AGREEMENT TO PURCHASE AND SELL
This Agreement to Purchase and Sell is made as of the 11th
day of October, 1996, by and between:
ENSCO OFFSHORE COMPANY, a Delaware Corporation, whose
address is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇; and
TRICO MARINE ASSETS, INC., a Delaware Corporation, doing
business in the State of Louisiana, whose address is ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
who made the following declarations:
Article 1
Definitions
1. ▇▇▇▇▇▇▇▇▇▇▇.▇▇ used in this Agreement, the following terms
have the meaning herein set forth:
1.1 "Agreement" means this Agreement for Purchase and
Sale.
1.2 "Business Days" means Monday through Friday inclusive,
excluding national holidays.
1.3 "CERCLA" means the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq.).
1.4 "Claim" means any claim, liability, demand, loss,
damage, deficiency, litigation, cause of action,
penalty, fine, judgment, defense, imposition, fee,
lien, bonding cost, settlement, disbursement, penalty,
cost or expenses of any and every kind and nature
(including without limitation reasonable attorneys
fees), whether known or unknown, incurred or potential,
accrued, absolute, direct, indirect, contingent or
otherwise and whether imposed by strict liability, and
consequential, punitive and exemplary damage claims.
1.5 "Closing" means the closing of the purchase and sale
of the Property pursuant to this Agreement.
1.6 "Closing Date" means the date on which the Closing
occurs.
1.7 "Closing Documents" means the documents to be executed
by the Parties at Closing.
1.8 "Closing Effective Date" shall be 12:01 a.m. central
standard time on the date immediately following the
Closing Date.
1.9 "Commitments" means an owner's title policy commitment
related to the Real Estate issued by the Title Company
dated no earlier than the Effective Date.
1.10 "Consideration" means the sum of One Million Five
Hundred Thousand ($1,500,000) Dollars.
1.11 "Corporate Documentation" means articles of
incorporation, bylaws and corporate resolutions.
1.12 "Days" refers to calendar days, except as used in
"Business Days".
1.13 "Default" means a breach of any provision of this
Agreement by a Party.
1.14 "Effective Date" is the date on which the last party
hereto affixes its signature.
1.15 "Encumbrance" means any lien, charge, servitude,
easement, option, right of first refusal, conditional
sales contract, security interest or encumbrance,
including liens, charges, security interests, or
encumbrances securing payment of Claims or payment
of charges for labor, materials, supplies, equipment,
rent, or utilities.
1.16 "Environmental Information" means all records and
information concerning all Hazardous Substances,
including Medical Waste, used, stored, generated,
treated, or disposed of by the Seller, all
environmental or safety studies conducted by or on
behalf of Seller and all reports, correspondence,
or filings to governmental agencies with jurisdiction
over Environmental Requirements concerning the
compliance of the Property or the operation of the
Property with Environmental Requirements.
1.17 "Environmental Objections" means Purchaser's
objections to the condition of the Real Estate
identified as a result of Purchaser's Environmental
Inspection which affect the merchantability of Seller's
title or the use of the Real Estate as presently
utilized, or is otherwise unacceptable to the
Purchaser, in its sole discretion.
1.18 "Environmental Requirements" means all State,
federal, local, municipal, parish, and regional
laws, statutes, rules, regulations, ordinances, codes,
permits, approvals, plans, authorizations, concessions,
investigation results, guidance documents; all
legislative, judicial, and administrative judgments,
decrees, orders, rules, rulings, and regulations; and
all agreements and other restrictions and requirements
in effect on or prior to the Closing Date, of any
Governmental Authority, including, without limitation,
federal, state, and local authorities, relating to the
regulation or protection of human health and safety,
natural resources, conservation, the environment,
or the storage, treatment, disposal, processing,
release, discharge, emission, use, remediation,
transportation, handling, or other management of
industrial, gaseous, liquid or solid waste, hazardous
waste, Medical Waste, hazardous or toxic substances or
chemicals, or pollutants. The term shall specifically
include, without limitation, the regulations of the
federal Public Health Service and Department of
Transportation concerning the transport of etiologic
agents or similar agents, the regulations of the
Nuclear Regulatory Commission concerning radioactive
materials and waste, the regulations of the
Occupational Safety and Health Administration, and
including without limitation the following
environmental laws: The Clean Air Act (42 U.S.C.A.
1857); the Federal Water Pollution Control Act (33
U.S.C. 1251); the Resource Conservation and Recovery
Act of 1976, (42 U.S.C. 6901); CERCLA, as amended by
the Superfund Amendments and Reauthorization Act of
1986 (Pub.L. 99-499, 100 Stat. 1613); the Toxic
Substances Control Act (15 U.S.C. 2601, the Clean
Water Act (33 U.S.C. 1251); the Safe Drinking Water
Act (42 U.S.C. 30); the Occupational Safety and Health
Act (29 U.S.C. 651); the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. 135); the
Louisiana Environmental Quality Act (La. R.S. 30:2001);
and the Louisiana Air Quality Regulations (La. C.
33:III.2595) including any amendments or extensions
thereof and any rules, regulations, standards or
guidelines issued pursuant to or promulgated under any
of the foregoing.
1.19 "Escrow Agent" means Baronne Title Co., Inc., d/b/a
Title Insurance Services as agent for the Title
Company, or other such person as mutually agreed to by
the Parties as escrow agent.
1.20 "Existing Environmental Reports" means the "Report of
Phase I Environmental Assessment and Limited Site
Investigation ▇▇▇▇▇▇ Drilling Property Houma,
Louisiana" dated September 1991 and the "Report of
Phase II Environmental Assessment and Limited Site
Investigation ▇▇▇▇▇▇ Drilling Property Houma,
Louisiana" dated June 1992, each prepared for ▇▇▇▇▇▇
Drilling Corporation by G& E Engineering, Inc.
(individually and collectively).
1.21 "Governmental Authority" means any federal, state,
parish, regional, or local government, political
subdivision, any governmental agency, department,
authority, instrumentality, bureau, commission, board,
official, or officer, any court, judge, examiner, or
hearing officer, any legislative, judicial, executive,
administrative, or regulatory body or committee or
official thereof or private accrediting body.
1.22 "Governmental Regulation" means laws, statutes,
codes, acts, ordinances, orders, judgments, decrees,
writs, injunctions, rules, regulations, restrictions,
permits, plans, authorizations, concessions,
investigation reports, guidelines, and requirements or
accreditation standards of any Governmental Authority
including without limitation, Environmental
Requirements.
1.23 "Hazardous Substance" means (a) any "hazardous
substance" as defined in 101(14) of CERCLA or any
regulations promulgated thereunder; (b) petroleum
and petroleum by-products; (c) asbestos or asbestos-
containing material ("ACM"); (d) polychlorinated
biphenyls; (e) urea formaldehyde foam insulation;
(f) Medical Waste; or (g) any additional substances or
materials which at any time are classified, defined or
considered to be explosives, corrosive, flammable,
infectious, radioactive, mutagenic, carcinogenic,
pollutants, hazardous or toxic under any of the
Environmental Requirements.
1.24 "Incorporated Equipment" means the Seller's
equipment, apparatus, engines, motors, machinery,
and appliances which have been permanently attached to
and become component parts of the Real Estate.
1.25 "Indemnified Party" means the Party entitled to
indemnification pursuant to this Agreement.
1.26 "Indemnifying Party" means the Party obligated to
provide indemnification pursuant to this Agreement.
1.27 "IRC" means the Internal Revenue Code of 1986, as
amended, and any and all regulations and rulings
promulgated thereunder.
1.28 "Keys" means all keys, computerized entry cards, and
electronic or computerized access codes and passwords
which provide entry to the Real Estate or any part
thereof or which are used in connection with the Real
Estate and the Incorporated Equipment, each such key,
card, code, and password to be properly identified by
Seller.
1.29 "Other Parties" means any Person other than a Party.
1.30 "Party" or "Parties" means Seller and Purchaser,
individually and collectively.
1.31 "Permits" means all of Seller's right, title and
interest in and to permits, licenses, certificates of
need, certificates of exemptions, authority and/or
grants affecting the Real Estate, including, without
limitation, all consents, approvals and authorizations
issued by any Governmental Authority to conduct and
maintain the Real Estate as it is currently operated by
Seller.
1.32 "Person" means all juridical persons, whether
corporate or natural, including individuals, firms,
trusts, corporations, associations, joint ventures and
partnerships.
1.33 "Property" means the Real Estate, the Incorporated
Equipment, the Real Estate Documents, and such other
rights, interest, and properties as may be specified in
this Agreement to be sold, transferred, assigned, or
conveyed by Seller to Purchaser.
1.34 "Purchaser" means Trico Marine Assets, Inc. and/or
its successors and assigns.
1.35 "Purchaser Group" means the Purchaser and its
representatives, agents, servants, licensees, servants,
officers, consultants, attorneys and employees,
individually and collectively.
1.36 "Purchaser's Inspections" means the inspections,
review, observations, studies, examinations, probes and
research conducted by Purchaser in connection with the
Title Commitment, Survey, Environmental Inspection
and/or Soil Tests, individually and collectively, all
of the foregoing as provided for in Article 8.
1.37 "Purchaser's Objections" means the Environmental
Objections, Survey Objections, and Title Objections,
individually and collectively.
1.38 "Purchaser's Obligations" means the agreements,
covenants, conditions, terms, and provisions to be
performed by Purchaser under this Agreement, and the
representations made by Purchaser in this Agreement,
all of which terminate as of and do not survive the
Closing.
1.39 "Purchaser Violations" means any failure to comply
with or violation of, any Purchaser Obligation.
1.40 "Real Estate" means all of Seller's right, title and
interest in and to:
a. The 62.545 acre tract situated in the NW quarter
of Section ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 17 East,
Terrebonne Parish, Louisiana, more fully described
on Exhibit "A" attached hereto;
together with all of the improvements thereon;
b. All fixtures, equipment and appurtenances
pertaining thereto, particularly, without
limitation, the Incorporated Equipment;
c. Any rights, title and interest of Seller, if any,
in and to adjacent streets, roads, alleys and
rights of way;
d. All the rights, ways, privileges, servitudes, and
advantages belonging or in anywise appertaining to
such land, buildings, improvements, other real
property and the Incorporated Equipment; and
1.41 "Real Estate Documents" means all contracts, agreements
and documents existing as of the Effective Date and as
of the Closing Date and relating to the construction of
any improvements comprising a part of the Real Estate
(including any and all environmental audits, soil
tests, termite reports, appraisals, construction
specifications, drawings, architectural, mechanical,
electrical and other engineering plans and
specifications and related data, surveys, tests,
reports, bonds and governmental approvals), or to the
maintenance of the Real Estate.
1.42 "Real Estate Taxes" means real property taxes,
impositions, and currently due installments of
assessments, general, special or otherwise,
specifically imposed upon the Real Estate. Real Estate
Taxes exclude federal, state or local income taxes;
franchise, gift, transfer, excise, capital stock,
estate, succession or inheritance taxes; penalties or
interest for late payment of Real Estate Taxes; and
taxes assessed against trade fixtures or personal
property placed by the Seller on the Real Estate.
1.43 "Remediation" means any and all costs incurred due to
any investigation of the Property or any remediation,
response, cleanup, removal, or restoration required by
any Governmental Regulation, Governmental Authority or
by Environmental Requirements.
1.44 "Seller" means ENSCO Offshore Company.
1.45 "Seller Group" means Seller, its contractors,
representatives, licensees, agents, servants,
employees, customers and any other Person for whom
Seller is responsible, individually and collectively.
1.46 "State" means the State of Louisiana.
1.47 "Survey" means the survey map more fully described on
Exhibit "B" attached hereto.
1.48 "Survey Objections" means Purchaser's objections to the
Survey which affect the merchantability of Seller's
title or the use of the Real Estate as presently
utilized.
1.49 "Tank Systems" means aboveground or underground storage
tank systems.
1.50 "Title Agent" means Baronne Title Insurance Co., Inc.,
d/b/a Title Insurance Services.
1.51 "Title Company" means First American Title Insurance
Company.
1.52 "Title Objections" means Purchaser's objections to the
condition of title as set forth in the Commitments
which affect the merchantability of Seller's title or
the use of the Real Estate as presently utilized.
1.53 "Transaction Escrow Agreement" means the Escrow
Agreement to be entered into among Seller, Purchaser
and Escrow Agent pursuant to Article 10, the form of
which is attached hereto as Schedule 2.
1.54 "Transaction Escrow Deposit" means the sum of Fifty
Thousand ($50,000) Dollars to be deposited with Escrow
Agent on the Effective Date by Purchaser and held in
accordance with the provisions of the Transaction
Escrow Agreement.
Article 2
Purchase and Sale
2.1 Sale of Property. At the Closing, Seller agrees to
sell, convey, transfer, assign, and deliver to Purchaser, and
Purchaser agrees to purchase from Seller, the Property for the
Consideration paid in accordance with the terms of this
Agreement.
2.2 Payment of Consideration. The Consideration shall be
due and payable at Closing by wire transfer of immediately
available federal funds or as Seller shall otherwise designate in
writing.
2.3 Apportionment. The actual amount to be paid to Seller
at the Closing will be subject to adjustment, based on
the apportionments of Real Estate Taxes, and the costs and
expenses which the Parties are required to pay at the Closing
pursuant to this Agreement, if any.
Article 3
Liabilities
3.1 Purchaser Liabilities. Notwithstanding anything in
this Agreement to the contrary, or in any other agreement or
document executed by Purchaser in connection with this Agreement
or the transaction contemplated herein, Purchaser Group shall not
incur any pecuniary, financial or personal liability or
obligation whatsoever, whether known or unknown, accrued,
absolute, direct, indirect, contingent or otherwise, for Claims
accruing prior to the Closing Date, or which arises after the
Closing Date but are based on facts, circumstances, events, or
actions of Seller prior to the Closing Date. Purchaser shall
have no further obligation to Seller under this Agreement as of
the Closing Date, and under no circumstances will Purchaser Group
incur any pecuniary charge or financial liability to Seller or
any Person claiming by or through Seller with respect to
Purchaser's performance under this Agreement, and recovery by any
Person for a Purchaser Violation is and shall be limited solely
to the Transaction Escrow Deposit.
3.2 Seller's Liabilities. Notwithstanding anything in this
Agreement to the contrary, or in any other agreement or document
executed by Seller in connection with this Agreement or the
transaction contemplated herein, Seller Group shall not incur any
pecuniary, financial or personal liability or obligation
whatsoever, whether known or unknown, accrued, absolute, direct,
indirect, contingent or otherwise, for Claims accruing after the
Closing Date due to Purchaser's actions. Seller shall have no
further obligation to Purchaser under this Agreement as of the
Closing Date, and under no circumstances will Seller Group incur
any pecuniary charge or financial liability to Purchaser or any
Person claiming by or through Purchaser with respect to Seller's
performance under this Agreement, except for fraud or intentional
misconduct.
3.3 Environmental Liabilities.Notwithstanding anything to
the contrary contained herein, Purchaser shall have no liability
to Seller in the event a Claim is filed by any third Person
against Seller arising out of, or as a result of the
environmental condition of, or any environmental hazard or
violation on the Real Estate which existed as of the Closing
Date.
Article 4
Representations of Seller
Seller represents and warrants to the Purchaser as follows:
4.1 Absence of Undisclosed Claims. Except for Claims which
are not material and which are incurred in the ordinary course of
business, Seller, as of the date hereof, has no actual knowledge
of any Claim related to the Real Estate or Seller's right, power
and authority to sell the Real Estate to Purchaser, which is not
disclosed in this Agreement or in the Schedules attached thereto,
except Claims that are not material individually or in the
aggregate to completion of the transactions under this Agreement
or the Property to be transferred.
4.2 Adverse Information. Seller has no actual knowledge of
any action by adjacent landowners with respect to the Property.
4.3 Binding Obligation. This Agreement to the extent
permitted by Governmental Authority and Governmental Regulation
constitutes the valid and binding agreement of Seller,
enforceable in accordance with its terms (except as
enforceability may be restricted or delayed by bankruptcy,
insolvency, moratorium or similar laws affecting or relating to
the enforcement of creditors' rights in general and by general
principles of equity).
4.4 Broker's Fee. Seller has not engaged any real estate
agent, broker or consultant other than ▇▇▇▇▇▇▇▇▇ Real Estate.
Seller is only obligated for the payment of any real estate
broker fees or commissions due in connection with this
Transaction to ▇▇▇▇▇▇▇▇▇ Real Estate in the amount of $90,000.00.
Purchaser has not engaged any real estate agent, broker or
consultant in connection with this Transaction, and is not
obligated for the payment of any real estate broker fees or
commissions in connection with this Transaction.
4.5 Condemnation. Seller has no actual knowledge of any
pending, contemplated, or threatened condemnation or similar
proceeding or of any litigation affecting the Real Estate or any
part thereof.
4.6 Corporate Authorization. Seller is the sole owner
of the Property, and has full right, power, and corporate
authority to execute this Agreement, carry out the transactions
contemplated by this Agreement, and perform its obligations under
this Agreement. Seller has taken, caused to be taken or shall
cause to be taken all necessary, proper and required corporate
action to authorize the execution and delivery of this Agreement,
and the performance of its obligations under this Agreement. The
individuals who have executed this Agreement have the full and
legal right, power, and authority to do so on behalf of Seller,
and to otherwise act on behalf of Seller in connection with the
consummation of the transactions contemplated by this Agreement.
Seller's authorization (and the authorization of the individuals
executing this Agreement on behalf of Seller) to enter into this
Agreement has not been repealed, modified, or amended.
4.7 Corporate Organization And Good Standing. Seller is a
Delaware Corporation duly organized, validly existing, and in
good standing under the laws of the State, authorized and
licensed to conduct business under the laws of the State.
4.8 Environmental Matters. To the best of Seller's actual
knowledge, and except as disclosed in the Existing Environmental
Reports, the Real Estate is free of Hazardous Substances
(including without limitation asbestos-containing material within
the Real Estate, whether friable or non-friable) as of the date
of this Agreement. Seller has not received notice of any pending
or threatened litigation or administrative investigation or
proceeding concerning the Real Estate involving Hazardous
Substances or Environmental Requirements.
4.9 Removal of Drums. Seller shall remove the drums
presently situated near the rear shed located on the Real Estate
prior to the Closing.
4.10 Parties in Possession. To the best of Seller's actual
knowledge, there are no parties in possession of any portion of
the Real Estate as tenants, possessors or trespassers.
4.11 Regulatory Approvals. To the best of Seller's actual
knowledge, all notices, consents, approvals, authorizations and
other requirements prescribed by Governmental Regulation that are
necessary for the execution and delivery by Seller of this
Agreement and the documents to be executed and delivered by
Seller in connection herewith, or are necessary for the
consummation of the transactions contemplated hereby, have been
obtained or satisfied except for such notices, consents,
approvals, authorizations, or other requirements that this
Agreement expressly contemplates are to be obtained or satisfied
between the date of this Agreement and Closing or thereafter
(which Seller shall obtain or satisfy by Closing).
4.12 Regulatory Violation or Litigation. To the best of
Seller's actual knowledge, (a) Seller is not in violation of any
Governmental Regulation that has had or will have a material
adverse effect on Seller's use of the Property, (b) Seller has
not received any notice of noncompliance with any Governmental
Regulations that has had or will have a material adverse effect
on Seller's use of the Property; (c) no notice from any authority
in respect to the suspension, revocation, withdrawal, or
termination of any Permit has been issued or given to Seller;
and/or (d) Seller has not received notice of any lawsuits,
proceedings, Claims or governmental investigations against Seller
or against the Property, and Seller has not received notice of
any action, suit or proceeding by any Governmental Authority
pending which questions the legality or validity of the
transactions contemplated by this Agreement.
4.13 Seller's Actual Knowledge. The Parties hereby
acknowledge and agree that references in this Agreement to
"Seller's actual knowledge" or "to the best of Seller's actual
knowledge" shall be deemed to mean the actual knowledge of
Seller, its respective agents, officers, directors, employees and
attorneys.
4.14 Tax Parcel. The Real Estate is taxed as separate and
distinct tax parcels, and described on Schedule 3 are real estate
tax bills for the Real Estate for the years 1994 and 1995.
4.15 Tax Status. Seller and all persons holding beneficial
interests in the Property are "United States Persons", as defined
by Section 1445(f)(3) and Section 7701 (g) of the IRC, and the
purchase of the Property by Purchaser pursuant to this Agreement
is not subject to the withholding requirements of Section 1445(a)
of the IRC.
4.16 Title to Real Estate. Seller has good and
merchantable title to the Real Estate subject to no Encumbrances
other than those exceptions to title accepted by Purchaser
following its due diligence of the Real Estate. Between the date
hereof and the Closing Date, Seller will not create or, using its
best efforts, permit to be created any Encumbrances on the Real
Estate.
4.17 Work Performed. Except as set forth on Schedule 4 and
other than ordinary maintenance and repair, there is no material
construction, renovation, remodeling, or other work that has been
commenced within the last twelve (12) months with respect to the
Real Estate but has not been completed. No labor has been
performed or material furnished for the Real Estate for which the
Seller has not heretofore fully paid or for which an Encumbrance
can be claimed by any Person.
4.18 Survival of Representations and Warranties. The
representations and warranties set forth in this Article 4 shall
be true and correct on and as of the Closing Date with the same
force and effect as if made at that time, provided, however, no
such representations and warranties shall survive the Closing.
Article 5
Representations of Purchaser
Purchaser represents to Seller as follows:
5.1 Binding Obligation of Purchaser. This Agreement, to
the extent permitted by Governmental Authority and Governmental
Regulation, constitutes a legal, valid, and binding obligation
of Purchaser, enforceable against Purchaser in accordance with
its terms.
5.2 Execution and Delivery by Purchaser. On the Closing
Date Purchaser shall have taken or caused to be taken all actions
necessary to authorize the execution and delivery of this
Agreement by Purchaser and the performance by Purchaser of its
obligations under this Agreement, all approvals, consents, and
authorizations required by the applicable laws of the State for
the Purchaser to enter into and perform its obligations under
this Agreement shall have been obtained and/or complied with, and
no further authorization shall be necessary or required for due
execution, delivery, or performance by Purchaser of this
Agreement, and Purchaser's authorization to enter into this
Agreement shall not have been repealed, or materially altered,
modified, or amended.
5.3 Necessary Action. Subject to Governmental Authorities
and Governmental Regulations, Purchaser shall in timely fashion
take all actions necessary to enter into this Agreement and to
carry out the terms hereof.
5.4 Status and Authority of Purchaser. Purchaser has the
legal right, power and authority to enter into this Agreement,
and to perform the obligations imposed upon it under this
Agreement.
5.5 Limitation on Purchaser Representations. All
representations of Purchaser under this Agreement are made in
good faith to the best of Purchaser's knowledge, information, and
belief, and terminates as of and do not survive the Closing Date.
Article 6
Covenants of Seller
Seller covenants and agrees with the Purchaser as follows:
6.1 Access and Information. At all times prior to the
Closing Effective Date, Seller shall afford to the Purchaser and
its agents, employees and authorized representatives, access,
during normal business hours, to the Property, as may be
reasonably requested. If this Agreement is terminated prior to
Closing for any reason, all such information shall be returned to
Seller within five (5) Business Days.
6.2 Acts Affecting the Real Estate. Seller will refrain
from (a) performing any grading or excavation, construction, or
removal of improvements to the Real Estate, or making any change
or improvements on or about the Real Estate; (b) creating any
Encumbrance affecting the Real Estate; and (c) committing any
waste or nuisance upon the Real Estate. Seller will maintain the
Real Estate in its present condition.
6.3 Conduct of Business. During the period between the
execution of this Agreement and the Closing Effective Date,
Seller shall conduct the business on the Real Estate in the
ordinary course thereof consistent with prior practice.
6.4 Engineering Plans and Studies. Within five (5) days of
the Effective Date, Seller shall make available to Purchaser all
engineering plans, blueprints, drawings, surveys and artist's
renderings, which Seller has relating to the Real Estate.
6.5 Notification. Seller promptly will notify the
Purchaser of any lawsuits, Claims, administrative actions or
other proceedings asserted or commenced against Seller, its
officers, trustees of employees involving the Property.
Article 7
Waiver of Warranty as to Condition of Real Estate
7.1 Waiver of Warranty as to Condition of Real Estate
Purchaser acknowledges for Purchaser and Purchaser's successors,
and assignees, (i) that Purchaser will be given a reasonable
opportunity to inspect and investigate the Property, all
improvements thereon and all aspects relating thereto, including
all Real Estate, the Incorporated Equipment and the Real Estate
Documents, either independently or through agents and experts of
Purchaser's choosing and (ii) that Purchaser is acquiring the
Property based upon Purchaser's own investigation and inspection
thereof. SELLER AND PURCHASER AGREE THAT THE PROPERTY SHALL BE
SOLD AND THAT PURCHASER SHALL ACCEPT POSSESSION OF THE PROPERTY
ON THE CLOSING DATE "AS IS, WHERE IS, WITH ALL FAULTS" WITH NO
RIGHT OF SET-OFF OR REDUCTION IN THE PURCHASE PRICE, AND THAT
SUCH SALE SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY
OF INCOME POTENTIAL, OPERATING EXPENSES, USES, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE (BUT SPECIFICALLY EXCLUDING THE
WARRANTIES REGARDING TITLE MADE BY IN THIS ACT OF CASH SALE), AND
SELLER DOES HEREBY DISCLAIM AND RENOUNCE ANY SUCH REPRESENTATION
OR WARRANTY (BUT SPECIFICALLY EXCLUDING THE WARRANTIES REGARDING
TITLE MADE BY IN THIS ACT OF CASH SALE). PURCHASER SPECIFICALLY
ACKNOWLEDGES THAT PURCHASER IS NOT RELYING ON ANY REPRESENTATIONS
OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM
SELLER, OR SELLER'S OFFICERS, DIRECTORS OR EMPLOYEES AS TO ANY
MATTERS CONCERNING THE PROPERTY (EXCEPT FOR THE WARRANTIES
REGARDING TITLE MADE IN THE ACT OF CASH SALE), INCLUDING WITHOUT
LIMITATION: (1) THE CONDITION OR SAFETY OF THE PROPERTY OR ANY
IMPROVEMENTS THEREON, INCLUDING, BUT NOT LIMITED TO, PLUMBING,
SEWER, HEATING AND ELECTRICAL SYSTEMS, ROOFING, AIR CONDITIONING,
IF ANY, FOUNDATIONS, SOILS AND GEOLOGY INCLUDING HAZARDOUS
MATERIALS, LOT SIZE, OR SUITABILITY OF THE PROPERTY OR ITS
IMPROVEMENTS FOR A PARTICULAR PURPOSE; (2) WHETHER THE
APPLIANCES, IF ANY, PLUMBING OR UTILITIES ARE IN WORKING ORDER;
(3) THE HABITABILITY OR SUITABILITY FOR OCCUPANCY OF ANY
STRUCTURE AND THE QUALITY OF ITS CONSTRUCTION; (4) THE FITNESS OF
ANY PERSONAL PROPERTY; OR (5) WHETHER THE IMPROVEMENTS ARE
STRUCTURALLY SOUND, IN GOOD CONDITION, OR IN COMPLIANCE WITH
APPLICABLE CITY, PARISH, STATE OR FEDERAL STATUTES, REGULATIONS,
CODES OR ORDINANCES. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT SELLER SHALL BE UNDER NO DUTY TO MAKE ANY AFFIRMATIVE
DISCLOSURE REGARDING ANY MATTER WHICH MAY BE KNOWN TO SELLER, ITS
OFFICERS, DIRECTORS, OR EMPLOYEES, EXCEPT AS SPECIFICALLY SET
FORTH IN THE PURCHASE AGREEMENT, AND THAT IT IS RELYING SOLELY
UPON ITS OWN INSPECTION OF THE PROPERTY AND NOT UPON ANY
REPRESENTATIONS MADE TO IT BY ANY PERSON WHOMSOEVER. ANY REPORTS,
REPAIRS OR WORK REQUIRED BY PURCHASER ARE TO BE THE SOLE
RESPONSIBILITY OF PURCHASER AND PURCHASER AGREES THAT THERE IS NO
OBLIGATION ON THE PART OF THE SELLER TO MAKE ANY CHANGES,
ALTERATIONS, OR REPAIR TO THE PROPERTY, AND PURCHASER
ACKNOWLEDGES THAT PURCHASER HAS COMPLETED ITS DUE DILIGENCE WITH
RESPECT TO THE PROPERTY TO ITS SATISFACTION. PURCHASER IS SOLELY
RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY
OTHER APPROVAL OR PERMIT NECESSARY FOR TRANSFER OR OCCUPANCY OF
THE PROPERTY, IF ANY, AND FOR ANY REPAIRS OR ALTERATIONS
NECESSARY TO OBTAIN SAME ALL AT PURCHASER'S SOLE COST AND
EXPENSE.
7.2 Exception The waiver contained in Section 7.1 is
subject to Purchaser's disclaimer of liability pursuant to
Articles 3 of this Agreement.
Article 8
Purchaser's Due Diligence
8.1 Documentation to be Furnished by Seller. Within
ten (10) days after the Effective Date, Seller's Group shall
furnish Purchasers Group with access to the information in its
possession with respect to the Property, including the following
documentation to the extent such documentation is in the
possession of Seller's Group, provided, however, Seller makes no
warranty or representation that such information is in Seller's
possession, or that if such information is in Seller's
possession, that it can be located:
a. Plats of survey in Seller's possession reflecting
the legal descriptions of the Real Estate and/or
showing the location of all improvements located
thereon;
b. Real Estate Documents;
c. All Permits;
d. Zoning evidence;
e. Documents evidencing the authority of Seller to
enter into this transaction; and,
f. All other documents reasonably requested
by Purchaser which may affect Purchaser's
acquisition of the Real Estate.
Purchaser shall have fifteen (15) days from receipt of the
above instruments or information to notify Seller in writing of
Purchaser's Objections to any of the instruments or information
set forth above in this Section. Seller shall have the right,
but not the obligation to satisfy Purchaser's objections to
Purchaser's satisfaction within ten (10) days after Purchaser
gives written notice thereof. If Seller has not cured such
Objections within the 10-day period, or elects not to cure
Purchaser's obligations, Purchaser may, at its option, terminate
this Agreement by giving written notice of termination within
seven (7) days after the expiration of Seller's aforementioned
ten-day response period. or prior to Closing, whichever is the
first to occur. If either of the aforesaid written notices from
Purchaser to Seller are not given within the required time, the
instruments and information shall be deemed to be acceptable, any
objection thereto shall be deemed to have been waived for all
purposes, and this Agreement will continue in full force and
effect.
8.2 Title Commitment. Purchaser shall have until thirty
(30) days from the Effective Date to examine title to the Real
Estate, obtain the Title Commitment and notify Seller in writing
of the Title Objections. The Title Commitment and Title Policy
obtained by Purchaser shall be at Purchaser's sole cost and
expense.
8.3 Survey. Purchaser shall have until thirty (30) days
from the Effective Date to update the Survey and notify Seller in
writing of Survey Objections to the Survey and/or any matters
revealed by the Survey. The updated Survey obtained by Purchaser
shall be at Purchaser's sole cost and expense.
8.4 Environmental Inspection. Seller has or will within
five (5) days of the Effective Date provided Purchaser with
access to the Environmental Information. Seller agrees that the
Purchaser shall have the right until forty-five (45) days from
the Effective Date to inspect the Environmental Information and
the Real Estate and, at the discretion and sole cost of the
Purchaser, perform such environmental inspections as Purchaser
deems necessary in conducting its due diligence, including
subsurface or other invasive investigations, and air monitoring,
at or near the Real Estate. Purchaser shall have until forty-five
(45) days from the Effective Date to notify Seller in writing of
any Environmental Objections
Seller understands and agrees that Purchaser and its
employees, agents, and representatives may find it appropriate to
contact governmental agencies to obtain information from such
agency in connection with their analysis of the Environmental
Information and as part of their due diligence of the Real
Estate, but for no other purpose.
The reference to the Existing Environmental Reports herein
shall not be deemed an acceptance by Purchaser of any
information, matter and/or condition referenced therein.
Purchaser reserves the right to make any Environmental
Objections, including Environmental Objections to information,
matters and/or conditions referenced in the Existing
Environmental Reports.
8.5 Inspection Procedure. Purchaser shall make the
Purchaser's Inspections in good faith and with due diligence.
All title costs, survey fees, inspection fees, appraisal fees,
engineering fees and other expenses of any kind incurred by
Purchaser relating to the Purchaser's Inspections will be solely
Purchaser's expense. Seller shall cooperate with Purchaser in
all reasonable respects in making the Purchaser's Inspections
without cost to Seller. Purchaser shall have the right to remove
vegetation situated on the Real Estate in connection with
Purchaser's Inspection. Seller hereby reserves the right to have
a representative present at the time of making each of
Purchaser's Inspections. Purchaser shall notify Seller not less
than one (1) Business Day in advance of making any of Purchaser's
Inspections. Purchaser agrees to indemnify and hold Seller and
its directors, officers and employees harmless, to the extent
permitted by Governmental Authority and Governmental Regulation,
from any and all Claims of Seller which arise out of or are
related to the Purchaser's Inspections and to pay the cost
of repair for any damage to the Property (except for the removal
of vegetation) in connection with any of Purchaser's Inspection
by or on behalf of Purchaser.
8.6 Curative Work. Seller shall, at its sole cost and
expense promptly undertake and use its best efforts to eliminate
all of Purchaser's Title Objections which arise out of Seller's
acquisition of the Real Estate from ▇▇▇▇▇▇ Drilling Company.
If Seller does not satisfy any one or more of Purchaser's
Objection prior to the Closing Date, Purchaser shall, in its sole
discretion, elect to:
a. Accept the Property subject to Purchaser's
Objection; or
b. In the case of Title Objections, obtain from Title
Company an acceptable endorsement providing
affirmative coverage expressly insuring against
loss or damage resulting from the Title Objection;
or
c. If Seller elects not to cure any Purchaser's
Objection then Purchaser may declare this
Agreement terminated, in which event $100.00 shall
be paid to Seller by Purchaser as an option
fee for the Inspection Period, whereupon the
Parties shall have no further rights or
obligations hereunder and the Escrow Deposit shall
be returned by Escrow Agent immediately to
Purchaser.
8.7 Right to Terminate. Notwithstanding anything in this
Agreement to the contrary, on or before November 20, 1996, in the
event Purchaser determines as a result of the Purchaser's
Inspections that any condition of the Real Estate is deficient in
any respect in Purchaser's sole and absolute discretion,
Purchaser may elect to terminate this Agreement by delivering
written notice thereof to Seller prior to the expiration of the
period of time granted Purchaser to conduct Purchaser's
Inspections, in which event $100.00 shall be paid to Seller by
Purchaser as an option fee for the Inspection Period, whereupon,
the Parties shall have no further rights or obligations hereunder
and the Transaction Escrow Deposit shall be returned immediately
to Purchaser.
Article 9
Conditions Precedent to Obligations of Purchaser
The obligations of the Purchaser under this Agreement are,
at the option of the Purchaser (which may be waived specifically
in writing by the Purchaser, in whole or in part), subject to the
satisfaction, on or prior to the Closing Date, of the following
conditions:
9.1 Approval by Counsel. Jones, Walker, Waechter,
Poitevent, Carrere & ▇▇▇▇▇▇▇. L. L. P., as counsel for Purchaser,
and counsel for Seller must have approved all matters as to
legal form, proceedings, instruments, and documents relating to
the transaction contemplated by this Agreement.
9.2 Execution and Delivery of Closing Documents. Seller
shall have executed and delivered each of the Closing Documents
to which it is a party.
9.3 No Changes or Destruction of Property. There shall
have been, between the Effective Date and the Closing Effective
Date, no material adverse change in the condition of the Property
or any casualty loss that cannot be repaired within one hundred
twenty (120) days of the date of such loss and the Property shall
not have been materially damaged, by fire, flood, casualty, act
of God or public enemy regardless of insurance coverage for such
damage, which cannot be repaired within one hundred twenty (120)
days.
9.4 No Litigation. No litigation, administrative
proceeding, civil sanction, hearing, review, or investigation
which restricts Seller's ability to own, operate, or transfer the
Property or which seeks an equitable remedy relating to the
Property or the operations thereof before the Closing Date shall
have been instituted or threatened by any Person or Governmental
Authority, which shall not have been resolved prior to Closing by
Seller.
9.5 No Misrepresentation or Breach of Covenants,
Representations and Warranties. There shall have been no
material breach by Seller in the performance of any of its
covenants herein, each of the representations and warranties of
Seller contained or referred to in this Agreement shall be true
and correct in all material respects on the Closing Date as
though made on the Closing Date, and there shall have been
delivered to the Purchaser a certificate or certificates to that
effect, dated the Closing Date and signed on behalf of Seller by
the appropriate officer of Seller.
9.6 Obstructive Proceedings. No suit, pleading, action, or
Claim shall have been alleged, filed or instituted by any Person
(excluding Purchaser) seeking injunctive relief or damages in a
material amount, and no order, decree or judgment shall have been
rendered by any Governmental Authority, which seeks to void or
would prevent the consummation of, or render it unlawful for,
Purchaser to enter into this Agreement; or acquire and/or operate
the Property, which shall not have been resolved prior to Closing
by Seller after receiving notice thereof.
9.7 Order Prohibiting Transaction. No order shall have
been entered in any action or proceeding before any court or
Governmental Authority, and no temporary, preliminary or
permanent injunction by any court shall have been issued which
would have the effect of (a) making the transactions contemplated
by this Agreement unenforceable or illegal; and/or (b) otherwise
preventing consummation of such transactions, which shall not
have been resolved prior to Closing by Seller after receiving
notice thereof.
9.8 Results of Inspections. The results of the Purchaser's
Inspections shall be satisfactory to Purchaser or the applicable
periods of time to conduct the Purchaser's Inspections shall have
expired without written notice of Purchaser's Objections or
termination being received by Seller from Purchaser.
Article 10
Transaction Escrow Deposit
In consideration of Seller entering into this Agreement,
Purchaser has delivered to Escrow Agent, and Seller acknowledges
receipt thereof, the Transaction Escrow Deposit. The Transaction
Escrow Deposit shall be held in a separate interest-bearing
account held by Escrow Agent. In the event the Closing occurs,
the Transaction Escrow Deposit shall be returned to the Purchaser
pursuant to the terms of the Transaction Escrow Agreement. In
the event of a Default by Seller or Purchaser, or in the event of
a termination of this Agreement, the Transaction Escrow Deposit
shall be treated in accordance with the terms of the Transaction
Escrow Agreement.
The Transaction Escrow Deposit shall not constitute ▇▇▇▇▇▇▇
money. Both Seller and Purchaser reserve the right to demand
specific performance.
Article 11
Closing and Closing Date
11.1 Closing. Unless the Parties hereto otherwise agree in
writing, and subject to the extension set forth in Article 9 of
this Agreement, the Closing shall occur on or before November 30,
1996. Anything herein to the contrary notwithstanding, this
Agreement may be terminated and abandoned at any time:
a. on or prior to the Closing Date by the mutual
consent of the Parties; or,
b. for a reason otherwise permitted in this Agreement
which does not constitute a Default by the
terminating Party.
Upon any termination as above provided, written notice shall be
given to the other Parties, and thereupon this Agreement shall
become void and of no effect and there shall be no liability on
the part of any Party to any other Party.
11.2 Place. The Closing shall be held at the offices
of Jones, Walker, Waechter, Poitevent, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇. ▇. ▇.
▇., ▇▇▇▇▇ ▇▇▇, 8555 United Plaza Boulevard, Baton Rouge,
Louisiana, or such other place as the Parties may mutually agree.
Article 12
Obligations of Parties at Closing
12.1 Seller's Obligations to Purchaser at Closing. At the
Closing, Seller shall execute, acknowledge, deliver or cause to
be delivered to Purchaser, each of which must be in a recordable
form satisfactory to Purchaser:
a. Act of Cash Sale. An Act of Cash Sale to the Real
Estate conveying to Purchaser all of Seller's
right, title and interest in and to the Real
Estate with full warranty as to title subject only
to those exceptions which have been accepted by
Purchaser in connection with its due diligence of
the Real Estate, and with full substitution and
subrogation in and to any claims and/or causes of
action which Seller has or may have against all
preceding owners.
b. Assignments of Property. Good and sufficient
bills of sale, blanket assignments and other
instruments of transfer to Purchaser of Seller's
right, title, and interest in and to the equipment
and other movable property located on the Real
Estate with full warranty as to title and with
full substitution and subrogation in and to any
claims and/or causes of action which Seller has or
may have against all preceding owners.
c. Consents. Any consents of third Persons which are
necessary to effectively transfer the Property to
Purchaser.
d. Possession. Possession of the Property.
e. Title Affidavit. An owner's affidavit or
affidavits, a copy of which is attached hereto as
Exhibit "C",and owner's policy of title insurance
together with such other evidence as may be
required by the Title Company insuring Purchaser's
full ownership title to the Real Estate, which
affidavits or other documentary evidence, if
required, shall be in form and substance
satisfactory to the Title Company and sufficient
to cause the Title Company to issue an owner's
policy on the Real Estate without standard
exceptions, including matters of survey and
mechanic's liens (all at Purchaser's cost and
expense).
f. Original Permits. The originals of all Permits to
the extent such are in the possession of Seller's
Group.
g. Non Resident Certificate. A certificate made
under penalty of perjury by Seller stating that
Seller is not a foreign Person as defined by the
IRC.
h. 1099 Information. Any information in connection
with the conveyance of the Real Estate by the
Seller required by the IRC in connection with the
preparation and filing of Treas. Form 1099.
i. Additional Documentation. All documents to be
provided by Seller to Purchaser as reasonably
required by any other provision of this Agreement.
j. Resolution. A certified copy of a resolution of
Seller's Board of Directors authorizing the
execution, delivery and performance of this
Agreement and any other documents required to be
executed by Seller at the Closing, as set forth
herein.
k. Certificate of Good Standing. A certificate
of good standing for Seller issued by the
Secretary of State of the State of Delaware and
dated within five (5) days prior to the Closing
Date.
l. Seller's Counsel's Opinion. An opinion of counsel
for Seller for the benefit of Purchaser and its
counsel in form and substance reasonably
satisfactory to Purchaser opining that:
(1) Seller is a Corporation duly organized and
existing and in good standing under the laws of
the State of Delaware and is duly qualified
to transact business in the State; and has all
requisite corporate power and authority to enter
into and perform the agreements executed by Seller
pursuant to the Agreement to Purchase and Sell
and to carry out the transaction contemplated
thereby;
(2) All requisite and necessary actions on the
part of Seller have been duly taken and had as to
fully authorize Seller to enter into the Closing
Documents and that the Closing Documents to the
extent permitted by Governmental Authority and
Governmental Regulation are binding upon and
enforceable against the Seller in accordance with
their respective terms (except to the extent that
enforcement may be limited by applicable
bankruptcy, insolvency, or other debtor relief
laws in effect at the time of the Closing); and,
12.2 Purchaser's Obligations to Seller at Closing. On the
Closing Date, Purchaser shall deliver to Seller:
a. Funds. A wire transfer of immediately available
funds payable to Seller or its order in the amount
of the Purchaser Consideration.
b. Additional Documentation. All documents to be
provided by Purchaser to Seller as reasonably
required by any other provision of this Agreement.
12.3 Adjustments, Apportionments and Closing Expenses:
a. Closing Expenses. Seller and Purchaser shall each
bear their respective costs and expenses incurred
or to be incurred in negotiating and preparing
this Agreement. Purchaser shall bear the cost of
preparing and recording the documents of transfer
of the Property.
b. Allocation of Expenses. Real Estate taxes for the
current year and personal property taxes, if any,
shall be apportioned between Seller and Purchaser
as of Closing Effective Date (except as otherwise
provided in this Agreement) provided, however,
that if the current year's assessment is not
available at the time of Closing, the
apportionment shall be based upon the most recent
assessment available and shall be corrected so as
to be accurate with monetary adjustment made
within thirty (30) days after actual taxes are
known.
c. Seller's Prior Obligations. Seller agrees to pay
or cause to be paid, in full, all expenses,
charges, bills or trade accounts maintained or
incurred in connection with the ownership of the
Real Estate, the period prior to the Closing Date,
and all sales taxes, excise taxes, payroll taxes,
withholding taxes or other taxes collected or
payable by Seller, or its agents, in connection
with the ownership of the Real Estate for or
during said period.
Article 13
Default
13.1 Breach by Seller.
a. Prior to Closing, if Seller Defaults in the due
and timely performance of any of the terms to be
performed by Seller hereunder, makes any
misrepresentation or is unable or unwilling to
consummate the sale of the Property, for any
reason except Purchaser's Default or the
termination of this Agreement pursuant to any of
the termination provisions hereof, Purchaser may
obtain a refund of the Transaction Escrow Deposit
from the Escrow Agent pursuant to the terms of the
Transaction Escrow Agreement and then, at its
option, may
(1) terminate this Agreement by written notice to
Seller; or
(2) may enforce specific performance of this
Agreement
If Purchaser successfully enforces specific performance of
this Agreement and acquires the Property, Purchaser shall be
entitled to all of its rights under this Agreement.
13.2 Breach by Purchaser. If Purchaser Defaults in the due
and timely performance of any of Purchaser's obligations
hereunder, the conditions to Purchaser's obligations set forth
in this Agreement having been satisfied and Purchaser's being in
Default and Seller not being in Default hereunder, Seller may:
a. terminate this Agreement by written notice to
Purchaser and obtain payment of the Transaction
Escrow Deposit in accordance with the terms of the
Transaction Escrow Agreement; or
b. may enforce specific performance of this
Agreement.
If Seller successfully enforces specific performance of this
Agreement and sells the Property, Seller shall be entitled to all
of its rights under this Agreement.
13.3 Waiver. No delay or omission in the exercise of any
right or remedy accruing to one Party upon any breach by another
Party under this Agreement shall impair such right or remedy or
be construed as a waiver of any such breach theretofore or
thereafter occurring. The waiver by a Party of any condition or
of any subsequent breach of the same or any other term, covenant,
or condition herein contained shall not be deemed to be a waiver
of any other condition or of any subsequent breach of the same or
any other term, covenant, or condition herein contained. Except
as specifically excepted in this Agreement, all rights, powers,
options, or remedies afforded to any Party either hereunder or by
law shall be cumulative and not alternative and the exercise of
one right, power, option or remedy shall not bar other rights,
powers, options, or remedies allowed herein or by law.
Article 14
Waiver of Liens and Resolutory Conditions
Notwithstanding anything in this Agreement to the contrary,
it is Seller's intention that no vendor's lien, and/or privilege,
mortgage, resolutory condition, right of recision nor stipulation
for the benefit of a third party (other than Purchaser's and
Purchaser's assignees and designees), shall be created by this
Agreement or the assumption of any obligation referred to in this
Agreement; and, should any be deemed to have been created, they
are hereby expressly released, renounced, waived and abandoned.
Article 15
Miscellaneous
15.1 Delay or Omission. No delay or omission in the
exercise of any right or remedy accruing to any Party upon any
breach by any other Party under this Agreement shall impair such
right or remedy or be construed as a waiver of any breach
theretofore or thereafter occurring. The waiver of any condition
or the breach of any term, covenant, or condition herein
contained shall not be deemed to be a waiver of any other
condition or of any subsequent breach of the same or any other
term, covenant or condition herein contained.
15.2 Approval of Documents. Any document required to be
prepared, executed and delivered in connection with the Closing
shall be in form reasonably satisfactory to Seller and Purchaser
and their respective counsel.
15.3 Risk of Loss. The risk of loss or damage to the
Property or any part thereof by fire or other casualty shall from
the date hereof until the Closing Date be borne by Seller.
15.4 Notices. All notices or other communications required
or permitted hereunder shall be in writing, shall be delivered
personally or sent by certified mail or by an overnight delivery
service that operates on a nationwide basis, and routinely issues
receipts, and shall be considered given upon the earlier of
actual receipt or forty-eight (48) hours after mailing postage
prepaid. All such notices shall be addressed as follows:
IF TO PURCHASER:
TRICO MARINE ASSETS, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN:
WITH A COPY TO:
▇▇▇▇▇▇▇ ▇. Master
Jones, Walker, Waechter, Poitevent, Carrere &
▇▇▇▇▇▇▇ L.L.P.
Place St. ▇▇▇▇▇▇▇ Avenue
New Orleans, Louisiana 70170-5100
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Jones, Walker, Waechter, Poitevent, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ ▇.▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
IF TO SELLER:
ENSCO OFFSHORE COMPANY
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
WITH COPIES TO:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
or to such other addresses as the parties may specify in writing.
15.5 Further Assurances. Following the Closing, each of the
Parties will take such further actions and execute and deliver
such additional documents and instruments as may be reasonably
requested by any other Party in order to perfect and complete the
purchase and sale of the Property as set forth herein, and the
other transactions specifically contemplated herein.
15.6 Waiver of Terms. Any of the terms or conditions of
this Agreement may be waived at any time by the Parties which are
entitled to the benefit thereof but only by a written notice
signed by the Parties waiving such terms or conditions. The
waiver of any term or condition shall not be construed as a
waiver of any other term or condition of this Agreement.
15.7 Amendment of Agreement. This Agreement may be amended,
supplemented or modified only by a written instrument duly
executed by Seller and by the Purchaser.
15.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Louisiana.
15.9 Partial Invalidity. If any one or more of the
provisions contained herein shall, for any reason, be held to be
invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any
other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision
or provisions had never been contained herein.
15.10 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Parties, their
respective successors, assignees and designees.
15.11 Execution in Counterparts. This Agreement may be
executed simultaneously in one or more counterparts, each of
which shall be deemed an original agreement, but all of which
together shall constitute one and the same instrument.
15.12 Titles and Headings. Titles and headings to sections
herein are for purposes of reference only, and shall in no way
limit, define, or otherwise affect the provisions herein.
15.13 Schedules. The annexed Schedules shall be construed
as an integral part of this Agreement to the same extent as if
the same had been set forth verbatim herein. Any fact disclosed
on one Schedule hereto shall be deemed to be disclosed on each
other applicable Schedule. Seller shall have the right to update
each Schedule, except as hereinbelow described, not more than two
(2) Business Days prior to Closing, which updated Schedule shall
be subject to the Purchaser's approval.
15.14 Entire Agreement. This Agreement, including the
Schedules annexed hereto, constitutes the entire agreement and
supersedes all other prior agreements and understandings, both
written and oral, among the Parties or any of them, with respect
to the subject matter hereof.
15.15 Expiration. Notwithstanding anything else in this
Agreement to the contrary, if the Closing has not occurred by
December 30, 1996, Seller or Purchaser shall have the right at
any time thereafter and prior to the Closing by delivery of ten
(10) days written notice to the other Party to terminate the
Agreement, provided, however, that the noticing party is not then
in material breach of any terms or provisions of this Agreement,
or if the noticing party is in material breach of any terms and
conditions of this Agreement, then the other parties also must be
in material breach of the terms or conditions of this Agreement
in order to terminate the Agreement.
15.16 Litigation Expenses. If a Party litigates (a) any
provision of this Agreement; (b) the subject matter of this
Agreement; or (c) to enforce any warranty, representation or
covenant of this Agreement, the Parties hereto agree that the
unsuccessful litigant shall pay to the successful litigant all of
its reasonable attorneys fees; provided, however, A Party shall
be considered the successful litigant if such Party:
a. obtains substantially (which shall include any
damage judgment in its favor although in a lesser
amount than it sought) the relief it sought or
successfully defends its position, in either case,
solely through a judgment;
b. it did not initiate the litigation and the other
Party withdraws its action without substantially
obtaining the relief it sought; or
c. it did not initiate the litigation and judgment is
entered for either Party, but without
substantially granting the relief sought.
15.17 Rules of Interpretation. The following rules shall
apply to the construction of this Agreement unless the context
requires otherwise: (a) the singular includes the plural and the
plural, the singular; (b) words importing any gender include the
other genders; (c) references to statutes are to be construed as
including all statutory provisions consolidating, amending or
replacing the statute to which reference is made and all
regulations promulgated pursuant to such statutes; (d) references
to "writing" include printing, photocopy, typing, lithography and
other means of reproducing words in a tangible visible form; (e)
the words "including", "includes" and "include" shall be deemed
to be followed by words "without limitation"; (f) references to
the introductory paragraph, preliminary statements, articles,
sections (or subdivision of sections), exhibits, appendices,
annexes or schedules are to those of this Agreement unless
otherwise indicated; (g) references to agreements and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications to such instruments; (h)
references to Persons include their respective successors and
assigns to the extent successors or assigns are permitted or not
prohibited by the terms of this Agreement; (I) "or" is not
exclusive; (j) provisions apply to successive events and
transactions; (k) references to documents or agreements which
have been terminated or released or which have expired shall be
of no force and effect after such termination, release, or
expiration; (l) references to mail shall be deemed to refer to
first-class mail, postage prepaid, unless another type of mail is
specified; (m) all references to time shall be to Baton Rouge,
Louisiana time; (o) references to specific persons, positions, or
officers shall include those who or which succeed to or perform
their respective functions, duties, or responsibilities; (o) the
terms "herein", "hereunder", "hereby", "hereof," and any similar
terms refer to this Agreement as a whole and not to any
particular articles, section or subdivision hereof; and the term
"heretofore" means before the Effective Date, the term "now"
means at the Effective Date, and the term "hereafter" means after
the Effective Date; and (p) all Parties have been actively
involved in drafting this document and no provision hereof shall
be construed in favor of or against any Party on the basis of
such Party's role in drafting that particular provision.
15.18 Time is of Essence. Time is of the essence of this
Agreement.
IN WITNESS WHEREOF the Parties hereto have executed this
Agreement as of the date first above written.
WITNESSES AS TO SELLER: SELLER
ENSCO Offshore Company
/s/ witness
______________________________ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
_______________________________
/s/ witness ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
_______________________________ Vice President
Signed by Purchaser in Houma, Louisiana, on October 11, 1996.
WITNESSES AS TO PURCHASER: PURCHASER:
TRICO MARINE ASSETS, INC.
/s/ witness
_______________________________ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:_______________________________
/s/ witness ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- President and
Chief Executive Officer
Schedule 1 - Intentionally omitted
Schedule 2 - Transaction Escrow Agreement
Schedule 3 - Tax Parcel Information
Schedule 4 - Work Performed
Exhibit "A" - Legal Description
Exhibit "B" - Description of Survey
Exhibit "C" - Seller's/Owner's Affidavit
SCHEDULE 1
Intentionally Omitted
SCHEDULE 2
Transaction Escrow Agreement
SCHEDULE 3
Tax Parcel Information
SCHEDULE 4
Work Performed
Exhibit "A"
Legal Description of Property
Exhibit "B"
Survey prepared for ▇▇▇▇▇▇ Drilling Company
by ▇. ▇▇▇▇▇ ▇▇▇▇▇ & Son, Inc.
dated 5/8/91, revised as of 5/21/91
Exhibit "C"
FATIC-012
(12/1/88)
SELLER'S/OWNER'S AFFIDAVIT
State of _____________________________ County/Parish
of _______________________
I, we,
____________________________________________________
being first duly sworn, on oath depose and state that
I, we, own the following described property:
See Exhibit "A" attached hereto and made a
part hereof
I/We have owned the property now being sold by
me continuously for ________________ years, and my
enjoyment thereof has been peaceable and undisturbed
and the title to said property has never been
disrupted to the best of my actual knowledge, nor do I
have actual knowledge of any facts by reason of which
the title to, or possession of, said property might be
disputed or by reason of which any claim to any of
said property might be asserted adversely to me, and
more particularly, to the best of my knowledge and
except as disclosed:
1. No party other than the Seller(s)/Owner(s)
is in possession of all or any portion of the premises
above described under any unrecorded leases, tenancy
at will or otherwise.
2. The Seller(s)/Owner(s) during the time of
ownership of the premises above described has/have
conveyed no portion of the premises nor done any act
or allowed any act to be done which has changed the
boundaries of the premises.
3. The Seller(s)/Owner(s) has/have allowed no
encroachments on the premises above described by any
adjoining land owners nor has/have the undersigned
encroached upon the property of adjoining land owners.
4. The Seller(s)/Owner(s) has/have allowed no
easements, rights of way, continuous driveway usage,
drain, sewer, water, gas or oil pipeline or other
rights of passage to others over the premises above
described and has/have no knowledge of such adverse
rights.
5. The Seller(s)/Owner(s), at present, and for
a period of 70 days past, has/have caused no
construction, erection, alteration or repairs of any
structures or improvements on the premises above cited
to be done, nor has/have contracted for any material
to be delivered to the premises for which charges
therefor remain unpaid.
6. The Seller(s)/Owner(s) has/have no knowledge
of any highways, abandoned roads, lanes, cemetery or
family burial grounds, springs, streams, rivers,
ponds, or lakes bordering or running through said
premises.
7. The undersigned has no knowledge of any due
taxes or special assessments.
8. The undersigned has not allowed and knows of
no violation of any covenants, restrictions,
agreements, conditions or zoning ordinances affecting
the premises.
9. There are no pending suits, proceedings,
judgments, bankruptcies, liens or executions against
said owner relating to the property, either in the
aforesaid county/parish or any other county/parish in
the aforesaid state.
This affidavit is given to induce FIRST AMERICAN
TITLE INSURANCE COMPANY, a California corporation, to
issue its title insurance policy or policies without
exception to claims of materialmen's and laborers'
liens, survey matters, special assessments and rights
of parties in possession.
_______day of ___________________, 1996.
_______________________________________
Seller/Owner
of Property
_______________________________________
Notary Public
My commission expires: ____________________
