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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is entered into on this 28th day of
January, 1998, by and between Hvide Marine Incorporated, a Florida corporation
("Hvide"), Sabine Transportation Company, an Iowa corporation ("STCI"), (Hvide
and STCI being collectively referred to as the "Buyers"), Kirby Corporation, a
Nevada corporation ("Kirby"), Sabine Transportation Company, a Delaware
corporation and a wholly owned subsidiary of Kirby ("Sabine"), and Kirby
Tankships, Inc., a Delaware corporation and a wholly owned subsidiary of Kirby
("Tankships") (Kirby, Sabine, and Tankships being collectively referred to as
the "Sellers").
RECITALS
A. Sellers are the owners of the assets described and defined below.
B. Sellers desire to sell the assets to Buyers and Buyers desire to
purchase the assets from Sellers in the manner and upon the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
conditions, and agreements hereinafter set forth, the parties hereto agree as
follows:
AGREEMENT
SECTION 1. PURCHASE AND SALE OF ASSETS.
1.1 Purchase and Sale. At the Closing (as hereinafter defined) and
subject to the terms and conditions of this Agreement, one or more of the
Sellers shall sell, transfer, assign, and deliver to the Buyer listed on the
relevant schedule, and each such Buyer shall purchase, acquire, take assignment,
and delivery from such Seller, free and clear of all liens, claims, charters,
encumbrances, mortgages, maritime liens, security interests, or any other debts
whatsoever ("Liens") except for Permitted Encumbrances (as hereinafter defined),
all of the right, title, and interest of such Seller in the following assets
(collectively, the "Assets"):
(a) the vessels listed on Schedule 1.1(a) (the "Vessels"),
together with the Vessels' respective engines, tackle, winches,
cordage, general outfit, electronic and navigation equipment, and other
appurtenances and appliances (whether or not aboard the Vessels), but
excluding any petty cash aboard the Vessels;
(b) all of such Seller's inventory of spare or replacement
parts, stores, tools and provisions designated for the Vessels listed
with respect to each Vessel on Schedule 1.1(a), including fuel on board
the Vessel that is not the property of a charterer (the "Inventory"),
and all records relating exclusively to the Vessels, including
maintenance and repair, architectural plans and records, classification
records and correspondence with classification society and U.S. Coast
Guard, yard work, purchasing records, and vendor records, in whatever
form including
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computer programs and data compilations, but excluding memorabilia
relating to the Vessels other than duplicates of color photographs
thereof;
(c) the trade names listed on Schedule 1.1(c) (the "Trade
Names");
(d) to the extent permitted by applicable law and except to
the extent noted on Schedule 2.10, all licenses and permits issued by
any governmental authorities held or used by any Seller in connection
with the ownership or operation of any of such Seller's Vessels,
including the permits listed on Schedule 2.10;
(e) all of such Seller's rights, title, and interest in the
charters and other contracts listed opposite such Seller's name on
Schedule 1.1(e) (the "Assigned Contracts");
(f) the real property described on Schedule 2.8 and all
interests of Sellers in and related to the buildings, structures,
fixtures, quays, wharfs, piers, docks, and improvements thereon and all
other appurtenances thereto (the "Real Property") and the machinery,
slop barge, office furniture and equipment, and other equipment used in
connection therewith; and
(g) the books and records of and furniture and equipment used
in connection with the operations of Sabine Towing Company.
As used herein, the term "Business" shall mean the business of owning and
operating the Assets as they are currently operated by Sellers. As used herein,
the term "Permitted Encumbrances" shall relate to the Real Property only and
shall mean (i) liens for taxes and assessments not yet due and payable, (ii)
mechanics', materialmen's and similar liens arising in the ordinary course of
business securing amounts not yet due and payable, (iii) other encumbrances,
zoning restrictions and other restrictions on the use of the Real Property that
do not materially detract from the value of or materially interfere with the use
of the Real Property, (iv) liens, minor imperfections of title, easements and
rights-of-way that do not materially detract from the value of or materially
interfere with the use of the Real Property, and (v) liens and encumbrances on
the Real Property that are disclosed on Schedule 2.8.
1.2 Assumed Obligations and Retained Obligations. At the Closing, Hvide
shall assume and covenant to perform and discharge those obligations of the
Sellers arising subsequent to the Closing under the Assigned Contracts listed on
Schedule 1.1(e) (the "Assumed Obligations"). Buyers shall assume no other
obligations of Sellers, including obligation of Sellers under any collective
bargaining agreements, and the Sellers shall retain, from and after the Closing,
all liabilities and obligations existing with respect to the Assets immediately
prior to the Closing other than the Assumed Obligations.
1.3 Purchase Price. The aggregate purchase price for the Assets shall
be $38,600,000 (the "Purchase Price") payable in cash, of which $31,386,000
shall be paid
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by Hvide and $7,214,000 shall be paid by STCI, payable as provided in Section 9.
The Purchase Price shall be allocated among the Assets as provided on Schedule
1.3.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
The Sellers represent and warrant to the Buyers as follows:
2.1 Corporate Status. Each Seller is a corporation duly organized,
validly existing, and in good standing under the laws of its state of
incorporation, and is duly qualified to do business as a foreign corporation and
is in good standing in all jurisdictions in which the nature of its business or
the ownership of its properties or both makes such qualification necessary and
in which the failure to qualify would have a material adverse effect on the
value or use of the Assets.
2.2 Authority for Agreement. Each Seller has the corporate power to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement by each Seller, the performance of its
obligations pursuant to this Agreement, and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of each
Seller and, to the extent required, the stockholders of each Seller, and no
further corporate proceedings on the part of any Seller are necessary to
authorize this Agreement and the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by each Seller and
(assuming the valid authorization, execution, and delivery of this Agreement by
the Buyers) is a valid and binding obligation of each Seller, enforceable
against it in accordance with its terms.
2.3 Absence of Breach; Consents and Approvals. Except for the
notification required by the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), such filings with the U.S. Coast Guard as may
be necessary or appropriate in connection with the transfer of title to the
Vessels and except as will be obtained prior to Closing, no approval or consent
of, or filing with, any third party or governmental authority is required for
the execution or delivery of the Agreement by the Sellers or for the performance
of their obligations hereunder. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby will not,
(i) conflict with the Certificate of Incorporation or Bylaws of any of the
Sellers, or (ii) result in a breach or violation of any provision of, constitute
a default or an event which with notice or passage of time or both would
constitute a default under, or give rise to a right of termination,
cancellation, or acceleration of indebtedness under, any indenture, mortgage,
deed of trust, pledge agreement, lease, license, evidence of indebtedness or
other contract, agreement, or instrument of any Seller, or any material law,
statute, rule or order, decree, or restriction to which any Seller is a party or
by which its property is bound.
2.4 Financial Statements. The Sellers have delivered to the Buyers
balance sheets of the Business as of December 31, 1994, 1995, and 1996, and the
related statements of operations, retained earnings, and cash flows for the
years then ended, and
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the balance sheets of the Business as of September 30, 1997 and the related
statements of operations, retained earnings and cash flows for the nine months
then ended. Such balance sheets fairly present the financial position of the
Business as of their respective dates, and such other financial statements
fairly present the results of operations and other information included therein
of the Business for the respective periods and as of the respective dates
therein set forth, in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved.
2.5 Compliance with Applicable Law. Except as set forth on Schedule
2.5, (a) Sellers are, to the knowledge of Sellers, in material compliance with
all laws, ordinances, codes, restrictions, regulations and other legal
requirements applicable to the conduct of the Business, the failure to comply
with which would have a material adverse effect on the Business, and (b) there
are no lawsuits or proceedings pending with respect to the foregoing.
2.6 Environmental Matters.
(a) For purposes of this Agreement, the following terms shall
have the following meanings:
"Environmental Laws" (a) means all Laws relating to (i) pollution or
the protection of the environment (including air, surface water, ground water,
soil, land surface, or subsurface strata), (ii) public or employee health or
safety, or (iii) disposal, storage, treatment, emissions, discharges, spills,
releases, or threatened releases of Materials of Environmental Concern, or
otherwise relating to the manufacture, processing, distribution, use, import,
export, treatment, storage, disposal, transport, or handling of Materials of
Environmental Concern, and (b) shall include the Resource Conservation and
Recovery Act, as amended ("RCRA"); the Comprehensive Environmental Response
Compensation and Liability Act, as amended ("CERCLA"), the Clean Water Act, as
amended; the Clean Air Act, as amended; the Safe Drinking Water Act, as amended;
the Toxic Substances Control Act, as amended; the Emergency Planning and
Community Right-to-Know Act; the Hazardous Materials Transportation Act, as
amended; the Occupational Safety and Health Act of 1970, as amended ("OSHA");
and all implementing laws and all similar state and local laws, with respect to
each of the foregoing acts.
"Materials of Environmental Concern" means any and all hazardous
chemicals and materials, and any and all hazardous substances as defined in
CERCLA, hazardous wastes as defined in RCRA, petroleum and petroleum products,
radioactive materials, and any and all chemicals, constituents, pollutants,
contaminants, or other substances regulated under any Environmental Laws or
which may pose a present or potential hazard to health or the environment and
any actual, potential or threatened emissions, discharges, releases, or other
emanations thereof.
(b) Except as set forth on Schedule 2.6(b), Sellers have not
received any notice alleging any actual or potential non-compliance with, or
actual or potential liability or responsibility under, any Environmental Laws in
connection with Sellers' ownership,
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possession, use, or operation of the Assets. Except as set forth on Schedule
2.6(b), no action, suit, proceeding, investigation, or complaint for violation
of any Environmental Laws is pending with respect to the Assets, and Sellers
have no knowledge of any condition that is reasonably likely to give rise to any
such action, suit, proceeding, investigation, or complaint.
(c) To Sellers' knowledge, based upon Sellers' good faith
efforts to locate all environmental audits, assessments, and other documents
relating to environmental matters concerning the Real Property in Sellers'
possession, Schedule 2.6(c) lists all documents relating to environmental
matters concerning the Real Property in Sellers' possession, copies of all of
which have been provided to Hvide. Sellers make no representation as to the
accuracy, completeness, or contents of the documents listed on Schedule 2.6(c).
(d) Notwithstanding any provision of this Agreement to the
contrary, this Section 2.6 sets forth the exclusive representations and
warranties of Sellers to Buyers with respect to environmental matters of any
kind or nature whatsoever.
2.7 Litigation. Except as set forth on Schedule 2.7, there is no (i)
action, suit, claim, proceeding, or investigation relating to the Assets pending
or, to the best of Sellers' knowledge, threatened against or affecting any
Asset, at law or in equity, or before or by any federal, state, municipal, or
other governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign, that would materially adversely affect
such Asset or the Business, (ii) pending or, to the best of Sellers' knowledge,
threatened arbitration proceeding relating to any Asset that would materially
adversely affect such Asset or the Business, or (iii) governmental inquiry, to
the best of Sellers' knowledge, pending or threatened against or involving any
Asset that would materially adversely affect such Asset or the Business. Except
as set forth on Schedule 2.7, no Seller has received any opinion or memorandum
or legal advice from legal counsel to the effect that it is exposed, from a
legal standpoint, to any liability or disadvantage which may be material to the
prospects, condition, or operations of any Asset. Except as set forth on
Schedule 2.7, there are no outstanding orders, writs, judgments, injunctions, or
decrees of any court, governmental agency, or arbitration tribunal against,
involving, or affecting any Asset.
2.8 Real Property. Schedule 2.8 sets forth an accurate, correct, and
complete legal description of the Real Property, including a street address, and
a list of all contracts and agreements, oral or written, relating to or
affecting the Real Property or any interest therein. Sellers have delivered to
Hvide accurate, correct, and complete copies of all such contracts and
agreements. Sellers have the sole and exclusive legal and equitable ownership of
all right, title, and interest in and has good, marketable, and insurable title
in fee simple absolute to, and is in possession of, the Real Property, including
the buildings, structures, quays, wharfs, piers, docks, and improvements
situated thereon and appurtenances thereto, in each case free and clear, except
as described on Schedule 2.8, of all tenancies and other possessory interests,
security interests, conditional sale, or other title retention agreements,
liens, encumbrances, mortgages, pledges, assessments,
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easements, rights of way, covenants, restrictions, reservations, options, rights
of first refusal, defects in title, encroachments, and other burdens, except for
Permitted Encumbrances. All contracts, agreements, and undertakings affecting
the Real Property are set forth in Schedule 2.8 and are legally valid and
binding and in full force and effect, and there are no defaults, offsets,
counterclaims, or defenses thereunder, and Sellers have received no notice of
default, offset, counterclaim, or defense under any such contracts or
agreements.
Neither the whole nor any portion of the Real Property has been
condemned, requisitioned, or otherwise taken by any public authority, and no
notice of any such condemnation, requisition, or taking has been received. To
the knowledge of the Sellers, no such condemnation, requisition, or taking is
threatened or contemplated. Sellers have no knowledge of any public improvements
that may result in special assessments against or otherwise affect the Real
Property.
The Real Property is in compliance with all applicable zoning,
building, health, fire, water, use, or similar Laws. The zoning of each parcel
of Real Property permits the existing improvements and the continuation
following consummation of the transaction contemplated hereby of the Business as
presently conducted thereon. Sellers have all licenses, certificates of
occupancy, permits, and authorizations required to conduct the business
currently conducted by Sellers on the Real Property. Sellers have all easements
and rights necessary to conduct the business currently conducted by Sellers on
the Real Property, including easements for all utilities, services, roadway,
railway, and other means of ingress and egress. Sellers have all rights to any
off-site facilities necessary to ensure compliance in all material respects with
all zoning, building, health, fire, water, use, or similar Laws. To the
knowledge of the Sellers, no fact or condition exists that has resulted or would
result in the termination or impairment of access to the Real Property or
discontinuation of sewer, water, electric, gas, telephone, waste disposal, or
other utilities or services. To the knowledge of Sellers, the facilities
servicing the Real Property are in full compliance with all codes, laws, rules,
and regulations.
Sellers have delivered to Hvide accurate, correct, and complete copies
of all existing title insurance policies, title reports, surveys, environmental
audits, and similar reports, if any, with respect to each parcel of the Real
Property. Schedule 2.8(a) sets forth an accurate, correct, and complete legal
description of the strip of property approximately five feet wide between the
Real Property and the property adjoining the Real Property.
2.9 Trade Names. Sellers own, or are licensed or otherwise have the
full and unrestricted right to use the Trade Name "Sabine Transportation
Company." Sellers have not granted to any other person any license or other
right to use in any manner any of the Trade Names, whether or not requiring the
payment of royalties. To the knowledge of Sellers, none of the Trade Names is
being infringed by others, or is subject to any outstanding order, decree,
judgment, or stipulation, and there are no claims or demands of any other
person, and no proceedings have been instituted, or are pending or, to the best
of Sellers' knowledge, threatened, relating to the Trade Names.
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2.10 Licenses and Permits. To the knowledge of Sellers, Schedule 2.10
lists all licenses, permits, pending applications, consents, approvals, and
authorizations of or from any public or governmental agency utilized by Sellers
in connection with their current use of the Assets (collectively, the
"Permits"), each of which is in full force and effect. Sellers have complied
with all conditions and requirements imposed by the Permits and have not
received any notice that any appropriate authority intends to cancel, terminate,
or suspend any of the Permits and has no reason to believe that valid grounds
for such cancellation, termination, or suspension exist. No licenses or permits
other than the Permits are necessary to operate the Assets in the manner in
which the are currently utilized by Sellers. Sellers own or have the right to
use the Permits in accordance with the terms thereof without any conflict or
infringement with the rights of others and subject to no claim, and each Permit
is valid and, except as noted on Schedule 2.10, no Permit will be subject to
termination, terminated, or adversely affected by the transactions contemplated
by this Agreement, except that no representation is made with respect to the
transferability of any Permit.
2.11 Outstanding Commitments. The Assigned Contracts constitute all
existing material contracts, agreements, charters, leases, subleases,
commitments, licenses, and franchises, whether written or oral, relating to the
Business. Sellers have delivered or made available to Buyers true, correct, and
complete copies of all written Assigned Contracts, and Schedule 1.1(e) contains
an accurate and complete description of all Assigned Contracts that are not in
writing. Except as set forth in Schedule 1.1(e), all of the Assigned Contracts
are in full force and effect, each Seller and, to the knowledge of Sellers, each
other party to each of the Assigned Contracts has performed all the obligations
required to be performed by it to date, and, to the knowledge of Sellers, there
is not under any of the Assigned Contracts any existing default that with notice
or lapse of time or both would constitute such a default. Sellers have no
present expectation or intention of not fully performing their obligations under
each of the Assigned Contracts and no knowledge of any breach or anticipated
breach by any other party to any of the Assigned Contracts. None of the Assigned
Contracts has been terminated nor has notice of termination been given with
respect thereto, no notice has been given by any party thereto of any alleged
default thereunder by any party thereto, and Sellers are aware of no intention
or right of any party to any Assigned Contract to declare a default by another
party to any Assigned Contract. There exists no actual or threatened
termination, cancellation, or limitation of the business relationship of any
Seller with any party to any Assigned Contract except by reason of the
expiration of the term of such Assigned Contract. Schedule 2.11 identifies all
existing leases, together with the name and address of the lessor and the
material terms of the lease, covering all leased equipment aboard any of the
Vessels.
2.12 Vessels. Each Seller has, and will have at the time of Closing,
good and lawful title to the Vessels owned by it, and the Vessels will be sold
pursuant to this Agreement free and clear of any Liens. With respect to each
Vessel:
(a) such Vessel is registered under the laws of the United
States and is qualified to operate in the trade or service in which it
is currently operating;
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(b) such Vessel has been maintained and serviced in accordance
with Sellers' normal practices and in the normal course of business;
(c) such Vessel holds in full force and effect all
certificates, licenses, permits, and rights required for operating in
the manner in which it is currently being operated;
(d) no event has occurred and no condition exists that would
materially adversely affect the condition of such Vessel;
(e) if such Vessel is classed by a classification society,
such vessel is in class, free of any recommendations of which any
Seller has been informed;
(f) since September 30, 1997, Sellers have continued, and will
continue through the time of Closing, to maintain their inventory of
spare parts, equipment, tools, provisions, stores, and supplies
(whether on board or ashore) for such Vessel following the same policy
and in the same, usual, and customary manner as prior to such date,
including any renewal or replacement spare parts used in the repair of
such Vessel; and
(g) since September 30, 1997, Sellers have not departed from
any normal drydock and maintenance practices or discontinued
replacement or renewal of spares in operating such Vessel, deferred any
scheduled maintenance on such Vessel, entered into any charter for such
Vessel with a term of more than 30 days, or authorized any of, or
agreed or committed to do any of, the foregoing actions.
2.13 Encumbrances. Each Vessel, at the time of delivery, shall be free
from all Liens and claims for dues, costs, or expenses incurred by the Vessel at
the Delivery Port (as hereinafter defined).
2.14 Labor and Employee Relations. Except as set forth in Schedule
2.14, Sellers are not party to or bound by any collective bargaining agreement
with any labor union, group, or association covering any of its employees.
Sellers on January 9, 1998 provided all persons employed by Sellers or their
affiliates in connection with the Business notification required pursuant to the
Worker Adjustment and Retraining Notification Act (the "WARN Act").
2.15 Books and Records. The books, records, accounts, ledgers, and
files of Sellers relating to the Business are accurate and complete and have
been maintained in accordance with good business and bookkeeping practices.
2.16 Absence of Material Adverse Changes. Subsequent to September 30,
1997, there has been no Material Adverse Change, which, for purposes of this
Agreement, shall mean a material adverse change in the financial condition,
business, operations, or prospects of the Business other than any adverse change
resulting from general economic
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conditions, economic conditions affecting the shipping industry generally, or
economic conditions generally affecting the markets in which the Assets are
operated.
2.17 Brokers. Sellers shall be responsible for payment of any financial
advisory fee, brokerage commission, finder's fee, or like payment payable to any
broker, agent, person, or firm acting on behalf of Sellers or under their
authority in connection with the transactions contemplated hereby.
2.18 Disclosure. All documents and schedules delivered or to be
delivered by or on behalf of Sellers in connection with this Agreement and the
transactions contemplated hereby are true, complete, and correct in all material
respects. Neither this Agreement, nor any Schedule to this Agreement contains
any untrue statement of a material fact or omits a material fact with respect to
Sellers, the Business, or the Assets necessary to make the statements contained
herein or therein, in light of the circumstances in which made, not misleading.
2.19 Citizenship. Each of the Sellers is, and has been so long as it
has owned or chartered any vessels, a citizen of the United States within the
meaning of section 2 of the Shipping Act, 1916, as amended (the "Shipping Act").
SECTION 3. REPRESENTATIONS AND WARRANTIES OF HVIDE.
Hvide represents and warrants to the Sellers as follows:
3.1 Corporate Status. Hvide is a corporation duly organized, validly
existing, and in good standing under the laws of Florida, and is duly qualified
to do business as a foreign corporation and is in good standing in all
jurisdictions in which the nature of its business or the ownership of its
properties or both makes such qualification necessary.
3.2 Authority for Agreement. Hvide has the corporate power to enter
into this Agreement and to carry out its obligations hereunder. The execution
and delivery of this Agreement by Hvide, the performance of its obligations
pursuant to this Agreement, and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of Hvide
and no further corporate proceedings on the part of Hvide are necessary to
authorize this Agreement and the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Hvide and
(assuming the valid authorization, execution, and delivery of this Agreement by
the Sellers) is a valid and binding obligation of Hvide, enforceable against it
in accordance with its terms.
3.3 Absence of Breach; Consents and Approvals. Except for the
notification required by the HSR Act, no approval or consent of, or filing with,
any third party or governmental authority is required for the execution or
delivery of the Agreement by Hvide or for the performance of its obligations
hereunder. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not (i) conflict with
the Certificates of Incorporation or Bylaws of Hvide or (ii) result in a breach
or violation of any provision of, constitute a default, or an event which with
notice
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or passage of time or both would constitute a default under, or give rise to a
right of termination, cancellation, or acceleration of indebtedness under, any
material indenture, mortgage, deed of trust, pledge agreement, lease, license,
evidence of indebtedness or other contract, agreement, or instrument, or any
material law, statute, rule or order, decree, or restriction to which Hvide is a
party or by which it or its property is bound.
3.4 Annual and Quarterly Reports. None of Hvide's Annual Report on Form
10- K for the year ended December 31, 1996 and its Quarterly Reports on Form
10-Q for the quarters ended March 31, June 30, and September 30, 1997, as filed
with the Securities and Exchange Commission, contains as of its date any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they are made, not misleading.
3.5 Brokers. Hvide shall be responsible for payment of any financial
advisory fee, brokerage commission, finder's fee, or like payment payable to any
broker, agent, person, or firm acting on behalf of Hvide or under its authority
in connection with the transactions contemplated hereby.
3.6 Disclosure. All documents and schedules delivered or to be
delivered by or on behalf of Hvide in connection with this Agreement and the
transactions contemplated hereby are true, complete, and correct. Neither this
Agreement, nor any Schedule to this Agreement contains any untrue statement of a
material fact with respect to Hvide or omits a material fact necessary to make
the statements contained herein or therein, in light of the circumstances in
which made, not misleading.
3.7 Funding. Hvide has and at the Closing will have the financial
capacity to fund the full Purchase Price. Contemporaneously with the execution
and delivery of this Agreement, Hvide has furnished Sellers a true copy of a
commitment from a financial institution confirming that Hvide has the financing
available to fund its portion of the Purchase Price.
3.8 Citizenship. Hvide is, and has been so long as it has owned or
chartered any vessels, a citizen of the United States within the meaning of
section 2 of the Shipping Act.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF STCI.
STCI represents and warrants to the Sellers as follows:
4.1 Corporate Status. STCI is a corporation duly organized, validly
existing, and in good standing under the laws of Iowa, and is duly qualified to
do business as a foreign corporation and is in good standing in all
jurisdictions in which the nature of its business or the ownership of its
properties or both makes such qualification necessary.
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4.2 Authority for Agreement. STCI has the corporate power to enter into
this Agreement and to carry out its obligations hereunder. The execution and
delivery of this Agreement by STCI, the performance of its obligations pursuant
to this Agreement, and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors of STCI and no further
corporate proceedings on the part of STCI are necessary to authorize this
Agreement and the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by STCI and (assuming the valid
authorization, execution, and delivery of this Agreement by the Sellers) is a
valid and binding obligation of STCI, enforceable against it in accordance with
its terms.
4.3 Absence of Breach; Consents and Approvals. No approval or consent
of, or filing with, any third party or governmental authority is required for
the execution or delivery of the Agreement by STCI or for the performance of its
obligations hereunder. The execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated hereby will not (i) conflict
with the Certificates of Incorporation or Bylaws of STCI or (ii) result in a
breach or violation of any provision of, constitute a default or an event which
with notice or passage of time or both would constitute a default under, or give
rise to a right of termination, cancellation, or acceleration of indebtedness
under, any material indenture, mortgage, deed of trust, pledge agreement, lease,
license, evidence of indebtedness or other contract, agreement, or instrument,
or any material law, statute, rule or order, decree, or restriction to which
STCI is a party or by which it or its property is bound.
4.4 Brokers. STCI shall be responsible for payment of any financial
advisory fee, brokerage commission, finder's fee, or like payment payable to any
broker, agent, person, or firm acting on behalf of STCI or August or under their
authority in connection with the transactions contemplated hereby.
4.5 Disclosure. All documents and schedules delivered or to be
delivered by or on behalf of STCI in connection with this Agreement and the
transactions contemplated hereby are true, complete, and correct. Neither this
Agreement, nor any Schedule to this Agreement contains any untrue statement of a
material fact with respect to STCI or omits a material fact necessary to make
the statements contained herein or therein, in light of the circumstances in
which made, not misleading.
4.6. Funding. STCI has and at the Closing will have the financial
capacity to fund its portion of the Purchase Price. Contemporaneously with the
execution and delivery of this Agreement, STCI has furnished Sellers a true copy
of commitments from financial institutions confirming that STCI has the
financing available to fund its portion of the Purchase Price.
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4.7 Citizenship. STCI is, and has been so long as it has owned or
chartered any vessels, a citizen of the United States within the meaning of
section 2 of the Shipping Act.
SECTION 5. COVENANTS.
5.1 Cooperation. Until the Closing, Buyers and Sellers shall use their
good faith efforts to perform and fulfill all conditions and obligations to be
fulfilled or performed by them hereunder, to the end that the transactions
contemplated hereby will be fully and timely consummated.
5.2 Access. Until the Closing with respect to each Vessel, Buyers shall
have the right to place up to two representatives upon such Vessel for the sole
purpose of conducting inventories of spares, tools, and other equipment on such
Vessel. Such representative may be aboard each Vessel at times determined in the
reasonable discretion of Sellers and may remain aboard each Vessel for a period
of time sufficient to conduct such inventories. Buyers shall provide such
standard indemnities as may be required by Sellers. Until the Closing, Sellers
shall give Buyers, their attorneys, accountants, and other authorized
representatives complete access, upon reasonable notice and at reasonable times,
to their respective offices, suppliers, employees, business and financial
records, contracts, business plans, budgets and projections, agreements and
commitments, and other documents and information concerning the Business and the
Assets and persons employed by or doing business with the Sellers. In order that
Buyers may have full opportunity to make such examination and investigation as
they may desire, Sellers shall furnish Buyers and their representatives during
such period with all such information as such representatives may reasonably
request and cause the respective officers, employees, consultants, agents,
accountants, and attorneys of each to cooperate fully with the representatives
of Buyers in connection with such review and examination and to make full
disclosure to Buyers of all material facts affecting the financial condition and
the operations, properties, and prospects of the Business and the Assets;
provided, that Buyers will hold the documents and information concerning Sellers
confidential in accordance with Section 5.14 hereof.
5.3 Insurance. Until the Closing with respect to each of the Assets,
Sellers shall maintain insurance providing substantially the same coverage with
respect to each such Asset as is currently in force.
5.4 Compliance with Laws. Until the Closing, Sellers shall use the
Assets in compliance in all material respects with all applicable laws, rules,
regulations, and orders.
5.5 Keeping of Books and Records. Until the Closing, Sellers shall keep
records and books of account with respect to the Business and the Assets, in
which
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entries will be made in accordance with generally accepted accounting principles
consistently applied and in such detail as is consistent with Sellers' past
practice.
5.6 Actions Prior to Closing. Sellers shall utilize the Assets pending
the Closing only in the ordinary and usual course consistent with past practice.
Without limiting the generality of the foregoing, Sellers shall not, except in
the ordinary and usual course, without the prior written consent of Buyers,
enter into any contract or charterparty binding any Asset subsequent to the
Closing with respect to such Asset or release or relinquish any contract or
other right relating to the Assets. Sellers shall, upon the request of Buyers,
remove from any Vessel prior to the Closing with respect to such Vessel any
leased equipment aboard such Vessel.
5.7 Litigation. Until the Closing, Sellers shall promptly notify Buyers
of any lawsuits, claims, proceedings, or investigations relating to any Asset
that are threatened or commenced against or by the Sellers.
5.8 Continued Effectiveness of Representations and Warranties. From the
date hereof through the Closing, Sellers shall (i) utilize the Assets in a
manner such that the representations and warranties contained herein shall
continue to be true and correct on and as of the Closing as if made on and as of
the Closing, except for changes and events arising as a consequence of the
Closing, or actions in the ordinary and usual course of business after the date
hereof that do not result in a Material Adverse Change and (ii) advise Buyers
promptly in writing of any condition or circumstance occurring from the date
hereof through the Closing that could cause any representations or warranties of
Sellers to become untrue.
5.9 No Negotiations. Until the Closing, or the earlier termination of
this Agreement in accordance with its terms, Sellers shall not, directly or
indirectly, engage in discussions or negotiations with, or provide any
information to, any person with respect to the possible sale or transfer, by
joint venture or otherwise, of any of the Assets to any person other than
Buyers.
5.10 Interim Financial Statements. Sellers shall, within 15 days after
the end of each month prior to the Closing, deliver to Buyers the monthly
financial statements relating to the Business and, within 15 days after the
completion of the Closing, deliver to Buyers the financial statements relating
to the Business for the period from the beginning of the month during which the
Closing is completed through the date on which the Closing is completed.
5.11 General Covenants. Buyers and Sellers agree:
(a) if any event should occur, either within or without the
knowledge or control of any party, that would prevent fulfillment of
the conditions to the obligations of any party hereto to consummate the
transactions contemplated
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by this Agreement, to use its or their reasonable efforts to cure the
same as expeditiously as possible;
(b) to cooperate fully with each other in preparing, filing,
prosecuting, and taking any other actions that may be reasonable or
necessary to obtain the consent of any governmental instrumentality, or
any third party to accomplish the transactions contemplated by this
Agreement;
(c) to deliver such other instruments of title, certificates,
consents, endorsements, assignments, assumptions, and other documents
or instruments, in form reasonably acceptable to the party requesting
the same and its counsel, as may be reasonably necessary to carry out
and/or to comply with the terms of this Agreement and the transactions
contemplated herein; and
(d) to confer on a regular basis with each other, report on
material operational matters, and promptly advise each other orally and
in writing of any change or event having, or which, insofar as can
reasonably be foreseen, could have, a material adverse effect on
Sellers or which would cause or constitute a material breach of any of
the representations, warranties, or covenants of any party contained
herein.
5.12 Public Announcements. The parties shall consult with each other
prior to the issuance by either party of any press release or any written
statement with respect to this Agreement or the transactions contemplated
hereby.
5.13 Confidentiality. Buyers covenant and agree that they and their
Representatives shall keep confidential and shall not disclose all Confidential
Information (as hereinafter defined), except to Buyers' Representatives who need
to know such information and keep it confidential. Buyers shall be responsible
for any breach of this provision by its Representatives. In the event that the
Closing does not occur, Buyers will promptly return to Sellers all copies of
Confidential Information. As used herein, "Confidential Information" means any
information or data that Buyers have acquired from Sellers that is confidential
or not otherwise available to the public, whether oral or written, including any
analyses, computations, studies, or other documents prepared from such
information or data by or for the directors, officers, employees, agents, or
representatives of Buyers (collectively, the "Representatives"), but excluding
information or data that (i) was lawfully obtained or developed prior to Buyers'
first meeting with Sellers, (ii) became available to the public other than as a
result of Buyers' violation of this Agreement, (iii) became available to Buyers
from a source other than Sellers if that source was not bound by a
confidentiality agreement with Sellers, and such source lawfully obtained such
information or data, or (iv) is required to be disclosed by applicable law,
provided that promptly after being compelled to disclose any such information or
data, the party being so compelled shall
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provide prompt notice thereof to Sellers so that they may seek a protective
order or other appropriate remedy.
5.14 Environmental Assessment. Prior to Closing, Hvide will complete a
full Phase II environmental assessment with respect to the Real Property and
will provide a copy thereof to Sellers on or before the Closing Date.
SECTION 6. CONDITIONS PRECEDENT TO THE SELLERS' OBLIGATION TO SELL THE ASSETS.
The obligation of the Sellers to sell the Assets shall be subject to
the satisfaction of each of the following conditions precedent, each of which
may be waived, in whole or in part, in the sole discretion of the Sellers, by a
written instrument signed by each of the Sellers:
6.1 Representations, Covenants, Certificate. The representations and
warranties of Buyers set forth in Sections 3 and 4 shall be true in all material
respects, as of the Closing with the same effect as though made at the Closing
Date; and Buyers shall in all material respects have performed all obligations
and complied with all covenants required by this Agreement to be performed or
complied with by them on or prior to the Closing Date; and Sellers shall have
received certificates, dated as of the Closing Date, as to the matters set forth
in this Section 6.1 from each of the Buyers, to the extent of their respective
representations, warranties and covenants.
6.2 Opinions of Counsel for the Buyers. The Sellers shall have received
from Dyer Ellis & Joseph, PC, counsel for Hvide, and Joe H. Harris, Esquire,
counsel for STCI, opinions, dated the Closing Date, in form reasonably
satisfactory to Sellers.
6.3 Closing Documents. Buyers shall have delivered to Sellers at the
Closing the following:
(a) copies of all governmental and other material consents and
approvals, if any, necessary to permit the consummation of the
transactions contemplated by this Agreement; and
(b) an assignment and assumption agreement, in the form of Schedule
6.3(b), executed by Hvide, with respect to the Assigned Contracts being
assigned to Hvide.
SECTION 7. CONDITIONS PRECEDENT TO THE BUYERS' OBLIGATIONS TO PURCHASE
THE ASSETS.
The obligations of the Buyers to purchase the Assets shall be subject
to the satisfaction of each of the following conditions precedent, each of which
may be
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waived, in whole or in part, in the sole discretion of the Buyers, by a written
instrument signed by both Buyers:
7.1 Representations, Covenants, Certificate. The representations and
warranties of the Sellers set forth in Section 2 shall be true, and all other
representations and warranties of the Sellers contained herein shall be true in
all material respects, as of the Closing with the same effect as though made on
the Closing Date; the Sellers shall in all material respects have performed all
obligations and complied with all covenants required by this Agreement to be
performed or complied with by them on or prior to the Closing Date; and the
Buyers shall have received a certificate, dated the Closing Date, as to the
matters set forth in this Section 7.1 and in Section 7.3 from the Sellers.
7.2 Opinion of Counsel for the Sellers. The Buyers shall have received
from Jenkens & Gilchrist, a Professional Corporation, counsel for the Sellers,
an opinion, dated the Closing Date, in form reasonably satisfactory to Buyers.
7.3 No Material Changes in Business. From the date of this Agreement
through the Closing Date, there shall not have occurred any Material Adverse
Change with respect to the Business.
7.4 Covenant Not To Compete. Each of the Sellers shall have executed
and delivered to Hvide an agreement, in the form attached as Schedule 7.4, not
to engage in the harbor tug or ship-assist business within the ports of Port
Arthur, Texas and Lake Charles, Louisiana for a period of three years following
the Closing.
7.5 Closing Documents. Sellers shall have delivered to Buyers at the
Closing the following:
(a) copies of all governmental and other third-party consents
and approvals, if any, necessary to permit the consummation of the
transactions contemplated by this Agreement;
(b) an assignment and assumption agreement, in substantially
the form of Schedule 6.3(b), executed by the Seller that is party
thereto and consented to by the other parties thereto, with respect to
the Assigned Contracts being assigned by such Seller;
(c) two original Bills of sale, executed by each of the
Sellers in a form recordable with the United States Coast Guard with
respect to the Vessels to be sold by such Seller, a general warranty
deed and owner's title policy with respect to the Real Property, a
quitclaim deed with respect to the real property described on Schedule
2.8(a), and original bills of sale, in forms reasonably satisfactory to
the respective Buyer, with respect to the remaining non-vessel Assets;
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(d) any and all United States Coast Guard documentation
reasonably required in connection with the transactions contemplated by
this Agreement;
(e) bills of sale conveying title to the Inventory to Buyers;
and
(f) a commercial invoice for the sale of each Vessel at the
agreed price set forth in Schedule 1.3.
7.6 Lease. Hvide shall have reached agreement with the Port of Lake
Charles (the "Port") to lease the office and dock space at the Port currently
utilized in connection with the Business on terms comparable to those of the
current lease of such facilities between Sabine Transportation Company and the
Port and reasonably satisfactory to Hvide.
SECTION 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF ALL PARTIES
The obligations of the Sellers to sell, and the Buyers to purchase, the
Assets shall be subject to the following conditions precedent:
8.1 Notifications, Permits, and Approvals. All applicable waiting
periods (and any extensions thereof) under the HSR Act and the WARN Act shall
have expired or otherwise been terminated, and all permits, authorizations, and
regulatory approvals of governmental authorities necessary for the consummation
of the purchase and sale of the Assets, and any required consents to such
transactions under any agreement or contract by which either party is bound,
shall have been obtained.
8.2 Action or Proceeding. There shall not be any action or proceeding
by or before any court or other governmental body that shall seek to restrain,
prohibit, or invalidate the transactions contemplated by this Agreement.
SECTION 9. CLOSING.
9.1 General. The closing of the sale and purchase of the Assets (the
"Closing") shall take place as follows with respect to all Assets other than the
tank vessels listed on Schedule 1.1(a). The Closing shall, unless another date
or place is agreed to in writing by the parties hereto, take place on March 10,
1998, if all conditions to the purchase and sale of such Assets have been
satisfied or waived on or before such date, or as soon as practicable following
the satisfaction or waiver of all such conditions if all such conditions have
not been satisfied or waived on or before such date (the "Closing Date"). At the
Closing with respect to such Assets, the Sellers shall deliver to Hvide the
documents and certificates described in Section 7.5 with respect to such Assets,
Hvide shall deliver to the Sellers the documents and certificates described in
Section 6.3, and Hvide shall deliver $19,000,000 by wire transfer of immediately
available funds to an account designated in writing by Sellers to Hvide prior to
the Closing with respect to such Assets. With respect to any tugs engaged in
jobs on the Closing Date, Sellers shall receive the revenue
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attributable to such jobs completed prior to 2400 hours on the Closing Date and
Hvide shall receive the revenue attributable to such jobs completed thereafter.
9.2 Tank Vessels. The Closing of the sale and purchase of the tank
vessels shall occur during the period beginning at 0001 hours on March 9, 1998,
and ending at 2400 hours on March 16, 1998, (the "Closing Period"). Sellers
recognize that STCI intends to employ the Vessels purchased by it immediately
following such purchase and will be entering into charter parties that may
provide for substantial penalties against STCI if it fails to provide timely
notice of arrival to the charterers. Sellers therefore guarantee to deliver the
Colorado and one additional Vessel owned by Sabine to STCI at the port of Port
Arthur, Texas on March 9, 1998, conditioned upon the delivery by STCI to Sellers
of the documents and certificates described in Section 6.3 and payment of the
portions of the Purchase Price allocated to such Vessels on Schedule 1.3. The
remaining tank vessels shall be delivered by the respective Sellers to the
respective Buyers during the Closing Period; provided, however, that Sellers'
delivery of a Notice of Readiness for Delivery in accordance with this Section
9.2 during the Closing Period shall constitute delivery of the related tank
vessel within the Closing Period. Delivery of tank vessels by Sellers to Buyers
and payment by Buyers to Sellers shall be performed in the manner and on the
terms and conditions more fully set forth below.
Sellers shall deliver each tank vessel to its respective Buyer at a
berth mutually agreed upon between such Buyer and Sellers (the "Nominated
Berth") at a U.S. Gulf Port nominated by the Buyer (the "Delivery Port"), unless
otherwise mutually agreed between Seller and Buyer. Buyer shall nominate the
Delivery Port no later then 10 days prior to the commencement of the Closing
Period. Sellers shall give Buyers 7/6/5/4/3/2/1 days notice of the arrival of
each tank vessel at the Delivery Port. Upon the safe arrival of the tank vessel
at its Nominated Berth, Seller shall deliver to Buyer its Notice of Readiness
for Delivery, which shall state that the Vessel is in all respects ready for
delivery to Buyer.
Within two banking days of the Buyer's receipt of the Notice of
Readiness for Delivery, the Buyer shall transfer to Seller by wire transfer the
purchase price of the Vessel as set forth in Schedule 1.3 (the "Funds").
Immediately upon confirmation of the wire transfer of Funds by Buyer, Seller
shall deliver to Buyer the Vessel and the documents listed in Section 7.5 with
respect to the Vessel. It is recognized and agreed, however, that STCI will not
take delivery of any Vessel during pendency of a voyage.
Sellers shall deliver each tank vessel to its respective Buyer at the
Nominated Berth safely afloat, virtually intact, free of fire damage, free of
arms, and ammunitions. Except for the tank vessels being purchased by Hvide,
which may be delivered prior to completion of a voyage, such Vessel shall be
free of cargo and charter and, provided that the Delivery Port is Port Arthur,
Texas, also free of slops.
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Upon berthing of a Vessel at the Nominated Berth, its respective Buyer
shall have immediate access to the Vessel for purposes of familiarization of
Buyers' crew with the operation of the Vessel and the transition of crews; tank
cleaning and construction of rose boxes; inspections in preparation for cargo
loading; and such other purposes as may be reasonably necessary for Buyer to
prepare to take control of and operate the vessel. The Buyer shall provide such
standard indemnities as may be required by the Sellers.
9.3 Voyages in Progress.
(a) For purposes of this Section 9.3, the following terms shall have
the meanings indicated:
(i) "Gross Revenues" means all payments received from the
customer for a voyage in progress, whether received by Hvide or the
Seller and whether received before or after the Closing.
(ii) "Reimbursements" means the portion of Gross Revenues for
a voyage in progress that represents reimbursement for direct expenses
of the voyage.
(iii) "Net Revenues" for a voyage in progress means Gross
Revenues minus Reimbursements.
(b) With respect to the Closing of the purchase by Hvide of any tank
vessel engaged in a voyage in progress on the date of the Closing of such
purchase:
(i) Net Revenues for that voyage shall be shared by Hvide and
the Seller in proportion to the number of days of the voyage during
which each party was the owner of the Vessel;
(ii) fuel expense shall be shared by Hvide and the Seller in
proportion to the number of days of the voyage during which each party
was the owner of the Vessel;
(iii) except as provided in Section 9.3(b)(ii), Hvide and the
Seller shall each bear the direct expenses of the voyage attributable
to the period during which such party was the owner of the Vessel; and
(iv) Hvide and the Seller each shall be entitled to the
Reimbursements for the expenses borne by it.
For purposes of this Section 9.3(b), the Seller will be considered the owner of
the Vessel prior to the date of the Closing and Hvide will be considered the
owner of the Vessel on and after such date.
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(c) Net payments due from Sellers to Hvide or from Hvide to Sellers, as
the case may be, for all voyages in progress on the date of the Closing shall be
made within 30 days after the Closing. Each party shall have reasonable access
to the books and records of the other in order to verify the revenues and
expenses for voyages in progress.
9.4 Loss or Damage. Should any Vessel become an actual, constructive,
or compromised total loss (the "Damaged Vessel") before delivery to the Buyer,
the Buyer shall have the option exercisable at its sole discretion, to either
purchase the Damaged Vessel at the assigned price subject to P&I Club's and
Underwriters' consent to assignment of payments on claims or, in the
alternative, may declare this Agreement null and void with respect to the
Damaged Vessel alone and take delivery of the remainder of the Vessels upon
payment of the respective purchase prices set forth in Schedule 1.3.
SECTION 10. INDEMNIFICATION.
10.1 By the Sellers. The Sellers shall jointly and severally indemnify
Buyers in respect of, and hold them harmless against, any and all debts,
obligations, and other liabilities (whether absolute, accrued, contingent, fixed
or otherwise, or whether known or unknown, or due or to become due or
otherwise), monetary damages, forfeitures, fines, fees, penalties, interest
obligations, deficiencies, losses and expenses (including amounts paid in
settlement, interest, court costs, costs of investigators, reasonable fees and
expenses of attorneys, accountants, financial advisors and other experts, and
other expenses of litigation, investigations, inquiries by governmental bodies
or related proceedings ("Losses")) incurred or suffered by Buyers or any
affiliate of Buyers resulting from (i) the material breach of any
representation, warranty, covenant, guarantee, or agreement of the Sellers
contained in this Agreement and (ii) Sellers' use of the Assets prior to
Closing..
10.2 By the Buyers. Each Buyer shall severally, but not jointly,
indemnify the Sellers in respect of, and hold the Sellers harmless against, any
and all Losses incurred or suffered by the Sellers or their affiliates resulting
from (i) the breach of any material representation, warranty, covenant, or
agreement of such Buyer contained in this Agreement and (ii) such Buyer's use of
the Assets after the Closing.
10.3 Notification; Third Party Claims. Each party shall notify the
other in writing as promptly as practicable whenever it shall determine that
there are facts or circumstances that render the other liable to such party
under this Section 10. In addition, in the event that any suit, action, or
proceeding shall be brought by any third party which, if successful, would
render any party liable to the other party under this Section 10, then the party
seeking indemnification hereunder (the "Indemnitee") shall, as promptly as
practicable after the service of process commencing such suit, action or
proceeding, give notice thereof to the party from whom indemnification is sought
(the "Indemnitor"). Upon receipt of such notice, the Indemnitor may elect to
assume the control of the defense of such suit, action, or proceeding with
counsel of its choice, and
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after written notice from the Indemnitor to the Indemnitee of its election so to
assume the control of such defense, the Indemnitee shall not be liable to the
Indemnitor for any costs or expenses incurred by the Indemnitor in connection
with such defense, nor for any judgment, damages, claims, or penalties rendered
or assessed in connection with any such suit, action, or proceeding, nor for any
losses or damages resulting from the settlement of any such suit, action, or
proceeding if settled by the Indemnitor without the written consent of the
Indemnitee.
10.4 Limitation on Losses. For purposes of any indemnification pursuant
to this Section 10, Losses shall be determined after giving effect to insurance
proceeds and recoveries from third parties and shall in no event include lost
profits or consequential or similar damages.
10.5 Sole Recourse. The indemnification provided in this Section 10
shall be the sole recourse of any party hereto for any breach by any other party
of any representation, warranty, covenant, guarantee, or agreement contained in
this Agreement.
SECTION 11. TERMINATION.
11.1 Termination. This Agreement may be terminated at any time prior
to the Closing:
(i) by the mutual written consent of the Sellers and the
Buyers; or
(ii) by the Sellers or the Buyers if
(A) any court or governmental body of competent
jurisdiction shall have issued an order, decree, or ruling, or
taken any other action, permanently restraining, enjoining, or
otherwise prohibiting the transactions contemplated by this
Agreement, provided that no termination shall be permitted
under this paragraph unless the party seeking such termination
shall have used its reasonable best efforts to oppose such
issuance or action; or
(B) the other party commits any material breach of its
representations, warranties, or covenants set forth herein and
such breach has not been cured within seven days after notice
is given to terminate this Agreement as a result of such
breach; or
(iii) by the Sellers if the conditions set forth in Section 6
have not been satisfied, other than through failure of Sellers to
comply with their obligations hereunder, or waived by April 30, 1998
(the "Termination Date"), and by the Buyers if the conditions set forth
in Section 7 have not been satisfied, other than through failure of
Buyer to comply with its obligations hereunder, or waived by the
Termination Date.
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11.2 Effect of Termination. In the event this Agreement is terminated
pursuant to Section 11.1, all further obligations of the parties hereunder shall
terminate. No termination of this Agreement shall act to terminate or otherwise
impair the obligations set forth in Sections 5.13 and 13.2.
11.3 Termination Concerning Real Property. Hvide may terminate its
obligation to purchase the Real Property and Sellers' obligation to deliver the
quitclaim deed with respect to the property described on Schedule 2.8(a) if,
prior to February 6, 1998, Hvide shall have notified Sellers that, as a result
of its due diligence investigation of environmental risks relating to the Real
Property, it has determined not to purchase the Real Property.
SECTION 12. GUARANTEE
12.1 Hvide's Guarantee. Hvide unconditionally guarantees the full and
timely payment by STCI of its portion of the Purchase Price under this
Agreement.
SECTION 13. MISCELLANEOUS.
13.1 Survival of Representations and Warranties. Every representation
and warranty of each of the parties set forth in this Agreement and all of the
rights and remedies of the other parties related to misrepresentations and
inaccuracies related thereto shall survive, and not be deemed waived by, the
Closing, and shall be effective regardless of any investigation that may have
been made at any time by or on behalf of any party or its directors, officers,
employees, or agents.
13.2 Expenses. Except as otherwise provided in Section 11.2 hereof, the
parties shall pay their respective expenses (including the fees, disbursements,
and expenses of their respective attorneys and accountants) in connection with
the negotiation and preparation of this Agreement and the consummation of the
transactions contemplated hereby.
13.3 Notices. Each party hereto shall promptly give written notice to
the other parties upon becoming aware of the occurrence of, or any impending or
threatened occurrence of, any event that would cause or constitute a breach of
any of its representations, warranties, or covenants contained in this
Agreement, and such party shall use its best efforts to prevent or promptly
remedy the same. Any notice or other communication required or which may be
given hereunder shall be in writing and shall be deemed to have been duly given
on the date delivered if delivered personally or sent by facsimile to the
persons identified below, one business day following deposit with a reputable
overnight courier, or three business days after deposit in the U.S. mail if
mailed by certified or registered mail, return receipt requested, addressed as
follows:
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If to the Sellers, to:
Kirby Corporation
Sabine Transportation Company
Kirby Tankships, Inc.
1775 St. James Place, Suite 200
Houston, TX 77056
Attention: Brian K. Harrington
Facsimile: (713) 435-1010
Telephone: (713) 435-1102
with a copy to:
Jenkens & Gilchrist, a Professional Corporation
1445 Ross Avenue, Suite 3200
Dallas, TX 75202
Attention: Thomas G. Adler
Facsimile: (214) 855-4300
Telephone: (214) 855-4325
If to Hvide, to:
Hvide Marine Incorporated
2200 Eller Drive, P.O. Box 13038
Ft. Lauderdale, FL 33316
Attention: Walter S. Zorkers
Facsimile: (954) 527-4553
Telephone: (954) 524-4200, Ext. 400
with a copy to:
Dyer Ellis & Joseph PC
600 New Hampshire Ave., NW
Washington, DC 20037
Attn: Michael Joseph
Facsimile: (202) 944-3068
Telephone: (202) 944-3000
If to STCI, to:
Sabine Transportation Company
500 Stickle Drive N.E.
P.O. Box 5399
Cedar Rapids, Iowa 52406-5399
Facsimile: (319) 362-8212
Telephone: (319) 366-5854
Telex: 439006
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Any party may change its address to which notices or other communications are to
be sent by giving written notice of any such change in the manner provided
herein for giving notice.
13.4 Modification or Waiver. This Agreement may be amended, modified,
or superseded at any time by a written instrument executed by the Sellers and
the Buyers, and any of the terms, covenants, representations, warranties, or
conditions hereof may be waived by written instrument executed by the party
intended to be benefited thereby. No waiver of any nature, in any one or more
instances, shall be deemed to be or construed as a further or continued waiver
of any condition or any breach of any other term, representation, or warranty in
this Agreement.
13.5 Binding Effect and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that prior to the Closing Date, no
assignment of any rights provided for herein may be made by any party without
the written consent of the other parties which consent shall not be unreasonably
withheld.
13.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the state of Florida.
13.7 Section Headings. The Section headings contained in this Agreement
are inserted for convenience of reference only and shall not affect the meaning
or interpretation of this Agreement.
13.8 Further Assurances. Subject to the terms and conditions herein
provided, each of the parties agrees to use all reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper, or advisable under applicable laws and regulations to
consummate the purchase and sale of the Assets in accordance with the terms of
this Agreement. In case at any time any further action is necessary or desirable
to carry out the purposes of this Agreement, the appropriate officers of each
party to this Agreement are hereby directed and authorized to use their good
faith efforts to effectuate all such action.
13.9 Entire Agreement. This agreement embodies the entire agreement and
understanding between the parties hereto relating to the subject matter hereof
and supersedes any prior letters of intent, agreements, and understandings
relating to the subject matter hereof.
13.10 No Third Party Beneficiaries. Nothing expressed or referred to in
this Agreement is intended or shall be construed to give any person other than
the parties to this Agreement or their respective successors or permitted
assigns any legal or equitable right, remedy, or claim under or in respect of
this Agreement or any provision contained herein, it being the intention of the
parties to this Agreement that this Agreement shall be for the sole and
exclusive benefit of such parties or such successors and assigns and not for the
benefit of any other person.
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13.11 Counterparts. Separate copies of this Agreement may be signed by
the parties hereto, with the same effect as though all of the parties had signed
one copy of this Agreement.
13.12 Attorneys' Fees. If legal action is commenced to enforce this
Agreement, the prevailing party in such action shall be entitled to recover its
costs and reasonable attorneys' fees in addition to any other relief granted.
13.13 Severability. If any provision of this Agreement shall be held
invalid under any applicable law, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid
provision and, to this end, the provisions hereof are severable.
13.14 Interpretation of Agreement. The parties hereto acknowledge and
agree that this Agreement has been negotiated at arm's length and between
parties equally sophisticated and knowledgeable in the matters dealt with in
this Agreement. Accordingly, any rule of law, court decision, or other legal
precedent that would require interpretation of any ambiguities in this Agreement
against the party that has drafted it is not applicable and is waived. The
parties hereto also acknowledge and agree that this Agreement pertains to the
purchase and sale of certain defined assets and, notwithstanding anything to the
contrary herein, shall be interpreted as such and not as pertaining to the
purchase and sale of any of the Sellers or their businesses as going concerns.
Sellers recognize that Buyers have relied upon information regarding the
Business in conducting their due diligence with respect to the Assets.
13.15 Arbitration. Should any dispute arise out of this Agreement with
respect to the purchase and sale of the Vessels, the matter in dispute shall be
referred to arbitration in New York City. The arbitrators shall be commercial
persons conversant with shipping matters. Unless the parties agree upon a sole
arbitrator, one arbitrator shall be appointed by the Buyer and one arbitrator
shall be appointed by the Seller, and a third arbitrator shall be appointed by
the two so chosen. If either of the appointed arbitrators refuses to act or is
incapable of acting, the party who appointed the arbitrator shall appoint a new
arbitrator in his or her place. If one party fails to appoint an arbitrator,
whether originally or by way of substitution, for two weeks after the other
party, having appointed its arbitrator, has (by telefax or letter) called upon
the defaulting party to make the appointment, the Society of Maritime
Arbitrators, Inc. shall, upon application of the other party, appoint an
arbitrator on behalf of the defaulting party and that arbitrator shall have the
like powers to act in the reference and make an award (and, if the case so
requires, the like duty in relation to the appointment of a third arbitrator) as
if he had been appointed by a party to this Agreement in accordance with the
terms of this Clause. The proceedings under this Section 13.16 shall be
conducted in accordance with the Rules of the Society of Maritime Arbitrators,
Inc. as in effect at the time the arbitration proceedings commence.
The arbitration award may grant any remedy or relief deemed by the
arbitrators to be just and equitable, including specific performance of this
Agreement; provided,
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however, that the arbitrators shall not be empowered to award consequential or
punitive damages nor any other damages in excess of actual damages. Judgment on
any award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
3.16 General Disclaimer. Except as set forth in Section 2 of this
Agreement, neither Sellers nor anyone acting on their behalf has made any
further representation or warranty, either express or implied, concerning the
subject matter of this Agreement and the transactions contemplated hereby,
including any such further representation or warranty concerning the physical
nature or condition of the Real Property, the existence or nonexistence of
Materials of Environmental Concern on, at, or under the Real Property, or use of
the Real Property, and Buyers have not relied on any such further representation
or warranty. This Agreement shall not be governed by the warranties provided by
the Uniform Commercial Code as adopted in any jurisdiction. Except for
representations and warranties expressly set forth in this Agreement, the
Schedules hereto, and the documents delivered as the Closing, no other
representations or warranties, either express or implied, have been made by or
on behalf of Sellers or relied upon by Buyers. OTHER THAN REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED IN THIS AGREEMENT, ANY INSTRUMENT
OF CONVEYANCE OR OTHER DOCUMENT EXECUTED AND DELIVERED PURSUANT TO THIS
AGREEMENT, BUYERS (a) UNDERSTAND AND AGREE THAT NEITHER SELLERS NOR ANYONE
ACTING ON THEIR BEHALF MAKE ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES
WITH RESPECT TO THE BUSINESS, ASSETS OR ASSUMED OBLIGATIONS REFERRED TO HEREIN,
THE SEAWORTHINESS, CONDITION OR WORKMANSHIP OF ANY ASSET, OR THE ABSENCE OF ANY
DEFECTS THEREIN, WHETHER LATENT OR PATENT, OR THE CAPACITY, STABILITY, UTILITY,
SALABILITY, OPERATION, CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OR
A PARTICULAR PURPOSE THEREOF AND (b) ACCEPT SUCH ASSETS AND VESSELS ON AN "AS
IS, WHERE IS, WITH ALL FAULTS" BASIS. BUYERS ASSUME THE FULL RISK OF FUTURE
PROSPECTS, CONTINUATION OF RELATIONSHIPS WITH CUSTOMERS AND SUPPLIERS, AS WELL
AS THE BUSINESS AND FINANCIAL RISK, INCLUDING THE NEED FOR SUBSTANTIAL WORKING
CAPITAL, IN CONNECTION WITH THE OPERATION OF THE BUSINESS AFTER THE CLOSING.
3.17 Oil Pollution Act. Buyers are familiar with the provisions of the
Oil Pollution Act of 1990, which will have a material impact with respect to the
tank vessels included in the Vessels, all of which are of single-hull
construction. Buyers understand that the Oil Pollution Act of 1990 imposes
limitations on the useful lives of all such tank vessels for purposes of their
operation in U.S. waters.
13.18 Books and Records; Personnel. For a period of seven years from
the Closing Date (or such longer period as may be required by any governmental
agency or requested by Sellers in connection with disputes or litigation):
(a) Buyers shall neither dispose of nor destroy any of the books and
records delivered to Buyers in connection with the Closing without first
offering to turn over
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possession thereof to Sellers by written notice to Sellers at least 30 days
prior to the proposed date of such disposition or destruction;
(b) Buyers shall allow Sellers and their agents reasonable access to
such books and records during normal working hours at the offices of Buyers at
which such books and records are located; and
(c) Buyers shall make available to Sellers upon written request
therefor (i) copies of any such books and records, (ii) Buyers' personnel to
assist Sellers in locating and obtaining any such books and records, and (iii)
any of Buyers' personnel who were employed by Sellers prior to the Closing Date
and whose assistance or participation is reasonably required by Sellers in
connection with existing or future litigation, tax returns or other matters in
which Sellers are involved. Sellers shall reimburse Buyers for the reasonable
out-of-pocket expenses incurred by Buyers in performing the covenants contained
in this Section 13.18.
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IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date first above written.
Sellers
Kirby Corporation
By: /s/ Brian K. Harrington
---------------------------
Brian K. Harrington
Senior Vice President
Sabine Transportation Company
By: /s/ Brian K. Harrington
---------------------------
Brian K. Harrington
Vice President
Kirby Tankships, Inc.
By: /s/ Brian K. Harrington
---------------------------
Brian K. Harrington
Vice President
Buyers
Hvide Marine Incorporated
By: /s/ Walter S. Zorkers
---------------------------
Walter S. Zorkers
Senior Vice President
Sabine Transportation Company
By: /s/ Rick D. Stickle
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Rick D. Stickle
Chairman
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