VESSEL SALE AND PURCHASE AGREEMENT
THIS VESSEL SALE AND PURCHASE AGREEMENT (this "Agreement") is
entered into as of the 28th day of July, 1997, by and between MIDWEST
MARINE MANAGEMENT COMPANY, a Missouri corporation, with its principal
offices located at 13545 Barrett Parkway Drive, Suite 120, St. Louis,
Missouri 63021 (hereinafter referred to as "Buyer"), and SEI II L.P.,
a New York limited partnership, with an address of 3 World Financial
Center, 29th Floor, New York, New York 10285 (hereinafter referred to
as "Seller").
WITNESSETH:
WHEREAS, Buyer and Seller are entering into this Agreement with
the intent and for the purpose of Buyer purchasing from Seller the
twenty-five (25) barges described below, and said Buyer and Seller
intend to provide for the sale, purchase and transfer of title from
Seller to Buyer of the Vessels (as defined below), upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the mutual
promises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. NAMED VESSELS:
SEI 2001 BF Official No. 641143 SEI 2014 BF Official No. 641156
SEI 2002 BF Official No. 641144 SEI 2015 BF Official No. 641157
SEI 2003 BF Official No. 641145 SEI 2016 BF Official No. 641158
SEI 2004 BF Official No. 641146 SEI 2017 BF Official No. 641159
SEI 2005 BF Official No. 641147 SEI 2018 BF Official No. 641160
SEI 2006 BF Official No. 641148 SEI 2019 BF Official No. 641161
SEI 2007 BF Official No. 641149 SEI 2020 BF Official No. 641162
SEI 2008 BF Official No. 641150 SEI 2021 BF Official No. 641163
SEI 2009 BF Official No. 641151 SEI 2022 BF Official No. 641164
SEI 2010 BF Official No. 641152 SEI 2023 BF Official No. 641165
SEI 2011 BF Official No. 641153 SEI 2024 BF Official No. 641166
SEI 2012 BF Official No. 641154 SEI 2025 BF Official No. 641167
SEI 2013 BF Official No. 641155
Any of the above-named barges is sometimes hereinafter referred
to as a "Vessel", and all of the barges are sometimes hereinafter
referred to collectively as the "Vessels".
2. PURCHASE AND SALE OF VESSELS:
Buyer hereby agrees to purchase all, and not less than all, of
the Vessels from Seller, and Seller hereby agrees to sell the Vessels
to Buyer.
3. PURCHASE PRICE:
The Purchase Price shall be U.S. $4,300,000.00, based on the
price of one Vessel being U.S. $172,000.00.
4. PAYMENT:
Buyer shall pay to Seller (a) 10% of the Purchase Price for
the Vessels (the "Earnest Deposit"), in full and in cash on or before
August 15, 1997, by electronic payment of immediately available
Federal funds at a Federal Reserve Bank of the United States of
America available for withdrawal and all other uses without exception
or restriction, and (b) the remainder of the Purchase Price for the
Vessels, in full and in cash upon simultaneous transfer of title to
the Vessels at the Closing, by electronic payment of immediately
available Federal funds at a Federal Reserve Bank of the United
States of America available for withdrawal and all other uses without
exception or restriction. The Purchase Price shall be wired to
Thompson Coburn Client Account at Mercantile Bank N.A., ABA No.
081000210, Account Name: Thompson Coburn Client Account, Account No.
100-14-23332, Reference: SEI II L.P.
5. RIGHTS AND OBLIGATIONS UPON CLOSING TO SURVIVE:
The rights and obligations of Buyer and Seller under this
Agreement shall not terminate or be otherwise reduced, impaired,
altered or affected and shall continue and survive, in full force and
effect without change, the delivery of the Vessels, any payment
therefor, transfer of title thereto, and Closing of the sale and
purchase thereof. All representations, warranties, disclaimers of
warranties, disclaimers of representations, agreements, terms,
conditions and covenants herein shall survive the delivery of the
Vessels, any payment therefor, transfer of title thereto, and Closing
of the sale and purchase thereof.
6. TRANSFER OF TITLE:
Transfer of title to the Vessels shall occur on an "AS IS,
WHERE IS" BASIS, subject to those warranties of title and disclaimers
of other warranties and disclaimers of representations set forth in
paragraph 7 hereof.
7. WARRANTY OF TITLE; INSPECTIONS AND ACKNOWLEDGMENTS OF
BUYER; DISCLAIMER OF WARRANTIES AND DISCLAIMER OF
REPRESENTATIONS:
(a) Warranty of Title. Seller represents and warrants to
Buyer that the Vessels are free and clear of all mortgages
(including, without limitation, that certain First Preferred Mortgage
of Documented Vessels dated as of January 3, 1997, executed by Seller
in favor of Buttonwood Leasing Corporation in the amount of U.S.
$2,339,000 (the "Mortgage"), which Mortgage was filed with the
Officer in Charge, U.S. Coast Guard, National Vessel Documentation
Center on January 3, 1997 and recorded in Book 97-09, Page 352),
libels, maritime liens or other liens, encumbrances, debts,
obligations or other charges whatsoever.
(b) Inspections and Acknowledgments of Buyer. Buyer
acknowledges that Buyer has become thoroughly knowledgeable of the
condition, merchantability, seaworthiness and suitability of the
Vessels by reason of Buyer's inspections and knowledge of the
Vessels, the inland rivers and waterways, and marine equipment and
the marine industry. Buyer further acknowledges that prior to the
Closing, Buyer made all inspections of the Vessels, both afloat and
on drydock, as Buyer deemed necessary, appropriate, or desirable.
With respect to the condition, merchantability, seaworthiness and
suitability of the Vessels for the service and use intended by Buyer,
Buyer agrees to rely solely and entirely on Buyer's own knowledge and
inspections of the Vessels and Buyer's knowledge of the inland rivers
and waterways, marine industry and marine equipment generally, and
not upon any representation or warranty of Seller as to the
condition, merchantability, seaworthiness or suitability of the
Vessels, no such representation or warranty having been made by
Seller. The acceptance of title to the Vessels by Buyer at the
Closing shall constitute an admission of Buyer's complete
satisfaction with the condition, merchantability, seaworthiness and
suitability of the Vessels and Buyer shall not be entitled to make or
assert any claim, lawsuit, right or remedy against Seller with
respect to the condition, merchantability, seaworthiness or
suitability of any of the said Vessels including without limitation
any claim arising out of or relating to latent or patent defects.
(c) Full Disclaimer of All Warranties and Representations.
ACCORDINGLY, EXCEPTING ONLY THE WARRANTY OF TITLE CONTAINED IN
SUBPARAGRAPH 7(a) ABOVE, IT IS THE EXPRESS INTENTION OF SELLER AND
BUYER, IN THE CLEAREST AND MOST UNEQUIVOCAL TERMS, TO NEGATE ANY
WARRANTIES AND REPRESENTATIONS BY SELLER CONCERNING THE VESSELS
SPECIFICALLY INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
SEAWORTHINESS, MERCHANTABILITY, SUITABILITY AND CONDITION AND ANY
WARRANTY WITH RESPECT TO ANY PATENT AND LATENT DEFECTS IN THE
VESSELS, HOWEVER ARISING. SELLER MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, DIRECTLY OR INDIRECTLY, WITH
RESPECT TO THE VESSELS OR THEIR CONSTRUCTION, DESIGN, CONDITION,
WORKMANSHIP, SUITABILITY, FITNESS FOR ANY PURPOSE, SEAWORTHINESS,
MERCHANTABILITY, REPAIR, MAINTENANCE, LATENT, OR PATENT DEFECTS,
QUALITY, QUANTITY OR ANY OTHER MATTER WITH RESPECT OR RELATED TO THE
VESSELS, EXCEPTING ONLY THE WARRANTY OF TITLE CONTAINED IN
SUBPARAGRAPH 7(a) ABOVE. ANY WARRANTY, OBLIGATION, LIABILITY,
LAWSUIT, RIGHT OR REMEDY AGAINST SELLER BY BUYER WITH RESPECT OR
RELATED, DIRECTLY OR INDIRECTLY, TO THE VESSELS OR THEIR
CONSTRUCTION, DESIGN, CONDITION, WORKMANSHIP, SUITABILITY, FITNESS
FOR PURPOSE, SEAWORTHINESS, MERCHANTABILITY, REPAIR, MAINTENANCE,
LATENT OR PATENT DEFECTS, QUALITY OR ANY OTHER CONDITION OF THE
VESSELS ARE HEREBY, EFFECTIVELY, FINALLY AND FULLY DISCLAIMED,
DISCHARGED, RELEASED AND WAIVED BY BUYER IN FAVOR OF SELLER,
EXCEPTING ONLY THE WARRANTY OF TITLE CONTAINED IN SUBPARAGRAPH 7(a)
ABOVE. BUYER SHALL NOT BE ENTITLED TO MAKE OR ASSERT, AND DOES
HEREBY WAIVE, ANY CLAIM, LAWSUIT, RIGHTS OR REMEDIES AGAINST SELLER.
EXPRESS OR IMPLIED, DIRECTLY OR INDIRECTLY, RELATED TO THE VESSELS OR
THEIR CONSTRUCTION, DESIGN, CONDITION, WORKMANSHIP, SUITABILITY,
FITNESS FOR PURPOSE, SEAWORTHINESS, MERCHANTABILITY, REPAIR,
MAINTENANCE, LATENT OR PATENT DEFECTS, QUALITY OR ANY OTHER CONDITION
OF THE VESSELS UNDER ANY CIRCUMSTANCES INCLUDING BUT NOT LIMITED TO
THOSE ARISING OUT OF OR FROM CONTRACTUAL RESPONSIBILITIES, TORTIOUS
OR NEGLIGENT CONDUCT OF OMISSION OR COMMISSION AND WHETHER
INTENTIONAL, UNINTENTIONAL OR BY REASON OF STRICT LIABILITY,
EXCEPTING ONLY ANY SUCH CLAIM, LAWSUIT, RIGHTS OR REMEDIES BASED UPON
THE WARRANTY OF TITLE SET FORTH IN SUBPARAGRAPH 7(a) ABOVE. IN
FURTHERANCE OF THIS INTENTION, BUYER FULLY AND COMPLETELY UNDERSTANDS
AND AGREES THAT THE VESSELS ARE SOLD, PURCHASED, TRANSFERRED,
DELIVERED AND ACCEPTED ON AN "AS IS, WHERE IS" CONDITION BASIS, IN
WHATEVER CONDITION THAT MAY BE AND AT THE SOLE COST, EXPENSE,
LIABILITY AND RISK OF BUYER, EXCEPT FOR THE WARRANTY OF TITLE SET
FORTH IN SUBPARAGRAPH 7(a) ABOVE.
8. EVENT OF LOSS PRIOR TO CLOSING:
Prior to the Closing (defined below), the entire risk of loss
shall be borne by Seller. At Closing, the risk of loss shall pass to
Buyer. If prior to the Closing one or more of the Vessels are
damaged and any such casualty is deemed a total loss, Seller shall
have the right to collect the insurance proceeds for the damaged
Vessel(s) and the Purchase Price shall be reduced to reflect the
number of Vessel(s) deemed a total loss. If prior to Closing one or
more of the Vessels are damaged but such casualty is deemed a partial
loss, Seller shall, at the Closing, assign and turn over, and Buyer
shall be entitled to receive and keep, all insurance proceeds payable
to Seller with respect to such casualty. Buyer shall receive a
credit against the Purchase Price in the amount of any applicable
insurance deductible, and the parties shall proceed to Closing
pursuant to the terms hereof without further modification of the
terms of this Agreement.
9. CLOSING:
At the Closing (the "Closing") which shall occur at the
offices of Thompson Coburn in St Louis, Missouri at 10:00 a.m. on
August 28, 1997 or at such other place and time as Buyer and Seller
mutually agree:
Each party's obligation to consummate this Agreement is
expressly conditioned on the absence of any vote of the limited
partners of Seller (which vote shall have taken place in accordance
with Seller's partnership agreement) to disapprove the transaction
contemplated by this Agreement (such a vote to disapprove any of the
transactions contemplated herein being referred to herein as a
"Limited Partner Disapproval"). This Agreement shall automatically
terminate upon any Limited Partner Disapproval. In addition, if
prior to the Closing the limited partners of Seller have caused a
meeting of Seller to be called in accordance with Seller's
partnership agreement, to vote to disapprove the transaction
contemplated herein (a "Partnership Vote Meeting"), then (x) Seller
shall promptly thereafter provide written notice of the requirement
for such meeting (the "Notice of required Partnership Vote") to
Buyer, together with the date set therefor: (y) the closing date
shall automatically be extended to the seventh (7th) calendar day
following such Partnership Vote Meeting; and (z) Seller shall provide
Buyer with written notice of the result of the Partnership Vote
Meeting promptly after such result becomes available. Seller shall
be responsible for all costs associated with conducting any
Partnership Vote Meeting
(a) Buyer shall deliver to Seller the following:
(1) Payment of the Purchase Price in full in cash, by
electronic payment to Mercantile Bank National Association, ABA No.
081000210, Account Name: Thompson Coburn Client Account, Account No.
100-14-23332, Reference: SEI II L.P., as provided in paragraph 4 of
this Agreement, less the amount of the Earnest Deposit paid upon
execution of this Agreement;
(2) Receipt for Bills of Sale, Satisfaction of Vessels
from Preferred Mortgage and U.S. Coast Guard Certificates of
Documentation for each Vessel; and
(3) A duly executed agreement to terminate the Vessel
Management Agreement dated January I, 1993, between Buyer and Seller,
as amended.
(b) Seller shall deliver to Buyer the following:
(1) In duplicate, a duly executed Bill of Sale (Form
CG-1340) for all of the Vessels containing those warranties of title
and disclaimers of other warranties and disclaimers of
representations set forth in paragraph 7 hereof;
(2) In duplicate, a Satisfaction of Vessels from
Preferred Mortgage duly executed by Buttonwood Leasing Corporation;
(3) The original of the United States Coast Guard
Certificate of Documentation for each of the Vessels;
(4) Possession of each of the Vessels; and
(5) A duly executed agreement to terminate the Vessel
Management Agreement dated January 1, 1993, between Buyer and Seller,
as amended.
10. CITIZENSHIP:
(a) Buyer represents and warrants that it is a citizen of
the United States within the provisions of the Shipping Act of 1916,
as amended, and that at time of delivery and Closing, Buyer and any
assignee of Buyer will be a citizen of the United States, as
aforesaid and fully capable of owning a U.S. vessel and these Vessels
for their intended use in the coastwise trade.
(b) Seller represents and warrants that at all times during its
ownership of the Vessels, it has been and, at the time of delivery
and Closing it will be a citizen of the United States within the
provisions of the Shipping Act of 1916, as amended, and fully capable
of owning a U.S. vessel and these Vessels for their intended use in
the coastwise trade.
11 TAXES:
It is the intent of Seller and Buyer that the purchase
hereunder shall be consummated at such place and in such manner that,
to the extent reasonably possible, neither the Seller, Buyer nor the
Vessels shall be subject to any sales, use, gross receipts, excise,
transfer, value added, watercraft, or other tax, and Seller and Buyer
agree to cooperate with each other in the manner of closing, to the
extent reasonably possible, so as to carry out such intent. However,
if any such tax shall be incurred, as between Seller and Buyer, it
shall constitute the sole liability of the Buyer, and Buyer agrees to
pay, defend, indemnify and hold Seller harmless from and against any
such sales, use, gross receipts, excise, transfer, value added,
watercraft, or other tax of whatever nature, imposed as a result of
the sale or transfer of the Vessels or use thereof by Buyer
thereafter, excluding only any federal, state or local income tax
imposed on the income of Seller or any of its partners by the United
States of America or any taxing authority located within the
geographic boundaries of the United States of America.
12. EXPENSES; BROKERS:
Each party shall be responsible for its own expenses
incident to the Closing and the sale and purchase of the Vessels.
Buyer and Seller each represent and warrant to the other party that
it has had no dealings with any broker or agent in connection with
the sale and purchase of the Vessels.
13. MISCELLANEOUS:
(a) This Agreement is the complete agreement of Buyer and
Seller concerning the subject matter contained herein and terminates
and supersedes any and all prior agreements, arrangements, and
understandings, oral or written, between Buyer and Seller concerning
the subject matter of this Agreement. Waivers or amendments by
Seller with respect to any provision hereof may be made by an
instrument in writing signed by its General Partner, by its President
or any Vice President; waivers or amendments by Buyer with respect to
any provision hereof may be made by an instrument in writing signed
by its President, any Vice President, or any other officer or
authorized representative. No waiver, forbearance or failure by
either Buyer or Seller of its respective right to enforce any
provision of this Agreement shall constitute a waiver or estoppel of
either Buyer's or Seller's right to enforce said provision in the
future or of Buyer's or Seller's right to enforce any other provision
of this Agreement. No waiver or amendment shall be effective unless
and until made in writing and executed as herein set forth.
(b) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(c) Unless changed by notice by the party to be notified
specifying a different address or addressee any notice required or
permitted by the terms hereof shall be effectively delivered for all
purposes by delivering same in person or by mailing same by U.S.
Certified or Registered Mail, return receipt requested, or by U.S.
Express Mail, with receipt of delivery to the United States Post
Office for mailing acknowledged, postage prepaid, in each case
properly addressed to the party to be notified at such party's Notice
Address set forth below.
(i) Seller's Notice Address is:
SEI II L.P.
3 World Financial Center, 29th Floor
New York, NY 10285
Attention: Jeffrey C. Carter
Copy to:
Thompson Coburn
One Mercantile Center
St. Louis, Missouri 63101
Attention: Jan Robey Alonzo, Esq.
(ii) Buyer's Notice Address is:
Midwest Marine Management Company
13545 Barrett Parkway Drive
Suite 120
St. Louis, Missouri 63021
Attention: Ronald E. Moore
Any notice given by U.S. Mail as specified above shall be
deemed delivered when received by the party to be notified or when
delivery is refused by such party.
(d) The parties covenant that any and all litigation which
either party instigates arising out of this Agreement, whether
sounding in admiralty, equity, contract, tort, or other theories, and
whether in rem or in personam, shall be brought in the U.S. District
Court of the Southern District of New York if federal subject matter
jurisdiction exists. Both parties waive all objections to personal
jurisdiction and venue in such court and any right to trial by jury
in such litigation, and agree that delivery of a copy of the Summons
and Compliant pursuant to the procedure set forth in paragraph 13(c)
hereof, shall constitute valid and effective service of process. If
federal subject matter jurisdiction over the litigation does not
exist, such litigation shall be brought in the Supreme Court of the
State of New York in the Borough of Manhattan, New York.
(e) In the event a dispute arises out of or relating to this
Agreement which is not within the general admiralty and maritime law,
then the law of the State of New York shall govern.
(f) No party hereto may sell, assign, delegate or otherwise
transfer or alienate any of its rights or obligations hereunder
without the prior written consent of the other party hereto, which
consent shall not be unreasonably withheld, and any such attempted
sale, assignment, delegation, transfer or alienation shall not
relieve such party of any obligations hereunder, unless otherwise
specified. Seller agrees that Buyer may assign its rights to
purchase up to ten (10) of the Vessels to Midwest River Investors,
L.L.C. and up to five (5) of the Vessels to Kathryn Rae Towing, Inc.,
and will execute and deliver such documents as required in Section
9(b) to such assignees, as Buyer may reasonably request, provided
that any such assignee of Buyer will execute an agreement to assume
all of Buyer's obligations under this Agreement as it relates to the
Vessels to be purchased by the Assignee, which agreement shall be in
form and substance acceptable to Seller and its counsel.
Notwithstanding anything herein to the contrary, Buyer shall not be
relieved of its obligations under this Agreement and shall remain
obligated to perform its duties hereunder.
(g) This Agreement, and all documents and instruments
delivered pursuant hereto, shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns.
(h) The descriptive headings in this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.
(i) If any provision of this Agreement is held to be
invalid, the remainder of this Agreement shall not be affected
thereby and shall remain in full effect.
IN WITNESS WHEREOF, the parties have executed or caused this
Agreement to be executed on their behalf by their duly authorized
officers and/or representatives as of the day and year first above-
written.
"BUYER"
MIDWEST MARINE MANAGEMENT COMPANY
By: /s/ Ronald E. Moore
Name: Ronald E. Moore
Title: President
"SELLER"
SEI II L.P.
By: SEI II Equipment, Inc.,
its General Partner
By: /s/ Rocco F. Andriola
Name: Rocco F. Andriola
Title: President