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EXHIBIT 10.22
LEASEHOLD PURCHASE AGREEMENT
TransCoastal Marine Services, Inc., a Delaware Corporation, appearing
herein through G. ▇▇▇▇▇ ▇▇▇▇, its Vice President, duly authorized by resolution
of its Board of Directors, a certified copy of which is attached hereto
("Purchaser"), offers to purchase and receive from ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇.
GRANDCHILDRENS TRUST NO. 1 ("Seller"), that certain leasehold interest (the
"Leasehold") established by that certain lease agreement (the "Ground Lease"),
dated July 21, 1987, between ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇. and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇,
as original lessee (and assigned by original lessee to Seller) and Port of
Iberia District, a port harbor and terminal district, as lessor (the "Ground
Lessor"), recorded under Entry No. 87-7302 of the records of Iberia Parish,
Louisiana, covering the immovable property in Iberia Parish, Louisiana, which
property is more particularly described in Exhibit "A" attached hereto and made
a part hereof (the "Land"), together with all improvements and component parts
located thereon, (the "Improvements"). The Leasehold and Seller's right and
title in the Improvements collectively called the "Property."
1. PURCHASE PRICE. At closing, Purchaser shall pay to Seller the sum
of ONE MILLION FIVE HUNDRED THOUSAND and NO/100 DOLLARS ($1,500,000.00) for the
assignment of the Property (the "Purchase Price").
2. DEPOSIT. Purchaser shall not be required to post or to deliver a
deposit, this Agreement being concluded in consideration of the mutual
obligations assumed by the parties pursuant to that certain AGREEMENT and PLAN
OF MERGER effective as of August 27, 1997, and executed by and among Purchaser,
RNI Acquisition Corp. and Red Fox Companies of New Iberia, Inc. (the "Company")
regarding the sale of all of the outstanding capital stock of the Company as
well as the Property (the "Master Agreement"); Purchaser and Seller agree and
stipulate that the right accorded the Purchaser pursuant to this Agreement is
predicated upon the conclusion of the Purchaser's acquisition of the
outstanding capital stock of the Company in accordance with the terms and
conditions of the Master Agreement.
3. TITLE. Purchaser may procure, at Purchaser's expense, a title
report or title commitment on the condition of Seller's title to the Property
and shall notify Seller of any exceptions to title disclosed therein ("Title
Defects"). Seller shall have thirty (30) days from the date of notification by
Purchaser to cure or remove the Title Defects. If Seller, acting with due
diligence and best efforts, fails to cure or remove the Title Defects within
said period, Purchaser shall have the right, in its sole and exclusive
discretion, upon notice to Seller (a) to terminate this Agreement, or (b) to
waive its objections to the Title Defects and proceed to Closing in accordance
with the terms hereof. Purchaser shall have the right but not the obligation
to take whatever action it deems appropriate to cure or remove the Title
Defects. It is a condition of Purchaser's obligation to close hereunder that
an extended coverage ALTA owner's policy of title insurance (Form B, 1970 or
other form acceptable to Purchaser) be issued by a title company acceptable to
Purchaser and in the amount of the Purchase Price, showing an insurable, good
and marketable title in Purchaser subject only to the Title Defects approved by
Purchaser ("Title Policy").
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4. SURVEY, PROPERTY INFORMATION, TESTING AND CONTIGUITY.
(a) Survey. Purchaser may have the Land and Improvements surveyed, at
Purchaser's expense, which survey shall be acceptable for the issuance of the
Title Policy without taking general exception to matters of survey. If such
survey is made, the survey description shall be used in the Assignment of
Lease, as defined below. Approval by Purchaser of the survey and of matters or
issues apparent on the survey shall be a condition precedent to the Purchaser's
obligations under this Agreement.
(b) Consent. Purchaser shall request the consent of the Ground Lessor
to the assignment of the Ground Lease. Seller agrees to cooperate with
Purchaser in securing the Ground Lessor's consent. If Ground Lessor does not
consent to such conveyance and assignment by the end of the sixty (60) day
period set forth below in Section 4(d), Purchaser may terminate this Agreement.
(c) Proper Information. Seller shall provide to Purchaser within
thirty (30) days after Seller's execution of this Agreement, and thereafter
until Closing, as Seller may come into possession or control of same, correct
and complete copies of any documents, correspondence and information in
Seller's possession or control relating to the Land and the Property.
(d) Testing. Purchaser shall be accorded a period of sixty (60) days
from the date of the execution hereof by both parties in which to conduct any
and all investigations, inspections and tests with respect to the environmental
condition of the Land and the Property. Purchaser and Purchasers' agents
shall have the right to enter and to conduct or cause to be conducted any
investigations, inspections and tests of the Land and the Property (the
"Tests"), including but not limited to investigations, inspections and tests
regarding the condition of the soil, surface water and groundwater of the Land
and the Property to determine the environmental condition of the Land and the
Property and to test for the presence of any Hazardous Materials, including a
"Phase I" environmental assessment and, if Purchaser in its sole discretion
deems it necessary, a "Phase II" environmental assessment. For purposes
hereof, "Hazardous Materials" shall mean any and all flammable explosives,
hydrocarbons and/or petroleum products or fractions thereof, radioactive
materials, hazardous or toxic wastes, substances or materials, including but
not limited to those materials and substances defined as hazardous substances",
"extremely hazardous substances", "hazardous materials", "hazardous wastes" or
"toxic substances" in the Laws. For purposes hereof, the "Laws" shall include
but not be limited to the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as amended; the
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq.; and any other federal, state and local
statutes and ordinances, including all amendments thereto, replacements
thereof, any rules, regulations and orders adopted and issued pursuant thereto,
and any judicial and administrative interpretations thereof. The cost of the
"Phase I" environmental assessment shall be split 50/50 by Seller and
Purchaser. Purchaser shall pay all other costs for such Tests. If this
Agreement is terminated for any reason permitted herein, Purchaser shall repair
any damage caused to the Land and the Property by the Tests. Purchaser shall
and does hereby indemnify and hold harmless Seller from any and all claims and
causes of action arising out of such Tests, provided Seller is not negligent or
at fault, and further provided that Purchaser shall not be responsible for any
costs, claims, damages, or liabilities
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caused by or arising from any Hazardous Materials discovered on the Land and
the Property by such Tests. If the Tests reveal that the Land and the Property
is, in the Purchaser's sole and exclusive discretion, unsuitable to Purchaser's
use or contaminated, then Purchaser may terminate this Agreement by giving
written notice to Seller at any time within sixty (60) days of the execution of
this Agreement by both Purchaser and Seller. If no such notice is given, then
the predication provided in this paragraph shall be deemed satisfied.
5. CONVEYANCE. At Closing, Seller shall assign to Purchaser good and
marketable title to the Ground Lease and Improvements by assignment of lease
(the "Assignment of Lease"), warranting title thereto to be free and clear of
all contracts, liens, defects, encumbrances, encroachments, leases, tenancies
and occupancies, (except for the existing lease to the Company) and those
matters approved by Purchaser in accordance with Section 3 hereof, and current
real estate taxes and assessments, both general and special, not then due and
payable. Seller shall deliver possession of the Land and Property to Purchaser
at Closing in the same condition and state of repair as on the date of Seller's
execution of this Agreement, subject only to normal wear, tear, and use since
that date. Prior to Closing, Seller shall not take or fail to take any "action
in which would adversely affect the title, condition, or value of the Land and
Property, or Purchaser's intended use thereof. Seller shall not enter into
any agreements prior to Closing, including, without limitation, amending or
modifying the Ground Lease, which would materially adversely affect Purchaser's
intended use of the Land and Property without Purchaser's prior written
consent, which consent may be withheld in Purchaser's sole and exclusive
discretion.
6. TAXES, RENTS, UTILITY CHARGES. Seller shall pay all taxes and
assessments on the Property, general and special, levied or assessed for any
year prior to that in which the Closing occurs, whether or not such taxes and
assessments are then past due or are payable thereafter. All real estate
taxes and assessments, and all property taxes on personal property acquired
hereunder, if any, for the current year in which the Closing occurs be prorated
between the parties as of the Closing Date using the valuation and rate shown
on the last available real estate tax ▇▇▇▇; provided, however, that any
installments of reassessed or other special assessments, whether then due or to
become due, together with interest and penalties thereon, if any, shall be paid
in full by Seller; and provided further, that the proration of real estate
taxes and assessments shall be adjusted after Closing in the event the
valuation and/or rate is increased in the tax year up to and including the
Closing Date, as indicated by the next available real estate tax ▇▇▇▇. Rents
are to be prorated between the parties as of the Closing Date.
7. CLOSING. The Assignment or Closing ("Closing") of the assignment
of the Property shall occur before Purchaser's notary public on or before
ninety (90) days of the execution of the Agreement ("Closing Date"), subject to
extension by mutual consent of the parties in order that the Closing Date
coincide with the closing of the transactions anticipated by and referenced in
the Master Agreement. At Closing, the costs of conveyance, mortgage, and tax
research certificates shall be paid by Seller. All other costs shall be for
the account of Purchaser.
8. DEFAULT. If this Agreement is terminated for any reason permitted
herein, the parties shall have no further liability and/or obligations
hereunder except as expressly provided herein. If Seller breaches or defaults
in its performance under this Agreement, Purchaser's sole remedy
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shall be to seek specific performance. Likewise, if Purchaser breaches or
defaults in its performance under this Agreement, Seller's sole remedy shall be
to seek specific performance.
9. REPRESENTATIONS. Seller represents and warrants to Purchaser at
the time of Seller's acceptance of this Agreement, and continuing through
Closing, that:
(a) Seller has and owns 100% good and marketable title to the
leasehold interest of the Ground Lease and the Improvements, has authority to
execute, deliver and perform this Agreement and each instrument and agreement
to be executed and delivered by Seller pursuant hereto, and the taking by
Seller of the actions contemplated hereby;
(b) To the best of Seller's knowledge, information, and belief, the
Property is properly zoned for the Company's use, and there is no threatened or
pending proceeding to which Seller is a party or of which it has been given
notice or is otherwise aware concerning zoning, condemnation, impairment of
access, tax adjustment or similar proceeding, assessment or plan by the
Government which could affect the Property;
(c) To the best of Seller's knowledge, information, and belief there
are no actions, investigations or proceedings pending or threatened to be
brought in any court or before the Government which does or could have an
effect on the ability of Purchaser to improve and operate the Property for
Purchaser's use, encumber or burden the Property, prevent the execution,
delivery or performance of this Agreement by Purchaser or Seller, delay or
prohibit Closing; neither are there any unsatisfied judgments or consent
decrees which could have any such effect;
(d) To the best of Seller's knowledge, information, and belief, with
respect to the use, operation or maintenance of the Property, Seller and the
Company are in compliance with all statutes, ordinances, orders, writs,
injunctions or decrees, including but not limited to zoning ordinances,
building codes or the Laws;
(e) Seller has provided or will provide to Purchaser true, correct and
complete copies of any documents in Seller's possession as specified in Section
4 (b) of this Agreement;
(f) Other than the Company, there are no tenants, parties in
possession, adverse possessors or other occupants on the Property, and Seller
has not accepted or granted any other agreements, offers or options to purchase
or lease the Property;
(g) To the best of Seller's knowledge, information, and belief, the
Property has never been used or operated for the storage, manufacture,
treatment, transportation, sale or disposal of Hazardous Materials, except as
required in the ordinary course of the business of the Company and Seller has
no notice from any government authority or other report or study, that
indicates that Hazardous Materials are or have been located on the Property;
(h) Seller has not made an assignment for the benefit of creditors and
is not insolvent or bankrupt.
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10. MISCELLANEOUS.
(a) Expropriation or Casualty. If, prior to Closing, the Property or
any part thereof shall be, or becomes known to Purchaser or Seller (who shall
notify Purchaser promptly) to be, or threatened to be condemned or otherwise
acquired for public purposes, or if access to the Property shall be, or become
known to Purchaser or Seller to be, or threatened to be restricted or denied
through eminent domain, or the exercise of police power, all of the
above-described events collectively referred to as "Expropriation"), or if any
portion of the Property shall be destroyed or damaged by fire or other
casualty, as determined by Purchaser, then in any such case, Purchaser, upon
notice to Seller, may elect (i) to terminate this Agreement, or (ii) to receive
from the proceeds of any insurance payable to Seller upon such damage or
destruction, or from any award paid or payable to Seller as a result of the
Expropriation, as the case may be, an appropriate credit against the balance of
the Purchase Price to be paid by Purchaser.
(b) Transfer Taxes - Commissions. Seller shall defend, indemnify and
hold harmless Purchaser, its successors, assigns, directors, officers,
employees and agents from and against any liability, including court costs and
attorneys' fees, for any commissions by any real estate agent or broker
utilized by Seller in this transaction.
(c) Notices. Any and all notices provided under this Agreement must
be in writing and shall be deemed given when delivered in person, or when
deposited with Federal Express or other similar overnight service, return
receipt requested, or when deposited in the United States mails, postage
prepaid for certified mail, return receipt requested, or upon actual receipt of
a facsimile or other similar transmission (provided that a copy of the
facsimile is delivered or deposited within twenty-four [24] hours in the manner
specified above), properly addressed to the parties. For purposes of notice,
the addresses of the parties shall be as follows:
If to SELLER to: The ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇. Grandchildren's
Trust No. 1
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇
If to PURCHASER to: TransCoastal Marine Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. G. ▇▇▇▇▇ ▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Chamberlain, Hrdlicka, White,
▇▇▇▇▇▇▇▇ ~ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Either party may designate a different address for receiving notices
hereunder by giving at least ten (10) days written notice thereof to the other
parry.
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(d) Waiver. Except as otherwise specifically provided in this
Agreement, no failure or delay on the part of either party in exercising any of
their respective rights hereunder upon any failure by the other party to
perform or observe any condition, covenant or provision herein contained shall
operate as a waiver thereof, nor shall any single or partial exercise of any of
such rights preclude any other or further exercise thereof or the exercise of
any other right hereunder. No waiver or release of any of the terms,
conditions or provisions of this Agreement shall be valid or asserted or relied
upon by either Party hereto or offered in any judicial proceeding or otherwise,
unless the same is in writing and duly executed by the party against whom such
waiver or release is being asserted.
(e) Construction. This Agreement shall be governed and performed in
accordance with the laws of the State of Louisiana.
(f) Severability. This Agreement is intended to be performed in
accordance with and only to the extent permitted by all applicable laws,
ordinances, rules and regulations. If any provision of this Agreement or the
application thereof to any person, entity, or circumstance, shall for any
reason and to any extent be held to be invalid or unenforceable, the remainder
of this Agreement and the application of such provision to the other person or
circumstance shall not be affected thereby, but rather shall be enforced to the
greatest extent permitted by law.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, which together shall constitute the understanding of the parties
hereto.
(h) Dates. If any deadline set forth herein falls on a Saturday,
Sunday or holiday, the deadline shall be extended to the next business day.
(i) Captions. The captions in this Agreement and in any addenda or
exhibits attached hereto are used for reference purposes only and they in no
way define, limit or prescribe the scope or intent of this Agreement or any
provisions hereof.
(j) Survival. The terms of this Agreement shall survive Closing.
(k) Further Assurances. The parties agree to execute such other
documents as may be required from time to time to give effect to the terms
contained herein and the intent hereof.
(l) Counsel. The parties acknowledge that they have had an
opportunity to consult with legal counsel and to study and negotiate the terms
and provisions of this Agreement. The draftsmanship or authorship of this
Agreement, any addenda hereto and any interlineations hereof shall not be
construed in favor of or against either party, it having been negotiated and
adopted fully and freely by both parties.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
undersigned this 11th day of August 1997, having first read and
understood the terms contained herein and the purpose, intent and effects
hereof.
WITNESS: PURCHASER:
By: /s/ ▇▇▇▇ ▇▇▇▇▇ TRANSCOASTAL MARINE SERVICES, INC.
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Print: ▇▇▇▇ ▇▇▇▇▇
----------------------------
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇ By: /s/ G. ▇▇▇▇▇ ▇▇▇▇
------------------------------- --------------------------------
Print: ▇▇▇▇ ▇▇▇ ▇▇▇▇ G. ▇▇▇▇▇ ▇▇▇▇, Vice President
----------------------------
SELLER:
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇.
------------------------------- GRANDCHILDRENS TRUST NO. 1
Print: ▇▇▇▇ ▇▇▇▇▇
----------------------------
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------- --------------------------------
Print: ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇, Trustee
---------------------------- --------------------------------
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THE STATE OF TEXAS Section
Section
COUNTY OF ▇▇▇▇▇▇ Section
BEFORE ME, the undersigned authority, on this day personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇, Trustee of ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇. Grandchildrens Trust
No. 1, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that (s)he executed the same for the
purposes and consideration therein stated, and in the capacity therein set
forth.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 11th day of August,
1997.
[SEAL] /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇
-----------------------------
Notary Public in and for the
State of Texas
▇▇▇▇ ▇▇▇ ▇▇▇▇
-----------------------------
Printed Name of Notary
My Commission Expires:
5-10-2000
-----------------------------
THE STATE OF TEXAS Section
Section
COUNTY OF ▇▇▇▇▇▇ Section
BEFORE ME, the undersigned authority, on this day personally appeared
G. ▇▇▇▇▇ ▇▇▇▇, President of TransCoastal Marine Services, Inc., known to me to
be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein stated, and in the capacity therein set forth.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 11th day of August,
1997.
[SEAL] /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇
-----------------------------
Notary Public in and for the
State of Texas
▇▇▇▇ ▇▇▇ ▇▇▇▇
-----------------------------
Printed Name of Notary
My Commission Expires:
5-10-2000
-----------------------------
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EXHIBIT A
(a) Part of ▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ located in ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇▇▇▇ Parish, Louisiana, containing 10.754
acres, together with any improvements thereon, containing and
measuring 469.1 feet on the west side of ▇▇▇▇▇ Street (Parish Road No.
605), being irregular in shape and being bounded on the north by Lot 9
and part of Lot 10, on the south by Lot 11, on the east by ▇▇▇▇▇
▇▇▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇) and on the west by Commercial Canal,
being part of Lot 10 as shown in part on plat of R. B. ▇▇▇▇▇, Land
Surveyor, dated October 12, 1978, a copy of which is attached to that
certain Lease dated July 21, 1987, and is recorded under Entry No.
87-7302 of the records of the Clerk of Court's Office for the Parish
of Iberia, Louisiana.
Subject to that certain five foot utilities easement running along the
entire eastern boundary of the subject property parallel and adjacent
to ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇) as more particularly shown on
plat of R. B. ▇▇▇▇▇, Land Surveyor, dated October 12, 1978.
(b) Part of ▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ located in ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇▇▇▇ Parish, Louisiana, containing 0.569 acres,
together with any improvements thereon, being bounded on the north by
Lot 8, south by the remainder of Lot 10, east by Lot 9 and west by
Commercial Canal as shown on plat of R. B. ▇▇▇▇▇, Land Surveyor, dated
January 30, 1979, a copy of which is attached to that certain Lease
dated July 21, 1987 and is recorded under Entry No. 87-7302 of the
records of the Clerk of Court's Office for the Parish of Iberia,
Louisiana.
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