EXHIBIT 10.13 FOR ITEM 6
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and entered into
as of this 20th day of May, 2002 by and between Xxxxxxxxx Shipyards, Inc., a
Louisiana corporation, or its nominee as designated under Section 10.13 (the
"Buyer"), on the one hand, and Xxxxxx Xxxxxxx Halter, Inc., a Mississippi
corporation, Halter Marine, Inc., a Nevada corporation, Halter Marine, Inc., a
Louisiana corporation, Halter Gulf Repair, Inc., a Delaware corporation, Halter
Marine Services, Inc., a Mississippi corporation, Halter Marine Gulfport, Inc.,
a Nevada corporation, Gulf Coast Fabrication, Inc., a Mississippi corporation,
and Halter Marine Pascagoula, Inc., a Delaware corporation,
Debtors-in-Possession (collectively the "Seller") under jointly administered
Case No. 01-52173 (the "Case") in the United States Bankruptcy Court in the
Southern District of Mississippi (the "Bankruptcy Court") filed on April 19,
2001 the ("Petition Date").
RECITALS
A. The relevant line of business for the purposes of this Agreement is the
Seller's business segment specifically involving the design,
construction and repair of vessels, known within the Seller's operations
as the Halter Marine or the Vessels Group (the "Business").
B. Seller wishes to sell or assign to Buyer the assets described on
Exhibits "A" through "C", other than certain specified excluded assets
described on Exhibits "B-1", "B-2" and "D", and some liabilities
associated with certain of the assets at the price and on the other
terms and conditions specified in detail below; and Buyer wishes to so
purchase and acquire such assets and assume such liabilities from
Seller.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. TRANSFER OF ASSETS
1.1 PURCHASE AND SALE OF ASSETS
On the Closing Date, as hereinafter defined, in consideration of the mutual
covenants, representations and obligations of Buyer and Seller hereunder, and
subject to the conditions hereinafter set forth, Seller shall sell, assign,
transfer, convey and deliver to Buyer, and Buyer shall purchase from Seller, the
following assets, wherever located or, to the extent set forth below, Seller's
interest in such assets (collectively, the "Property"):
1.1.1 Leases and Contracts
Seller's right, title and interest (i) under those real property leases
described on Exhibit "A-1" attached to this Agreement (collectively, the "Real
Property Leases"), (ii) under those
equipment, personal property and intangible property leases, rental agreements,
licenses, contracts, agreements and similar arrangements described on Exhibit
"A-2" attached to this Agreement (collectively, the "Other Leases"), (iii) as a
party to all contracts, leases, orders, purchase orders, licenses, contracts,
subcontracts, agreements and similar arrangements, described on Exhibit "A-3",
Exhibit "A-3a", Exhibit "A-3b", and Exhibit "A-3c" (collectively, the "Other
Contracts" and together with the Other Leases, the "Other Leases and
Contracts").
1.1.2 Real Property and Improvements
Seller's right, title and interest in the real property described in the legal
descriptions attached hereto as Exhibit "A-4" and all improvements located
thereon (collectively, the "Real Property"). Notwithstanding the foregoing, in
the event that Buyer elects to conduct an environmental investigation of (i) the
Real Property located at 00000 Xxxxx Xxxxxx Xxxx/Xxxxxxxxxx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxx (the "Three Rivers Facility"), as provided in Section 8.3
below, and thereafter Buyer determines in its sole discretion not to acquire all
of the Three Rivers Facility because of the results of such investigation, then
Buyer may so notify Seller in writing, by not later than the day before the
Auction approved by the Procedure Order, in which event the Three Rivers
Facility shall not be sold and transferred to Buyer pursuant to this Agreement,
and the Purchase Price shall be reduced by One Million Dollars ($1,000,000) or
(ii) any one or more other items of Real Property listed on Exhibit "A-4", and
thereafter Buyer determines in its sole discretion not to acquire one or more or
a portion of such items of Real Property, then Buyer may so notify Seller in
writing, by not later than the Closing Date in which event such items or
portions thereof shall not be sold and transferred to Buyer pursuant to this
Agreement, provided, that, with respect to subpart (ii), the Purchase Price
shall not be reduced as a result thereof and neither Seller nor Buyer shall have
any obligation to remedy any problem discovered from such investigation.
1.1.3 Personal Property
Those items of equipment and tangible personal property listed in Exhibit "B"
attached to this Agreement, and any other tangible personal property now owned
or hereafter acquired by Seller and not disposed of by Seller in the ordinary
course of the Business prior to the Closing Date that is primarily used in the
Business (collectively, the "Personal Property"). As used in this Agreement, the
term "Inventory" shall not include the property listed on Exhibit "B".
1.1.4 Intangible and Intellectual Property
All intangible and intellectual property used primarily in the Business,
including but not limited to all books, records, documents, licenses, permits,
promotional materials, designs, plan specifications, names, trade names,
patents, software and any other similar items primarily used in the Business,
and all suits, actions, claims and demands owned by Seller with respect to the
Property, including but not limited to such claims as Seller may own against
Buyer, its officers, directors, employees, agents, assigns, subsidiaries and
affiliates (the "Seller's Assigned Actions"), including, without limitation, the
corporate and trade name "Halter," and any other corporate and trade names,
trade marks and service marks and variations thereof that are primarily used in
connection with the Business and the other items identified on Exhibit "C"
hereto (collectively, the "Intangible Property"); provided, however, that Seller
shall have the right to use the
following corporate and trade names after the Closing Date until conclusion of
the Case for corporate governance purposes and for purposes of administering the
Case pursuant to a trademark license agreement substantially in the form
attached hereto as Exhibit "Q" (the "Trademark License Agreement"): all
corporate names listed on Appendix "C" to the Trademark Assignment. As used in
this Agreement, Intangible Property shall in all events exclude (i) any
materials containing privileged communications or information about employees,
disclosure of which would violate an employee's reasonable expectation of
privacy and any other materials which are subject to attorney-client privilege
(including any rights to assert privilege), and (ii) Seller's corporate books
and records relating to its organization and existence.
1.1.5 Receivables
All accounts receivable arising under the Other Contracts listed on Exhibit
"A-3a" which are 60 days or less outstanding as of the Closing Date and are
included as Current Assets, and all causes of action by Seller relating or
pertaining to the foregoing (collectively, the "Receivables").
1.1.6 Inventory
All supplies, goods, materials, inventory and stock in trade used primarily in
the Business and owned by Seller (which should not be interpreted to include the
E Cat Prototype Vessel, finished goods or contract specific inventory) (the
"Inventory").
1.1.7 Xxxxxx-Xxxxxxxxx Joint Venture
All interests of Seller in Xxxxxx-Xxxxxxxxx Joint Venture, L.L.C., a Louisiana
limited liability company (hereafter, "HBJV"), including but not limited to all
membership interests owned by Seller or any other equity or ownership interest
of Seller in HBJV, including all of Seller's obligations to the HBJV, and any
and all agreements associated in any manner with HBJV, including but not limited
to, (a) that certain Operating Agreement of HBJV dated as of May 14, 1998 by and
between Halter Marine Group, Inc. and Xxxxxxxxx Shipyards, Inc. (as amended by
Amendment No. 1 thereto dated as of November 23, 1998); (b) that certain Teaming
Agreement entered into on or about November 25, 1998 by and between Lockheed
Xxxxxx Corporation, Xxxxxxx Shipbuilding, Inc., and HBJV; (c) that certain
Teaming Agreement dated as of March 18, 1998 by and between Xxxx, Xxxxx &
Xxxxxxxx and HBJV; and (d) that certain Teaming Agreement dated March 6, 1998
between Xxxxxxxxx Shipyards, Inc. and Halter Marine, Inc.
1.1.8 Cost in Excess
All supplies, goods, materials and other work in process owned by Seller for
which a cost has been incurred, but not billed, by Seller with respect to the
Other Contracts listed on Exhibit "A-3a".
1.2 EXCLUDED ASSETS
1.2.1 In addition to Buyer's right under Section 1.1.2 to exclude
items of Real Property or portions thereof, Buyer may notify Seller in writing
prior to the date set for the Auction in the Procedure Order that Buyer has
determined not to acquire any or all of the items listed on Exhibit "A-1",
Exhibit "A-2", Exhibit "A-3", Exhibit "B" and Exhibit "C" and such items shall
not be transferred to Buyer pursuant to this Agreement, and shall be deemed
Excluded Assets hereunder; provided, however, such right to exclude Property
shall not be available to Buyer with respect to those Other Contracts listed on
Exhibit "A-3a", Exhibit "A-3b" and Exhibit "A-3c"; provided, moreover, that any
such exclusion by Buyer shall not reduce the Purchase Price. Notwithstanding the
foregoing, in the event Seller is not prepared to deliver on the Closing Date
the novation agreements or consents to assignment required in Section 3.3.1 with
respect to the Other Contracts listed on Exhibit "A-3a", then Buyer shall have
the right to exclude (i) such Other Contract for which such novation agreement
or consent to assignment Buyer is not prepared to deliver on the Closing Date
and (ii) those Other Contracts listed on Exhibits "A-3b" and "A-3c" related
thereto. Any exclusion of Property by Buyer pursuant to this Section 1.2.1 which
prevents Seller from fulfilling Seller's delivery obligations under this
Agreement (including, without limitation, Seller's ability or obligation to
transfer other items of Property) shall not, as a result thereof, allow Buyer to
terminate this Agreement or entitle Buyer to the Purchase Price adjustment
provided for in Section 2.1.4.
1.2.2 Notwithstanding anything to the contrary in this Agreement,
the Property shall not include the following assets (collectively, the "Excluded
Assets"): (i) items of Real Property, or portions thereof, elected by Buyer to
be Excluded Assets pursuant to the provisions of Section 1.1.2; (ii) those
assets excluded under Section 1.2.1 above; (iii) those items excluded from
Intangible Personal Property under Section 1.1.4 above; (iv) all cash and cash
equivalents; (v) Inventory transferred or used by Seller in the ordinary course
of the Business prior to the Closing Date; (vi) any lease, rental agreement,
contract, agreement, license or similar arrangement that expires prior to the
Closing Date ("Expired Contracts"); (vii) the corporate and trade name "Xxxxxx
Xxxxxxx Halter, Inc." and any other corporate and trade names, trademarks and
service marks and variations thereof of Seller or its affiliates that are not
used primarily in the Business (including, without limitation, "Xxxxxx Xxxxxxx
Offshore, Inc."); (viii) any right, property or asset listed on Exhibit "D"
hereto; (ix) all preference or avoidance claims and actions of the Seller,
including any such claims and actions arising under Sections 544, 547, 548, 549,
and 550 of the United States Bankruptcy Code, except for Seller's Assigned
Actions; (x) the Seller's rights under this Agreement, including its rights to
consideration payable or deliverable to Seller pursuant to the terms and
provisions hereof; (xi) insurance proceeds, claims and causes of action with
respect to or arising in connection with (A) any Expired Contract, or (B) any
item of tangible or intangible property not included in the Property; provided,
however that Buyer shall continue to have its rights under Section 2.1.4; (xii)
any right or ownership interest in the Dredge Potter contract; (xiii) any
accounts receivable of the Business that are greater than 60 days outstanding on
the Closing Date or which are expected to become subject to a dispute or claim
as mutually determined by Buyer and Seller on the Closing Date and any accounts
receivable that do not arise under any of the Other Contracts described on
Exhibit "A-3a"; (xiv) those items of Personal Property listed on Exhibit "B-1";
and (xv) those items of Personal Property listed on Exhibit "B-2".
1.3 INSTRUMENTS OF TRANSFER
The sale, assignment, transfer, conveyance and delivery of the Property to Buyer
and the assumption of those certain specified liabilities provided herein by
Buyer shall be made by assignments, bills of sale, deeds, stock powers and other
instruments of assignment, transfer and conveyance as may reasonably be
requested by Buyer or Seller or that are necessary to
consummate the transaction contemplated herein, each substantially in the form
attached hereto and as required by this Agreement.
2. CONSIDERATION
2.1 PURCHASE PRICE.
2.1.1 Consideration. The cash consideration to be paid by Buyer to
Seller for the Property (the "Purchase Price") shall be Forty-Eight Million
Dollars and No Cents ($48,000,000), subject to any purchase price adjustments as
provided in Section 1.1.2, 2.1.4 and 3.7.2 and working capital adjustments as
provided in Section 2.2 hereof.
2.1.2 Deposit Escrow. Concurrently with the mutual execution and
delivery of this Agreement (the date of such mutual execution and delivery is
sometimes referred to herein as the "Execution Date"), Buyer shall deliver to
and deposit in trust with JPMorgan Chase Bank or other similar escrow agent or
company mutually acceptable by written agreement between Buyer and Seller (the
"Deposit Escrow Agent") Five Million Dollars and No Cents ($5,000,000) (the
"Deposit") in immediately available, good funds (funds delivered in this manner
are referred to herein as "Good Funds"), pursuant to an escrow agreement among
Buyer, Seller and Deposit Escrow Agent substantially in the form attached hereto
as Exhibit "E". Such escrow agreement shall include the provisions set forth in
this Section 2.1.2. Upon receipt of the Deposit, the Deposit Escrow Agent shall
immediately deposit the Deposit into an interest-bearing account. The Deposit
Escrow Agent shall return to Buyer the Deposit (and any interest accrued
thereon) upon the earlier of (A) the Buyer's termination of this Agreement under
Section 4.3.2 as a result of the failure of a condition to Buyer's obligations,
as set forth in Section 4.2 (a "Seller Default Termination"), (B) Seller's
termination of this Agreement at its election under Section 4.3.2 unless there
has been a Buyer Default Termination, (C) Buyer's or Seller's termination of
this Agreement at its election under Section 4.3.3, (D) at the Outside Date, as
extended pursuant to Section 3.2, and no Closing or Buyer Default Termination
has occurred as of such date, (E) at such time as Seller accepts an overbid at
the Auction pursuant to Section 8.4.1 from a third party other than Buyer, or
(F) mutual termination under Section 4.3.1. The Deposit Escrow Agent shall
deliver the Deposit (and any interest accrued thereon) to Seller upon the
earlier of (A) Seller's termination of this Agreement under Section 4.3.2 as a
result of the failure of a condition to Seller's obligations set forth in
Sections 4.1.1 only (a "Buyer Default Termination") or (B) at the Closing of the
sale to Buyer. The Deposit Escrow Agent's escrow fees and charges shall be paid
one-half by Seller and one-half by Buyer, in which respect the Seller and the
Buyer shall not be jointly liable since each shall only be liable for its own
part (one-half) of the said fees and charges.
2.1.3 Closing Date Payments. At the Closing, Buyer shall (i) pay and
deliver to Seller, by wire transfer in Good Funds, the Purchase Price less (a)
the Deposit (and interest accrued thereon), (b) the Working Capital Escrow
Amount (as defined below) and (c) the Purchase Price Reduction Escrow Amount (as
defined below), (ii) instruct the Deposit Escrow Agent in writing to deliver the
Deposit (and any interest accrued thereon) to Seller, by wire transfer of Good
Funds, (iii) pay and deliver in trust to JPMorgan Chase Bank or other similar
escrow agent mutually acceptable by written agreement executed by Buyer and
Seller (the "Working Capital Escrow Agent") an escrow (the "Working Capital
Adjustment Escrow Account") in an amount
equal to Six Million Dollars and No Cents ($6,000,000) (the "Working Capital
Escrow Amount") in Good Funds pursuant to an escrow agreement among Buyer,
Seller and Working Capital Escrow Agent substantially in the form attached
hereto as Exhibit "F" (the "Working Capital Escrow Agreement"), which will be
available to satisfy any amounts owed to Buyer or Seller pursuant to Section 2.2
hereof and (iv) pay and deliver to an escrow (the "Purchase Price Reduction
Escrow Account") with JPMorgan Chase Bank or other similar escrow agent or
company reasonably designated by Seller (the "Purchase Price Reduction Escrow
Agent") an amount equal to Three Million Dollars and No Cents ($3,000,000) (the
"Purchase Price Reduction Escrow Amount") in Good Funds pursuant to an escrow
agreement among Buyer, Seller and the Purchase Price Reduction Escrow Agent
substantially in the form attached hereto as Exhibit "G" (the "Purchase Price
Reduction Escrow Agreement"), which will be available for distribution to Buyer
according to Section 2.1.4 hereof. Upon calculation of Net Working Capital as
provided in Section 2.2, the Working Capital Escrow Amount shall be released
pursuant to Section 2.2.3. Any portion of the Working Capital Escrow Amount not
necessary to satisfy amounts payable to Buyer pursuant to such Section 2.2 shall
promptly be disbursed to Seller together with all interest accrued thereon. The
Working Capital Escrow Agent's escrow fees and charges shall be paid one-half by
Seller and one-half by Buyer, in which respect the Seller and the Buyer shall
not be jointly liable since each shall only be liable for its own part
(one-half) of the said fees and charges. Following the expiration of thirty (30)
days following the Closing Date, any portion of the Purchase Price Reduction
Escrow Amount not necessary to satisfy Buyer's unpaid Reimbursement Request (as
defined in the Purchase Price Reduction Escrow Agreement) pursuant to Section
2.1.4 shall promptly be disbursed to Seller together with all interest accrued
thereon. The Purchase Price Reduction Escrow Agent's fees and charges shall be
paid one-half by Seller and one-half by Buyer, in which respect the Seller and
the Buyer shall not be jointly liable since each shall only be liable for its
own part (one-half) of the said fees and charges.
2.1.4 Purchase Price Reduction. If Seller fails, for any reason, to
deliver possession of, or good and marketable title to, any item of non-leased
Personal Property or the exclusive right of ownership therein, as may be
applicable, to the Buyer at Closing as required by Section 1.1.3 of this
Agreement, then, within thirty (30) days following the Closing, Buyer shall be
entitled to a distribution from the Purchase Price Reduction Escrow Account in
an amount equal to the lesser of (x) the amount listed for such item of owned
Personal Property in that certain appraisal provided to Seller by DoveBid
Valuation Services dated December 8, 2000 (with respect to machinery and
equipment) and dated June 14, 2001 (with respect to floating equipment), based
on orderly liquidation values and (y) the amount listed for such item in an
appraisal, based on orderly liquidation values, to be obtained by Buyer prior to
the Closing Date (the lesser of (x) and (y), the "Specified Amount"). If any
such item of Personal Property is not included on both of the appraisals listed
in (x) and (y), then the value to be utilized shall be the value indicated on
such appraisal in which the item is listed. Upon presenting Seller with proof,
to the reasonable satisfaction of Seller, of Seller's failure to deliver
possession of, good and marketable title to, or an exclusive right of ownership
in, an item of non-leased Personal Property and Seller is unable to cure such
failure within ten (10) calendar days after Buyer presents such proof to Seller,
Buyer and Seller shall jointly instruct the Purchase Price Reduction Escrow
Agent to immediately distribute the Specified Amount relating to such item to
Buyer. If Buyer has submitted a Reimbursement Request (as defined in the
Purchase Price Reduction Escrow Agreement) and no disbursement has been made by
the Purchase Price Reduction Escrow Agent or there is a dispute
with respect to such Reimbursement Request, then the Purchase Price Reduction
Escrow Agent shall retain such amount until either Buyer and Seller submit a
joint instruction to the Purchase Price Reduction Escrow Agent with respect to
the disbursement thereof or a Final Order of the Bankruptcy Court is presented
to the Purchase Price Reduction Escrow Agent which directs the disbursement of
such amount. Notwithstanding the foregoing, Buyer shall not be entitled to a
distribution from the Purchase Price Reduction Escrow Account until the
aggregate Specified Amount exceeds One Hundred Thousand Dollars ($100,000).
Nothing in this Section 2.1.4 shall be construed as permitting Buyer to receive
any distribution from the Purchase Price Reduction Escrow Account for an item of
owned Personal Property because of its condition or operational status on the
Closing Date.
2.2 POST-CLOSING ADJUSTMENT.
2.2.1 Calculation of Net Working Capital at Closing Date. Within
thirty (30) calendar days following the Closing Date, Seller's independent
public accountants shall (i) compute the amount of Net Working Capital of the
Business ("Net Working Capital") as of the Closing Date, in accordance with
Generally Accepted Accounting Principals ("GAAP") consistently applied, based on
adjustments, as expressly provided in this Agreement, to the Business's balance
sheet dated March 31, 2002, and (ii) provide Buyer a summary and all
computations and work papers reflecting how such computations were made and the
factors included in such computations. Buyer and its accountants may within ten
(10) business days after receipt of such computations initiate the dispute
procedures pursuant to Section 2.2.4, if necessary.
2.2.2 Net Working Capital at Date of Most Recent Balance Sheet. By
way of example, a copy of the Net Working Capital calculation as of March 31,
2002, and the balance sheet of the Business as of March 31, 2002, both of which,
to Seller's knowledge, were computed in accordance with GAAP consistently
applied and with the adjustments specifically provided for in this Agreement,
are attached hereto as Schedule 2.2.
2.2.3 Payment of Adjustment Amounts. If the Net Working Capital as
of the Closing Date is greater than Eight Million Dollars and No Cents
($8,000,000) (the "Target Net Working Capital"), then Buyer and Seller shall,
subject to resolution of Buyer's disputes according to Section 2.2.4 hereof,
within ten (10) business days of Buyer's receipt of such computation by Seller's
independent public accountants, jointly instruct the Working Capital Escrow
Agent to release to Seller, by wire transfer, an amount equal to the Working
Capital Escrow Amount, plus all accrued interest thereon. If the amount in the
Working Capital Adjustment Escrow Account is insufficient to satisfy the amount
by which the Net Working Capital, as computed, exceeds the Target Net Working
Capital, then Buyer shall pay directly to Seller, on the same date as the amount
in the Working Capital Adjustment Escrow Account is released pursuant to this
Section 2.2.3, an amount equal to the Net Working Capital, as computed, less the
Target Net Working Capital. If the Net Working Capital, as computed, as of the
Closing Date is less than the Target Net Working Capital, then Buyer and Seller,
within ten (10) business days of Buyer's receipt of such computation, shall
jointly instruct the Working Capital Escrow Agent to release (i) to Buyer, by
wire transfer, an amount equal to the difference between the Target Net Working
Capital and the amount of Net Working Capital, as computed, as of the Closing
Date, and (ii) to Seller, by wire transfer, any amount remaining in the Working
Capital Adjustment Escrow Account after payment of the foregoing. If the amount
in the Working Capital Adjustment
Escrow Account is insufficient to satisfy the amount by which the Target Net
Working Capital exceeds the Net Working Capital, as computed, then Seller shall
pay directly to Buyer, on the same date as the amount in the Working Capital
Adjustment Escrow Account is released pursuant to this Section 2.2.3, an amount
equal to the Target Net Working Capital less the Net Working Capital, as
computed.
2.2.4 Disputes. Within ten (10) business days of Buyer's receipt of
the computations referred to in Section 2.2.1 above, the Buyer shall notify
Seller whether it disputes any aspect of such computations or accepts them. If
Buyer disputes such computations, then the parties shall work together in good
faith to resolve the dispute. If they are unable to resolve the dispute within
five business days, then the dispute shall be referred to such nationally
recognized accounting firm as Buyer and Seller may mutually agree upon, or if
they are unable to agree upon such accounting firm within five additional
business days, as designated by the Bankruptcy Court. Such accounting firm shall
be instructed to resolve the dispute not later than ten business days following
the referral of the dispute to such accounting firm. The resolution of the
dispute by such accounting firm shall be final and binding on Buyer and Seller
and may be enforced by the Bankruptcy Court.
"Current Assets" means the amounts reflected on Seller's financial
statements prepared for purposes of Section 2.2.1 hereof, in accordance with
GAAP, consistently applied, including the further adjustments provided for in
this Agreement and including the following classes of current assets of the
Business: (w) with respect to those related to the Other Contracts listed on
Exhibit "A-3a", (i) accounts receivable (except that all accounts receivable
greater than 60 days outstanding or which are expected to become subject to a
dispute or claim (as mutually determined by Buyer and Seller) shall be deducted
in their entirety from Net Working Capital ), and (ii) costs in excess of
xxxxxxxx; (x) deposits of all types, to the extent transferable (such deposits
shall not include surety-type deposits; and (y) inventory; provided, however,
that neither cash nor cash equivalents shall be considered a Current Asset.
"Current Liabilities" means the amounts reflected on Seller's financial
statements prepared for purposes of Section 2.2.1 hereof, in accordance with
GAAP, consistently applied, including the further adjustments provided for in
this Agreement and including the following classes of current liabilities of the
Business: (w) post-petition accounts payable; (x) xxxxxxxx in excess of costs;
and (y) accrued expenses; provided, however, that neither (a) current maturities
of indebtedness for borrowed money or capital leases (including interest
thereon), nor (b) any obligations that are not Assumed Liabilities, will be
deemed Current Liabilities.
"Net Working Capital" means the excess of the Current Assets over the
Current Liabilities of the Business as of the Closing Date, as reflected on a
balance sheet of the Business prepared for purposes of the computation in
Section 2.2.1 above.
2.3 ASSUMED LIABILITIES
Buyer shall, effective as of the Closing Date, assume and/or perform only those
(i) liabilities and obligations accruing under the Real Property Leases, the
Other Leases, and the Other Contracts listed on Exhibit "A-3a", Exhibit "A-3b",
and Exhibit "A-3c" (except such liabilities and obligations accruing under the
Real Property Leases and the Other Leases and Contracts that
Buyer rejects pursuant to Section 1.2.1), and (ii) all post-petition liabilities
included as Current Liabilities for purposes of determining the Net Working
Capital and (iii) all of Seller's liabilities and obligations with respect to
the HBJV (collectively, all of the foregoing liabilities and obligations are the
"Assumed Liabilities"). Buyer does not assume and shall not perform any
liabilities or obligations which are not specifically described in this Section
2.3. Buyer shall indemnify Seller with respect to (i) all post-Petition Date
liabilities and obligations accruing under the Real Property Leases and the
Other Leases and Contracts (except such liabilities and obligations accruing
under the Real Property Leases and the Other Leases and Contracts that Buyer
rejects pursuant to Section 1.2.1), (ii) all liabilities and obligations
accruing under the Other Contracts listed on Exhibit "A-3a", and (iii) all
post-petition liabilities included as Current Liabilities for purposes of
determining the Net Working Capital.
2.4 EXCLUDED LIABILITIES
Notwithstanding anything in this Agreement to the contrary and except for the
Assumed Liabilities, Seller shall, without any responsibility or liability of,
or recourse to Buyer or any of its directors, shareholders, officers, managers,
employees, agents, consultants, representatives, affiliates, successors or
assigns or persons in similar positions, absolutely and irrevocably retain any
and all liabilities and obligations of any kind or nature, whether foreseen or
unforeseen, known or unknown, existing or which may arise in the future, fixed
or contingent, matured or unmatured of Seller, arising out of or calculated with
reference to the ownership, use or possession or the transfer of the Property,
or the operation or conduct of the Business, prior to or on the Closing Date
(the "Excluded Liabilities"). The Excluded Liabilities shall include, but not be
limited to:
2.4.1 Any liability of Seller for unpaid taxes (with respect to the
Business, the Property or otherwise) for periods prior to the Closing Date;
2.4.2 Any liability of Seller for income, transfer, sales, use, and
other taxes arising in connection with the consummation of the transaction
contemplated hereby (including any income taxes arising because Seller is
transferring the Property, because any of their subsidiaries are deemed to be
transferring its assets pursuant to an election under Internal Revenue Code
Section 338(h)(10), because Seller has an excess loss account in the stock of
any of its subsidiaries, or because Seller has deferred gain on any deferred
intercompany transaction); provided, however, that Buyer shall be liable for any
sales, use, transfer or other similar taxes or charges that are incurred solely
as a result of the transactions contemplated hereby;
2.4.3 Any liability of Seller for the unpaid taxes of any person
other than any Seller under Treasury Regulations Section 1.1502-6 (or any
similar provision of state, local, or foreign law), as a transferee or
successor, by contract or otherwise;
2.4.4 Any obligation of Seller to indemnify any person by reason of
the fact that such person was a director, officer, manager, employee, agent or a
person in any other similar capacity with any Seller or was a customer or
contracting party with any Seller, or was serving at the request of any Seller
as a partner, trustee, director, officer, employee, manager, agent or in any
other similar capacity with another entity (whether such indemnification is for
judgments, damages, penalties, fines, costs, amounts paid in settlement, losses,
expenses, or otherwise and
whether such indemnification is pursuant to any statute, charter document,
bylaw, agreement, or otherwise);
2.4.5 Any liability of Seller for costs and expenses incurred in
connection with this Agreement and the transaction contemplated hereby;
2.4.6 Any liability or obligation of Seller under this Agreement;
2.4.7 Any liability or obligation arising out of or relating to a
matter the nondisclosure of which results in a breach of a representation or
warranty of Seller contained herein;
2.4.8 All liabilities and obligations arising out of incidents or
events occurring prior to the Closing Date by any person employed by Seller for
payment or benefits under workers' compensation laws or any other law;
2.4.9 All liabilities and obligations arising out of claims made by
any person employed by Seller in the Business for payment of costs incurred
which arise out of incidents or events prior to the Closing Date under any
medical insurance plan;
2.4.10 All liabilities and obligations of the Business that arise out
of, result from or relate to Seller's ownership or operation of the Business for
personal injury or property damage that occur or have occurred prior to the
Closing Date;
2.4.11 All Seller warranty obligations unless otherwise explicitly
assumed pursuant to Section 2.3;
2.4.12 All environmental liabilities resulting from or arising out of
the ownership or operation of the Business, the condition of the Property or an
environmental claim that a release occurred, in each case prior to the Closing
Date;
2.4.13 All liabilities and obligations for contingent payments under
that certain Stock Purchase Agreement, dated July 10, 1997, among Halter Marine,
Inc. and the shareholders of Xxxxxxxxx Bond Shipyard, Inc.;
2.4.14 All liabilities and obligations under any agreement between
Xxxxxx & Xxxxxxx, Ltd. (or any of its predecessors, including X.X. Xxxxxxxx
Holdings, Inc.) and either one of or both X.X. Xxxxxxx Associates, Inc. (or any
of its predecessors, including Xxxxxx & Xxxxxxx, Ltd.) and Xxxxxx X. Xxxxxxx;
and
2.4.15 Any liability or obligation in connection with seller's
employee benefit plans (as defined in ERISA sec. 3(3), 29 USC sec. 1002(3)),
including pension plans, profit-sharing and 401(k) plans, health insurance plans
and all other welfare benefit plans; any non-ERISA benefits and fringe benefits.
Buyer shall not be an adopting or successor employer on any such plans, nor
shall Buyer have liability for any premiums, contributions, matches, or other
payments of any kind.
2.5 CURE COSTS
Buyer agrees to pay an amount not to exceed those cure amounts listed on Exhibit
"R" to this Agreement due and payable under the Real Property Leases and the
Other Leases and Contracts which the Bankruptcy Court orders to be paid as a
condition to the Seller's assumption and assignment to Buyer of the Real
Property Leases or the Other Leases and Contracts in accordance with Section 365
of the Bankruptcy Code (the "Cure Costs"); provided that Buyer shall not pay
Cure Costs with respect to such Property that it does not acquire pursuant to
Section 1.2.1.
3. CLOSING OF TRANSACTION
3.1 CLOSING
The Closing of the transaction provided for herein (the "Closing") shall take
place at the offices of Xxxxx and Xxxxx, LLP, 0000 Xxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxx 00000 or such other place mutually agreed upon by Buyer and
Seller.
3.2 CLOSING DATE
The Closing shall be held on a weekday on which financial institutions are open
and on a day that is within five (5) business days after satisfaction or waiver
of the Conditions Precedent to Closing in Section 4 (the "Closing Date") but in
no event earlier than sixty (60) calendar days after the Execution Date and in
no event later than ninety (90) calendar days after the Execution Date (the
"Outside Date"); provided, however, that the Outside Date shall automatically be
extended for no more than three consecutive thirty (30) business day periods if
the only condition remaining to be satisfied is the condition specified in
Section 4.1.2, 4.1.3, 4.2.4 or 4.2.6; provided, further, that Buyer may, in its
sole discretion, elect to extend the Closing Date or the Outside Date, as
extended, if the condition specified in Section 4.2.4 or 4.2.6 has not been
satisfied; provided, further, that the Closing Date may be extended or reduced
upon mutual agreement of the Buyer and Seller.
3.3 SELLER'S DELIVERIES TO BUYER AT CLOSING
On the Closing Date, Seller shall make the following deliveries to Buyer:
3.3.1 An Assignment and Assumption Agreement substantially in the
form attached as Exhibit "H" hereto, duly executed by Seller, pursuant to which
Seller assigns the Real Property Leases and the Other Leases and Contracts
(except such Real Property Leases and Other Leases and Contracts that Buyer
rejects pursuant to Section 1.2.1) (the "Assignment Agreement"). As to Other
Contracts listed in Exhibit "A-3a", Seller shall be prepared to deliver to Buyer
(i) with respect to those Other Contracts to which the United States Government
is a party, a novation agreement to be accepted and executed by the United
States Government and (ii) with respect to those post-Petition Date Other
Contracts for which consent is required to assign such Other Contracts, a
consent to assignment to be accepted and executed by the third party to such
Other Contracts, in each case on the same terms as are in effect for such Other
Contracts on the Closing Date or such other terms reasonably acceptable to
Buyer.
3.3.2 A xxxx of sale, duly executed by Seller, substantially in the
form attached hereto as Exhibit "I", pursuant to which Seller transfers the
Property, other than the Real Property, Real Property Leases and the Other
Leases and Contracts to Buyer (the "Xxxx of Sale").
3.3.3. Special warranty deeds and an Act of Sale duly executed by the
Seller, in respect of each parcel of Real Property, substantially in the form
attached hereto as Exhibit "J" (the "Deeds").
3.3.4 The Permits Sharing Agreement, executed by Seller.
3.3.5 Originals, or if not available, copies of all permits,
licenses and governmental, administrative and regulatory approvals and
authorizations that are in the Seller's possession and that are necessary to own
and operate the Business and the Property, to the extent transferable.
3.3.6 The Working Capital Escrow Agreement, executed by Seller and
the Working Capital Escrow Agent.
3.3.7 The Purchase Price Reduction Escrow Agreement, executed by
Seller and the Purchase Price Reduction Escrow Agent.
3.3.9 Sellers shall have delivered at the Closing copies of the Sale
Procedure Order and the Approval Order duly certified by the Bankruptcy Court,
both of which shall be Final Orders at the time of the Closing.
3.3.10 Written Certification evidencing Seller's satisfaction of all
of Seller's covenants and obligations, as required by Section 4.2.1.
3.3.11 Certificates of Title for each titled vehicle included as
Personal Property.
3.3.12 Such other agreements, certificates, deeds, bills of sale,
assignments, releases, consents to assignments and other instruments of sale,
conveyance, assignment, assumption and transfer satisfactory in form and
substance to Buyer and Seller as may be required in order to convey to Buyer all
of Sellers' right, title and interest in and to the Property or that are
required by this Agreement.
3.3.13 The Settlement and Release Agreement, executed by Seller.
3.3.14 The tangible Personal Property.
3.3.15 The Trademark License Agreement, executed by Seller.
3.3.16 If required by Buyer's title insurance company, Seller shall
have delivered to Buyer evidence of all necessary actions by
Seller in connection with the transaction contemplated hereby,
including (i) certified copies of resolutions duly adopted by
each Seller's Board of Directors approving the transaction
contemplated by this Agreement and authorizing the execution,
delivery and performance by each Seller of this Agreement; and
(ii) a certificate as to the incumbency of the officer(s) of
each Seller executing this Agreement and
instrument or other document delivered in connection with the
transaction contemplated by this Agreement.
3.3.17 Assignments substantially in the forms attached as Exhibit
"S", Exhibit "T" and Exhibit "U" hereto executed by the
appropriate Seller, pursuant to which such Seller transfers
the applicable Intangible Property consisting of patents and
patent applications, trademarks and trade names and trademark
applications (the "Trademark Assignment"), and copyrights,
respectively (collectively, the "IP Assignments").
3.4 BUYER'S DELIVERIES TO SELLER AT CLOSING
On the Closing Date, Buyer shall make or cause the following deliveries to be
made to Seller, to the Working Capital Escrow Agent or to the Purchase Price
Reduction Escrow Agent, as applicable:
3.4.1 The Purchase Price (less the Working Capital Escrow Amount and
the Purchase Price Reduction Escrow Amount and the Deposit (together with all
interest thereon)) to be delivered and paid by Buyer to Seller under Section
2.1.
3.4.2 The Deposit (together with all interest thereon) to be paid
and delivered from the Deposit Escrow Agent to Seller as provided in Section
2.1.2.
3.4.3 The Working Capital Escrow Amount to be delivered by Buyer to
the Working Capital Escrow Agent as provided in Section 2.1.3.
3.4.4 The Purchase Price Reduction Escrow Amount to be delivered to
the Purchase Price Reduction Escrow Agent as provided in Section 2.1.3.
3.4.5 The Assignment Agreement, duly executed by Buyer.
3.4.6 The Xxxx of Sale, duly executed by Buyer.
3.4.7 The Permits Sharing Agreement, duly executed by Buyer.
3.4.8 The Purchase Price Reduction Escrow Agreement, duly executed
by Buyer.
3.4.9 The Working Capital Escrow Agreement, duly executed by Buyer.
3.4.10 The Trademark License Agreement, duly executed by Buyer.
3.4.11 The Settlement and Release Agreement, duly confirmed by Buyer.
3.4.12 Written certification evidencing Buyer's satisfaction of all
of Buyer's covenants and obligations, as required by Section 4.1.1.
3.4.13 Buyer shall have delivered to Seller the following evidence of
all necessary action by Buyer in connection with the transaction contemplated
hereby: (i) certified copies of resolutions duly adopted by Buyer's Board of
Directors approving the transaction contemplated
by this Agreement and authorizing the execution, delivery, and performance by
Buyer of this Agreement; and (ii) a certificate as to the incumbency of officers
of Buyer executing this Agreement and any instrument or other document delivered
in connection with the transaction contemplated by this Agreement.
3.4.14 In the event that Buyer makes any assignment of its rights
under this Agreement to a Subsidiary of Buyer as provided in Section 10.13
below, Buyer shall have executed and delivered to Seller, concurrently with or
prior to the Closing Date, a guaranty substantially in the form and substance
attached hereto as Exhibit "K", of all of such Subsidiary of Buyer's obligations
under this Agreement and under any documents executed by such Subsidiary of
Buyer in favor of Seller pursuant hereto.
3.4.15 The IP Assignments, duly executed by Buyer.
3.5 PRORATIONS
Rent, post-Petition Date property taxes of any kind, paving liens, street
improvement liens, sewerage liens and similar charges incurred with respect to
the Real Property, the Real Property Leases, the Other Leases and Contracts
(except with respect to such Real Property Leases and the Other Leases and
Contracts that Buyer rejects pursuant to Section 1.2.1), and the Personal
Property and income relating to or attributable to the Real Property Leases
(except such Real Property Leases that Buyer rejects pursuant to Section 1.2.1)
shall be prorated between Seller and Buyer as of the Closing Date and reflected
on the closing settlement statement. Rent shall be prorated on the basis of a
thirty (30) day month.
3.6 SALES, USE AND OTHER TAXES
In the event that any (a) real estate transfer taxes or similar taxes or charges
are required to be paid in order to record the deeds to be delivered to Buyer in
accordance herewith, or in the event any such taxes are assessed at any time
thereafter, or (b) sales, use, transfer or other similar taxes or charges are
assessed solely as a result of the transfer of any Property pursuant to this
Agreement, then in each instance such taxes or charges incurred as a result of
the transactions contemplated hereby shall be paid by Buyer.
3.7 POSSESSION
3.7.1 Right to possession of the Property shall transfer to Buyer on
the Closing Date. Seller shall transfer and deliver to Buyer on the Closing Date
such keys, lock and safe combinations and other similar items as Buyer shall
require to obtain immediate and full occupation and control of the Property, and
shall also make available to Buyer at their then existing locations the
originals of all documents in Seller's possession that are required to be
transferred to Buyer by this Agreement.
3.7.2 Until the Closing Date, title to, and risk of loss of, the
Property will remain with the Seller. Title and all risk of
loss will transfer to Buyer on the Closing Date. Seller
will keep the Property insured against loss or damage in
accordance with its existing insurance coverage until the
Closing. If before the Closing, any loss or damage or other
casualty or
any governmental taking affects some or all of the Property
(a "Loss"), then, at Buyer's option (i) the condemnation or
insurance proceeds paid, or to be paid, as a result of the
Loss to such Property will be paid to Buyer at Closing or
used to pay expenses of repairing, replacing and restoring
such Property to its condition prior to such occurrence of
the Loss and any remaining condemnation or insurance
proceeds will be remitted to Seller, or (ii) if the
insurance proceeds are not sufficient to compensate Buyer
for the Loss, or Seller elects to retain all of the
condemnation or insurance proceeds, then Buyer will be
entitled to reduce the Purchase Price dollar for dollar by
the amount of the uncompensated portion of the Loss. For
purposes of compensating Buyer for a Loss, the Specified
Amount shall be the sole determinant of the amount of a
Loss.
4. CONDITIONS PRECEDENT TO CLOSING
4.1 CONDITIONS TO SELLER'S OBLIGATIONS
Seller's obligation to make the deliveries required of Seller at the Closing
shall be subject to the satisfaction, or waiver by Seller, of each of the
following conditions:
4.1.1 All of the representations and warranties of Buyer contained
herein shall continue to be true and correct at the Closing in all material
respects, all covenants and obligations set forth in this Agreement to be
performed by Buyer at or prior to the Closing shall have been performed in all
material respects, and Buyer shall have certified the foregoing to Seller in
writing.
4.1.2 The Bankruptcy Court shall have entered the Procedure Order in
accordance with Section 8.4.1 below and the Approval Order in accordance with
Section 8.4.2.
4.1.3 All applicable waiting periods relating to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")
shall have expired or been terminated with respect to the transaction
contemplated hereby, and any proceeding that may have been filed or instituted
thereunder shall have been satisfactorily concluded.
4.1.4 No order shall have been entered by any court, tribunal or
governmental authority restraining or prohibiting the consummation of the
transaction contemplated by this Agreement or staying the sale of any Property
to Buyer.
4.1.5 Buyer shall have executed and delivered to Seller all of those
documents, instruments and agreements required to be executed by Buyer to Seller
under Section 3.4 hereof.
4.2 CONDITIONS TO BUYER'S OBLIGATIONS
Buyer's obligation to make the deliveries required of Buyer at the Closing shall
be subject to the satisfaction, or waiver by Buyer, of each of the following
conditions:
4.2.1 All of the representations and warranties of Seller contained
herein shall continue to be true and correct at the Closing in all material
respects, all covenants and obligations set
forth in this Agreement to be performed by Seller at or prior to the Closing
shall have been performed in all material respects and Seller shall have
certified the foregoing to Buyer in writing.
4.2.2 Seller shall have executed and delivered to Buyer all of those
documents, instruments and agreements required to be delivered by Seller to
Buyer under Section 3.3 hereof.
4.2.3 No action, suit or other proceedings shall be pending before
any court, tribunal or governmental authority seeking or threatening to restrain
or prohibit the consummation of the transaction contemplated by this Agreement,
or seeking to obtain substantial damages in respect thereof, or involving a
claim that consummation thereof would result in the violation of any law, decree
or regulation of any governmental authority having appropriate jurisdiction.
4.2.4 The Bankruptcy Court shall have entered the Procedure Order in
accordance with Section 8.4.1 below and the Approval Order in accordance with
Section 8.4.2 below and the Procedure Order and the Approval Order shall each be
a Final Order. As used herein, a "Final Order" means an order or judgment of the
Bankruptcy Court or other court of competent jurisdiction which may hear appeals
from the Bankruptcy Court, which has not been reversed, modified or amended, and
has not been stayed, and the time to appeal from which or to seek review or
rehearing or petition for certiorari from which has expired without an appeal or
application for review or rehearing having been filed, and has become final and
is in full force and effect.
4.2.5 The form and the substance of the Sale Procedure Motion, the
Sale Motion, the Procedure Order and the Approval Order as set forth on Exhibit
"M" shall have been approved by Buyer, and the Bankruptcy Court shall have
entered the Procedure Order and the Approval Order substantially in the form
attached hereto as Exhibit "M" without reducing the amount of the Break-Up Fee
as specified in Section 8.4.1, or otherwise materially altering, amending or
modifying the Procedure Order or Approval Order in a manner adverse to Buyer.
4.2.6 All applicable waiting periods relating to the HSR Act shall
have expired or been terminated with respect to the transaction contemplated
hereby, and any proceedings that may have been filed or instituted thereunder
shall have been satisfactorily concluded.
4.2.7 Seller shall have cured all defaults, and shall have assumed
and assigned to Buyer in accordance with an order of the Bankruptcy Court
pursuant to the provisions of 11 U.S.C. Section 365 with respect to each item of
Real Property and each of the Real Property Leases and the Other Leases and
Contracts (except such Real Property Leases and Other Leases and Contracts that
Buyer rejects pursuant to Section 1.2.1).
4.2.8 Seller shall not have caused, created or consented to a
material amendment or modification of any of the Real Property Leases and the
Other Leases and Contracts (except those Real Property Leases and Other Leases
and Contracts that Buyer rejects pursuant to Section 1.2.1) prior to Closing
without having first obtained the written consent of Buyer with respect to each
such amendment or modification, which consent shall not be unreasonably
withheld.
4.2.9 Seller shall have received and recorded deed(s) and/or Act of
Sale (as appropriate) from Trinity Industries, Inc. ("Trinity") and the
Liquidator of Halter Marine, Inc., a Louisiana corporation (dissolved), in form
and substance reasonably acceptable to Buyer's title insurance underwriter,
conveying all of Trinity's and said Liquidator's right, title and interest in
and to the Lockport and Halter Xxxx Point tracts described as part of the Real
Property on Exhibit "A-4" hereto.
4.2.10 With respect to the Halter Port Bienville Facility owned by
Seller, either (i) Seller shall have entered into an applicable agreement which
provides that Seller has the legal right to access the waterway adjoining such
Facility or (ii) Buyer shall have received reasonable assurances that the owner
of such Facility will obtain the legal right to access the waterway adjoining
such Facility.
4.3 TERMINATION
Either or both parties, as applicable, may terminate this Agreement only under
the circumstances set forth below:
4.3.1 Seller and Buyer may terminate this Agreement by written
mutual consent at any time prior to the Closing.
4.3.2 If all conditions to Closing required to obligate a party to
close the transactions set forth herein have been satisfied and such party has
not tendered performance of its Closing obligations or deliveries hereunder on
or before the Closing Date, then the party who is not then in default hereunder
may terminate this Agreement by delivering to the other written notice of
termination. Any waiver of a condition shall be effective only if such waiver is
stated in writing and signed by the waiving party; provided, however, that the
consent of a party to the Closing shall constitute a waiver by such party of any
conditions to Closing not satisfied as of the Closing Date.
4.3.3 Either Seller or Buyer may terminate this Agreement by written
notice to the other if the Closing has failed to occur on or before the close of
business on the Outside Date, as extended pursuant to Section 3.2 (or such later
date as Seller and Buyer may agree upon in writing); provided however, that
neither Seller nor Buyer may terminate this Agreement by delivery of such notice
of termination while such party is in breach or default of its obligations
hereunder.
4.3.4 This Agreement shall terminate and Buyer shall be entitled to
the immediate return of the Deposit upon Seller's acceptance of an overbid at
the Auction and to the Break-Up Fee as allowed pursuant to Sections 8.4.1 and
4.4.5.
4.4 CONSEQUENCES OF TERMINATION.
4.4.1 In the event this Agreement is terminated under Section 4.3.1
or 4.3.3 above, all rights and obligations of the parties hereunder shall
terminate without any liability of any party to any other party; provided
however, that Sections 10.22 and 2.1.2 relating to return of the Deposit hereof
shall survive such termination.
4.4.2 In the event this Agreement is terminated by Seller under
Section 4.3.2 because of a Buyer Default Termination, the Deposit Escrow Agent
shall immediately deliver to Seller the Deposit, together with all interest
thereon, as liquidated damages for Buyer's breach of this Agreement and as
Seller's sole remedy in respect of this Agreement.
4.4.3 In the event this Agreement is terminated by Buyer under
Section 4.3.2 above, the Deposit Escrow Agent shall deliver to Buyer the Deposit
and Seller shall pay to Buyer the Break-Up Fee in accordance with Section 8.4.1
as liquidated damages and as Buyer's sole remedy in respect of such termination.
4.4.4 If Seller terminates this Agreement other than as provided in
Section 4.3, then in such event, in addition to any other remedy which may be
available at law or in equity, Seller consents to and Buyer shall be entitled to
specific performance and injunctive relief, without posting bond or other
security and without the necessity of proving actual damages.
4.4.5 In the event this Agreement is terminated under Section 4.3.4,
the Deposit Escrow Agent shall immediately deliver to Buyer the Deposit,
together with all interest thereon, and Buyer shall be entitled to the Break-Up
Fee as liquidated damages and as Buyer's sole remedy in respect of such
termination, which Break-Up Fee shall (i) constitute an administrative expense
against Sellers' estates in the Case, (ii) become an allowed administrative
expense claim against Sellers' estates in the Case upon entry of an order by the
Bankruptcy Court approving a sale of the Property to an overbid buyer without
further action by the Bankruptcy Court and (iii) become due and payable upon the
earlier to occur of (x) the closing of the sale of the Property to the overbid
buyer, (y) confirmation of a plan of reorganization or liquidation in the Case
or (z) such other date as may be fixed by order of the Bankruptcy Court.
5. SELLER'S REPRESENTATIONS AND WARRANTIES
Seller hereby makes the following representations and warranties to Buyer:
5.1 VALIDITY OF AGREEMENT
Upon obtaining the Procedure Order, this Agreement shall constitute the valid
and binding obligation of Seller enforceable in accordance with its terms.
5.2 ORGANIZATION, STANDING AND POWER
Seller consists of corporations or other entities duly organized, validly
existing and in good standing under the laws of the States of their respective
organization. Subject to the applicable provisions of bankruptcy law, Seller has
all requisite power and authority to own, lease and operate its properties, to
carry on its business as now being conducted and, subject to the Seller's
obtaining the Procedure Order and the Approval Order, to execute, deliver and
perform this Agreement and all writings relating hereto.
5.3 NO CONFLICTS OR VIOLATIONS
Upon obtaining the Procedure Order, the execution and delivery of this
Agreement, the consummation of the transaction herein contemplated, and the
performance of, fulfillment of and
compliance with the terms and conditions hereof by Seller do not and will not:
(i) conflict with or result in a breach of the organizational documents of
Seller; (ii) violate any statute, law, rule or regulation, or any order, writ,
injunction or decree of any court or governmental authority; or (iii) violate or
conflict with or constitute a default under any agreement, instrument or writing
of any nature to which Seller is a party or by which Seller or its assets or
properties may be bound.
5.4 TITLE TO SPECIFIED PROPERTY
To the Seller's knowledge, Seller has good and marketable title to all items of
non-leased Personal Property, the Other Contracts (except (i) such Other
Contracts that Buyer rejects pursuant to Section 1.2.1 and (ii) any Other
Contract listed on Exhibit "A-3a" which requires a novation or consent to
assignment from a third party) and Seller's interests in HBJV to be sold,
delivered and transferred to Buyer hereunder. At the Closing, Buyer will acquire
the Property (except such Property that Buyer rejects pursuant to Section
1.2.1), free and clear of any liens, claims, interests and encumbrances, subject
to Sections 2.3 and 3.5 hereof.
6. BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer hereby makes the following representations and warranties to Seller:
6.1 VALIDITY OF AGREEMENT.
All action on the part of Buyer necessary for the authorization, execution,
delivery and performance of this Agreement by Buyer, including, but not limited
to, the performance of Buyer's obligations hereunder, has been duly taken. This
Agreement, when executed and delivered by Buyer, shall constitute the valid and
binding obligation of Buyer enforceable in accordance with its terms.
6.2 ORGANIZATION, STANDING AND POWER
Each of Buyer and any Subsidiary of Buyer as contemplated in Section 10.13 is a
corporation or other entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
requisite corporate power and authority to own, lease and operate its
properties, to carry on its business as now being conducted and to execute,
deliver and perform this Agreement and all writings relating hereto.
6.3 NO CONFLICTS OR VIOLATIONS
The execution and delivery of this Agreement, the consummation of the
transaction herein contemplated, and the performance of, fulfillment of and
compliance with the terms and conditions hereof by Buyer do not and will not:
(i) conflict with or result in a breach of the articles of incorporation or
by-laws of Buyer or any Subsidiary of Buyer; (ii) violate any statute, law, rule
or regulation, or any order, writ, injunction or decree of any court or
governmental authority; or (iii) violate or conflict with or constitute a
default under any agreement, instrument or writing of any nature to which Buyer
or any Subsidiary of Buyer is a party or by which Buyer or any Subsidiary of
Buyer or their assets or properties may be bound.
6.4 FINANCING
As of the Closing, Buyer will have sufficient funds available to consummate the
transaction contemplated hereby.
7. "AS IS" TRANSACTION
Buyer hereby acknowledges and agrees that, except as otherwise expressly
provided in this Agreement (and without in any respect impairing any of Seller's
covenants under Section 8), the Seller makes no representations or warranties
whatsoever, express or implied, with respect to any matter relating to the
Property including, without limitation, income to be derived or expenses to be
incurred in connection with the Property, the physical condition of any personal
property comprising a part of the Property or which is the subject of any other
lease or contract to be assumed by Buyer at the Closing, the environmental
condition or other matter relating to the physical condition of any real
property or improvements which are the subject of any real property lease to be
assumed by Buyer at the Closing, the zoning of any such real property or
improvements, the value of the Property (or any portion thereof), the terms,
amount, validity or enforceability of any assumed liabilities, the
merchantability or fitness of the personal property or any other portion of the
Property for any particular purpose. Without in any way limiting the foregoing,
Seller hereby disclaims any warranty, express or implied, of merchantability or
fitness for any particular purpose as to any portion of the Property. Buyer
further acknowledges that Buyer has conducted an independent inspection and
investigation of the physical condition of the Property and all such other
matters relating to or affecting the Property as Buyer deemed necessary or
appropriate and that in proceeding with its acquisition of the Property, except
for any representations and warranties and covenants expressly set forth in this
Agreement, Buyer is doing so based solely upon such independent inspections and
investigations. Accordingly, Buyer will accept the property at the closing "as
is", "where is" and "with all faults", except as otherwise provided in Section
5.4.
8. COVENANTS PRIOR TO CLOSING
8.1 ACCESS TO RECORDS AND PROPERTIES OF SELLER
From and after the date of this Agreement until the Closing Date, Seller shall
provide to Buyer's site inspectors access to the Property during normal business
hours, and upon twenty-four (24) hours' advance written notice to Xxxxxxxx Xxxxx
Xxxxxx & Xxxxx ("HLHZ") provide to Buyer's officers, independent public
accountants, counsel, lenders, consultants and other representatives, access
during normal business hours all records pertaining to the Property or the
Business. Buyer, however, shall not be entitled to access (a) any materials
containing information in respect of all matters subject to attorney-client
privilege; (b) matters subject to government secrecy agreements noted on Exhibit
"N"; and (c) any Excluded Assets. Buyer shall have the right, at its own cost,
to conduct an environmental inspection of the Facilities of Seller as provided
in Section 8.3 below.
8.2 OPERATION OF SELLER'S BUSINESS PENDING CLOSING
Unless Buyer otherwise consents, during the period prior to the Closing Date,
Seller shall use commercially reasonable efforts to operate the Business as
currently operated and only in the
ordinary course and, consistent with such operation, shall use commercially
reasonable efforts to preserve intact the Business and its relationships with
employees (except that WARN Act notices shall be given by Seller as otherwise
required by this Agreement), and persons having dealings with it. During the
period prior to the Closing Date, Seller shall consult with Buyer with respect
to any new customer projects under consideration by the Business and shall not,
without Buyer's consent, which consent shall not be unreasonably withheld, (i)
enter into any material contracts with respect to any customer projects not in
existence on the Execution Date and (ii) materially alter, amend or modify the
Real Property Leases and the Other Leases and Contracts (except those Real
Property Leases and Other Leases and Contracts that Buyer rejects pursuant to
Section 1.2.1) that are in existence on the Execution Date.
8.3 ENVIRONMENTAL INVESTIGATION BY BUYER
At all times prior to the Closing and at a time or times mutually convenient for
Buyer and Seller, Buyer, together with its environmental consultant, may, at
Buyer's cost, conduct an environmental investigation of any of Seller's
facilities listed on Exhibit "A-4" (collectively, the "Facilities"), consisting
of a visual inspection and document review and, upon written consent by Seller
(which consent shall not be unreasonably withheld), obtaining of samples. Seller
shall provide to Buyer: (a) all documents pertaining to environmental matters
requested by Buyer, and (b) the opportunity to tour the Facilities with an
individual knowledgeable about their operations. Buyer agrees to provide Seller
with drafts of any reports concerning the environmental investigation of the
Facilities that are generated by, or on behalf of, Buyer. Prior to finalization
of such reports, Seller shall have the opportunity to review the drafts within
five business days of receipt of the drafts and to identify in writing any
factual inaccuracies (in the view of Seller) therein. If such written comments
are received from the Seller they may either be implemented in the final reports
or enclosed to the final reports in Buyer's or it's consultant sole discretion.
Buyer or its consultant may take reasonable soil and/or water samples from the
Facilities. Notwithstanding the foregoing, Buyer may not conduct any surficial
or ground water sampling, subsurface testing, sampling, or drilling on the
Facilities unless specifically provided for in a scope of work which has been
approved by Seller in writing and such approval shall not be unreasonably
withheld by Seller. Seller shall have the right to approve any contractors or
subcontractors retained by Buyer to perform sampling in respect of the
Facilities and such approval shall not be unreasonably withheld by Seller. Each
such contractor or subcontractor shall have liability insurance coverage of a
type and amount acceptable to Seller, and Buyer will require that Seller be
named as an additional insured on such policies. Buyer shall notify Seller not
less than three (3) business days in advance of making any such inspection and
shall inform Seller of the names of the company and persons who will conduct
such inspection. Seller reserves the right to have a representative present at
the time of such inspection. Buyer shall make all inspections in good faith and
with due diligence and splits of all samples taken for analysis shall be made
available to Seller immediately upon Seller's request. Buyer agrees to (i)
return the Facilities to the same condition in which they were prior to Buyer's
making any inspection and (ii) comply with all applicable laws and regulations
regarding installation, plugging, and abandonment of any well or boring. Buyer
will treat, and will cause any representative of Buyer to treat, all information
obtained by Buyer pursuant to the foregoing environmental investigation as
strictly confidential information and will not disclose such information or the
results of any environmental investigation or audit without the prior written
consent of Seller, except as required by applicable law. In the event disclosure
may be required
by applicable law, Buyer shall immediately provide notice to Seller, and Seller
may assert applicable privileges or seek protective orders to prevent such
disclosure. Buyer agrees to indemnify, defend and hold harmless Seller, together
with their officers, shareholders, directors, employees and agents, individually
and collectively, from and against any and all liabilities, claims, losses
recognized now or at any later time, together with all damages, costs, expenses,
costs of defense, and costs of court to the extent arising out of or resulting
from performance of the environmental investigation performed by Buyer, its
employees, consultants, representatives and agents. All notices, reports,
requests for approval and communications of any sort pursuant to this Section
8.3 or otherwise in connection with the subject matter of this Section 8.3 shall
be sent to Seller only through their counsel at the following address, phone and
fax numbers:
Xxxxxxx & Xxxxx
Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx
Phone: 214/000-0000
Facsimile: 214/659-4769
In respect of the environmental review conducted under this Agreement, Buyer
shall not be excused from any of its duties to close the transaction
contemplated hereunder and, except as provided in Section 1.1.2, to pay the
Purchase Price.
8.4 BANKRUPTCY COURT APPROVALS
8.4.1 Bankruptcy Court Approval of Sale Procedures
Promptly following the Execution Date (and in no event later than ten (10)
business days thereafter), the Seller will file the motion referenced in Section
4.2.5 hereof (the "Sale Procedure Motion") with the Bankruptcy Court requesting
the entry of the order referenced in Section 4.2.5 hereof (the "Procedure
Order") (i) fixing the time, date, and location of a hearing (the "Approval
Hearing") to approve Seller's consummation of this agreement, (ii) fixing the
time and date of an auction (the "Auction") to be held at the offices of Xxxxxxx
& Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P. at which higher and better offers
may be presented to the Seller, (iii) providing that if Seller receives from a
third party a higher and better offer at the Auction, and such third party offer
is subsequently accepted by Seller, then Buyer shall be entitled to a flat fee
(not dependent on amounts actually expended or incurred by Buyer) in cash or
other immediately available Good Funds in the amount of Two Million, Five
Hundred Thousand Dollars and No Cents ($2,500,000) (the "Break-Up Fee"), payable
in accordance with Section 4.4.5 hereof, (iv) providing that no prospective
purchaser will be permitted to bid at the Auction unless (a) such prospective
purchaser has been deemed "financially qualified" by HLHZ, Seller's investment
banker, (b) such prospective purchaser shall have executed and delivered an
asset purchase agreement substantially similar to this Agreement, and (c) such
prospective purchaser has delivered a deposit into escrow not less than the
amount of the Deposit, (v) providing that no prospective purchaser who bids for
the Property at Auction shall be entitled to purchase the Property unless such
prospective purchaser offers to purchase the Property for consideration which is
at least Two Million, Seven Hundred Fifty Thousand Dollars and No Cents
($2,750,000) (the "Initial Overbid") greater than the consideration set forth in
this Agreement (including all cash, non-cash consideration and assumed
liabilities) and otherwise on terms at least as favorable to the Seller as those
set forth in this Agreement, and (vi) providing that (a) after the Initial
Overbid, all further overbids must be in increments of at least Two Hundred
Fifty Thousand Dollars and No Cents ($250,000), (b) should overbidding take
place, the Buyer shall have the right, but not the obligation, to participate in
the overbidding and to be approved as the overbidder at the Approval Hearing
based upon any such overbid, and (c) should an overbidder be approved at the
hearing on the Sale Motion, Buyer shall, upon its receipt of the Break-Up Fee
and the Deposit, deliver to such approved overbidder all third party reports,
studies resulting from Buyer's due diligence investigations, and (vii) approving
the form, manner, scope, and substance of notice regarding the proposed sale and
Auction, including overbid procedures.
8.4.2 Bankruptcy Court's Approval of Sale
Promptly following the Execution Date, and contemporaneously with the filing of
the Sale Procedure Motion, Seller shall file the motion referenced in Section
4.2.5 hereof with the Bankruptcy Court (the "Sale Motion") requesting entry of
the order referenced in Section 4.2.5 hereof (the "Approval Order"), which
Approval Order shall be submitted to the Bankruptcy Court following conclusion
of the Auction, but in no event shall the Approval Order be submitted to the
Bankruptcy Court later than the third day following conclusion of the Auction,
and which Approval Order (i) approves the sale of the Property to Buyer on the
terms and conditions set forth in this Agreement and authorizes the Seller to
proceed with this transaction, (ii) includes a specific finding that Buyer is a
good faith purchaser of the Property as contemplated by Section 363(m) of the
United States Bankruptcy Code, (iii) states that the sale of the Property to
Buyer shall be free and clear of all liens, claims, interests and encumbrances
whatsoever, and (iv) approves the Seller's assumption and assignment to Buyer of
the pre-petition Real Property Leases and Other Leases and Contracts (except
those Real Property Leases and the Other Leases and Contracts that Buyer rejects
pursuant to Section 1.2.1) pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code and approves Buyer to pay the Cure Costs payable to the other
parties to the Real Property Leases and the Other Leases and Contracts (except
those Real Property Leases and the Other Leases and Contracts that Buyer rejects
pursuant to Section 1.2.1) as a condition to such assumption and assignment in
amounts not in excess of those amounts set forth on Exhibit "R".
8.5 PERMITS SHARING AGREEMENT
At the Closing, Seller and Buyer shall enter into a permits sharing agreement,
substantially in the form attached hereto as Exhibit "O" (the "Permits Sharing
Agreement"), pursuant to which Seller shall provide or cause to be provided to
Buyer, at Buyer's cost, use of its permits necessary to operate the Business for
a period not to exceed one hundred eighty (180) days after the Closing Date.
8.6 TRANSITION SERVICES AGREEMENT
8.6.1 In the event any of Seller's projects not assumed by Buyer
pursuant to this Agreement remain uncompleted on the Closing Date, Seller and
Buyer shall undertake good faith
negotiations to enter into a transition services agreement or subcontract, as
applicable, by no later than the date set for the Auction in the Procedure Order
(with the Closing Date as the effective date for such agreement) in form and
substance mutually satisfactory to Buyer and Seller, pursuant to which Buyer
shall undertake commercially reasonable efforts to complete such projects upon
mutually agreeable terms and conditions.
8.6.2 Seller and Buyer shall undertake good faith negotiations to
enter into a transition services agreement by no later than the date set for the
Auction in the Procedure Order (with the Closing Date as the effective date for
such agreement), in form and substance mutually satisfactory to Buyer and
Seller, pursuant to which Buyer shall, to the extent necessary, (i) make
available to Seller, at Seller's cost on a time and availability basis, access
to and the services of those Continuing Employees necessary to conclude matters
relating to Seller's estate in the Case, (ii) allow Seller, at a commercially
reasonable cost, to use space at the FGH Corporate Offices located at 00000
Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx for administration of the Case and
(iii) allow Seller continued access to computers, data and other records
necessary for administration of the Case.
8.7 XXXXXXXX CONTRACT
On or prior to the Closing, Buyer shall purchase those certain two Electro
Motive Division of General Motors engines (Model #16-645F7B, 16 cylinder,
turbocharged) from Xxxxxxx & Xxxxxxxxx Services, inc. ("SSSI") for that certain
127'x38'x20' ATB Tug (steel hull and house, diesel powered, 6,400 total
horsepower) in the process of being constructed for Xxxxxxxx Transportation Co.
Inc., and, provided that Buyer receives written assurances from SSSI that the
certain deposit paid by Seller to SSSI may be applied towards Buyer's purchase
of such engines, Seller shall include such deposit as a Current Asset to the
extent SSSI provides credit for such deposit.
8.8 NOAA ESCROW
On or prior to the Closing Date, Buyer (i) shall have provided to NOAA (as
defined in Exhibit "A-3a") suitable surety as required by that certain Other
Contract listed in Exhibit "A-3a" with NOAA and (ii) shall have caused the
release of Seller's surety provided to NOAA with respect to such Other Contract
(including Seller's letter of credit and cash escrow).
8.9 LOCATION OF PERSONAL PROPERTY
By no later than the Closing Date, and unless otherwise mutually agreed by Buyer
and Seller, Seller shall cause the Personal Property to be located on the Real
Property.
9. POST-CLOSING COVENANTS
9.1 POST-CLOSING MAINTENANCE OF AND ACCESS TO INFORMATION
Without limiting Seller's rights under Section 10.2 with respect to the Case,
Buyer will also comply with the following provisions:
(a) The parties acknowledge that after Closing Seller or its successors may
need access to information or documents in the control or possession of
Buyer for the purposes of concluding the transaction herein
contemplated, preparing or filing tax returns or responding to audits,
Contracts and to satisfy other legal requirements, and to prosecute or
defend claims against or by third parties.
(b) Buyer shall not dispose of or destroy any of the records and files of
the Business prior to the fourth anniversary of the Closing Date. If
Buyer wishes to dispose of or destroy such records and files after that
time, it shall first give sixty (60) days' prior written notice to
Seller, and Seller shall have the right, at its option and expense, upon
prior written notice to Buyer within such sixty-day period, to take
possession of the records and files within ninety (90) days after the
date of the notice from Seller. After five years following the Closing
Date, Buyer may dispose of or destroy any of the records and files of
the Business without Seller's consent.
(c) Buyer shall cooperate fully in connection with, and make available for
inspection and copying by, Seller, its successors, and their respective
employees, agents, counsel and accountants and/or governmental
authorities, upon written request, such books, records documents and
other information to the extent reasonably necessary to facilitate the
purposes set forth in subsection (a) above and for other legitimate
corporate purposes. In addition, Buyer shall cooperate with, and shall
permit and use its best efforts to cause, its former and present
directors, officers and employees to cooperate with, Seller on and after
Closing in furnishing information, evidence, testimony and other
assistance in connection with any action, proceeding, arrangement or
dispute of any nature with respect to the Business or the Property and
pertaining to periods prior to the Closing Date.
(d) Seller shall be entitled to retain any records that relate to events or
periods prior to Closing for purposes of pending litigation involving
matters to which such records refer.
(e) After the Execution Date but prior to the Closing Date, Buyer may
designate in writing to Seller for rejection pursuant to the provisions
of the Bankruptcy Code any executory contracts not previously assumed by
Seller in the Case and otherwise to be assigned to Buyer pursuant to
this Agreement, and Seller shall within five business days file with the
Bankruptcy Court such pleadings as may be appropriate to reject all such
executory contracts pursuant to Section 365 of the Bankruptcy Code.
9.2 OFFER AND TERMS OF EMPLOYMENT
9.2.1 Offer of Employment.
Buyer agrees to offer (or to cause one of its affiliates to offer) employment to
substantially all of those employees who, on the Closing Date, are active and
available for work in the Business, are available to work, and are listed on
Exhibit "L" hereto, which employment shall be offered on the terms and
conditions and at the same rate of pay such employee had on the day prior to the
Closing Date or upon such terms and conditions and rate of pay as provided to
employees of Buyer in comparable positions as such employee (each such employee
who accepts Buyer's offer
of employment, a "Continuing Employee"); provided, however, that this provision
shall not prevent Buyer from terminating any Continuing Employee for any reason,
or from changing the terms and conditions of employment and/or the rate of pay
in its sole discretion. Notwithstanding anything herein to the contrary, Buyer
shall not be obligated to offer employment to any of the individuals identified
in writing by Buyer to Seller prior to the date of this Agreement.
9.2.2 COBRA.
(a) Buyer shall be responsible for providing COBRA continuation coverage for
(i) all active and available employees employed by Seller in the
Business on the Closing Date and (ii) any active employees employed by
Seller in the Business who are terminated by Seller under Section 9.2.4
pursuant to the request of Buyer
(b) Seller shall remain liable for providing COBRA continuation coverage for
all employees who are not provided COBRA continuation coverage by Buyer
pursuant to Section 9.2.2(a), and Buyer shall have no responsibility
therefor. Seller shall continue to maintain the effectiveness of its
plan for the provision of COBRA continuation coverage for at least
thirty (30) calendar days after the Closing Date.
9.2.3 Employee Benefits.
(a) Buyer will grant to all Continuing Employees service credit
for previous service recognized by Seller for purposes of vacation and
other benefits, and will credit Continuing Employees with their prior
service for purposes of calculating vacation time earned in the period
following the Closing Date, to the extent included in Current
Liabilities. In addition, Buyer shall provide continuing coverage to all
Continuing Employees to participate in Buyer's then-current medical
plans without preexisting condition exclusions, waiting times to
commence coverage, or other lapses in coverage, for Continuing
Employees, as of Closing, who have coverage under Seller's medical
plans.
(b) Seller agrees that the vacation accrual included in Current
Liabilities will be determined (i) in accordance with GAAP, specifically
Statement of Financial Accounting Standards No. 43, which requires that
the liability for compensated absences will be determined based on the
period in which the vacation pay was earned; (ii) on a monthly basis and
(iii) with no provision made for forfeitures.
9.2.4 WARN Act and Other Compliance.
Upon reasonable request by Buyer after the Execution Date and prior to the
Closing Date, Seller shall issue WARN Act notices at such time to those
employees requested by Buyer. Buyer shall be responsible for and shall pay any
and all liabilities or obligations arising under the WARN Act, if any, arising
out of or resulting from layoffs of employees or any termination of their
employment in the Business in connection with the transaction provided herein,
including, without limitation, those resulting pursuant to the foregoing
sentence. Buyer agrees to indemnify, and hold Seller and its successors harmless
from or against, any and all claims, losses, damages, expenses, obligations and
liabilities (including costs of collection attorney's
fees and other costs of defense) which Seller may incur in connection with any
suit or claim of violation brought against Seller under the WARN Act, which
relates to action taken by Seller pursuant to the first sentence of this Section
9.2.4 or by Buyer after the Closing Date with regard to any site of employment
or one or more facilities or operating units within any site of employment of
the Business; provided, however, Buyer shall neither indemnify nor hold Seller
and its successors harmless in the event Seller does not issue the WARN Act
notices requested by Buyer pursuant to the first sentence of this Section 9.2
within two (2) business days after Buyer so requests.
9.3 TRANSFER OF TITLE TO PERSONAL PROPERTY
Seller shall reasonably cooperate with Buyer following the Closing to effect the
transfer to Buyer of all titled Personal Property, including notarized bills of
sale in such form as may be required by applicable law or governmental agencies.
9.4 FAST MISSILE CRAFT CONTRACT
In the event that Buyer assumes that certain Firm-Fixed Price Contract for
Construction of 4 Fast Missile Craft and Associated Services, dated
December 31, 2000, by and between the Ministry of Defense of the Government of
the Arab Republic of Egypt and Halter Marine, Inc., Buyer shall pay to Seller
Five Million Dollars ($5,000,000), which payment shall be made upon terms to be
mutually agreed upon between Buyer and Seller prior to the date set for the
Auction in the Procedure Order subject to Buyer's assumption of such contract.
9.5 PASHA CONTRACT
9.5.1 Buyer shall make a good faith effort to negotiate and/or enter
into an agreement with Pasha Hawaii Transport Lines LLC ("Pasha") within
forty-five (45) calendar days after the Closing Date for the continued
construction, post-Closing, of that certain hull or vessel (the "Pasha Vessel")
on which Seller commenced construction, pre-Closing, pursuant to that certain
Shipbuilding Contract for Construction of a Single Screw Diesel Driven Car
Carrier Vessel, dated as of October 25, 1999 (the "Pasha Contract"), by and
between Pasha and Halter Marine, Inc., a Nevada corporation.
9.5.2 In the event that Buyer shall not have entered into a contract
with Pasha as contemplated in Section 9.5.1 within forty-five (45) calendar days
after the Closing Date and the Pasha Vessel remains on the Real Property
acquired by Buyer pursuant to this Agreement, then, at such time, Seller shall,
and hereby does, sell, assign, transfer, convey and deliver to Buyer all of
Seller's right, title and interest, if any, in and to the Pasha Vessel, subject
to any and all restrictions thereon and thereto.
9.5.3 Buyer and Seller shall undertake good faith negotiations to
enter into an agreement by no later than the date set for the Auction in the
Procedure Order in form and substance mutually satisfactory to Buyer and Seller
pursuant to which: (i) Buyer shall provide Seller reasonable access, for a
period not greater than forty-five (45) calendar days after Closing, to the Real
Property on which the Pasha Vessel or any inventory relating thereto remains on
the Closing Date, (ii) in the event that Buyer is successful in entering into an
agreement with Pasha to continue work on the Pasha Vessel, Buyer shall undertake
good faith efforts to cause Seller's
inventory relating to the Pasha Vessel to be used so that Seller receives
payment for said assets at Seller's cost pursuant to a schedule heretofore made
available to Buyer which is subject to further review by Buyer, (iii) Buyer
shall permit Seller to store the inventory related to the Pasha Vessel and Pasha
Contract on the Real Property for a period not greater than forty-five (45)
calendar days after Closing, and (iv) Seller shall assign all of Seller's right,
title and interest, if any, in and to the Pasha Vessel which would assist Buyer
in removing any encumbrances on the Real Property created by the Pasha Vessel.
9.6 HALTER GULF REPAIR STOCK
Buyer shall have an option to acquire all of the stock owned by Seller in Halter
Gulf Repair, Inc. for no additional consideration, which option shall expire
upon the earlier of (a) twelve (12) months after the Closing Date or (b) six (6)
months after confirmation of the plan of reorganization of Seller approved by
the Bankruptcy Court in the Case.
9.7 CONFIDENTIALITY AGREEMENT INDEMNITY
To the extent Buyer acquires any Other Contracts consisting of confidentiality
agreements and/or non-disclosure agreements listed on Exhibit "A-3" or Exhibit
"A-3c", (a) Seller shall indemnify and hold harmless Buyer for any claims, costs
or expenses (including court costs and reasonably attorney's fees) incurred by
Buyer as a result of any breach of such agreements by Seller after the Closing
Date, and (b) Buyer shall indemnify and hold harmless Seller for any claims,
costs or expenses (including court costs and reasonably attorney's fees)
incurred by Seller as a result of any breach of such agreements by Buyer after
the Closing Date.
9.8 PORT BIENVILLE EMPLOYEES
In the event that Buyer significantly increases the number of employees employed
at Seller's Port Bienville facility after the Closing Date, Buyer will undertake
commercially reasonably efforts to offer employment first to those individuals
whom Seller laid off in connection with a temporary reduction in workforce that
occurred prior to the Execution Date.
10. MISCELLANEOUS
10.1 SELLER'S REASONABLE ACCESS TO RECORDS AND CERTAIN PERSONNEL
So long as the Case is pending, (i) the Buyer shall permit Seller's counsel and
other professionals employed in the Case reasonable access to the financial and
other books and records relating to the Property or the Business (whether in
documentary or data form) for the purpose of the continuing administration of
the Case (including, without limitation, the pursuit of any avoidance,
preference or similar action), which access shall include (a) the right of such
professionals to copy, at the Seller's expense, such documents and records as
they may request in furtherance of the purposes described above, and (b) Buyer's
copying and delivering to Seller or its professionals such documents or records
as they may request, but only to the extent Seller or its professionals
furnishes Buyer with reasonably detailed written descriptions of the materials
to be so copied and Seller reimburses the Buyer for the reasonable costs and
expenses thereof), and (ii) Buyer shall provide the Seller and such
professionals (at no cost to the Seller) with reasonable access to such
employees as Seller may reasonably request, during regular business
hours to assist the Seller in the continuing administration of the Case,
provided that such access does not unreasonably interfere with the Buyer's
business operations.
10.2 NOTICES
Any notice required or allowed to be given hereunder by either party must be in
writing and must be given either (i) by depositing with the United States Postal
Service, by registered or certified mail, postage prepaid, return receipt
requested, and shall be deemed given as of the date deposited with the United
States Postal Service or (ii) by facsimile, and, in either case, shall be deemed
given upon receipt of a delivery confirmation, if properly addressed as set
forth below:
To Seller: Xxxxxx Xxxxxxx Halter, Inc.
00000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxx, Xx.
And
Glass & Associates
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxx, Xx.
With a copy to: Xxxxxxx & Xxxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxx Xxxxxx
And
Xxxxxxxx Xxxxx Xxxxxx & Xxxxx
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxx
And
Heller, Draper, Xxxxxx, Xxxxxxx & Xxxx, L.L.C.
Poydras Center
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxx
To Buyer: Xxxxxxxxx Shipyards, Inc.
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxx and Xxxxx LLP
0000 Xxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxx X. Duck
10.3 ENTIRE AGREEMENT
This Agreement and the Exhibits and documents to be executed pursuant hereto
contain the entire agreement between the parties relating to the sale of the
Property.
10.4 MODIFICATION
This Agreement may be modified, amended or supplemented only by a written
instrument duly executed by all the parties hereto.
10.5 CLOSING DATE
All actions to be taken on the Closing pursuant to this Agreement shall be
deemed to have occurred simultaneously, and no act, document or transaction
shall be deemed to have been taken, delivered or effected on the Closing until
all such actions, documents and transactions have been taken, delivered or
effected.
10.6 SEVERABILITY
Should any term, provision or paragraph of this Agreement be determined to be
illegal or void or of no force and effect, the balance of the Agreement shall
survive.
10.7 CAPTIONS
All captions and headings contained in this Agreement are for convenience of
reference only and shall not be construed to limit or extend the terms or
conditions of this Agreement.
10.8 FURTHER ASSURANCES
Each party hereto will execute, acknowledge and deliver any further assurance,
documents and instruments reasonably requested by any other party hereto for the
purpose of giving effect to the transaction contemplated herein.
10.9 WAIVER
No waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of other provisions, whether or not similar, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
10.10 BROKERAGE OBLIGATIONS
10.10.1 Seller is represented by HLHZ as its exclusive sale agent with
respect to the transaction contemplated herein pursuant to that certain order
entered by the Bankruptcy Court on October 30, 2001, and HLHZ's commission, fees
and expenses are to be paid by Seller out of the proceeds as a cost of sale to a
separate Debtor-in-Possession account designated by Seller in accordance with
the terms and provisions of such order. Seller is also represented by the
following real estate brokerage firms with respect to the sale of certain items
of real property owned by Seller: Coldwell Banker, Xxxxxxx Realty, Inc., and
Xxxxxx Xxxxxx & Associates (collectively, the "Brokers"). Seller represents and
warrants to Buyer that, except for HLHZ and the Brokers, Seller has incurred no
liability to any broker or agent with respect to the payment of any commission
regarding the consummation of the transaction contemplated hereby.
10.10.2 Buyer is represented by RBC Capital Markets ("RBC") as its
exclusive sale agent with respect to the transaction contemplated herein, and
RBC's commission, fees and expenses are to be paid by the Buyer. The Buyer
represents and warrants to Seller that, except for RBC, Buyer has incurred no
liability to any broker or agent with respect to the payment of any commission
regarding the consummation of the transaction contemplated hereby.
10.11 PAYMENT OF FEES AND EXPENSES
Each party to this Agreement shall be responsible for, and shall pay, all of its
own fees and expenses, including those of its counsel, incurred in the
negotiation, preparation and consummation of the Agreement and the transaction
described herein.
10.12 SURVIVAL
Except for the covenants and agreements that are expressly provided to be
performed after the Closing Date or as may be necessary to maintain the Buyer's
right, title and interest in and to the Property, none of the respective
representations, warranties, covenants herein, shall survive the Closing.
10.13 ASSIGNMENTS
This Agreement shall not be assigned by either party hereto without the prior
written consent of the other party hereto; provided, however, that Buyer may
assign its rights hereunder without
such consent to one or more corporations or other entities wholly-owned,
directly or indirectly, by Buyer (a "Subsidiary of Buyer"); provided further,
that any such assignment shall not release Buyer from any of its obligations
under this Agreement. Buyer will provide prompt written notice of any such
assignment to Seller.
10.14 BINDING EFFECT
Subject to the provisions of Section 10.14 above, this Agreement shall bind and
inure to the benefit of the respective heirs, personal representatives,
successors, and assigns of the parties hereto.
10.15 APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of Mississippi.
10.16 CONSTRUCTION
The parties hereto agree that this Agreement is the product of negotiation
between sophisticated parties and individuals, all of whom were represented by
counsel, and each of whom had an opportunity to participate in, and did
participate in, the drafting of each provision hereof. Accordingly, ambiguities
in this Agreement, if any, shall not be construed strictly or in favor of or
against any party hereto but rather shall be given a fair and reasonably
construction without regard to the rule of contra proferentem.
10.17 COUNTERPARTS
This Agreement may be signed in counterparts. The parties further agree that
this Agreement may be executed by the exchange of facsimile signature pages and
initialed Exhibits and Schedules, provided that original signature pages shall
be delivered within two business days following the date such facsimile
signature pages are exchanged.
10.18 TIME IS OF THE ESSENCE
Time is of the essence in this Agreement.
10.19 TAX EFFECT
Each party represents that it has obtained, or may obtain, independent tax
advice with respect to this Agreement and the transaction set forth herein, and
no party has represented to the other what tax consequences will result for the
other party as a result of its entering into this Agreement or performing its
obligations hereunder.
10.20 EMPLOYEE WITHHOLDING
The parties agree that, (a) Seller shall be relieved from furnishing Forms W-2
to any of the Continuing Employees, and (b) Buyer shall assume the obligations
of Seller to furnish such Forms W-2 to such employees for the year in which the
Closing occurs.
10.21 BANKRUPTCY COURT JURISDICTION
Buyer and Seller agree that, while the Case is pending and until entry of a
final decree, the Bankruptcy Court shall have exclusive jurisdiction over all
disputes in any way relating to the sale and other matters relating to the
interpretation and enforcement of this Agreement or any ancillary document
executed pursuant hereto.
10.22 CONFIDENTIALITY AGREEMENT
The Confidentiality Agreement dated as of November 15, 2001 between Buyer and
Seller (the "Confidentiality Agreement") shall remain in full force and effect
during the term specified therein; provided, however, that upon the Closing of
any sale to Buyer hereunder, such obligations shall terminate. Notwithstanding
the foregoing, at all times after May 20, 2002, Buyer and Seller may jointly
contact Seller's customers, suppliers, subcontractors and any other persons with
whom the Seller does business with respect to the Other Contracts (except such
Other Contracts that Buyer rejects pursuant to Section 1.2.1), to evaluate,
negotiate and/or propose modifications, prior to assumption by Seller with
respect to any of the Other Contracts (except such Other Contracts that Buyer
rejects pursuant to Section 1.2.1), and Seller shall cooperate fully to allow
Buyer to perform such negotiation, evaluation and/or modifications to such Other
Contracts should Buyer and the customers, suppliers, subcontractors and any
other persons so request; provided, however, Buyer shall not have the right to
perform any negotiations or propose any such modifications with respect to those
Other Contracts listed on Exhibits "A-3a" and "A-3b" which would interfere with
Seller's ability to obtain a novation of such Other Contracts.
10.23 MUTUAL SETTLEMENT AND RELEASE
Buyer and Seller hereby agree as of the Closing Date to release, acquit, and
forever discharge each other pursuant to the Settlement and Release Agreement
substantially in the form attached hereto as Exhibit "P" (the "Settlement and
Release Agreement").
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Asset Purchase
Agreement as of the day and year first above written.
XXXXXXXXX SHIPYARDS, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President & CFO
XXXXXX XXXXXXX HALTER, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer & President
HALTER MARINE, Inc., a Nevada corporation
By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
HALTER MARINE, Inc., a Louisiana
corporation
By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
HALTER MARINE SERVICES, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
HALTER MARINE GULFPORT, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
[SIGNATURE PAGE CONTINUED]
HALTER MARINE PASCAGOULA, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
GULF COAST FABRICATION, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
HALTER GULF REPAIR, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
35
EXHIBIT LIST
Exhibit A-1 Real Property Leases
Exhibit A-2 Other Leases
Exhibit A-3 Other Contracts
Exhibit A-3a Vessel Construction Contracts
Exhibit A-3b Vessel Construction Subcontracts
Exhibit A-3c Contracts Relating to Vessel Construction Contracts
Exhibit A-4 Owned Real Property
Exhibit B Personal Property
Exhibit B-1 Excluded Personal Property
Exhibit B-2 Leased Personal Property
Exhibit C Intellectual Property
Exhibit D Excluded Assets
Exhibit E Deposit Escrow Agreement
Exhibit F Working Capital Escrow Agreement
Exhibit G Purchase Price Reduction Escrow Agreement
Exhibit H Assignment and Assumption Agreement
Exhibit I Xxxx of Sale
Exhibit J Deeds and Act of Sale
Exhibit K Guaranty
Exhibit L Active Employees in the Business
Exhibit M Sale Procedure Motion, Sale Motion, Procedure Order,
Approval Order
Exhibit N Government Secrecy Agreements
Exhibit O Permits Sharing Agreement
Exhibit P Mutual Settlement and Release Agreement
Exhibit Q Trademark and Corporate Name License Agreement
Exhibit R Cure Costs
Exhibit S Patent Assignment
Exhibit T Trademark Assignment
Exhibit U Copyright Assignment
Schedule 2.2 Working Capital Calculation