VESSEL PURCHASE AGREEMENT
THIS VESSEL PURCHASE AGREEMENT, dated as of May 27, 1998, is by and
between OPI VESSELS, INC. a Delaware corporation (the "Seller"), and
HORIZON VESSELS, INC., a Delaware corporation (the "Buyer").
WHEREAS, the Seller is the owner of the bury barge known as the
"BB316", official no. 537871 together with everything belonging to the
vessel including without limitation the items listed on Schedule 1 attached
hereto (collectively the "Vessel");
WHEREAS, the Seller desires to sell the Vessel to the Buyer and the
Buyer desires to purchase the Vessel from the Seller.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Buyer and Seller hereto represent and agree as
follows:
SECTION 1
SALE AND PURCHASE OF THE VESSEL
1.1 SALE OF THE VESSEL. The Seller shall sell to the Buyer and the
Buyer shall purchase from the Seller the Vessel. The Seller is not
required to replace spare parts, but any replaced item shall be the
property of the Buyer.
1.2 PURCHASE PRICE. In consideration of its purchase of the Vessel,
at the Closing (defined in subsection 1.4 hereof), the Buyer shall, subject
to the terms of this Agreement, pay to the Seller the sum of Ten Million
($10,000,000.00) U. S. Dollars in the manner provided in Subsection 2.1(a)
(the "Purchase Price"). On or before May 27, 1998, Buyer shall deposit
with Seller a nonrefundable deposit of One Million ($1,000,000.00) U. S.
Dollars (the "Deposit").
1.3 "AS IS, WHERE IS" SALE. The Vessel shall be sold on an "AS IS,
WHERE IS" basis dockside Seller's Bayou Black yard near Gibson, Louisiana,
and the Buyer shall accept delivery of the Vessel in such condition.
Except as set forth in Subsection 3.2, no representations or warranties,
either expressed or implied, are made with respect to the title,
maintenance, repair, condition, design, operation, seaworthiness, value,
marketability, merchantability, usefulness or suitability for any purpose,
of the Vessel including without limitation, (i) any implied or expressed
warranty of merchantability, (ii) any implied or expressed warranty for
fitness for a particular purpose and (iii) any claim by the Buyer for
damages because of or related to any defects, whether known or unknown,
with respect to the Vessel. The Buyer and the Seller intend that the
Vessel shall be conveyed and transferred to the Buyer in its present
condition and state of repair "as is" and "where is", with all faults. In
accordance with the foregoing, the Buyer waives each and every claim for
recovery against the Seller for any and all loss or damage to the Vessel
arising from or relating to, in whole or in part the maintenance, repair,
condition or design of the Vessel.
1.4 CLOSING. The consummation of the sale and purchase of the Vessel
(the "Closing") shall take place on such date as shall be designated by
Buyer upon five (5) business days prior written notice but in no event
later than May 29, 1998. At the Closing, the Buyer shall deliver the
Purchase Price to the Seller, the Seller shall deliver the Vessel to the
Buyer, (with any items included in this sale but not onboard the vessel to
be loaded onboard at Seller's risk and expense prior to delivery) with free
access to and from its current location and the Buyer and the Seller each
shall provide the other documents, certificates and instruments required to
be delivered pursuant to Section 2.
SECTION 2
CONDITIONS PRECEDENT
The respective obligations of the Seller to sell the Vessel to the
Buyer and to otherwise proceed with the Closing, and the Buyer to pay the
Purchase Price for the Vessel and to otherwise proceed with the Closing,
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 and the Seller shall have received the following
items, in form, substance and date satisfactory to Seller.
a. At the Closing, the Buyer shall, in satisfaction of the
Purchase Price pay $10,000,000.00 via wire transfer of immediately
available funds. Buyer may apply the Deposit toward payment of the
Purchase Price at Closing or request the return of the Deposit;
Wire transfer information is as follows:
CITIBANK, N.A.
000 XXXX XXXXXX
XXX XXXX, XX
J. XXX XXXXXXXXX HOLDINGS, INC.
ABA NO.: 000000000
ACCOUNT NAME: J. XXX XXXXXXXXX HOLDINGS, INC.
ACCOUNT NUMBER: 00000000
b. Buyer shall execute and deliver a Certificate of Delivery
and Acceptance in the form attached hereto as Exhibit "A" and accept
delivery of the Vessel;
c. Buyer shall execute and deliver an Officer's Certificate in
the form attached hereto as Exhibit "C"; and
d. All other such documents, certificates and instruments
reasonably requested by Seller in writing at least five (5) business days
before closing concerning the accuracy and validity of or compliance with
all representations warranties and covenants by Buyer.
e. Proof of insurance.
2.2 DELIVERIES BY SELLER. At the Closing, the following actions
shall have been taken and the Buyer shall have received the following
items, in form, substance and date satisfactory to Buyer.
a. Seller shall execute and deliver to the Buyer a xxxx of sale
for the Vessel in the form of Exhibit "B" (the "Xxxx of Sale") conveying
title to the Vessel to Buyer;
b. Seller shall execute and deliver a Certificate of Delivery
and Acceptance in the form attached hereto as Exhibit "A";
c. Seller shall deliver originals or copies, if originals do
not exist, of all available vessel documents in Seller's possession such as
classification certificates, plans, as built drawings, manufacturers
drawings and diagrams, manufacturers maintenance schedules and spare parts
schedules which are retained on board the Vessel. Seller shall also
promptly forward to Buyer any technical documentation in Sellers'
possession. The Seller may keep the log books, but Buyer shall have a
right to make copies of them.
d. The United States Coast Guard Certificate of Documentation
or a statement that the same has been lost or destroyed.
e. All other such documents, certificates, and instruments
reasonably requested by Buyer in writing at least five (5) business days
before closing concerning the accuracy and validity of or compliance with
all representations and warranties by Seller.
2.3 NO LOSS OF VESSEL. At the time of the Closing, the Vessel shall
not have suffered an actual or constructive or compromise total loss, nor
shall the Vessel have sustained partial loss or damage exceeding repair
costs of $50,000.00 in the aggregate; provided, however, that in the event
of partial loss to the Vessel prior to Closing equal to or greater than
this amount, Buyer shall have the option to either refuse to proceed to
Closing and terminate the Agreement as provided in Section 7 or to proceed
to Closing with the Vessel in such damaged condition and to reduce the
Purchase Price by the cost of repairing such damage in excess of
$50,000.00.
2.4 REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by Buyer and Seller shall be true and correct in all
material respects on and as of the time of the Closing with the same effect
as though made on and as of such date.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents and warrants to Buyer:
3.1 ORGANIZATION EXISTENCE AND CORPORATE POWER. The Seller has all
requisite power to execute, deliver and perform this Agreement, the Xxxx of
Sale and the other documents, certificates and instruments contemplated
hereby.
3.2 Title No Encumbrances. The Seller has good, valid and marketable
title to the Vessel, and, at the time of delivery to the Buyer,
the Vessel shall be free and clear of all debts, claims, liens,
and encumbrances of any kind whatsoever save those arising out of
or attributable in any manner, directly or indirectly, to Buyer's
ownership of the Vessel or which result from actions taken for or
on behalf of Buyer.
3.3 BUSINESS OF SELLER. The Seller has not been and is not currently
engaged in the business of selling tangible personal property
similar to the Vessel and the Seller has not and does not hold
itself out to be engaged in such business.
SECTION 4
ACCESS TO VESSEL
Until Closing, Seller shall afford the Buyer's employees and
representatives access to the Vessel and all documents and records relating
thereto, for purposes of inspection (the "Inspection"). Buyer may place
one of its employees or representatives on the Vessel with the purpose of
insuring its security. The Seller shall not be obligated to facilitate the
placement of this individual by altering the location or scheduled movement
of the Vessel.
SECTION 5
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller:
5.1 ORGANIZATION EXISTENCE AND CORPORATE POWER. The Buyer (a) is a
corporation duly organized, validly existing and in good standing under the
laws of Delaware, (b) has all requisite power and authority to own and
conduct its business as it has been and is being conducted, and (c) has all
requisite power to execute, deliver and perform this Agreement and the
documents, certificates and instruments contemplated hereby.
5.2 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 organizational action of the Buyer. This Agreement constitutes
the legal, valid, and binding obligation of the Buyer enforceable against
it in accordance with its terms.
5.3 CONFLICT. Neither the execution, delivery or performance by the
Buyer of this Agreement, nor the consummation of the transactions
contemplated hereby, will (a) violate the Buyer's organizational documents
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 (b) conflict with, result in a breach of, or
constitute a default under, any contractual obligation of the Buyer.
5.4 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 the Vessel is employed.
SECTION 6
INDEMNIFICATION
6.1 INDEMNIFICATION OF BUYER BY SELLER. Seller shall defend,
indemnify and hold harmless Buyer and each of Buyer's related, affiliated,
and subsidiary companies and its and their officers, directors, employees,
successors and assigns, (hereinafter collectively "Buyer Parties"), against
each and every demand, claim, action, loss (which shall include any
diminution in value), liability, judgment, damage, cost and expense
(including, without limitation, interest, penalties, cost of preparation
and investigation, and reasonable fees, disbursements and expenses of
attorneys, accountants and other professional advisors) collectively,
"Losses", attributable to, related 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 Seller in this Agreement or any document,
certificate or other instrument delivered or to be delivered pursuant
hereto in any respect, (b) any breach or nonfulfillment of any covenant,
agreement or other obligation of Seller under this Agreement or (c) the
existence of any claim, lien, general average or encumbrance of any kind
arising from the ownership, use or possession by Seller of the Vessel
accruing prior to the date of delivery of the Vessel.
6.2 INDEMNIFICATION OF SELLER BY BUYER. Buyer shall defend,
indemnify and hold harmless Seller; Seller's related affiliated and
subsidiary company and their joint ventures and its and their officers,
directors, employees, agents, servants, successors and assigns (hereinafter
collectively "Seller Parties") against all Losses, as defined in Section
6.1, attributable to, related 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 Buyer in this Agreement or any document,
certificate or other instrument delivered or to be delivered pursuant
hereto in any respect, (b) any breach or nonfulfillment of any covenant,
agreement or other obligation of Buyer under this Agreement (c) the
existence of any claim, lein, general average or encumbrance of any kind
arising from the ownership, use or possession by Buyer of the Vessel
accruing after the date of delivery of the Vessel or (d) any injury,
including death, suffered by any of the Buyer's employees or
representatives related to or arising out of any inspection or review of
the Vessel or Buyer's securing of same pursuant to Section 4 hereof,
whether caused by such person's sole negligence or the Seller Parties sold
or concurrent negligence, other legal fault or the unseaworthiness of the
Vessel.
6.3 INDEMNIFICATION FOR THIRD PARTIES.
With respect to claims by Third Parties:
a. Seller shall fully protect, defend, indemnify and hold
harmless Buyer from and against any and all Losses arising
out of any incident, accident, event, omission or occurrence
prior to the delivery of the Vessel which are brought by or
in favor of any third party which arises directly or
indirectly from the ownership, possession, control,
maintenance, management, design, construction, loading,
unloading, operation or navigation of the Vessel or either
party's performance hereunder, without any regard whatsoever
to the cause, negligence (including sole negligence) or
other acts or omissions or other legal fault of Buyer or any
unseaworthiness of the Vessel(whether or not the unseaworthy
condition is alleged or determined to have come into
existence after the time of the signing of this Agreement.
b. Buyer shall fully protect, defend, indemnify and hold
harmless Seller Parties from and against any and all Losses
arising out of any incident, accident, event, omission or
occurrence at the time of delivery or thereafter which are
brought by or in favor of any third party which arises
directly or indirectly from the ownership, possession,
control, maintenance, management, design, construction,
loading, unloading, operation or navigation of the Vessel,
without any regard whatsoever to the cause, negligence
(including sole negligence) or other acts or omissions or
other legal fault of Seller Parties or any unseaworthiness
of the Vessel (whether or not the unseaworthy condition is
alleged or determined to have existed prior to the time of
the signing of this Agreement).
6.4 SURVIVAL OF INDEMNIFICATION. The indemnification obligations of
the Seller and Buyer under this Section 6 shall survive the termination of
this Agreement.
SECTION 7
TERMINATION AND DEFAULT
7.1 TERMINATION BY AGREEMENT. This Agreement may be terminated by
the written mutual consent of Seller and Buyer on terms as agreed between
them.
7.2 BUYER'S DEFAULT. In the event of: (i) any material breach by
Buyer of any representation, warranty or covenant contained in this
Agreement prior to Closing which is not cured three (3) business days after
receipt of written demand; or (ii) Buyer's failure or refusal to satisfy
any condition precedent hereunder or purchase the Vessel at Closing, Seller
shall, at its exclusive option, have the right to either:
a. Terminate this Agreement and retain the Deposit as
liquidated damages; or
b. Xxx for specific performance and attorney's fees and costs
in obtaining said specific performance.
7.3 SELLER'S DEFAULT. In the event of: (i) any material breach by
Seller of any representation, warranty or covenant contained in this
Agreement prior to Closing, which is not cured three (3) business days
after receipt of written demand; or (ii) Seller's failure or refusal to
satisfy any condition precedent hereunder or sell the Vessel at Closing,
Buyer shall, at its exclusive option, have the right to either:
a. Terminate this Agreement and have the Deposit returned to it
with a like amount as liquidated damages; or
b. Xxx for specific performance and attorneys' fees and costs
in obtaining said specific performance.
SECTION 8
ASBESTOS AND HAZARDOUS MATERIALS
Buyer hereby acknowledges that it is fully aware of and that Seller
has fully advised Buyer of the fact that the Vessel may contain asbestos
and other hazardous materials. Buyer assumes liability therefor and agrees
to comply with all applicable laws regarding the handling and disposal of
such materials and further fully indemnifies Seller Parties (as defined in
Section 6) against any Losses (as defined in Section 6) which may result
therefrom.
SECTION 9
WAIVER OF CONSEQUENTIAL DAMAGES
Both parties waive all claims against each other for consequential or
indirect damages, including without limitation, those which may result from
Buyer's use or possession (or loss of use or possession) of said Vessel
whether based on, related to, or arising directly or indirectly from
Seller's negligence, breach of warranty, strict liability or otherwise.
Consequential damages shall include, but not be limited to, loss of
revenue, profit or use of capital, production delays and losses resulting
from failure to meet other contractual commitments or deadlines.
Consequential damages does not include the obligation of Buyer hereunder to
pay the full price for the Vessel or any other sums due under this
Contract.
SECTION 10
MISCELLANEOUS
10.1 EXPENSES. The Buyer and the Seller shall each pay its own
expenses, including legal, accounting, advisory or brokerage fees, incurred
in connection with the transactions contemplated hereby regardless of
whether such transactions are consummated.
10.2 TAXES. The Buyer shall pay any taxes (other than any income
taxes or similar taxes based on the revenue of the Seller), fees and
expenses connected with the purchase and redocumentation of the Vessel.
This is a casual or "isolated or occasional" sale. Seller shall
be liable for payment of all ad valorem taxes payable with respect to the
Vessel prior to Delivery of such Vessel, and Buyer shall be liable for
payment of all ad valorem taxes payable with respect to the Vessel after
Delivery of such Vessel . Seller shall also be liable for any tax of
Seller resulting from its recognition of income from the sale of the
Vessel. All other taxes (including sales and/or use taxes, if any), import
duties, value added tax, registration fees, stamp duties and similar
expenses that may be imposed by any state or subdivision, or governmental
agency or authority (including, but not limited to any governmental
authority in the State of Louisiana) in connection with the sale of the
Vessel hereunder shall be for the account of and paid by the Buyer. Buyer
shall not withhold or retain from the Price any amounts with respect to any
tax or other governmental charge whatsoever. Where Buyer makes a payment
of any tax relating to this Contract, Buyer shall promptly supply Seller
with official governmental receipts for such tax payments without any right
of reimbursement from Seller.
10.3 AMENDMENT AND WAIVERS. No modification, waiver or amendment of
this Agreement shall be effective unless such modification or amendment
shall be in writing and executed by the parties hereto.
10.4 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 or sent by United States mail 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 8.3) shall be as
set forth opposite each party's name on the signature page hereof.
10.5 SURVIVAL OF WARRANTIES AND AGREEMENTS. All agreements,
representations, and warranties made herein shall survive the execution and
delivery of this Agreement and the closing.
10.6 SEVERABILITY. 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.
10.7 FURTHER ASSURANCES. At any time or from time to time upon the
request of the Seller or Buyer, the other party will execute and deliver
such further documents and do such other acts and things as the Seller or
Buyer, as applicable, may reasonably request in order to effect fully the
purposes of this Agreement.
10.8. HEADINGS. Section and Subsection headings in this Agreement are
included herein for the convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
10.9 GOVERNING LAW AND FORUM. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF LOUISIANA AND SHALL BE
RESOLVED IN THE STATE COURTS OF LOUISIANA FOR THE PARISH OF ORLEANS AND THE
PARTIES HEREBY SUBMIT TO THE JURISDICTION OF SUCH COURT.
10.10 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.
10.11 REMOVAL, NAMES/MARKINGS. As soon as practicable after delivery,
Buyer shall remove from the Vessel all identification and other markings
indicating Seller as owner of the Vessel, including but not limited to, all
logos, the current name of the Vessel, and any word, name, or phrase
associated with the Seller or its parent, related, affiliated or subsidiary
companies.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
OPI VESSELS, INC.
The Seller's address is: By: /s/ Xxxxxxx X. Xxxxxx
P. O. Box 188 Name: XXXXXXX X. XXXXXX
Xxxxxx Xxxx, Xxxxxxxxx 00000 Title: CONTRACT MANAGER
HORIZON VESSELS, INC.
The Buyer's address is: By: /s/ Xxxxx X. Xxxx
0000 Xxxx Xxxx Xxxx., Xxxxx 0000 Name: XXXXX X. XXXX
Xxxxxxx, Xxxxx 00000 Title: SENIOR VICE PRESIDENT
EXHIBIT "A" Certificate of Delivery and Acceptance
EXHIBIT "B" Xxxx of Sale
EXHIBIT "C" Officer's Certificate
SCHEDULE "1" Items Included in Sale
All the exhibits have been omitted from this filing and will be furnished
to the Securities and Exchange Commission's staff upon request.
