VESSEL PURCHASE AND SALE AGREEMENT
This Vessel Purchase and Sale Agreement (the "Agreement") is made as of the ___ day
of August, 2011 (the "Effective Date"), between Seller Marine Construction and Repair, Inc., an
Oregon corporation ("Seller"), and
Buyer wishes to purchase from Seller, and Seller wishes to sell to Buyer, the vessel
RDV-MONTY (the "Vessel"). The Vessel is partially constructed and is located on land at
Seller's facility in Troutdale, Oregon (the "Vessel Location"). The Vessel is not registered or
Seller and Buyer agree as follows:
1. Purchase and Sale. Seller hereby agrees to sell to Buyer, and Buyer agrees to buy from
Seller, subject to the terms and conditions stated herein, the Vessel.
2. Purchase Price. The purchase price for the Vessel is
________________________________ U.S. Dollars (US$____________________________
_________________________________________________________ (the "Purchase Price").
(a) Upon the signing of this Agreement, Buyer will pay Seller by wire transfer of
immediately available funds a deposit equal to 25% of the Purchase Price (the
"Deposit"), which Seller shall retain if the Closing (as defined below) does not
occur for any reason within 30 days after the Effective Date.
(b) Buyer shall pay the remainder of the Purchase Price to Seller at Closing (as
defined below) by wire transfer of immediately available funds.
(c) Buyer shall be responsible for, and pay, all applicable foreign, federal, state, and
local taxes and duties, including any sales, stamp, transfer, use, excise or similar
taxes. Buyer shall indemnify, reimburse, defend, and hold harmless Seller and
Seller Indemnified Parties for from and against all claims, losses, liabilities,
obligations, demands, cost and expenses, including reasonable legal fees, arising
from or relating to any of the foregoing, including penalties and interest thereon.
(a) The Closing shall occur at Seller's offices on a date and time mutually acceptable
to the parties, but in no event later than the 30th day after the Effective Date.
(b) At the Closing:
(i) Seller shall deliver to Buyer a bill of sale in form and substance acceptable
to Seller in its sole discretion, and
(ii) Buyer shall pay Seller the balance of the Purchase Price by wire transfer
of immediately available funds.
4. Deliver and Removal.
(a) Delivery shall be deemed to be made to Buyer upon the Closing at the Vessel
Location. Buyer shall be responsible for all costs of construction completion,
removal of the Vessel and launching of the Vessel from the Vessel Location
following the Closing. Buyer shall (i) use reasonable care in removing the Vessel
from its location and (ii) immediately repair or pay for any damage caused to the
Vessel Location in any way arising out of such removal. Buyer shall not use any
contractor or subcontractor to facilitate the construction, removal of the Vessel, or
launching of the Vessel from the Vessel Location, without Seller’s prior written
(b) Buyer shall remove the Vessel from the Vessel Location within 30 days after the
Closing, or shall pay Seller a storage fee in an amount of US $175.00 (One
Hundred and Seventy-Five U.S. Dollars) per day ("Storage Fee"). Buyer
acknowledges and agrees that Seller will have a possessory lien against the Vessel
for all unpaid Storage Fees and grants Seller a security interest in all of Buyer's
right, title and interest in and to the Vessel and all proceeds thereof, including
insurance proceeds, to secure Buyer's obligation to pay Seller the Storage Fees
owing under this Agreement.
(c) Buyer shall assume, at Buyer’s cost, complete responsibility for compliance with
all laws and regulations arising from or relating to the Vessel, the removal of the
Vessel from the Vessel Location, and the use of the Vessel by Buyer. It shall be
Buyer’s sole responsibility to obtain, and pay the cost of obtaining, any consents,
permits, licenses or other authorizations necessary or desirable for the transfer of
the Vessel to Buyer.
(d) Buyer shall indemnify, reimburse, defend, and hold harmless Seller and the Seller
Indemnified Parties for from and against all claims, losses, liabilities, obligations,
demands, cost and expenses, including reasonable legal fees, arising from or
relating to the removal or failure to remove the Vessel.
5. Risk of Loss. It is the express intention of the parties that all risk of loss or damage and
liability arising out of the ownership, use, operation or condition of the Vessel from and after the
time of Closing shall be borne in total by Buyer. Prior to Closing, the Vessel shall be and remain
in the possession of and at the risk of Seller, subject to the terms of this Section 5. In the event
of actual total loss of the Vessel prior to Closing, this Agreement shall be terminated without
further action or liability on the part of either party, provided that Seller shall retain the Deposit.
If any damage to the Vessel occurs before Closing, which Seller, acting reasonably, determines
is not material, Buyer shall complete the Purchase and Sale but shall not be entitled to any other
costs or compensation whatsoever. Buyer agrees that after the Effective Date, Seller shall have
no obligation to insure, inspect, secure, or maintain the Vessel and that Buyer shall be
responsible for placing its own insurance thereafter.
6. Vessel Documentation and Title Transfer Costs. Buyer understands and agrees that the
Vessel is currently not registered or documented and will not be registered or documented at
Closing. Buyer will be solely responsible for the recording, registration, and/or documentation
of the Vessel and all associated costs and fees. Seller makes no representation or warranty
regarding the ability to register or document the Vessel.
7. Plans and Specifications. The parties hereby agree that any plans, specifications and
working and construction drawings with respect to the Vessel shall be the property of Seller.
8. Seller Representations. Seller makes the following representations and warranties:
(a) This Agreement constitutes the valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms.
(b) Seller is a corporation duly organized and validly existing under the laws of the
jurisdictions of its organization.
9. Disclaimer of Warranties. Seller makes, and Buyer agrees to, the following disclaimers
of warranties, all of which survive Closing:
(a) Buyer's purchase of the Vessel and acceptance of delivery is on an "AS IS,
WHERE IS", "WITH ALL FAULTS", and "WITHOUT RECOURSE" basis, with
no representations or warranties as to title, encumbrances, description, fitness for
use, condition (environmental or otherwise), defect (patent or latent),
collectability, merchantability, quantity, acreage, existence, quality, value or the
validity, invalidity, or enforceability of any patent, copyright or trademark right,
or any other matter or thing whatsoever, either stated or implied. Buyer is relying
on its own judgment, inspection and investigation of the Vessel and understands
and acknowledges that the Vessel has not been completed.
(b) Any logs, surveys or other documents or information relating to the Vessel
obtained from Seller have been provided solely for the convenience of Buyer and
are not warranted to be complete or accurate in any respect and are not part of this
Agreement. Seller does not make any representations or warranties whatsoever
with respect to the information contained in any documents provided to Buyer
relating to the Vessel. Buyer must rely entirely on its own inspection and
investigation of all matters.
(c) To the extent that any inaccuracy in information does occur, Buyer has been
advised and acknowledges that the information has been prepared and delivered
on a "reasonable commercial efforts" basis by Seller, and Seller shall have no
liability to Buyer for any claims, losses, liabilities, obligations, demands, cost or
expenses arising from or relating to any such inaccuracy.
(d) SELLER MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY
KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE
VESSEL’S CONDITION, SEAWORTHINESS, NONINFRINGMENT,
MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE,
INCLUDING THE VESSEL'S ABILITY TO FUNCTION AS A HOVER
BARGE, BARGE, OR FOR ANY OTHER PURPOSE. BUYER
ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO
WARRANTIES OR REPRESENTATIONS, AND HEREBY WAIVES THE
(e) SELLER SHALL HAVE NO LIABILITY, UNDER ANY THEORY OF
LIABILITY WHATSOEVER, INCLUDING EXPRESS OR IMPLIED
WARRANTY, NEGLIGENCE, INFRINGEMENT, OR MANUFACTURER’S
STRICT LIABILITY, WHETHER UNDER GENERAL MARITIME LAW OR
THE LAW OF ANY MUNICIPALITY, COUNTY, STATE, PROVINCE,
COUNTRY OR OTHER JURISDICTION, FOR CONTINGENT, PUNITIVE,
SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES,
OR FOR ANY CLAIM FOR “DOWN TIME”, LOSS OF EARNINGS,
PROFITS, OR BUSINESS, OR FOR DAMAGE TO CARGO. MOREOVER,
BUYER SHALL HAVE NO RECOURSE OR REMEDY AGAINST SELLER
FOR ANY CLAIM, LOSS, LIABILITY, OBLIGATION, DEMAND, COST OR
EXPENSE ARISING FROM, RELATING TO, OR IN CONNECTION WITH
(f) No representative, agent or broker of Seller is authorized to make or imply any
verbal representation, warranty or guarantee for Seller or to change this
Agreement in any way. Any logs, surveys or other documents given to Buyer by
any representative or broker of Seller are provided for information only and create
no warranty or representation regarding the Vessel.
(g) THIS IS THE FINAL, ENTIRE AND EXCLUSIVE EXPRESSION OF THE
AGREEMENT OF THE PARTIES WITH RESPECT TO WARRANTIES AND
REPRESENTATIONS AND THIS AGREEMENT SUPERSEDES ALL PRIOR
REPRESENTATIONS AND UNDERSTANDINGS BY AND BETWEEN THE
PARTIES, THEIR AGENTS, BROKERS AND REPRESENTATIVES.
BUYER'S ACCEPTANCE OF THE VESSEL AND DELIVERY OF THE BILL
OF SALE BY SELLER UPON CLOSING SHALL BE DEEMED A
COMPLETE AGREEMENT TO THE TERMS STATED HEREIN.
10. Buyer Representations. Buyer makes the following representations and warranties:
(a) This Agreement constitutes the valid and binding agreement of Buyer,
enforceable against Buyer in accordance with its terms.
(b) Buyer is a ____________________ duly organized and validly existing under the
laws of the jurisdictions of its organization.
11. Buyer Indemnity. Buyer shall indemnify, defend, reimburse, and hold Seller and each of
Seller's affiliates, owners, directors, officers, employees, agents, advisors, lenders, successors,
and assigns (each a "Seller Indemnified Party"), harmless from and against any claims, losses,
liabilities, obligations, demands, cost and expenses, including without limitation reasonable legal
fees, any clean-up, decommissioning, restoration or remediation required under any
environmental law, arising from, relating to, or in connection with (a) the purchase, operation,
use, maintenance, or ownership of the Vessel, (b) breach of any representation or warranty made
to Seller or any Seller Indemnified Party, or (c) breach of, or failure to perform, and covenant or
agreement under this Agreement.
12. Time is of the Essence. All stipulations as to time are strictly of the essence.
13. Survival. The terms and conditions herein shall not merge on the Closing, but shall
survive the Closing and remain in full force and effect and be binding on Buyer thereafter.
14. Severability. If any provision of this Agreement is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this Agreement will remain in full force
and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held invalid or unenforceable, and such
provision shall be applied so as to give effect to the intent of such provision to the fullest extent
15. Opportunity to Consult with Attorney. Each of the parties acknowledges that it has had
the opportunity to consult with an attorney of its own choosing regarding the subject matter of
this Agreement, that the terms hereof have been negotiated, and that if called on to interpret this
Agreement, no court or other tribunal shall apply any rule which construes any ambiguity against
one party on the ground that it primarily or exclusively drafted this Agreement or the term in
16. Broker's Fees or Commissions. Each party warrants to the other that this sale is free of
broker's fees or commissions, except the commission payable by Seller to Marcon International,
Inc., on the Closing.
17. No Waiver. No failure by any party to insist upon the strict performance of any provision
of this Agreement may be construed as depriving that party of the right to insist on strict
performance of that provision or of any other provision in the future, and no waiver may be
deemed to have been made unless made expressly in writing and signed by a party.
18. Assignment. Buyer shall not assign this Agreement without Seller’s prior written
approval which approval may be granted or withheld in Seller’s sole discretion.
19. Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual
receipt or: (a) personal delivery to the party to be notified, (b) at the time of electronic
confirmation of receipt if sent by electronic mail or facsimile during normal business hours of
the recipient, and if not sent during normal business hours, then on the recipient’s next business
day, (c) three days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) on confirmation of receipt from a nationally recognized private delivery
service such as DHL, Federal Express or United Parcel Service. All communications shall be
sent to the respective parties at their following address, or to such e-mail address, facsimile
number or address as subsequently modified by written notice given in accordance with this
If to Buyer:
If to Seller:
Tidewater Holdings, Inc.
Attn: Chief Financial Officer
Address: 6305 NW Old Lower River Road
Vancouver, Washington 98660
Fax: (360) 694-8981
With a copy to Seller's legal counsel:
Attn: David Copley. Forman
Address: Tonkon Torp LLP
888 SW Fifth Avenue
Portland, Oregon 97204
Fax: (503) 972-3723
20. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the state of Oregon without regard to its conflicts of laws or choice
of laws rules or principles. The UNITED NATIONS CONVENTION ON CONTRACTS FOR
THE INTERNATIONAL SALE OF GOODS will not apply to the interpretation or enforcement
of this Agreement. Any action to enforce the terms of this Agreement shall be brought in the
state or federal courts located in Portland, Oregon. The prevailing party in any litigation to
enforce or interpret this Agreement shall be entitled to recover its reasonable attorneys' fees at
trial and on any appeal.
21. Counterparts. This Agreement may be executed in counterparts. Each such counterpart
shall be deemed to be an original and all such counterparts shall together constitute one and the
same instrument. Counterparts may be exchanged by facsimile with original copies to be
exchanged as soon as practicable thereafter.
22. Entire Agreement. This Agreement and the bill of sale, when entered into by Seller and
Buyer, shall constitute the entire agreement between Seller and Buyer pertaining to the subject
matter thereof and shall supersede all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of Seller and Buyer, and there shall be no
agreements or understandings between Seller and Buyer in connection with the subject matter
thereof except as specifically set forth therein. Neither Seller nor Buyer has relied on any
express or implied representation, written or oral, of any individual or entity as an inducement to
enter into this Agreement.
IN WITNESS WHEREOF, the Seller and Buyer each execute this Vessel
Purchase and Sale Agreement as of the Effective Date.
Seller Marine Construction and Repair, Inc.