EXHIBIT 10.1
VESSEL PURCHASE AGREEMENT
dated as of June 18, 1997
between
TRICO MARINE ASSETS, INC.
and
▇▇▇▇ CANDIES, INC.
Sale and Purchase
of
M/V ▇▇▇▇▇▇▇ CANDIES
M/V ▇▇▇▇ CANDIES
M/V ASHLEY CANDIES
M/V ▇▇▇▇▇ CANDIES
M/V ▇▇▇▇▇▇▇ CANDIES
M/V HATTY CANDIES
M/V ▇▇▇▇▇ CANDIES
M/V ▇▇▇▇▇▇ CANDIES
M/V ▇▇▇▇▇ CANDIES
M/V ▇▇▇▇▇▇ CANDIES
M/V ▇▇▇▇▇▇ ▇▇▇▇▇ CANDIES
and
M/V ▇▇▇▇ CANDIES
VESSEL PURCHASE AGREEMENT
This VESSEL PURCHASE AGREEMENT (this "Agreement"), dated
as of June 18, 1997, is by and between Trico Marine Assets,
Inc., a Delaware corporation (the "Buyer"), and ▇▇▇▇ Candies,
Inc., a Louisiana corporation (the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller is the owner of the U.S. flagged
supply vessels listed on Schedule "A" hereto and the parts,
equipment, machinery, implements, accessories, appurtenances,
supplies and inventory related to the Vessels (collectively,
the "Vessels");
WHEREAS, the Seller desires to sell the Vessels to the
Buyer upon the terms and conditions set forth herein; and
WHEREAS, the Buyer desires to acquire the Vessels upon
such terms.
NOW, THEREFORE, in consideration of the mutual promises
and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Buyer and Seller hereto represent and agree
as follows:
SECTION 1
SALE AND PURCHASE OF THE VESSELS
1.1 Sale of the Vessels. The Seller does hereby agree to
sell to the Buyer, and the Buyer does hereby agree to purchase
from the Seller, the Vessels in accordance with the terms
hereof. Other than the Vessels, the Buyer shall acquire no
other assets or property, including any goodwill, intangibles
or contractual rights of the Seller, land based facilities,
employees, distribution systems, customers, operating rights or
production techniques of the Seller pursuant to this Agreement.
1.2 Purchase Price. (a) The Buyer shall pay to the
Seller $69,000,000 (as it may be adjusted pursuant to this
Section 1, the "Purchase Price") for the Vessels subject to and
in the manner provided in Section 2. If, prior to the Closing
Date, any Vessel shall become an actual or constructive total
loss, the Purchase Price shall be reduced by $5,636,000 for
each such Vessel, and such Vessel shall not be sold or
transferred to the Buyer at the Closing. The parties agree
that the Purchase Price shall be allocated among the Vessels on
the Closing Date based on the relative fair market value of the
Vessels.
1.3 "As is, Where is" Sale. The Vessels are to be sold
in "As Is" condition, with no warranties whatsoever, except as
set forth in Section 3.4 hereof. The ▇▇▇▇ of sale delivered
pursuant to Section 2.1(b)(1) with respect to each Vessel shall
contain the following language:
Buyer has inspected each Vessel and is fully
satisfied with the condition of each. It is
understood and agreed that the Vessels are sold
by the Seller and purchased by the Buyer "AS IS,
WHERE IS," with no warranty whatsoever (other
than as set forth in Section 3.4 of the
Agreement), neither for structure nor condition,
design, operation, seaworthiness, value,
marketability, merchantability, usefulness or
suitability for any purpose, whether expressed
or implied, NOT EVEN FOR THE RETURN OF THE
PURCHASE PRICE. Buyer expressly waives any and
all warranties (other than as set forth in
Section 3.4 of the Agreement), including those
pertaining to merchantability or fitness for a
particular use, as well as those warranties
against hidden and latent defects (i.e., defects
in a Vessel sold which render it useless or
render its use so inconvenient or imperfect that
the Buyer would not have purchased it had it
known of the vice or defect); more specifically,
that warranty imposed by Louisiana Civil Code
Article 2475 with respect to a seller's warranty
against latent or hidden defects. Buyer
forfeits the right to avoid the sale or reduce
the purchase price on account of any hidden or
latent vice or defect in any of the Vessels sold
pursuant to Louisiana Civil Code Article 2520
and 2541. The listing of warranties to be
waived is by way of example, and not intended as
an exclusive list, as all warranties (other than
as set forth in Section 3.4 of the Agreement)
are waived.
1.4 Closing. The consummation of the sale and purchase
of the Vessels (other than the M/V ▇▇▇▇ Candies) (the
"Closing") shall take place in accordance with the terms of
this Agreement on a business day to be mutually agreed upon by
Buyer and Seller (the "Closing Date") on or before August 15,
1997. Subject to Section 2.2 hereof, on the Closing Date, the
Buyer shall deliver the Purchase Price to the Seller, the
Seller shall cause the Vessels to be delivered to the Buyer and
the Buyer and the Seller each shall provide the other
documents, certificates and instruments required to be
delivered pursuant to Section 2.1. Each of the parties agree
that time is of the essence and that it will use its best
efforts to satisfy the conditions to Closing set forth in
Section 2.1 that are within its control and that are capable of
being satisfied prior to the Closing Date not later than the
second business day in advance of the date the parties
establish as the Closing Date.
1.5 Condition and Access to the Vessels.
(a) Notwithstanding anything to the contrary herein,
the Buyer and the Seller agree that the Vessels shall, on the
Closing Date, be in substantially the same condition as on the
date hereof, ordinary wear and tear excepted. If any Vessel
shall suffer any damage or loss (other than an actual or
constructive total loss) and such damage or loss is not
repaired prior to the Closing, then Seller agrees to be
responsible following the Closing (it being the intent of the
Buyer and Seller that the Closing not be delayed as a result of
the need to make any such repairs) for such repairs to the
Vessel suffering such damage or loss as may be necessary to
restore the Vessel to the condition required under this Section
1.5(a). The Seller agrees to cause the Vessels to continue to
be insured by hull and machinery and protection and indemnity
insurance in the amounts and with the coverages currently in
force until the Closing Date. Prior to the Closing, the Seller
shall provide Buyer with original cover notes evidencing such
insurance covering the Vessels for the three years prior to
Closing.
(b) The Buyer shall, at its option, have a period of
fifteen business days from the date hereof to conduct a
reasonable due diligence investigation of each of the Vessels
and the documentation related thereto, which inspection must be
satisfactory to the Buyer. All such investigations shall be
conducted at times convenient to Seller and at all times shall
be made under the supervision of the Seller.
(c) The Seller agrees to use its best efforts to
complete as soon as reasonably possible the modification,
upgrade and lengthening of the M/V ▇▇▇▇ Candies in order to
have the specifications listed on Schedule "A" hereto with
respect to the M/V ▇▇▇▇ Candies be accurate in all material
respects. The Buyer shall have access to the M/V ▇▇▇▇ Candies
and the documentation related thereto from the date hereof
until its delivery pursuant to Section 2.2. Buyer agrees not
to interfere with or in any way delay the modification, upgrade
or lengthening of the M/V ▇▇▇▇ Candies.
(d) Buyer agrees that it will hold in complete
confidence all information and any documents obtained as a
result of the investigations described in Sections 1.5(b) and
1.5(c) hereof, and if this Agreement is terminated prior to the
Closing, Buyer agrees that all documents received pursuant to
such investigations shall be promptly returned to Seller.
(e) The Buyer and Seller shall conduct a survey in a
mutually agreed manner of the fuel on board each of the Vessels
when it is delivered to the Buyer. To the extent that fuel on
board a Vessel when it was delivered by the Seller to a
charterer is not used by the charterer and remains on board
when delivered to Buyer, and the Seller provides the Buyer with
the results of the on-charter survey for any such Vessel, the
Buyer agrees to reimburse (at Seller's cost) the Seller for the
cost of any such fuel. The Seller shall provide Buyer with
such other information as the Buyer may reasonably request to
verify the cost of fuel on board each Vessel at the time of
delivery to a charterer that the Seller seeks reimbursement for
under this Section 1.5(e).
1.6 Governmental Filings.
(a) The Buyer and Seller will coordinate with the
other and will use all reasonable efforts to cause to be filed
as promptly as possible with the Department of Justice and the
Federal Trade Commission any pre-merger notifications required
by the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and to obtain the early termination or
waiver of the HSR Act waiting period and any related
restriction on consummating the transactions contemplated by
this Agreement.
(b) The Seller will furnish Buyer on a timely basis
such information concerning the Vessels and the operation
thereof as reasonably deemed necessary or appropriate by the
Buyer for inclusion in any report, application or other
statement required by law to be made by Buyer or to be filed by
Buyer with any governmental authority in connection with or
relating to the transactions contemplated by this Agreement.
SECTION 2
CONDITIONS PRECEDENT
2.1 The respective obligations of the Seller to sell the
Vessels to the Buyer and the Buyer to pay the Purchase Price
for the Vessels are subject to the satisfaction of the
following conditions precedent:
(a) Deliveries by the Buyer. At the Closing, Buyer
shall deliver to the Seller $62,000,000 by wire transfer of
immediately available funds to an account designated by the
Seller.
(b) Deliveries by Seller. At the Closing, the
following actions shall have been taken by the Seller with
respect to the Vessels (other than the M/V ▇▇▇▇ Candies):
(1) The Seller shall deliver bills of sale
fully executed by the Seller in a mutually acceptable form
pursuant to which the Seller shall transfer to Buyer all right,
title and ownership of the Vessels sold, transferred, conveyed,
assigned and delivered free and clear of all Encumbrances (as
hereinafter defined); and
(2) The Seller shall deliver to the Buyer all
documentation, certificates and instruments relating to each
Vessel as may be in the Seller's possession and such documents,
certificates, maintenance records and such other instruments
reasonably requested by Buyer concerning the accuracy and
validity of or compliance with the representations and
warranties as Buyer may reasonably request.
(c) Protocol of Acceptance and Delivery. The Seller
and Buyer shall each execute and deliver to one another a
certificate evidencing the Buyer's acceptance and the Seller's
delivery of the Vessels (other than the M/V ▇▇▇▇ Candies) as of
11:59 p.m. on the Closing Date.
(d) HSR Act. Any waiting period imposed under the
HSR Act shall have expired or been terminated in accordance
with the rules promulgated thereunder.
(e) Representations and Warranties. All
representations and warranties made by Buyer and the Seller
shall be true and correct in all material respects on and as of
the time of the Closing with the same effect as though made on
and as of such date, except to the extent waived in its sole
discretion by the recipient of the representation and warranty.
2.2 Delivery of the M/V ▇▇▇▇ Candies. Upon delivery by
the Seller to the Buyer of (i) all documents specified in
Section 2.1(b)(1) and (2) with respect to the M/V ▇▇▇▇ Candies
and (ii) such certificates and documentation received by the
Seller upon the completion of the modification, upgrade and
lengthening of the M/V ▇▇▇▇ Candies in accordance with the
specifications listed on Schedule "A" hereto with respect to
such Vessel, the Seller will deliver the remaining $7,000,000
of the Purchase Price to the Seller by wire transfer of
immediately available funds to an account designated by the
Seller and Seller shall cause the M/V ▇▇▇▇ Candies to be
delivered to the Buyer. The Buyer and Seller shall each
execute and deliver to one another a certificate of the Buyer's
acceptance and the Seller's delivery as of 11:59 p.m. on the
date of the delivery of the M/V ▇▇▇▇ Candies in accordance with
this Section 2.2. All representations made by the Buyer and
the Seller herein shall be true and correct in all material
respects on and as of the time of the delivery of the M/V ▇▇▇▇
Candies in accordance with this Section with the same effect as
though made on and as of such date, except to the extent waived
in its sole discretion by the recipient of the representation
and warranty and except to the extent such representation or
warranty pertains to any Vessel other than the M/V ▇▇▇▇
Candies.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller makes the following representations and
warranties to the Buyer:
3.1 Organization, Existence and Corporate Power. The
Seller is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Louisiana and
has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and
the other documents, certificates and instruments contemplated
hereby and thereby. The Seller has not been and is not engaged
in the business of selling tangible personal property similar
to the Vessels and the Seller has not and does not hold itself
out to be engaged in such business.
3.2 Authorization and Execution. The execution, delivery
and performance of this Agreement and the other documents,
certificates and instruments contemplated hereby and thereby
and the consummation of the transactions contemplated hereby
and thereby have been duly authorized and approved by all
requisite corporate action on the part of the Seller. This
Agreement and, when executed and delivered, each other
document, certificate and instrument required to be executed,
has been duly executed and delivered by the Seller constitutes
or will constitute the legal, valid and binding obligations of
the Seller enforceable against it in accordance with the
respective terms hereof and thereof.
3.3 Conflict. Neither the execution, delivery or
performance by the Seller of this Agreement nor the
consummation of the transactions contemplated hereby will
violate or contravene the Seller's articles or certificate of
incorporation or any judgment, decree, order or award of any
court or other governmental agency or any law, rule or
regulation applicable to the Seller or any of its properties or
assets or conflict with, result in a breach of or constitute a
default under, any agreement, instrument or contractual
obligation to which the Seller is a party or by which it or its
properties are bound.
3.4 Title; No Encumbrance. The Seller has good, valid
and marketable title to the Vessels, and all of the Vessels on
the Closing Date shall be, free and clear of all mortgages,
security interests, debts, claims, liens, libels and
encumbrances of any kind whatsoever ("Encumbrances"). The
Seller will warrant and defend the Buyer's title in and to the
Vessels against the claims and demands of all persons
whomsoever. All of the Vessels are U.S. flagged vessels and
are qualified to engage in the coastwide trade and none has
been disqualified from their intended service by the U.S.
Maritime Administration. At all times the Seller has been "a
citizen of the United States" within the meaning of Section 2
of the Shipping Act of 1916, as amended. The Vessels are duly
documented in the name of the Seller with the U.S. Coast Guard
and each of the Vessels has and as of the Closing Date, will
have current certificates of inspection (except for the M/V
Nicki ▇▇▇▇▇ Candies, the M/V ▇▇▇▇▇▇ Candies and the M/V ▇▇▇▇▇
Candies) and documentation in effect with the U.S. Coast Guard
and an American Bureau of Shipping loadline certificate, in
each case free of reportable exceptions or notations of record
and each of the Vessels is currently operating within the U.S.
Gulf of Mexico except for (i) the M/V ▇▇▇▇▇ Candies and the M/V
▇▇▇▇▇▇ Candies, which are operating between points in the Gulf
of Mexico and the Caribbean, and (ii) the M/V ▇▇▇▇ Candies,
which is being modified, upgraded and lengthened and is not
currently in operation, but which will have a current
certificate of inspection and such other documentation in
effect with the U.S. Coast Guard and the American Bureau of
Shipping as specified in this Section 3.4 when delivered to the
Buyer pursuant to Section 2.2.
3.5 Litigation. There are no legal actions, suits,
arbitrations, government investigations or other legal or
administrative proceedings, nor any order, decree or judgement
pending, or in effect, or threatened against or relating to the
Vessels or the Seller in connection with or relating to the
transactions contemplated by this Agreement.
3.6 Taxes. The Seller has duly and timely prepared and
filed with the appropriate governmental authorities all
returns, reports, information returns or other documents filed
or required to be filed with such governmental authorities and
has paid any taxes or other amounts due in respect thereof that
if unpaid could result in a claim by any governmental authority
against any of the Vessels or the Buyer.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as
follows:
4.1 Organization, Existence and Corporate Power. The
Buyer is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and
has all requisite corporate power to execute, deliver and
perform its obligations under this Agreement.
4.2 Authorization and Execution. The execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized and
approved by all requisite corporate action of the Buyer. This
Agreement constitutes the legal, valid and binding obligation
of the Buyer enforceable against it in accordance with its
terms.
4.3 Conflict. Neither the execution, delivery or
performance by the Buyer of this Agreement nor the consummation
of the transactions contemplated hereby will violate the
Buyer's certificate of incorporation or by-laws or any
judgment, decree, order or award of any court or other
governmental agency or any law, rule or regulation applicable
to the Buyer or its property or assets or conflict with, result
in a breach of or constitute a default under, any contractual
obligation of the Buyer.
4.4 Citizenship. The Buyer is a "citizen of the United
States" as such term is defined in Section 2 of the Shipping
Act of 1916, as amended, qualified to engage in the trade in
which each Vessel or the M/V ▇▇▇▇ Candies is, or is
contemplated to be, employed.
4.5 Litigation. There are no legal actions, suits,
arbitrations, government investigations or other legal or
administrative proceedings, nor any order, decree or judgment
pending, or in effect, or threatened against or relating to the
Buyer in connection with or relating to the transactions
contemplated by this Agreement.
SECTION 5
TERMINATION
5.1 Termination. (a) This Agreement may, by written
notice given at or prior to the Closing, be terminated: (i)
by mutual consent of the Seller and the Buyer; (ii) by the
Seller or the Buyer if there has been a material breach by the
other of any representation, warranty or covenant contained in
this Agreement that shall not have been cured or waived by the
other party prior to the earlier of ten days following notice
of such breach and the Closing Date; (iii) by the Buyer in
accordance with Section 1.5(b) following the completion of its
due diligence investigation specified therein; or (iv) by the
Seller or the Buyer if the conditions to Closing required by
Section 2.1 shall not have been met or waived by August 31,
1997, or the Closing has not occurred by such date; provided,
however, that the party whose breach of its representations and
warranties in this Agreement or whose failure to perform any of
its covenants and agreements under this Agreement has resulted
in the failure of the Closing to occur on or before such date
shall not be entitled to terminate this Agreement pursuant to
clause (iv) of this Section 5.1(a).
(b) The obligation of the Buyer to pay that portion
of the Purchase Price allocated to the M/V ▇▇▇▇ Candies in
accordance with Section 2.2 and the Seller's obligation to
deliver and sell the M/V ▇▇▇▇ Candies to the Buyer may be
terminated: (i) by the mutual consent of the Seller and the
Buyer; (ii) by the Seller or the Buyer if there has been a
material breach by the other of any representation, warranty or
covenant contained in this Agreement that shall not have been
cured or waived by the other party prior to the earlier of ten
days following notice of delivery of the M/V ▇▇▇▇ Candies in
accordance with Section 2.2; (iii) by the Buyer if the
documents required to be delivered by the Seller by Section 2.2
shall not have delivered or the delivery thereof waived by the
Buyer by September 1, 1997, or the M/V ▇▇▇▇ Candies has not
been delivered to the Seller in accordance with Section 2.2 by
such date; provided, however, that the party whose breach of
its representations and warranties in this Agreement or whose
failure to perform any of its covenants and agreements under
this Agreement has resulted in the failure of the delivery and
sale of the M/V ▇▇▇▇ Candies on or before September 1, 1997
shall not be entitled to terminate this Agreement pursuant to
clause (iii) of this Section 5.1(b).
5.2 Effect of Termination; Survival. Upon termination of
this Agreement pursuant to Section 5.1(a), this Agreement shall
be void and of no effect and there shall be no liability by
reason of this Agreement or the termination thereof on the part
of any party except for any liability arising out of a breach
of any covenant in this Agreement prior to the date of
termination or any covenant that survives pursuant to this
Section 5.2. The following provisions shall survive any
termination of this Agreement: Sections 1.5(d), 5.2 and Section
6.
SECTION 6
MISCELLANEOUS
6.1 Indemnification of Buyer by Seller. (a) The Seller
hereby agrees to pay and assume liability for, and does hereby
agree to indemnify, protect, save and keep harmless the Buyer,
from and against any and all liabilities, obligations, losses,
damages, penalties, claims (including claims by any employee of
such Seller or any of its servants, crew or agents), actions,
suits and related costs, expenses and disbursements, including
reasonable legal fees and expenses, of whatsoever kind and
nature, imposed on, asserted against or incurred by Buyer
(collectively, "Losses"), in any way relating to or arising out
of or alleged to be attributable to, related to or arising out
of (i) any inaccuracy in any representation or warranty of the
Seller in this Agreement or any breach or nonfulfillment of any
covenant, agreement or other obligation of the Seller, (ii)
Encumbrances arising as a matter of law from events occurring
prior to the Closing Date or, in the case of and with respect
to the M/V ▇▇▇▇ Candies, prior to its delivery pursuant to
Section 2.2, or (iii) subject to the general principles set
forth in Section 1.3, any Losses sustained by Buyer arising out
of or related to Seller's ownership or operation of the Vessels
prior to the Closing Date or, in the case of the M/V ▇▇▇▇
Candies, prior to its delivery pursuant to Section 2.2.
(b) The representations and warranties of the Seller
to the Buyer and the obligation of the Seller to indemnify the
Buyer pursuant to Section 6.1(a) shall survive the Closing
until July 31, 2000, except in the case of a breach of, or
claim for indemnification based on the breach of, a
representation or warranty contained in Section 3.4 hereof;
provided that the termination of the Seller's obligation to
indemnify the Buyer contained in this Section 6.1(b) shall not
apply to indemnification for Losses which has been the subject
of a written notice to the Seller prior to July 31, 2000, which
notice will preserve such claim until it is liquidated or
otherwise finally resolved pursuant to the procedures set forth
in Section 6.3 hereof.
6.2 Indemnification of Seller by Buyer. (a) Buyer hereby
agrees to pay and assume liability for, and does hereby agree
to indemnify, protect, save and keep harmless the Seller, from
and against any and all Losses imposed on, asserted against or
incurred by the Seller, in any way relating to or arising out
of or alleged to be attributable to, related to or arising out
of (i) any inaccuracy in any representation or warranty of the
Buyer in this Agreement or any breach or nonfulfillment of any
covenant agreement or other obligation of the Buyer, (ii) any
Losses sustained by Seller arising out of or related to the
Buyer's ownership or operation of the Vessels after the Closing
Date, or in the case of the M/V ▇▇▇▇ Candies, after its
delivery pursuant to Section 2.2 or (iii) any and all liability
for bodily injury or property damage resulting from the actions
or in actions of the Buyer, its employees, agents or
representatives (collectively, its "Agents") during any due
diligence investigation conducted by the Buyer or any of its
Agents pursuant to Section 1.5(b) or 1.5(c) hereof.
(b) The representations and warranties of the Buyer
to the Seller and the obligation of the Buyer to indemnify the
Seller pursuant to Section 6.2(a) shall survive the Closing
until July 31, 2000; provided that the termination of the
Buyer's obligation to indemnify the Seller contained in this
Section 6.2(b) shall not apply to indemnification for Losses
which has been the subject of a written notice to the Buyer
prior to July 31, 2000, which notice will preserve such claim
until it is liquidated or otherwise finally resolved pursuant
to the procedures set forth in Section 6.3 hereof.
6.3 Notice and Defense of Third Party Claims. If any
third party demand, claim, action or proceeding shall be
brought or asserted under this Section 6 against an indemnified
party or any successor thereto (the "Indemnified Person") in
respect of which indemnity may be sought under this Section 6
from an indemnifying person or any successor thereto (the
"Indemnifying Person"), the Indemnified Person shall give
prompt written notice thereof to the Indemnifying Person who
shall have the right to assume its defense, including the
hiring of counsel reasonably satisfactory to the Indemnified
Person and the payment of all expenses; except that any delay
or failure to so notify the Indemnifying Person shall relieve
the Indemnifying Person of its obligations under this Section 6
only to the extent, if at all, that it is prejudiced by reason
of such delay or failure. The Indemnified Person shall have
the right to employ separate counsel in any of the foregoing
actions, claims or proceedings and to participate in the
defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Indemnified Person unless both
the Indemnified Person and the Indemnifying Person are named as
parties and the Indemnified Person shall in good faith
determine that representation by the same counsel is
inappropriate. In the event that the Indemnifying Person,
within ten days after notice of any such action or claim, does
not assume the defense thereof, the Indemnified Personal shall
have the right to undertake the defense, compromise or
settlement of such action, claim or proceeding for the account
of the Indemnifying Person, subject to the right of the
Indemnifying Person to assume the defense of such action, claim
or proceeding with counsel reasonably satisfactory to the
Indemnified Person at any time prior to the settlement,
compromise or final determination thereof. Anything in this
Section 6 to the contrary notwithstanding, the Indemnifying
Person shall not, without the Indemnified Person's prior
consent, settle or compromise any action or claim or consent to
the entry of any judgment with respect to any action, claim or
proceeding for anything other than money damages paid by the
Indemnifying Person. The Indemnifying Person may, without the
Indemnified Person's prior consent, settle or compromise any
such action, claim or proceeding or consent to entry of any
judgment with respect to any such action or claim that requires
solely the payment of money damages by the Indemnifying Person
and that includes as an unconditional term thereof the release
by the claimant or the plaintiff of the Indemnified Person from
all liability in respect of such action, claim or proceeding.
The Indemnifying Party shall promptly reimburse the Indemnified
Party for the amount of any judgment rendered with respect to
any third party demand, claim, action or proceeding and for all
damages incurred by the Indemnified Party in connection with
the defense of such demand, claim, action or proceedings.
6.4 Expenses. The Buyer and the Seller shall each pay
their own out-of-pocket fees and expenses, including, without
limitation, all legal, accounting, advisory or other fees and
expenses, arising in connection with any transactions
contemplated by this Agreement.
6.5 Negotiations. During the period from the date of
this Agreement until the earlier of the Closing or the
termination of this Agreement, Seller shall cease any existing
negotiations and shall cause their respective officers,
employees, representatives and agents, not to take any action
(or permit any other person acting for or on their behalf),
directly or indirectly, to solicit or initiate or encourage
inquiries or proposals from, or participate in discussions or
negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group
(other than the Buyer) concerning the sale of any Vessel.
6.6 Entire Agreement; Amendments and Waivers. This
Agreement constitutes the entire agreement and understanding of
the parties with respect to the subject matter hereof and
hereby supersedes any other prior agreement of the parties with
respect to the matters set forth herein whether written or
oral. No modification, waiver or amendment of this Agreement
shall be effective unless such modification, waiver or
amendment shall be in writing and executed by the parties
hereto.
6.7 Notices. Except as may otherwise be expressly
provided herein, any notice herein required or permitted to be
given shall be in writing or by telex or facsimile transmission
with subsequent written confirmation, and may be personally
served, sent by United States mail or by overnight delivery
service providing for evidence of receipt and shall be deemed
to have been given upon receipt by the party notified. For the
purposes hereof, the addresses of the parties hereto (until
notice of a change thereof is delivered as provided in this
Section 6.7) shall be as set forth opposite each party's name
on the signature page hereof.
6.8 Severability; Counterparts. In case any provision of
or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby. This
Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered
shall be an original, but all of such counterparts shall
together constitute one and the same instrument.
6.9 Governing Law. This agreement shall be construed in
accordance with U.S. maritime law and the substantive laws of
the State of Louisiana.
6.10 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided,
however, that neither Buyer nor the Seller shall be permitted
to assign its rights under this Agreement without the prior
written consent of the other party.
6.11 Publicity. Neither the Buyer, the Seller nor any of
their respective affiliates shall issue any press release or
otherwise make any public announcement or disclosure regarding
this Agreement or the transactions contemplated hereby.
However, the Buyer shall be entitled to make such disclosures
to the extent required by any applicable law or regulation;
provided that the Buyer shall first consult in good faith with
the Seller regarding the necessity and scope of such
disclosure.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
The Buyer's address is: BUYER:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ MARINE ASSETS, INC.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
The Seller's address is: SELLER:
P. O. Box 25 ▇▇▇▇ CANDIES, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇ Candies
------------------------
▇▇▇▇ Candies
President
SCHEDULE A
Name of Vessel Official Number
M/V ▇▇▇▇▇▇▇ Candies 615324
M/V ▇▇▇▇ Candies 597276
M/V Ashley Candies 667650
M/V ▇▇▇▇▇ Candies 659398
M/V ▇▇▇▇▇▇▇ Candies 693268
M/V Hatty Candies 607942
M/V ▇▇▇▇▇ Candies 600827
M/V ▇▇▇▇▇▇ Candies 603111
M/V ▇▇▇▇▇ Candies 559292
M/V ▇▇▇▇▇▇ Candies 542117
M/V Nicki ▇▇▇▇▇ Candies 517536
M/V ▇▇▇▇ Candies 569491
Set forth below are the specifications of each of the vessels
and the various material pieces of machinery or equipment
comprising the vessels. The particulars contained herein are
to the best of the Seller's knowledge correct, but are not
guaranteed.
A-1
M/V ▇▇▇▇▇▇▇ CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 615324
Port: Houma, LA
Year Built: 1979
Builder: Halter Marine
Year Redesigned: 1995
Shipyard: Service Marine
Net Tonnage: 188
Gross Tonnage: 276
DIMENSIONS: Length: 205
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 143
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: ▇▇▇▇-▇▇▇▇▇▇▇
Model: 10-200 HP
CAPACITIES: Fuel (gals.): 100,000
Pump Rate: 18,000 gal./hr @ 130' hd.
Ballast Water (gals.): 212,143
Pump Rate:
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,928 U.S. Gals.
Drill Mud and Cement Tanks
No.: 3
Capacity: 2,000 cu. ft. per tank
Liquid Mud: 1,485 barrels
Cargo Capacity (tons): 1,000
QUARTERS: Certified to Carry: 23
State Rooms: 4
Berths: 7
A-2
M/V ▇▇▇▇ CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 597276
Port: Houma, LA
Year Built: 1979
Builder: ▇▇▇▇▇▇ Shipyard
Year Redesigned: 1994
Shipyard: Elmwood Drydock
Net Tonnage: 194
Gross Tonnage: 286
DIMENSIONS: Length: 205
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 143
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: ▇▇▇▇-▇▇▇▇▇▇▇
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 100,000
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 213,143
Pump Rate:
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,928 U.S. Gals.
Drill Mud and Cement Tanks
No.: 3
Capacity: 2,000 cu. ft. per tank
Liquid Mud: 1,485 barrels
Cargo Capacity (tons): 1,000
QUARTERS: Certified to Carry: 17
State Rooms: 4
Berths: 7
A-3
M/V ASHLEY CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 667650
Port: Houma, LA
Year Built: 1983
Builder: Halter Marine, Inc.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 202.00
Gross Tonnage: 297.80
DIMENSIONS: Length: 190
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 75
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 16-645-E2
I.H.P.: 5000
B.H.P.: 4300
S.H.P.: 3900
Speed: 12 Kts.
Bow Thruster: ▇▇▇▇-▇▇▇▇▇▇▇
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 115,500
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 213,000
Pump Rate: 34,200 gal./hr @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,000 U.S. Gals.
Drill Mud and Cement Tanks
No.: 2
Capacity: 2,150 cu. ft. ea.
Liquid Mud: 1,250 barrels
Cargo Capacity (tons): 1,000
QUARTERS: Certified to Carry: 30 persons
State Rooms: 5
Berths: 14
A-4
M/V ▇▇▇▇▇ CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 659398
Port: Houma, LA
Year Built: 1983
Builder: Halter Marine, Inc.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 202.00
Gross Tonnage: 297.80
DIMENSIONS: Length: 190
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 120
Width: 13
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: ▇▇▇▇-▇▇▇▇▇▇▇
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 115,500
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 213,000
Pump Rate: 34,200 gal./hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,000 U.S. Gals.
Drill Mud and Cement Tanks
No.: 2
Capacity: 2,150 cu. ft. ea.
Liquid Mud: 1,250 barrels
Cargo Capacity (tons): 1,000
QUARTERS: Certified to Carry: 18 Persons
State Rooms: 5
Berths: 14
A-5
M/V ▇▇▇▇▇▇▇ CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 693268
Port: Houma, LA
Year Built: 1983
Builder: Halter Marine, Inc.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 202.00
Gross Tonnage: 297.80
DIMENSIONS: Length: 190
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 120
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 16-645-E2
I.H.P.: 5000
B.H.P.: 4300
S.H.P.: 3900
Speed: 12 Kts.
Bow Thruster: ▇▇▇▇-▇▇▇▇▇▇▇
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 115,500
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 213,000
Pump Rate: 34,200 gal/hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,000 U.S. Gals.
Drill Mud and Cement Tanks
No.: 2
Capacity: 2,150 cu. ft. ea.
Liquid Mud: 1,250 barrels
Cargo Capacity (tons): 1,000
QUARTERS: Certified to Carry: 18 Persons
State Rooms: 5
Berths: 14
A-6
M/V HATTY CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 607942
Port: Houma, LA
Year Built: 1979
Builder: Halter Marine, Inc.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 135
Gross Tonnage: 198.81
DIMENSIONS: Length: 180
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 118
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: ▇▇▇▇-▇▇▇▇▇▇▇
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 100,000
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 213,143
Pump Rate: 34,200 gal./hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,928 U.S. Gals.
Drill Mud and Cement Tanks
No.: 3
Capacity: 2,000 cu. ft. ea.
Liquid Mud: None
Cargo Capacity (tons): 820
QUARTERS: Certified to Carry: 19 Persons
State Rooms: 4
Berths: 7
A-7
M/V ▇▇▇▇▇ CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 600827
Port: Houma, LA
Year Built: 1978
Builder: Halter Marine, Inc.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 196
Gross Tonnage: 289
DIMENSIONS: Length: 180
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 118
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: ▇▇▇▇-▇▇▇▇▇▇▇
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 83,000
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 190,000
Pump Rate: 34,200 gal./hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,928 U.S. Gals.
Drill Mud and Cement Tanks
No.: 2
Capacity: 2,150 cu. ft. ea.
Liquid Mud: 1,250 barrels
Cargo Capacity (tons): 820
QUARTERS: Certified to Carry: 16 Persons
State Rooms: 4
Berths: 7
A-8
M/V ▇▇▇▇▇▇ CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 603111
Port: Houma, LA
Year Built: 1979
Builder: ▇▇▇▇▇▇ Shipyard
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 140
Gross Tonnage: 207
DIMENSIONS: Length: 180
(in feet) Beam: 44
Depth: 15
Light Draft: 10.5
Maximum Draft: 13
Clear Deck Space
Length: 118
Width: 36
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: ▇▇▇▇-▇▇▇▇▇▇▇
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 83,000
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 190,000
Pump Rate: 34,200 gal./hr. @ 130 hd.
Potable Water (gals.): 1,200
Lube Oil: 3,056
Calcium (Bromide-Chloride): 60,928 U.S. Gals.
Drill Mud and Cement Tanks
No.: 2
Capacity: 2,150 cu. ft. ea.
Liquid Mud: 1,250 barrels
Cargo Capacity (tons): 820
QUARTERS: Certified to Carry: 13 Persons
State Rooms: 4
Berths: 7
A-9
M/V ▇▇▇▇▇ CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 559292
Port: Houma, Louisiana
Year Built: 1974
Builder: Equitable Equipment Co.
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 133
Gross Tonnage: 196
DIMENSIONS: Length: 180
(in feet) Beam: 38
Depth: 12
Light Draft: 10
Maximum Draft: 12
Clear Deck Space
Length: 110
Width: 32
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 12 Kts.
Bow Thruster: ▇▇▇▇-▇▇▇▇▇▇▇
Model: 10-300 HP
CAPACITIES: Fuel (gals.): 82,000
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 223,000
Pump Rate: 34,200 gal./hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 2,000
Calcium (Bromide-Chloride): 47,000 U.S. Gals.
(not certified)
Drill Mud and Cement Tanks
No.: 2
Capacity: 1,800 cu. ft. ea.
Liquid Mud:
Cargo Capacity (tons): 470
QUARTERS: Certified to Carry: 18 Persons (not certified)
State Rooms: 5
Berths: 17
A-10
M/V ▇▇▇▇▇▇ CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 542117
Port: Houma, Louisiana
Year Built: 1972
Builder: ▇▇▇▇▇▇ Shipyards
Year Redesigned: N/A
Shipyard: N/A
Net Tonnage: 134
Gross Tonnage: 197.96
DIMENSIONS: Length: 180
(in feet) Beam: 38
Depth: 15
Light Draft: 10
Maximum Draft: 13
Clear Deck Space
Length: 110
Width: 32
POWERED BY: Main Engines
No.: 2
Mfg.: EMD
Model: 12-645-E2
I.H.P.: 4200
B.H.P.: 3600
S.H.P.: 3000
Speed: 14 Kts.
Bow Thruster:
Model:
CAPACITIES: Fuel (gals.): 69,760
Pump Rate: 18,000 gal./hr. @ 130' hd.
Ballast Water (gals.): 235,600
Pump Rate: 34,200 gal./hr. @ 130' hd.
Potable Water (gals.): 1,200
Lube Oil: 2,000
Calcium (Bromide-Chloride):
Drill Mud and Cement Tanks
No.:
Capacity:
Liquid Mud:
Cargo Capacity (tons): 470
QUARTERS: Certified to Carry: 28 Persons (not certified)
State Rooms: 9
Berths: 24
A-11
M/V NICKI ▇▇▇▇▇ CANDIES SPECIFICATIONS
REGISTRATION: Official No.: 517536
Port: Houma, Louisiana
Year Built: 1968
Builder: American Marine
Year Redesigned: 1981
Shipyard: American Shipyard
Net Tonnage: 132.00
Gross Tonnage: 195.00
DIMENSIONS: Length: 166
(in feet) Beam: 38
Depth: 14
Light Draft: 8.5
Maximum Draft: 12
Clear Deck Space
Length: 110
Width: 30
POWERED BY: Main Engines
No.: 2
Mfg.: Detroit Diesel
Model: 16V-92
I.H.P.: 1800
B.H.P.: 1500
S.H.P.: 1200
Speed: 12 Kts.
Bow Thruster:
Model:
CAPACITIES: Fuel (gals.): 52,000
Pump Rate: 450 GPM
Ballast Water (gals.): 168,400
Pump Rate: 450 GPM
Potable Water (gals.): 7,300
Lube Oil: 2,000
Calcium (Bromide-Chloride):
Drill Mud and Cement Tanks
No.:
Capacity:
Liquid Mud:
Cargo Capacity (tons): 575 l.t.
QUARTERS: Certified to Carry: 23 Persons (not certified)
State Rooms: 6
Berths: 23
A-12
M/V ▇▇▇▇ CANDIES SPECIFICATIONS
(See attached drawing which is incorporated herein as a part of
this Schedule A)
REGISTRATION: Official No.: 569491
Port: Houma, Louisiana
Year Built: 1975
Builder: Nashville Bridge Co.
Year Redesigned: 1997
Shipyard: ▇▇▇▇▇▇ Drydock
Net Tonnage:
Gross Tonnage:
DIMENSIONS: Length: 225
(in feet) Beam: 40
Depth: 18
Light Draft: 11 ft.
Maximum Draft: 15.5 ft.
Clear Deck Space
Length: 140
Width: 32
POWERED BY: Main Engines:
No.: 2
Mfg.: EMD
Model: 16-645-E5
I.H.P.: 7500
B.H.P.: 6300
S.H.P.: 5750
Speed: 14 kt.
Bow Thruster: kamome
Model: 550 hp.
CAPACITIES: Fuel (gals.): 176,772 gals.
Pump Rate: 18,680 gals./hr. @ 130' hd.
Ballast Water (gals.): 117,250
Pump Rate: 34,000 gph @ 130'hd
Potable Water (gals.): 1200
Lube Oil: 6,200
Drill Mud and Cement Tanks
No.: 4
Capacity: 1,500 cu. ft. ea.
Liquid Mud: 3,200 barrels
Cargo Capacity (tons): 425
QUARTERS: Certified to Carry: 25 Persons
State Rooms: 10
Berths: 25