EXHIBIT 10.11
AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (the "Agreement") is made
and entered into this 29th day of May, 1998 and is by and between CRC-XXXXX
PIPELINE INTERNATIONAL, INC,, a Delaware corporation (the "Purchaser") and
XXXXXXXX HEAVY EQUIPMENT, INC., a Texas corporation ("Xxxxxxxx Heavy Equipment")
and XXXXX XXXXXXXX, individually and doing business as HHC INTERNATIONAL
("Xxxxxxxx"), (collectively, Xxxxxxxx Heavy Equipment, and Xxxxxxxx are
sometimes hereinafter referred to as the "Seller").
WHEREAS, on April 24, 1998, the parties hereto executed that certain
Agreement of Purchase and Sale with respect to the Business and certain Acquired
Assets of the Seller (the Purchase Agreement"), all as more fully described in
the Purchase Agreement, to which reference is hereby made and expressly
incorporated herein for all purposes; and
WHEREAS, one of the parties included within the Seller as referred to in
the Purchase Agreement was Tulsa Pipeline Equipment & Supply, Inc., an Oklahoma
corporation ("Tulsa Pipeline Equipment & Supply"); and
WHEREAS, Tulsa Pipeline Equipment & Supply was merged into Xxxxxxxx Heavy
Equipment on May 28, 1998, and as a result all references in the Purchase
Agreement to Tulsa Pipeline Equipment & Supply as a part of the Seller should be
deleted; and
WHEREAS, all terms which are capitalized in the Purchase Agreement shall
have the same meaning herein as ascribed to such terms in the Purchase
Agreement; and
WHEREAS, the parties hereto desire to amend the Purchase Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, and intending to be legally bound hereby, the Purchaser
and the Seller hereby agree as follows:
1. LEASE OF THE BROKEN ARROW, OKLAHOMA FACILITY. At the Closing, the
Seller shall execute and deliver a lease with the Purchaser whereby the
Purchaser shall have the right to lease the Broken Arrow, Oklahoma facility from
the Seller beginning June 1, 1998 for a term extending through May 31, 1999 with
an option to renew for two successive one-year terms. A form of the lease is
attached hereto as Annex 1.
2. LEASE OF THE HOUSTON, TEXAS FACILITY. At the Closing, the Seller shall
execute and deliver a letter agreement with the Purchaser whereby the Purchaser
shall have the right to lease a portion of the Houston, Texas facility and
offices from the Seller beginning June 1, 1998 and extending on a month-to-month
basis. In addition to the right to utilize the leased space, the
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Seller shall provide to the Purchaser certain services required by the Purchaser
for the operation of a sales office and limited rental equipment storage and
maintenance. A copy of the letter agreement is attached hereto as ANNEX 2.
3. ASSIGNMENT OF TRADEMARKS AND SERVICE MARKS. At Closing, the Seller
shall execute and deliver an Assignment of Trademarks and Service Marks
transferring, assigning and conveying all right, title and interest in and to
the trademarks and service marks with respect to Tulsa Pipeline Equipment &
Supply, including, but not limited to the name of Tulsa Pipeline Equipment &
Supply (the "Marks") to the Purchaser. To the extent necessary to carry out the
intent and purpose of the Purchase Agreement, the Marks shall be included within
the definition of Acquired Assets. A copy of the Assignment of Trademarks and
Service Marks is attached hereto as ANNEX 3.
4. EMPLOYEES. The employees of the Seller which the Purchaser desires to
hire shall remain on the payroll of the Seller through May 31, 1998. However,
such employees shall be available to assist the Purchaser from and after the
Closing through May 31, 1998.
5. PARTS INVENTORY. With respect to the parts inventory and the
calculation of the adjustments to the Purchase Price as described in Paragraph 5
of the Purchase Agreement, the Broken Arrow, Oklahoma facility will be
inventoried on May 29, 1998, and the Purchaser will take possession of such
inventory on June 1, 1998. Any usage of such inventory after June 1, 1998 by the
Seller will be charged to the Seller at cost. The Houston, Texas facility will
be inventoried immediately before the 45-day settlement date for calculation of
the final adjustment to the Purchase Price. Any usage of such inventory by the
Purchaser between the Closing and 45-day settlement date will be charged to the
Purchaser at cost.
6. SALES AND RENTAL ORDERS. Except as identified in ANNEX 4, the Seller
agrees to timely deliver and assign to the Purchaser any and all sales and
rental orders received by the Seller which pertain to the Business. All sales
and rental orders received by the Seller, and which are accepted by the
Purchaser, shall be completed and billed by the Purchaser.
7. RATIFICATION. Except as amended hereby, the parties do hereby ratify
and republish the Purchase Agreement.
8. ATTORNEY'S FEES. In the event that it should become necessary for any
party entitled hereunder to bring suit against the other party to this Agreement
for enforcement of the covenants herein contained, the parties hereby covenant
and agree that the party who is found to be in violation of said covenants shall
also be liable for all reasonable attorney's fees and costs of court incurred by
the other party.
9. BENEFIT. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
10. NOTICES. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given at the time of
receipt if delivered by hand or communicated by electronic transmission, or, if
mailed, three days after deposit in the United States mail, registered or
certified, return receipt requested, with postage prepaid and addressed to the
party to receive same, if to the Purchaser, addressed to Mr. M. Xxxxxxx Xxxxx at
00000 Xxxxx Xxxxxxx-Xxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000, telephone (281)
000-0000, and fax (000) 000-0000; and if to the Seller, addressed to Mr. Xxxxx
Xxxxxxxx at 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxx 00000, telephone (000) 000-0000,
and fax (000) 000-0000; provided, however, that if either party shall have
designated a different address by notice to the other given as provided above,
then any subsequent notice shall be addressed to such party at the last address
so designated.
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11. NO THIRD PARTIES. This Agreement is not intended to, and shall not,
create any rights in or confer any benefit whatsoever upon any person other than
the parties hereto. The assumption of any liability or obligation by the
Purchaser pursuant to this Agreement and the exclusion of any liability or
obligation hereunder shall have effect and shall create enforceable rights-only
as between the parties to this Agreement, and is not intended to and shall not
be enforceable by, create any rights of whatever nature in, or confer any
benefit whatsoever upon any person other than the parties to this Agreement.
12. CONSTRUCTION. Words of any gender used in this Agreement shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise.
13. WAIVER. No course of dealing on the part of any party hereto or its
agents, or any failure or delay by any such party with respect to exercising any
right, power or privilege of such party under this Agreement or any instrument
referred to herein shall operate as a waiver thereof, and any single or partial
exercise of any such right, power or privilege shall not preclude any later
exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
14. CUMULATIVE RIGHTS. The rights and remedies of any party under this
Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
15. INVALIDITY. In the event any one or more of the provisions contained
in this Agreement or in any instrument referred to herein or executed in
connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other 'provisions of this Agreement or any such other
instrument.
16. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
17. MULTIPLE COUNTERPARTS. This Agreement may be exercised in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. LAW GOVERNING. This Agreement shall be construed and governed by the
laws of the State of Texas, and all obligations hereunder shall be deemed
performable in Xxxxxx County, Texas.
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19. PERFECTION OF TITLE. The parties hereto shall do all other acts and
things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Agreement, and to carry out the intent of
this Agreement.
20. ENTIRE AGREEMENT. This instrument contains the entire understanding of
the parties and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the Purchaser and the Seller have each caused this
Agreement to be executed by their respective duly authorized officers, as of the
date first above written.
CRC-XXXXX PIPELINE
INTERNATIONAL, INC.
By _________________________________
M. Xxxxxxx Xxxxx, Chief Executive
Officer
XXXXXXXX HEAVY EQUIPMENT INC.
By _________________________________
Xxxxx Xxxxxxxx, President
____________________________________
XXXXX XXXXXXXX, individually and
doing business as HHC INTERNATIONAL
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