such financial
statements are herein referred to as the "Financial Statements"). The
Financial Statements are true and correct in all material respects and
have been prepared in accordance with generally accepted accounting
principles applied consistently throughout the periods involved. The
Financial Statements fully and fairly present the financial condition
of the Seller in all material respects as of the dates thereof and the
results of the operations of Seller for the periods indicated. The
balance sheets constituting a part of
each of the Financial Statements fairly reflects all liabilities of
the Seller of the types normally reflected in balance sheets as at the
date thereof. True, correct and complete copies of each of the
Financial Statements have been delivered to Purchaser.
(g) Except as set forth in Schedule 9.1 or, as to events
occurring after the date of this Purchase Agreement, in an addendum to
Schedule 9.1 to be filed on the Closing Date, subsequent to September
30, 1996, and, in the case of Purchased Assets, since the date that
Purchaser inspected those Purchased Assets, there has not been any (i)
material adverse change or prospective change in the condition of the
Seller, financial or otherwise, or in the results of its operations;
(ii) material damage or destruction (whether or not insured) affecting
the Purchased Assets or the business operations of Seller; (iii) labor
dispute or, to the best of the knowledge of the Seller, threatened
labor dispute involving any of the employees of the Seller; (iv)
actual or, to the best of the knowledge of the Seller, threatened
dispute pertaining to the business with any major supplier or customer
of Seller; or (v) other event or condition of any character, known to
the Seller or which in the exercise of reasonable diligence should be
known to it, not disclosed in this Agreement pertaining to and
materially adversely affecting the business.
(h) Seller has filed or caused to be filed all Federal,
state, municipal and other tax returns, reports and declarations
required to be filed by it and, where applicable, has paid or reserved
(as reflected on the balance sheet in accordance with generally
accepted accounting principles) for any and all taxes, imposts,
assessments, levies, or other
governmental charges of any kind whatsoever, including, but not
limited to, income, franchise, sales, use, ad valorem, unemployment,
withholding, social security, worker s compensation and estimated
income and franchise taxes (including any interest, penalty, fine or
addition thereto) ("Taxes") which have been or shall become due with
respect to all taxable periods ending at or prior to the date hereof
(and will pay or reserve (in accordance with generally accepted
accounting principles) for all taxes which shall become due with
respect to all taxable periods, or portion thereof, ending at or prior
to the Closing Date). No deficiency in payment of any Taxes for any
period, except as listed on Schedule 9.2(a) and for which scheduled
deficiencies the Seller has set aside adequate reserves, has been
asserted by any taxing authority which remains unsettled at the date
hereof. Seller has not been (nor with notice or lapse of time or
both, would be) in violation of any applicable law relating to the
payment or withholding of Taxes. Seller has duly and timely withheld
from (x) all employee salaries, wages, and other compensation and (y)
all other payments, and paid over to the appropriate taxing
authorities, all amounts required to be so withheld and paid over for
all periods under all applicable laws. None of the Purchased Assets
is an asset or property that is or will be required to be treated as
being (i) owned by any Person (other than the Purchaser) pursuant to
the provisions of Section 168(f)(8) of the Internal Revenue Code of
1954, as amended and in effect immediately before the enactment of the
Tax Reform Act of 1986, or (ii) tax-exempt use property within the
meaning of Section 168(h)(1) of the Internal Revenue Code of 1986, as
amended. Set forth in Schedule 9.2(b) is an itemization of all taxes
other than income taxes
which are due or shall become due with respect to all taxable periods
ending on or prior to the Closing Date.
(i) Annexed hereto as Schedule 9.3 is a list of all
policies of liability, theft, environmental liability, fidelity, life,
fire, casualty, hull, marine protection and indemnity and other forms
of insurance held by Seller and relating to its business (specifying
the type of coverage, insurer, policy number, policy period and named
insured). All such policies are in full force and effect and all
premiums due thereon prior to or on the Closing Date have been paid.
Seller has complied in all material respects with the provisions of
such policies. Seller has endeavored to place all policies of
insurance held by them with solvent underwriters.
(j) Set forth in Schedule 3.1 are a list and brief
description of (i) all charters, contracts, agreements, licenses,
leases, arrangements (written or oral) and other documents to which
Seller is a party or by which Seller or any of its assets is bound and
which are to be assigned to, and assumed by, Purchaser pursuant to
this Agreement; and (ii) obligations and liabilities of Seller
pursuant to uncompleted orders for the purchase of materials,
supplies, equipment and services for the requirements of the conduct
of business with respect to which the remaining obligation of Seller
is in excess of $5,000 in the aggregate and which are to be assigned
to, and assumed by, Purchaser pursuant to this Agreement (which
Schedule shall be updated as of December 31, 1996, as appropriate).
Seller is not in default in the performance of any covenant or
condition under any of the aforementioned contracts and, to the
knowledge of the Seller after reasonable inquiry, no claim of such a
default has been
made. To the knowledge of the Seller, no other party thereto is in
default in the performance of any covenant or condition under any of
the aforementioned agreements.
(k) Set forth in Schedule 9.4(a) is a list of all
agreements between Seller and the employees of Seller with regard to
compensation, whether individually or collectively, except oral
agreements terminable by Seller on not more than 30 days notice
without penalty, and set forth in Schedule 9.4(b) attached hereto is a
list of all (i) employees of Seller and their respective positions,
job categories, years of service, and salaries; and (ii) agents or
other representatives retained or utilized by Seller and the basis on
which they are compensated. All employees who are absent from active
employment (by reason of disability, leave of absence, maintenance and
cure, or otherwise) are separately listed on Schedule 9.4(c). There
are no collective bargaining, employment, consultancy or similar
agreements with respect to current or former employees of the
business. No union or other collective bargaining unit has been
certified or recognized by Seller as representing any of its
employees.
(l) Except as set forth on Schedule 9.5, there are no
pending or, to the best knowledge of the Seller, threatened (A)
strikes, work stoppages, slowdowns, grievances or other labor disputes
with respect to any employees of the Seller or (B) complaints or
charges with any federal, state or local governmental agency or court,
with respect to any employees of the business.
(m) i) Set forth in Schedule 9.6(a) is a list of all
Environmental Permits held by Seller pursuant to or required by any
Environmental Law to operate the Purchased
Assets and operations of the Seller in the manner in which they have
heretofore been operated. ii) Except as set forth in
Schedule 9.6(b): (A) the Purchased Assets and operations of the Seller
that are being purchased by the Purchaser comply with all such
Environmental Permits and the Environmental Laws; (B) neither any of
the Purchased Assets nor any of the operations of the Seller that are
being purchased by Purchaser is subject to or has given or, insofar as
Seller can reasonably foresee, may give rise to Environmental Costs
and Liabilities; (C) neither the Seller nor any predecessor of the
Seller nor any Purchased Asset or operation of the Seller purchased by
the Purchaser is subject to any outstanding written Order or Contract
respecting any Environmental Laws; (D) there are no investigations or
judicial or administrative proceedings under any Environmental Law
pending or, to Seller s knowledge after reasonable inquiry, threatened
against the Seller or any of the Purchased Assets or any of the
operations of the Seller; (E) neither the Seller nor any operator,
lessee, or prior owner or operator of any of the Purchased Assets or
operations of the Seller being purchased by the Purchaser has stored,
treated, disposed of, transported, or arranged for the disposal of any
Hazardous Material; (F) there are not now, nor, to the knowledge of
the Seller, have there ever been, any underground storage tanks,
aboveground storage tanks, dikes or impoundments, any asbestos-
containing materials, any polychlorinated biphenyls, or any
radioactive substances on, in or under any real property owned, leased
or operated by the Seller or any of its predecessors; and (G) no lien
in favor of any governmental authority for any liability under any
Environmental Law, or for damages arising from or costs incurred by
such governmental authority in response to a Release of a Hazardous
Material into the environment, has been filed or attached to any of
the Purchased Assets or any of the locations upon which the operations
of the Seller are conducted. Purchaser shall not incur Environmental
Costs and Liabilities in excess of $5,000 in the aggregate to obtain
the stormwater permit, oil spill contingency plan, or hazard
communication program listed on Schedule 9.6(b).
(iii) For the purpose of this Section 9(m):
(A) Contract means any oral or written contract,
agreement, or other arrangement;
(B) Environmental Costs and Liabilities means any
and all losses, liabilities, whether known or
unknown, liquidated or contingent, obligations,
damages, fines, penalties, judgments, actions,
claims, costs and expenses (including, without
limitation, fees, disbursements and expenses of
legal counsel, experts, engineers and consultants
and the costs of investigation and feasibility
studies and remedial action under any
Environmental Law) arising from or under any
Environmental Law;
(C) Environmental Law means any federal, state,
local, or foreign law (including common law),
relating to the environment, natural resources, or
public or employee health and safety and includes,
but is not limited to, the Comprehensive
Environmental Response, Compensation and Liability
Act ("CERCLA"), 42 U.S.C. ss. 9601 et seq., the
-- ----
Hazardous Materials Transportation Act, 49 U.S.C.
ss. 1801 et seq., the Resource Conservation and
-- ----
Recovery Act ("RCRA"), 42 U.S.C. ss. 6901 et seq.,
-- ----
the Clean Water Act, 33 U.S.C. ss. 1251 et seq., the
-- ----
Clean Air Act, 42 U.S.C. ss. 7401 et seq., the Toxic
-- ----
Substances Control Act, 15 U.S.C. ss. 2601 et seq.,
-- ----
the Oil Pollution Act of 1990, 33 U.S.C. ss. 2701
et seq., the Federal Insecticide, Fungicide, and
-- ----
Rodenticide Act, 7 U.S.C. ss. 136 et seq., and the
-- ----
Occupational Safety and Health Act, 29 U.S.C. ss.
651 et seq., as such laws have been amended or
-- ----
supplemented, and the regulations promulgated
pursuant thereto, and all analogous state, local
or foreign statutes;
(D) Environmental Lien means any lien in favor of
any governmental authority arising under
Environmental Laws;
(E) Environmental Permit means any permit, approval,
authorization, license, variance, registration, or
permission required under any applicable
Environmental Law or Order;
(F) Hazardous Material means any substance, material
or waste which is regulated by any governmental
authority, including, without limitation, any
material, substance or waste which is defined as a
hazardous waste, hazardous material,
hazardous substance, extremely hazardous
waste, restricted hazardous waste,
contaminant, toxic waste or toxic substance
or any analogous term under any provision of
Environmental Law, which includes, but is not
limited to, petroleum, asbestos, and
polychlorinated biphenyls;
(G) Order means any order, injunction, judgment,
decree, ruling, assessment or arbitration award;
(H) Release means any release, spill, emission,
leaking, pumping, pouring, dumping, emptying,
injection, deposit, disposal, discharge,
dispersal, leaching, or migration on or into the
indoor or outdoor environment or into or out of
any property.
(n) Set forth in Schedule 9.7(a) is a list and brief
description of all of the patents, registered and common law
trademarks, service marks, trade names, copyrights, licenses and other
similar rights of Seller and applications for each of the foregoing
(the "Intellectual Property"). The Seller owns all right, title and
interest in and to all the Intellectual Property. The Intellectual
Property so listed constitute all the proprietary rights
necessary to the conduct of the business of Seller as currently
conducted; no adverse claims have been made and no dispute has arisen
with respect to any of the Intellectual Property; and the operations
of Seller and the use by Seller of such Intellectual Property do not
involve claimed infringement of any patent, trademark, service xxxx,
trade name, copyright, license or similar right. Except as set forth
in Schedule 9.7(b), no persons or businesses otherwise using any of
the Intellectual Property have ever attempted to restrain Seller from
using the Intellectual Property.
(o) Set forth in Schedule 9.8 is a list and brief
description of all pending litigation involving Seller or any of the
Purchased Assets. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of the officers of Seller
after reasonable inquiry, threatened against or affecting Seller, at
law, or in equity or admiralty, or before or by any Federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, or the likelihood of any injunction or
order which, individually or in the aggregate, may result in any
material adverse change in the business, operations or properties of
Seller or which could result in a lien, claim, or judgment against any
Purchased Asset (except for lawsuits and threatened lawsuits listed on
Schedule 9.8 involving claims that could result in a lien on a Vessel
by operation of law) or which could prevent or jeopardize the
transactions contemplated hereby. Seller is not, to the knowledge of
any officer thereof after reasonable inquiry, in violation of or
default with respect to any statute, ordinance, regulation, permit,
order, writ, injunction or decree of any court or
Federal, state or local governmental agency or instrumentality,
violation of which would result in a material adverse change in the
business, operations or properties of Seller or which could prevent or
jeopardize the transactions contemplated hereby. In the operation of
its business, the Seller has complied with all laws relating to the
employment of labor, including any provisions thereof relating to
wages, hours, collective bargaining and the payment of social security
and similar taxes, and Seller is not liable for any arrearages of
wages or any taxes or penalties for failure to comply with any of the
foregoing.
(p) The Seller is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended, qualified
to engage in the coastwise trade, and is not a foreign person within
the meaning of Sections 897 and 1445 of the Internal Revenue Code of
1986, as amended.
(q) No consent, approval or authorization of, or
declaration or filing with any governmental authority is required on
the part of Seller in connection with the execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby, except (i) for any asset transfer notification
filings required by Title II of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, 15 U.S.C.A. Section 18a(c)(8), as amended,
which have been filed; (ii) the consent of the Maritime Administration
("Marad") to the transfer of any vessels which are subject to a
Capital Construction Fund Agreement with Marad; and (iii) the consent
of all appropriate agencies to the assignment of any permits necessary
for use of the Purchased Assets or operation of the business of the
Seller, as listed in
Schedule 9.9. Seller is in compliance with each Capital Construction
Fund Agreement to which it is a party without default thereunder.
Schedule 9.10 sets forth for each Vessel subject to a trading
restriction under any Capital Construction Fund Agreement or related
agreement by Vessel, the expiration date of the trading restriction,
the number of years each such trading restriction applies to said
Vessel and the aggregate amount of qualified withdrawals applicable to
each such Vessel.
(r) Seller has provided to Purchaser within the time
required by the Letter of Intent dated as of October 24, 1996,
between, inter alia, the Purchaser and Seller all information required
----- ----
to be provided pursuant to said Letter of Intent and such additional
information as Purchaser has requested, including the following
information:
(i) a list of all drydockings due and the date due
within twelve months following October 24, 1996;
(ii) a summary of all maintenance and repair expenses
for the last three (3) years, reports or
information on drydockings performed in the last
three (3) years, and a list by vessel of engine
change outs ;
(iii) a list of all spares, fuel, lubricants, and
inventories both on the Vessels and ashore,
primarily relating to, but not limited to, the
vessels, and the vessel charter agreements that
set forth the fuel and lubricants owned by Seller
with respect to each such Vessel;
(iv) notice of any lawsuits;
(v) a description of current insurance policies,
including the premiums and deductibles under such
policies and a schedule of all claims made against
such policies for the three years prior to the
date of this Agreement;
(vi) complete copies of all Capital Construction Fund
Agreements to which the Seller is party;
(vii) copies of United States Coast Guard
Certificates of Inspection and ABS Loadline
and Hull and Machinery Certificates for each
Vessel having such certificates, and a list
of all Vessels that do not have such
certificates;
(viii) any orders, permits, or licenses;
(ix) a list of customers for each vessel, and customer
rankings by revenue for 1994, 1995, and 1996
through October 31;
(x) lost time accident statistics for the three (3)
year period ending on the date of this Agreement;
(xi) a schedule of administrative employees (i.e., non-
seagoing employees) of the Seller, listed by name,
position, years of service, and location;
(xii) copies of the Seller s medical and dental
plans;
(xiii) a schedule of vehicles, if any, included in
the Purchased Assets, including description,
vehicle ID number, and mileage;
(xiv) the 1993, 1994, and 1995 audited financial
statements for the Seller;
(xv) copies of any equipment or other lease agreements
to which the Seller is party;
(xvi) copies of all pleadings relating to any
outstanding lawsuits, copies of any
outstanding judgments, copies of any
settlement agreements or court or
administrative orders requiring continuing or
future action or payment by the Seller,
copies of any notices of potential litigation
or notices of actual or potential violations
of any law or regulation by the Seller;
(xvii) copies of all permits, licenses, or other
papers required by any governmental authority
and held by Seller;
(xviii) a schedule setting forth all employees of the
Seller who are presently either unfit for
duty, restricted to light duty, or who have
lawsuits pending against the Seller;
(xix) a schedule setting forth all non-employees
who have health insurance coverage through
the Seller;
(xx) copies of all current vessel charter parties and a
schedule of all written or verbal charter rate
commitments for each Vessel and the length of time
each rate is held firm; and
(xxi) a copy of the Supply Boat s construction
contract and copies of all paid invoices,
written change orders, all vessel drawings
and specifications, and all agreements
regarding options on further vessels.
(s) No representation or warranty made under any Section
hereof and none of the information furnished by Seller or the
Stockholders set forth herein, in the exhibits hereto or in any
document delivered by Seller or the Stockholders to Purchaser, or any
authorized representative of Purchaser, pursuant to this Agreement
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements herein or therein not
misleading.
(t) Sales and Use Taxes: Any sales or use taxes payable as
a result of the sale of the Purchased Assets pursuant to this
Agreement shall be for Purchaser s account. Seller represents and
warrants that it is engaged primarily in the offshore service vessel
industry, and that it is not now nor has it been in the past, engaged
in the business of purchase and sale of vessels and related equipment.
Any previous sales of vessels and related property made by Seller have
been sales of depreciated, obsolete, or surplus vessels or equipment
as an
incident of the business described above, and Seller has never been
assessed, or required to remit, sales taxes in connection with any
such sale.
10. REPRESENTATIONS AND COVENANTS OF PURCHASER.
Purchaser represents and warrants to, and covenants and agrees
with, Seller, as of the date hereof and as of the Closing Date, that:
(a) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and has full corporate power and authority to acquire the Purchased
Assets and to assume the obligations provided for in this Agreement.
(b) The execution and delivery of this Agreement by
Purchaser, the performance by Purchaser of its covenants and
agreements hereunder and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Purchaser. This Agreement
has been duly executed and delivered by Purchaser and constitutes a
valid and legally binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms.
(c) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, violates
any provision of the certificate of incorporation or by-laws of
Purchaser or any applicable statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency, or conflicts
with or will result in any breach of, or accelerate the performance
required by, any of the terms of or constitute a default under or
result in the termination of or the creation of any lien pursuant to
the terms
of any contract or agreement to which Purchaser is a party or by which
Purchaser or any of its assets is bound.
(d) Purchaser is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended.
(e) No consent, approval or authorization of, or
declaration or filing with any governmental authority is required on
the part of Purchaser in connection with the execution, delivery and
performance of this Agreement, except for any asset transfer
notification filings required by Title II of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, 15 U.S.C.A. Section 18a(c)(8) as
amended, which have been filed.
(f) Purchaser will cooperate fully with Seller to obtain
any and all approvals and consents necessary to effect the
transactions contemplated by this Agreement.
(g) Purchaser either has, or has firm commitments to
obtain, all of the cash to be used for the purchase price.
(h) Purchaser has inspected those Vessels listed on
Schedule 10.1 hereto as of the dates indicated on the foregoing
schedule and, at the Closing, shall indicate in an addendum to
Schedule 10.1 the dates of inspection of all other Vessels to be
acquired from Seller.
11. SELLER S COVENANTS PRIOR TO CLOSING.
Prior to the Closing Date, Seller covenants and agrees with
Purchaser as follows:
(a) Seller shall conduct its business and operations in the
ordinary course and in substantially the same manner in which they
have in the past been conducted and will use its reasonable efforts to
maintain, preserve and protect the Purchased Assets (including
goodwill) until closing; such conduct shall include but not be limited
to:
(i) Seller will follow all normal drydock and
maintenance practices and replacement of spares in
operating its fleet and will not defer any
maintenance;
(ii) Seller will maintain continuity in its personnel
practices and procedures and will promptly notify
Purchaser if a key employee gives notice of leave;
(iii) Seller will provide prior notification to
Purchaser in the event a Vessel will be
drydocked;
(iv) Seller will notify Purchaser of its knowledge
after reasonable inquiry of the occurrence of any
insurable event;
(v) Seller will notify Purchaser promptly if it learns
of any actual or potential lawsuit, court order,
settlement, investigation by any governmental
authority, or administrative action, including any
notice of violation or potential violation of any
law or regulation that may materially affect any
of the assets of or the value of any of the assets
of the Seller;
(vi) Seller will not incur liabilities other than
in the ordinary course of business or enter
into charters for its Vessels which have a
term of longer than six months without first
obtaining the prior written agreement of
Purchaser, which consent will not be
unreasonably withheld;
(vii) Seller will use its best efforts to preserve
its respective present business organizations
intact and keep available the services of its
present employees, but Seller will not
materially change the employment arrangements
for those employees other than in the
ordinary course;
(viii) Seller will not make any material changes in
its customary method of operations, including
marketing and pricing policies and
maintenance of business premises, fixtures,
furniture, equipment and Vessels, except that
Seller shall terminate its vacation policy
effective on the close of business on
December 31, 1996;
(ix) Seller will not modify, amend or cancel any
existing contracts or leases which are included in
Purchased Assets or which are to be assumed by
Purchaser in accordance with this Agreement;
(x) Seller will pay all amounts payable by it under
any contract, order or other undertaking timely
and in the ordinary course of business;
(xi) Seller agrees not to use any proceeds of any
Capital Construction Fund for any vessel presently
under construction or for any other new vessel;
and
(xii) Seller will not take any action which would
make any of the representations and
warranties in this Agreement untrue at
Closing Date.
Seller further agrees that it will not enter into any contract
for the sale, refinancing or chartering for more than six months of
any of the Purchased Assets without first obtaining Purchaser s prior
written consent, which consent shall not be unreasonably withheld.
Seller shall maintain its books and records in a manner that fairly
represents its income, expenses and liabilities and make those books
and records available to Purchaser during reasonable business hours.
(b) Seller shall permit Purchaser and its representatives
access to inspect and survey the Vessels upon reasonable notice and at
times reasonably convenient to Seller and its customers. Seller
agrees to cooperate to make any Vessel available on a reasonable basis
and cooperate in accessing voids and other reasonable areas
customarily inspected on vessels and to make the Vessels current log
books available for Purchaser s inspection.
(c) Purchaser and Seller agree that Purchaser and its
representatives intend to drydock vessels constituting not more than
20% of the Seller s fleet. If Purchaser wishes to drydock a Vessel or
Vessels not already scheduled to be drydocked in the normal course of
Seller s business, then Seller agrees to cooperate with Purchaser.
The cost of such drydocking shall be for Purchaser s account but the
cost of moving such Vessel or Vessels to the dock shall be for the
Seller s account. Whenever practicable, drydockings will be performed
at facilities customarily utilized by Seller for drydocking vessels.
(d) Seller shall permit Purchaser to conduct such due
diligence following the date of execution of this Agreement and
continuing until the Closing Date as Purchaser deems necessary in
either of the following events: (i) on or after October 24, 1996,
there has been a material change in the business of the Seller or an
event has occurred that could reasonably be expected to have a
material effect on the Seller s business or on the value of any of the
assets to be acquired by Purchaser; or (ii) Purchaser is required to
obtain further information from Seller in order to obtain any
government approval necessary for the consummation of the transactions
contemplated by this Agreement or for Purchaser s use of the assets to
be acquired from Seller. Seller shall cooperate with Purchaser in the
conduct of any due diligence under this subsection (d) by providing to
Purchaser, as soon as practicable following a request for information,
such information as is reasonably available to it.
(e) Seller shall maintain in full force and effect through
the Closing Date all of its presently existing insurance coverage, or
insurance comparable to such existing coverage.
(f) On or before the Closing Date, as required by law or
regulation, Seller shall have notified the appropriate authorities of
its intent to transfer to the Purchaser any permits necessary for the
operation and use of the Purchased Assets and the business of the
Seller. Seller agrees to cooperate with Purchaser in (i) identifying
any and all permits required by Purchaser to operate the business of
the Seller from and after the Closing Date and (ii) either
transferring such existing permits of Seller to Purchaser or obtaining
such new permits as Purchaser requires. Seller shall use its best
efforts to obtain, prior to the Closing Date, all necessary permits,
approvals and consents required in order to effect the transactions
contemplated hereby and to permit Purchaser to use the Purchased
Assets as they have heretofore been used, including but not limited to
consents or approvals required by the U.S. Maritime Administration,
U.S. Environmental Protection Agency, and any other governmental
authority, lessors or any other parties to contracts, leases, permits,
licenses or agreements to be assigned pursuant to this Agreement.
Seller agrees to cooperate fully with Purchaser to ensure that any
consent required from the U.S. Maritime Administration is satisfactory
to Purchaser.
12. CONDITIONS TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser under this Agreement are, at the
option of Purchaser, subject to the conditions that:
(a) All the terms, covenants and conditions of this
Agreement to be complied with and performed by Seller on or before the
Closing Date shall have been fully complied with and performed in all
material aspects.
(b) The representations and warranties made by Seller
herein shall be correct in all respects, on and as of the Closing
Date, with the same force and effect as though such representations
and warranties had been made on and as of the Closing Date.
(c) On or before the Closing Date, Seller shall have
obtained all approvals or consents necessary for the consummation of
the transactions contemplated hereby, including:
(i) the consent of Marad to the transfer of any
Vessels which are subject to a Capital
Construction Fund Agreement with Marad;
(ii) the consent of all appropriate agencies to the
assignment or transfer to the Purchaser of any
permits necessary for use of the Purchased Assets
or operation of the business of the Seller. Also
on or before the Closing Date, any waiting period
prescribed by Title II of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, 15 U.S.C.A.
Section 18a(c)(8), as amended ("H-S-R"), shall
have been waived by the United States or shall
have expired
without further investigation or commencement of
judicial proceedings, provided, however, that if
-------- -------
any such investigation or judicial proceedings are
initiated, the same shall have been finally
concluded and resolved to the satisfaction of both
parties, provided further, however, that, if the
-------- ------- ------- ----
United States conditions approval of the
transactions contemplated by this Agreement upon
the taking of any additional actions, including
but not limited to divestiture of any vessels or
other assets, by Purchaser or any affiliated
entity, then Purchaser, at its option, shall
either:
(A) notify Seller of its intent not to go forward
with the transactions contemplated by this
Agreement, in which case Seller shall be
released from its obligation under the Letter
of Intent to refrain from soliciting,
encouraging, initiating, or negotiating any
offers or proposals relating to the Seller s
assets from third parties; or
(B) notify Seller of its intent to go forward
with the transactions contemplated by this
Agreement; and
(iii) such other consents as are referred to in
Section 7 hereof and in Schedule 7.1 and 9.9
hereof.
(d) Purchaser shall have received an opinion of Xxxxxx
Xxxxxx, L.L.P., counsel for Seller, dated the Closing Date, in form
and substance satisfactory to Purchaser and its counsel.
(e) Seller shall have furnished Purchaser with a
certificate, dated the Closing Date, which shall state that (i) all
the terms, covenants and conditions herein to be performed or complied
with by it on or before the Closing Date have been fully performed or
complied with and (ii) the representations and warranties made by it
herein are correct, on and as of the Closing Date, with the same force
as though such representations and warranties had been made on and as
of the Closing Date.
(f) No action, suit or proceeding against Seller, the
Stockholders, or Purchaser relating to the consummation of any of the
transactions contemplated by this Agreement nor any governmental
action seeking to delay or enjoin any such transactions shall be
pending or threatened.
(g) The transactions contemplated by that purchase agreement,
dated of even date herewith, among Acadian Offshore Services, Inc.,
Galaxie Marine Service, Inc., Moonmaid Marine, Inc., and Triangle
Marine, Inc., shall have been consummated as of the Closing Date.
13. CONDITIONS TO OBLIGATIONS OF SELLER.
The obligations of Seller under this Agreement are, at its
option, subject to the conditions that:
(a) All the terms, covenants and conditions of this
Agreement to be complied with and performed by Purchaser on or before
the Closing Date shall have been fully complied with and performed in
all material respects.
(b) The representations and warranties made by Purchaser
herein shall be correct in all material respects on and as of the
Closing Date, with the same force and effect as though such
representations and warranties had been made on and as of the Closing
Date.
(c) On or before the Closing Date, Seller shall have
obtained all necessary governmental approvals or consents necessary
for the consummation of the transactions contemplated hereby.
(d) Seller shall have received opinions, dated as of the
Closing Date, from Fort & Schlefer, L.L.P., and Lugenbuehl, Burke,
Wheaton, Peck, Xxxxxx & Xxxxxxx, counsel for Purchaser, in form and
substance satisfactory to Seller and its counsel.
(e) Purchaser shall have furnished Seller with a
certificate, dated the Closing Date, which shall state (i) all the
terms, covenants, and conditions herein to be performed or complied
with by Purchaser on or before the Closing Date have been performed or
complied with and (ii) the representations and warranties made by
Purchaser herein are correct, on and as of the Closing Date, with the
same force and effect as though such representations and warranties
had been made on and as of the Closing Date.
(f) No action, suit or proceeding against Seller, the
Stockholders, or Purchaser relating to the consummation of any of the
transactions contemplated by this Agreement nor any governmental
action seeking to delay or enjoin any such transactions shall be
pending or threatened.
(g) The transactions contemplated by that purchase agreement,
dated of even date herewith, among Acadian Offshore Services, Inc.,
Galaxie Marine Service, Inc., Moonmaid Marine, Inc., and Triangle
Marine, Inc., shall have been consummated as of the Closing Date.
14. SURVIVAL OF AGREEMENT; DEFENSE OF CLAIMS BY THIRD PARTIES.
(a) This Agreement, including the covenants,
representations and warranties contained herein or in any certificate
delivered pursuant hereto and the indemnities provided for herein,
shall survive the closing hereunder, provided, however, that no claim
-------- -------
for indemnification under Section 14 of this Agreement, except for
claims relating to title to the Purchased Assets or
personal injury claims on which the statute of
limitations or repose does not begin to run until discovery
by the person asserting the claim, shall be made more than six (6)
years after the Closing Date.
(b) Seller Indemnification. The Seller hereby agrees to
----------------------
indemnify the Purchaser and its affiliates against, and to hold the
Purchaser and its affiliates harmless from:
(i) any and all claims, demands, damage, loss,
liability (whether fixed or contingent, known or
unknown) and expense (including reasonable
expenses of investigation and reasonable
attorneys fees and expenses in connection with
any action, suit or proceeding) (collectively,
"Damages") arising out of or resulting from the
ownership of the Purchased Assets or the operation
of the Seller s business prior to the Closing
Date;
(ii) the failure of any of the representations and
warranties made by Seller in this Agreement to
have been true when made and as of the Closing
Date;
(iii) the failure of Seller to comply with or
perform any covenant or agreement made or to
be performed by Seller pursuant to this
Agreement;
(iv) any and all Environmental Costs and Liabilities
based upon, attributable to, arising out of or
resulting from, property owned, operated, or
leased by Seller or its facilities or operations
conducted prior to the Closing Date, or, in the
case of Vessels, prior to delivery thereof
pursuant to this Agreement;
(v) the failure of the Seller to comply with, or to
provide notice with respect to, the bulk transfer
laws of any jurisdiction in connection with the
transactions contemplated by this Agreement; and
(vi) any and all Retained Liabilities, including any
and all Taxes with respect to the ownership, use
or leasing of any of the Purchased Assets on or
prior to the Closing Date.
(c) Purchaser Indemnification. The Purchaser hereby agrees
-------------------------
to indemnify the Seller against, and to hold the Seller harmless from
(i) any and all Damages arising out of or resulting from the ownership
or operation of the Purchased Assets transferred to the Purchaser
pursuant to this Agreement after the Closing Date; (ii) the failure of
any representation or warranty of the Purchaser contained in this
Agreement to have been true when made and as of the Closing Date;
(iii) the failure of the Purchaser to comply with or perform any
covenant or agreement made or to be performed by the Purchaser
pursuant to this Agreement; and (iv) any and all Assumed Liabilities;
except with respect to Damages incurred after the Closing Date that
were caused by or arose from breaches of any of the Seller s
representations, warranties, covenants or agreements contained in this
Agreement.
(d) Procedures for Claims; Exclusivity.
----------------------------------
(i) The remedy of indemnification provided pursuant to
this Section 14 shall be the sole and exclusive remedy of the
Purchaser and the Seller for Damages arising out of any breach of any
representation or warranty in this Agreement.
(ii) A party seeking indemnification pursuant to this
Section 14 (an "Indemnified Party") from or against the assertion of
any claim, or the commencement of any action, suit or proceeding in
respect of which indemnity may be sought under this Section 14 (an
"Assertion") shall (i) give prompt notice to the party from whom
indemnification is sought (the "Indemnifying Party"), and (ii) provide
the Indemnifying Party such information with respect thereto as the
Indemnifying Party may reasonably request, but no failure to give such
notice or copies or provide such information shall relieve the
Indemnifying Party of any liability hereunder (except to the extent
the Indemnifying Party has suffered actual prejudice by such failure).
No
Indemnified Party shall settle any Assertion without the prior written
consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed.
(iii) The Indemnifying Party shall have the right,
exercisable by the furnishing of written notice of an Assertion to the
Indemnified Party within 20 days of receipt of notice from the
Indemnified Party pursuant to Section 14(c)(ii) to assume the defense
of such Assertion; provided, however, that
-------- -------
(A) the Indemnifying Party expressly agrees in its
notice to the Indemnified Party that, as between
the Indemnifying Party and the Indemnified Party,
solely the Indemnifying Party shall be obligated
to satisfy and discharge such Assertion; and
(B) no other person has the right to assume the
defense of such Assertion pursuant to the terms of
any insurance coverage.
If the Indemnifying Party assumes such defense, the Indemnifying Party
(1) may select counsel, which counsel shall be reasonably acceptable
to the Indemnified Party, and (2) shall be obligated to pay the costs
(including reasonable attorneys fees and expenses) incurred by the
Indemnified Party in defending such Assertion between the date of the
commencement of such Assertion and the date of the Indemnifying
Party s assumption of such defense.
(iv) If the Indemnifying Party shall not have assumed
the defense of any Assertion as provided in Section 14(c)(iii) or if,
at any time after the Indemnifying Party shall have assumed the
defense of any Assertion pursuant to Section 14(c)(iii), any of the
conditions set forth
in paragraphs (A) or (B) thereof is no longer satisfied, then, upon
ten days written notice to the Indemnifying Party, the Indemnified
Party may assume the defense of such Assertion with counsel selected
by it and shall have the right to consent to the entry of judgment
with respect to, or otherwise settle, such Assertion with the prior
written consent of the Indemnifying Party (which consent shall not be
unreasonably withheld or delayed), and the costs of such defense
and/or settlement (including reasonable attorneys fees and expenses)
shall be borne by the Indemnifying Party.
(v) The Indemnifying Party, if it shall have assumed
the defense of any Assertion, shall have the right to consent to the
entry of judgment with respect to, or otherwise settle, such
Assertion; provided, however, that such judgment or settlement
includes an
-------- ------- ----
unconditional release of the Indemnified Party and its affiliates from
all liability or restrictions in respect of claims that are the
subject matter of such Assertion.
(vi) The Indemnifying Party and the Indemnified Party
shall cooperate, and cause their respective affiliates to cooperate,
in the defense or prosecution of any Assertion and shall furnish or
cause to be furnished such records, information and testimony, and
attend such conferences, discovery proceedings, hearings, trials or
appeals, as may be requested in connection therewith. The
Indemnifying Party or the Indemnified Party, as the case may be, shall
have the right to participate, at its own expense, in the defense or
settlement of any Assertion which the other is defending.
15. EXPENSES AND TAXES.
Except as otherwise provided herein, Seller and Purchaser shall
each pay their own expenses in connection with this Agreement and the
transactions contemplated hereby. Seller shall provide to Purchaser a
certificate on the Closing Date to the effect that no sales and use
taxes that are required to be collected by Seller from any third party
are due and owing arising out of the operation of Seller s business
prior to the Closing Date which have not been paid on or prior to the
Closing Date.
16. COOPERATION AND PUBLICITY.
(a) Neither Seller nor Purchaser shall voluntarily
undertake any course of action inconsistent with satisfaction of the
requirements applicable to it set forth in this Agreement, and each
shall promptly do all such acts and take all such measures as may be
appropriate to enable it to perform as early as practicable the
obligations herein provided to be performed by it.
(b) No party will issue any press release or make any other
public statement relating to the transactions contemplated hereby
unless required by law, regulation, court order or the rules of any
applicable stock exchange or regulatory authority, and any such
release or statement shall be subject to review by both parties.
17. WAIVER OF COMPLIANCE WITH BULK TRANSFER LAWS.
The Purchaser hereby waives compliance by the Seller with the
provisions of the bulk transfer laws of any jurisdiction in connection
with the transactions contemplated by this Agreement. Notwithstanding
anything to the contrary in this Agreement, in accordance with the
terms and provisions of Section 14, the Seller agrees to indemnify and
hold the Purchaser harmless from and against all Damages resulting
from or arising out of the failure to comply with, or to provide
notice with respect to, the bulk transfer laws of any jurisdiction in
connection with the transactions contemplated by this Agreement.
18. MISCELLANEOUS.
(a) Each party represents and warrants that there are no
claims for brokerage commissions or finders fees in connection with
the transactions contemplated by this Agreement resulting from any
action taken by it. Each of the parties will exonerate, indemnify and
hold harmless the other in respect of any and all losses sustained by
the other as a result of liability to any broker or finder on the
basis of any arrangement or agreement made by or on behalf of such
party.
(b) This Agreement cannot be orally changed or terminated.
The parties may, by written supplemental agreement, (i) extend the
time for the performance of any of the obligations or other acts of
the parties hereto, (ii) waive any inaccuracy in any representation
contained herein or in any Schedule hereto, (iii) waive compliance
with any of the covenants or conditions contained in this Agreement,
and (iv) alter or amend this Agreement in any respect.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, provided that neither the Seller nor Purchaser shall assign
any of its rights or privileges hereunder without the prior written
consent of the other.
(d) Except as specifically set forth or referred to herein,
nothing herein expressed or implied is intended or shall be construed
to confer upon or give to any Person, firm or corporation, other than
the parties hereto and their respective permitted successors and
assigns or personal representatives, any rights or remedies under or
by reason of this Agreement.
(e) All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal
process in regard hereto shall be validly given, made or served if in
writing and delivered personally (including delivery by messenger) or
sent by telecopier facsimile (provided that answer-back confirmation
is received by the sender), or registered or certified mail (postage
prepaid, return receipt requested), addressed as follows or to such
other address as a party hereto shall hereafter specify in writing to
the other:
In the case of the Purchaser:
SEACOR Holdings, Inc.
1370 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xx. Xxxxxxx Xxxxx
Executive Vice President
With a copy to:
Xxxxx X. Gran, Esquire
Fort & Schlefer, L.L.P.
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
In the case of Seller:
Waveland Marine Service, Inc.
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx, L.L.P
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxx
Fax: (000) 000-0000
(f) This Agreement and the Schedules annexed hereto and
made a part hereof contain the entire agreement between the parties
hereto with respect to the purchase and sale of assets and other
transactions contemplated herein and shall be governed by and
construed in accordance with the laws of the State of Louisiana.
Notwithstanding the foregoing or anything else to the contrary herein,
those provisions of the Letter of Intent between the parties, dated as
of October 24, 1996, and the Term Sheet attached thereto, which by
their terms shall survive until January 31, 1997, shall continue to be
valid and enforceable until those provisions terminate in accordance
with the Letter of Intent, except to the extent that those provisions
are inconsistent with the terms of this Agreement, in which case this
Agreement shall govern.
(g) If any provision of this Agreement shall be rendered
invalid or unenforceable by any body of competent jurisdiction, such
judgment shall not render the remainder of this Agreement invalid or
unenforceable.
(h) Subsequent to the closing hereunder and prior to proper
recordation or filing by or on behalf of Purchaser of all necessary
deeds or other instruments of transfer, Seller will cooperate in all
respects in assertion by Purchaser of ownership to such properties and
will not do anything inconsistent with such ownership.
19. POST-CLOSING ACCOUNTING
The parties acknowledge that Seller is assigning to Purchaser no
accounts receivable, and that, except as expressly provided in the
first sentence of Section 3(a) hereof Purchaser is assuming no
liabilities. Purchaser and Seller agree, consistent with their normal
business practices, to cooperate in collecting and accounting for
Seller s accounts receivable (including through use of Purchaser's
computer equipment and office personnel as necessary) as of the
Closing Date and to assist Seller in its efforts to discharge Seller s
liabilities. The parties further agree to develop a procedure on or
prior to the Closing Date to implement the foregoing. Such procedure
shall include provision for (a) matching of payments received to
invoices outstanding and identification of disputed invoices; and (b)
assisting Seller in accounting for and paying outstanding payables.
It is not intended that Purchaser will disburse or collect funds for
the Seller, but Purchaser will assist the Seller in post-closing
accounting for a period of six (6) months from the Closing Date.
20. STOCKHOLDERS AGREEMENTS.
The Stockholders hereby acknowledge and consent to the terms and
provisions of this Agreement and agree to be bound by the terms and
provisions hereof. The Stockholders also hereby represent that, among
them, they are the owners of more than eighty percent (80%) of the
issued
and outstanding shares of stock of the Seller, and they hereby agree
jointly and severally that they will not sell, transfer or otherwise
encumber such shares prior to closing.
21. EXPENSES OF CLOSING
Each party to this Agreement will pay its respective legal,
accounting, and other costs incurred in connection with this
transaction.
22. DEFINITIONS.
Attached hereto as Schedule X is a schedule of definitions of
defined terms used in this Agreement and other terms used herein
without definition.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement
to be duly executed and their respective corporate seals to be affixed
hereto, all as of the day and year first above written.
SEACOR MARINE, INC.
By: /s/ Xxxxxxx XxXxxxx
Vice President
SEACOR HOLDINGS, INC.
By: /s/ Xxxxxx Xxxx
Vice President
WAVELAND MARINE SERVICE, INC.
By: /s/ X. X. Xxxxxxxxx
President
THE STOCKHOLDERS:
/s/ X.X. Xxxxxxxxx
X.X. Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
/s/ D. Xxx Xxxxxxxxx
D. Xxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
NYFS11...:\93\73293\0004\1711\EXH1087Z.400
