EXHIBIT 99
Asset Purchase & Sale Agreement dated November 20, 1996,
and accompanying exhibits, by and among Xxxx X. Xxxxxxx, Inc.
as buyer and DSC, EARF and SFN as Sellers.
ASSET PURCHASE AND SALE AGREEMENT
This Asset Purchase and Sale Agreement (this "Agreement") is
entered into effective the 20th day of November, 1996, by and
among XXXX X. XXXXXXX, INC., a Washington corporation ("Buyer"),
and DSC VENTURE, a Texas joint venture ("DSC Venture"), EQUIPMENT
ASSET RECOVERY FUND, a Texas general partnership ("EARF"), and
SFN CORPORATION, a Texas corporation ("SFN"). DSC Venture, EARF
and SFN are sometimes hereinafter referred to individually as a
"Seller" and collectively as the "Sellers".
R E C I T A L S
1. Sellers desire to sell and transfer to Buyer, and Buyer
desires to purchase and acquire from Sellers, the Manitowoc
construction cranes and related spare parts owned by Sellers, on
the terms and conditions set forth herein.
2. Sellers and Buyer have entered into a letter of intent
dated November 12, 1996 relating to the purchase and sale of
Sellers' construction cranes and related spare parts, which
letter of intent requires that the parties enter into a
definitive agreement with respect to such transaction at the
earliest reasonably practicable date. This Agreement is the
definitive agreement required by such letter of intent.
3. In addition to the terms and conditions of such
purchase and sale of Sellers' construction cranes and related
spare parts, Sellers and Buyer desire to set forth in this
Agreement certain representations, warranties and covenants made
by them as an inducement to the consummation of the transactions
contemplated by this Agreement, all as more fully set forth
below.
A G R E E M E N T
IN CONSIDERATION of the respective covenants and agreements
contained herein, the parties hereto agree as follows:
1. DUE DILIGENCE REVIEW OF ASSETS.
Buyer and Sellers agree that Buyer may commence its due
diligence investigation of the Assets (as hereinafter defined)
and the Asset Records (as hereinafter defined) upon the execution
and delivery of this Agreement. Sellers shall afford Buyer
access to the Asset Records, cranes and related spare parts to
the extent that such access to cranes can be granted without
interfering with the current use of each of the cranes. Buyer
shall complete its due diligence investigation of the Assets
available for inspection and Asset Records before 5:00 p.m.
central time on Wednesday, November 27, 1996 (the "Due Diligence
Deadline"), unless certain Assets are unavailable for inspection
prior to the Due Diligence Deadline (the " Uninspected Assets")
in which event, upon the written notice by Buyer to DSEC
requesting an extension of the Due Diligence Deadline, the Due
Diligence Deadline shall be extended for a period of five days
from Buyer's receipt of written notice from DSEC that the
Uninspected Assets are then available for Buyer to complete its
due diligence inspection. Buyer shall have the right to accept
or reject the Assets in its sole discretion and shall notify
Xxxxxx-Xxxxx Equipment Company ("DSEC"), as agent for all Sellers
in writing of its acceptance or rejection of the condition of the
Assets before the Due Diligence Deadline. Failure to notify DSEC
of acceptance or rejection of the condition of the Assets by the
Due Diligence Deadline, as it may be properly extended, shall
constitute acceptance of the condition of the Assets. Upon
rejection of the condition of all or any portion of the Assets,
this Agreement shall be terminated without any liability of any
party to the others (other than for breaches of covenants herein
prior to such termination), and the Xxxxxxx Money (as hereinafter
defined) shall be returned to Buyer in accordance with the terms
of the Escrow Agreement (as hereinafter defined).
2. SALE AND PURCHASE OF ASSETS; LIABILITIES.
2.1 Sale and Purchase of Assets.
(a) Subject to the terms and conditions of this Agreement,
at the Closing (as hereinafter defined) (i) DSC Venture shall
sell, assign, transfer and convey to Buyer, and Buyer shall
purchase and acquire from DSC Venture, all right, title and
interest in and to the 38 construction cranes and related
equipment ("Units") of DSC Venture listed on the attached Exhibit
"A" (the "DSC Units"), (ii) EARF shall sell, assign, transfer and
convey to Buyer, and Buyer shall purchase and acquire from EARF,
all right, title and interest in and to the 9 Units of EARF
listed on the attached Exhibit "A" (the "EARF Units"), and (iii)
SFN shall sell, assign, transfer and convey to Buyer, and Buyer
shall purchase and acquire from SFN, all right, title and
interest in and to the 5 Units of SFN listed on the attached
Exhibit "A" (the "SFN Units").
(b) Subject to the terms and conditions of this Agreement,
at the Closing the Sellers shall sell, assign, transfer and
convey to Buyer, and Buyer shall purchase and acquire from the
Sellers, all right, title and interest in and to and the spare
parts related to the Units located on Sellers' Pearland, Texas
equipment yard (the "Spares"), which Spares have been commonly
maintained and are not segregated by Seller or by Unit, as listed
on the attached Exhibit "B".
(c) At the Closing, each Seller shall execute and deliver
to Buyer a Xxxx of Sale in the form of the attached Exhibit "C"
(a "Xxxxx Xxxx of Sale") for the Units to be conveyed hereunder
by such Seller. Also at the Closing, the Sellers shall jointly
execute and deliver to Buyer a Xxxx of Sale in the form of the
attached Exhibit "C" (the "Spares Xxxx of Sale") for all of the
Spares to be conveyed hereunder by Sellers.
2.2 Assumption of Certain Contracts and Liabilities.
(a) Subject to the terms and conditions of this Agreement,
at the Closing (i) DSC Venture shall assign and transfer to Buyer
all of DSC Venture's right, title and interest in and to all
rental agreements and lessee purchase orders for the Units and
insurance certificates (only to the extent such insurance
certificates are assignable) from lessees (collectively,
"Assigned Contracts") of DSC Venture relating to the DSC Units,
including, without limitation, the agreements and other
instruments of DSC Venture listed on the attached Exhibit "D"
(the "DSC Contracts"), (ii) EARF shall assign and transfer to
Buyer all of EARF's right, title and interest in and to all
Assigned Contracts of EARF relating to the EARF Units, including,
without limitation, the agreements and other instruments of EARF
listed on the attached Exhibit "D" (the "EARF Contracts"), and
(iii) SFN shall assign and transfer to Buyer all of SFN's right,
title and interest in and to all Assigned Contracts of SFN
relating to the SFN Units, including, without limitation, the
agreements and other instruments of SFN listed on the attached
Exhibit "D" (the "SFN Contracts"). As a general matter, the
rental agreements and lessee purchase orders are entered into
with customers by DSEC on behalf of each of the Sellers and
Sellers, to the extent necessary or appropriate, shall cause DSEC
to assign such agreements and purchase orders to Buyer at
Closing. The DSC Units, the EARF Units, the SFN Units, the
Spares, the DSC Contracts, the EARF Contracts, and the SFN
Contracts are sometimes hereinafter collectively referred to as
the "Assets."
(b) At the Closing, Buyer and each Seller shall execute and
deliver an Assignment and Assumption Agreement in the form of the
attached Exhibit "E" (an "Assignment"), pursuant to which Buyer
shall assume and agree to pay, perform and discharge when due the
liabilities and obligations of such Seller under its Assigned
Contracts, and shall own and receive the benefits of such
Assigned Contracts, arising from and after the Closing Date (as
hereinafter defined). Buyer hereby assumes and agrees to pay,
perform and discharge when due all liabilities and obligations of
each Seller regarding or relating to the Assets arising from and
after the Closing Date. Sellers hereby assume and agree to pay,
perform and discharge when due all liabilities and obligations of
each Seller regarding or relating to the Assets arising prior to
the Closing Date.
2.3 Accounts Receivable. All accounts receivable relating
to the Assets accruing before 12:01 a.m. on January 1, 1997 (the
"Effective Date") shall remain the property of Sellers. Sellers
shall retain responsibility for all invoicing regarding such
accounts receivable. If Buyer receives at any time any such
amounts attributable to any period prior to the Effective Date,
Buyer shall promptly remit such amounts to DSEC as agent for
Sellers. All accounts receivable relating to the Assets accruing
after the Effective Date shall be the property of, and invoiced
by, Buyer. If Seller receives at any time any such amounts
attributable to any period after the Effective Date, Seller shall
promptly remit such amounts to Buyer. In the event either Seller
or Buyer elect to bring suit to enforce payment of a delinquent
account receivable on an account or accounts in which each has an
interest, such suit shall be brought jointly or by the one
holding the largest account receivable with assignment from the
other. All litigation expense and any recovery by settlement or
judgment shall be paid/distributed among Buyer and Sellers pro
rata to their respective interests in the unpaid account
receivable.
2.4 Excluded Assets. The Assets to be transferred and
assigned to Buyer shall not include, Sellers shall not transfer
or assign to Buyer, and Buyer shall not acquire from Sellers, any
assets, properties or rights other than the Assets (the "Excluded
Assets"), which Excluded Assets shall include, without
limitation, the following assets, properties and rights:
(a) All cash on hand in bank accounts, securities,
certificates of deposit, savings accounts and other cash
equivalents, and all bank, checking, money market and other
similar accounts;
(b) Any accounts, notes receivable, promissory notes or
other similar documents evidencing amounts owed to any of
Sellers;
(c) Any income, franchise or other tax refunds to which any
Seller is or may become entitled;
(d) Any insurance policies owned or maintained by any
Seller, any cash surrender values, unearned premiums and rights
to collect the same or obtain refunds thereof, and any rights of
recovery thereunder;
(e) Any real or personal property leases pursuant to which
any Seller is a lessee, any real property of any Seller, any
personal property of any Seller except as specifically listed on
Exhibit "A" or Exhibit "B", including, without limitation,
vehicles, office equipment and office fixtures;
(f) All accounts receivable of any Seller accruing prior to
the Effective Date relating to the Assets and all accounts
receivable of any Seller not relating to the Assets;
(g) All records of Sellers, including, without limitation,
accounting records, corporate records, tax records and any other
records which a Seller is required by law to keep, except for the
"Asset Records" (as hereinafter defined); and
(h) The goodwill of Sellers and the ownership of or
right to use the names "Xxxxxx-Xxxxx Equipment Company" or
"Xxxxxx-Xxxxx," the names of any of Sellers or any variation of
any of the foregoing and Buyer shall not represent to any person
from and after the date hereof that Buyer has acquired the assets
or business of "Xxxxxx-Xxxxx" or "Xxxxxx-Xxxxx Equipment
Company."
2.5 Liabilities Not Assumed. Except for the liabilities
assumed by Buyer pursuant to this Agreement, including, without
limitation, liabilities arising under the DSC Contracts, the EARF
Contracts and the SFN Contracts, Buyer shall not assume any
liabilities or obligations of Sellers.
2.6 Consideration for Sale of the Assets. Subject to the
terms and conditions of this Agreement, Buyer shall pay and
deliver to DSEC as agent for Sellers a purchase price (the
"Purchase Price") in the amount of Fifteen Million Nine Hundred
Thousand Dollars ($15,900,000) in cash at Closing by cashier's
check or wire transfer of immediately available funds. Buyer
shall pay the Purchase Price to DSEC as agent for Sellers.
2.7 The Closing.
(a) The closing of the transactions contemplated by this
Agreement (the "Closing") shall be held at the offices of Gardere
Xxxxx Xxxxxx & Xxxxx, L.L.P., 000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000 at 10:00 a.m., Houston time, on January 6,
1997 (the "Closing Date"), unless another time, date and place
for the Closing is agreed to in writing by the parties hereto.
Title to, ownership of, control over, and risk of loss of the
Assets shall pass to Buyer at the Closing. Failure to consummate
the transactions provided for in this Agreement on the date and
time and at the place selected pursuant to this Section shall not
result in the termination of this Agreement and shall not relieve
any party to this Agreement of any obligation hereunder.
(b) At or before the Closing, each party shall cause to be
prepared, and at the Closing the parties shall execute and
deliver, each document, agreement and instrument required or
contemplated by this Agreement to be so executed and delivered in
connection with the transactions contemplated by this Agreement,
including, without limitation, the Bills of Sale and the
Assignments.
2.8 Conduct of Operations Pending Closing. From the date
hereof until the Closing Date, except as otherwise permitted or
contemplated by this Agreement, each Seller will:
(a) conduct the operations of its respective Assets only in
the usual, regular and ordinary manner and use its reasonable
best efforts to maintain and preserve the present relationships
of such Seller with the other parties to its Assigned Agreements;
(b) not create, assume or permit to exist any Lien upon any
of its respective Assets other than Permitted Liens and Liens
currently in existence and to be released prior to Closing;
(c) not sell, assign, lease, or otherwise transfer or
dispose of any of the Assets, except in the ordinary course of
business consistent with past business practices, and in no event
sell or otherwise transfer ownership of any Unit;
(d) not enter into any other contract or commitment or
engage in any other transaction relating to the Assets not in the
usual and ordinary course of its business consistent with past
business practices; and
(e) maintain or cause to be maintained in full force and
effect insurance coverage relating to the Assets substantially
equivalent to the coverage maintained by Sellers or by DSEC on
behalf of any Seller on the date hereof.
2.9 Transfer Taxes; Recording and Filing Fees. The parties
have taken the position that the sale of the Assets by Sellers to
Buyer as contemplated by this Agreement is exempt from applicable
state sales taxes. Notwithstanding the foregoing, Buyer shall be
responsible for and shall pay any and all sales, use, transfer
and similar taxes that may become due or payable by reason of the
sale and transfer to Buyer of the Assets and the other
transactions contemplated by this Agreement (collectively, the
"Transfer Taxes"). Buyer also shall pay any and all recording,
filing or other fees relating to the conveyance or transfer of
the Assets from Sellers to Buyer. Buyer shall defend, indemnify
and hold harmless Sellers from, against and in respect of any and
all claims, demands, lawsuits, proceedings, fines, penalties,
obligations, costs, expenses, liabilities and damages, including,
without limitation, interest, penalties and attorneys' fees,
which arise or result from or relate to any Transfer Taxes.
2.10 Risk of Loss and Removal of Assets.
(a) Prior to the Closing Date, Sellers shall retain all
risk of loss and damage to their respective Assets. In the event
of a total loss or constructive total loss of any Unit prior to
the Closing date, the Purchase Price payable hereunder shall be
reduced in the following amounts based on the type of Unit lost,
and such Unit and its related Assigned Contracts shall not be
transferred to Buyer as part of the Assets:
Type of Unit Amount
4100W S2 or 4100W $ 550,000
4000W $ 325,000
3900 $ 175,000
Ringer $ 150,000
Tower Attachment $ 75,000
In the event of a loss which is not a total or constructive total
loss of a Unit, Buyer shall purchase such damaged Asset along
with the other Assets for the full Purchase Price, and Sellers
shall take such actions as may be reasonably necessary to insure
that Buyer will receive any and all insurance proceeds payable in
connection with such loss, free and clear of any claim by any
Seller to the extent, and only to the extent, that such insurance
proceeds are necessary to return such damaged Asset to its
condition at the Due Diligence Deadline subject to reasonable
wear and tear thereafter to the date of the loss to such damaged
Asset.
(b) From and after the Closing Date, Buyer assumes all risk
of loss and damage to the Assets, and any injury or death to any
person in connection with Buyer's removal of the Assets from the
location of the Assets. After the Closing Date, a Seller shall
only be responsible for loss of or damage to the Assets if caused
by such Seller's gross negligence or willful misconduct while
such Assets are in its possession. Buyer, at Buyer's cost, shall
load and remove all of the Spares from Sellers' Pearland, Texas
equipment yard within thirty (30) days following the Closing. In
removing the Assets, Buyer shall exercise the utmost care and
precautions not to damage or injure any property or personnel,
including, without limitation, property or personnel of Sellers
or their agents or representatives, and shall clean up the debris
at such locations following such removal. If Buyer fails to
remove all Assets from Sellers' Pearland, Texas equipment yard
within sixty (60) days of Closing, Buyer shall promptly pay to
DSEC the full amount of the monthly rental due on the Pearland,
Texas equipment yard from Closing until all such Assets are
removed. If Buyer complies with its obligation to remove the
Spares from Sellers' Pearland, Texas equipment yard within sixty
(60) days of Closing, Buyer shall not be obligated to pay DSEC
any monthly rental due on the Pearland, Texas equipment yard.
2.11 Notification of Customers by Sellers. Promptly after
the Closing, DSEC as agent for Sellers shall undertake to notify
lessees of the Units that the Units have been sold to Buyer.
Such notification shall state that (i) the applicable leases have
been assigned to Buyer, (ii) payments for periods beginning on
and after the Effective Date under such leases should be made to
Buyer, (iii) payments for periods prior to the Effective Date
under such Leases should be made to Sellers, and (iv) all
insurance certificates provided by such customers should be
amended to designate Buyer as an additional assured and loss
payee from and after the Closing Date, pursuant to the terms of
such lease agreement. Prior to Closing, the parties shall agree
on the exact form of such notices.
2.12 Records. The Assets conveyed by Sellers to Buyer
hereunder shall include all machine files and current rental
files directly relating to the Assets and manufacturer's
maintenance and operator's manuals for the Units (the "Asset
Records") which are in Sellers' possession. Buyer shall maintain
the Asset Records, and Sellers and their representatives and
agents shall have the right to access and copy the Asset Records,
for a period of five years from the Closing Date.
2.13 Units Under Repair. Buyer acknowledges that Xxxxx Xx.
00000 and 391240 are currently being refurbished by Sellers.
During the period prior to the Closing, Sellers shall continue
such refurbishment. On the Closing Date, Buyer shall purchase
such Units with the other Assets on an "AS IS, WHERE IS" basis.
3. XXXXXXX MONEY.
Concurrently with the execution of this Agreement, Buyer
shall deliver the sum of $1,500,000 as xxxxxxx money (the
"Xxxxxxx Money") to Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P. (the
"Escrow Agent") pursuant to the terms of the Escrow Agreement
(the "Escrow Agreement") attached hereto as Exhibit "F". Such
Xxxxxxx Money and all interest earned thereon shall be held by
the Escrow Agent pursuant to the terms of the Escrow Agreement
and shall be applied to the payment of the Purchase Price at the
Closing, released to Sellers, released to Buyers, or tendered to
the registry of any court of competent jurisdiction, all upon the
terms and conditions set forth in the Escrow Agreement.
4. REPRESENTATIONS AND WARRANTIES OF SELLERS.
4.1 DSC Venture's Representations and Warranties. DSC
Venture represents and warrants to Buyer as of the date hereof
the following:
(a) DSC Venture is a joint venture validly existing under
the laws of the State of Texas. The execution and delivery by
DSC Venture of this Agreement and the documents contemplated by
this Agreement and the performance of its obligations under such
agreements are within the venture powers of DSC Venture, have
been duly authorized by all necessary venture action and will not
contravene any provision of its Joint Venture Agreement;
(b) The execution, delivery and performance of this
Agreement by DSC Venture will not result in a breach of or
constitute a default (which breach or default has not been
properly waived or consented to by the appropriate party prior to
Closing) under any agreement, contract, license, debenture or
other instrument to which DSC Venture is a party or by which it
or any of its property is bound, except to the extent that the
effect thereof is not material to the DSC Units or the
transactions contemplated by this Agreement;
(c) The execution, delivery, and performance of this
Agreement will not violate (i) to DSC Venture's knowledge, any
statute or regulation, or (ii) any order, ruling or decree of any
court or governmental authority or agency by which it or any of
its property is bound;
(d) This Agreement constitutes a legal, valid and binding
obligation of DSC Venture, enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws and equitable
principles relating to or limiting creditors' rights generally;
(e) DSC Venture has not incurred any broker or finder's
fees relating to the sale of the Assets to Buyer for which Buyer
will be responsible;
(f) There are no actions, suits or proceedings pending or,
to the knowledge of DSC Venture, threatened against DSC Venture
which, if adversely determined against DSC Venture, would have a
material adverse effect on DSC Venture's ability to perform its
obligations under this Agreement;
(g) DSC Venture has no knowledge of any material default
and has not received any notice of material default under any DSC
Contract;
(h) DSC Venture is not obligated to obtain any consent in
order to permit DSC Venture to complete the transactions contemplated
by this Agreement;
(i) There are no claims, proceedings, actions, lawsuits, or
governmental investigations in existence or threatened, or
contemplated so far as DSC Venture is aware, with respect to the
DSC Units, the DSC Contracts, or its interest therein or in the
Spares; and
(j) DSC Venture has, and the Xxxxx Xxxx of Sale for the DSC
Units when executed and delivered to Buyer will convey to Buyer,
good and marketable title to the DSC Units, free and clear of all
liens, pledges, claims, charges, security interests, encumbrances
and liabilities of any kind, other than (i) liens, pledges,
claims, charges, security interests or encumbrances of any nature
whatsoever ("Liens") securing the payment of taxes, assessments
or other governmental charges or levies which are not yet
delinquent, including, without limitation, inchoate ad valorem
taxes not yet due and payable and (ii) materialmen's, mechanics',
carriers', workmen's, repairmen's or similar Liens incurred in
the ordinary course of business securing sums not yet due
(collectively, "Permitted Liens"); provided, however DSC Venture
shall promptly pay and discharge all Permitted Liens arising
prior to the Effective Date.
4.2 EARF's Representations and Warranties. EARF represents
and warrants to Buyer as of the date hereof the following:
(a) EARF is a general partnership validly existing under
the laws of the State of Texas. The execution and delivery by
EARF of this Agreement and the documents contemplated by this
Agreement and the performance of its obligations under such
agreements are within the partnership powers of EARF, have been
duly authorized by all necessary partnership action and will not
contravene any provision of its Partnership Agreement;
(b) The execution, delivery and performance of this
Agreement by EARF will not result in a breach of or constitute a
default (which breach or default has not been properly waived or
consented to by the appropriate party prior to Closing) under any
agreement, contract, license, debenture or other instrument to
which EARF is a party or by which it or any of its property is
bound, except to the extent that the effect thereof is not
material to the EARF Units or the transactions contemplated by
this Agreement;
(c) The execution, delivery, and performance of this
Agreement will not violate (i) to EARF's knowledge, any statute
or regulation, or (ii) any order, ruling or decree of any court
or governmental authority or agency by which it or any of its
property is bound;
(d) This Agreement constitutes a legal, valid and binding
obligation of EARF, enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws and equitable
principles relating to or limiting creditors' rights generally;
(e) EARF has not incurred any broker or finder's fees
relating to the sale of the Assets to Buyer for which Buyer will
be responsible;
(f) There are no actions, suits or proceedings pending or,
to the knowledge of EARF, threatened against EARF which, if
adversely determined against EARF, would have a material adverse
effect on EARF's ability to perform its obligations under this
Agreement;
(g) EARF has no knowledge of any material default and has
not received any notice of material default under any EARF
Contract;
(h) EARF is not obligated to obtain any consent in order to
permit EARF to complete the transactions contemplated by this
Agreement;
(i) There are no claims, proceedings, actions, lawsuits, or
governmental investigations in existence or threatened, or
contemplated so far as EARF is aware, with respect to the EARF
Units, the EARF Contracts, or its interest therein or in the
Spares; and
(j) EARF has, and the Xxxxx Xxxx of Sale for the EARF Units
when executed and delivered to Buyer will convey to Buyer, good
and marketable title to the EARF Units, free and clear of all
liens, pledges, charges, claims, security interests, encumbrances
and liabilities of any kind other than Permitted Liens; provided,
however EARF shall promptly pay and discharge all Permitted Liens
arising prior to the Effective Date.
4.3 SFN's Representations and Warranties. SFN represents
and warrants to Buyer as of the date hereof the following:
(a) SFN is a corporation duly organized, validly existing
and in good standing under the laws of the State of Texas. The
execution and delivery by SFN of this Agreement and the documents
contemplated by this Agreement and the performance of its
obligations under such agreements are within the corporate powers
of SFN, have been duly authorized by all necessary corporate
action and will not contravene any provision of its Articles of
Incorporation or Bylaws;
(b) The execution, delivery and performance of this
Agreement by SFN will not result in a breach of or constitute a
default (which breach or default has not been properly waived or
consented to by the appropriate party prior to Closing) under any
agreement, contract, license, debenture or other instrument to
which SFN is a party or by which it or any of its property is
bound, except to the extent that the effect thereof is not
material to the SFN Units or the transactions contemplated by
this Agreement;
(c) The execution, delivery, and performance of this
Agreement will not violate (i) to SFN's knowledge, any statute or
regulation, or (ii) any order, ruling or decree of any court or
governmental authority or agency by which it or any of its
property is bound;
(d) This Agreement constitutes a legal, valid and binding
obligation of SFN, enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws and equitable
principles relating to or limiting creditors' rights generally;
(e) SFN has not incurred any broker or finder's fees
relating to the sale of the Assets to Buyer for which Buyer will
be responsible;
(f) There are no actions, suits or proceedings pending or,
to the knowledge of SFN, threatened against SFN which, if
adversely determined against SFN, would have a material adverse
effect on SFN's ability to perform its obligations under this
Agreement;
(g) SFN has no knowledge of any material default and has
not received any notice of material default under any SFN
Contract;
(h) SFN is not obligated to obtain any consent in order to
permit SFN to complete the transactions contemplated by this
Agreement;
(i) There are no claims, proceedings, actions, lawsuits, or
governmental investigations in existence or threatened, or
contemplated so far as SFN is aware, with respect to the SFN
Units, the SFN Contracts, or its interest therein or in the
Spares; and
(j) SFN has, and the Xxxxx Xxxx of Sale for the SFN Units
when executed and delivered to Buyer will convey to Buyer, good
and marketable title to the SFN Units, free and clear of all
liens, pledges, charges, claims, security interests, encumbrances
and liabilities of any kind other than Permitted Liens; provided,
however SFN shall promptly pay and discharge all Permitted Liens
arising prior to the Effective Date.
4.4 Sellers' Representations and Warranties. Sellers,
jointly and severally, represent and warrant to Buyer as of the
Closing Date that they have, and the Spares Xxxx of Sale when
executed and delivered to Buyer will convey to Buyer, good and
marketable title to the Spares, free and clear of all liens,
pledges, charges, claims, security interests, encumbrances and
liabilities of any kind other than Permitted Liens.
4.5 Buyer's Representations and Warranties. Buyer
represents and warrants to each Seller as of the Closing Date the
following:
(a) Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Washington.
The execution and delivery by Buyer of this Agreement and the
documents contemplated by this Agreement and the performance of
its obligations under such agreements are within the corporate
powers of Buyer, have been duly authorized by all necessary
corporate action and will not contravene any provision of its
Articles of Incorporation or By-Laws;
(b) The execution, delivery and performance of this
Agreement by Buyer will not result in a breach of or constitute a
default (which breach or default has not been properly waived or
consented to by the appropriate party prior to Closing) under any
agreement, contract, license, debenture or other instrument to
which Buyer is a party or by which it or any of its property is
bound, except to the extent that the effect thereof is not
material to the transactions contemplated by this Agreement;
(c) The execution, delivery, and performance of this
Agreement will not violate (i) to Buyer's knowledge, any statute
or regulation, or (ii) any order, ruling or decree of any court
or governmental authority or agency by which it or any of its
property is bound;
(d) This Agreement constitutes a legal, valid and binding
obligation of Buyer enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws and equitable
principles relating to or limiting creditors' rights generally;
(e) Buyer has not incurred any broker or finder's fees
relating to the sale of the Assets to Buyer for which any Seller
will be responsible;
(f) There are no actions, suits or proceedings pending or,
to the knowledge of Buyer, threatened against Buyer which, if
adversely determined against Buyer, would have a material adverse
effect on Buyer's ability to perform its obligations under this
Agreement;
(g) Buyer is not obligated to obtain any other consent in
order to permit Buyer to complete the transactions contemplated
by this Agreement; and
(h) Buyer has total assets and annual net sales of less
than $100,000,000.
5. DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES PROVIDED BY
EACH SELLER IN SECTION 4 HEREOF, SELLERS MAKE NO, AND HEREBY
EXPRESSLY DISCLAIM ALL, REPRESENTATIONS AND WARRANTIES, EXPRESS
OR IMPLIED, OF EVERY KIND AND NATURE INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE AND REPRESENTATIONS AND WARRANTIES
REGARDING QUALITY, CONDITION, VALUE, SUITABILITY, UTILITY,
SALABILITY AND PROFITABILITY. BUYER HEREBY ACCEPTS ALL OF THE
ASSETS IN "AS IS, WHERE IS" CONDITION.
6. INDEMNITY.
6.1 Indemnity by DSC Venture. DSC Venture shall indemnify,
defend, save and hold harmless Buyer from and against any
liability, loss, costs, expenses, claims or damages (including
without limitation, attorneys' fees and court costs) (col
lectively, "Losses") arising out of (i) any breach of a
representation or warranty of DSC Venture, and (ii) any
liabilities or obligations regarding the DSC Units or the DSC
Contracts arising prior to the Closing Date.
6.2 Indemnity by EARF. EARF shall indemnify, defend, save
and hold harmless Buyer from and against any losses arising out
of (i) any breach of a representation or warranty of EARF, and
(ii) any liabilities or obligations regarding the EARF Units or
the EARF Contracts arising prior to the Closing Date.
6.3 Indemnity by SFN. SFN shall indemnify, defend, save
and hold harmless Buyer from and against any losses arising out
of (i) any breach of a representation or warranty of SFN, and
(ii) any liabilities or obligations regarding the SFN Units or
the SFN Contracts arising prior to the Closing Date.
6.4 Indemnity by Sellers. Sellers shall, jointly and
severally indemnify, defend, save and hold harmless Buyers from
and against any liabilities or obligations regarding the Spares
arising prior to the Closing Date.
6.5 Indemnity by Buyer. Buyer shall indemnify, defend,
save and hold harmless Sellers from and against any losses
arising out of (i) any breach of a representation or warranty of
Buyer, and (ii) any liabilities or obligations regarding the
Assets arising after the Closing Date, including, without
limitation, obligations and liabilities for payment of sums or
performance of obligations after the Closing Date under the
Assigned Contracts.
6.6 Indemnification Coverage. For purposes of this
Agreement, the right to indemnification shall extend to the
parties hereto and their partners, venturers and affiliates, and
each of their owners, directors, officers, employees, representa
tives, contractors and agents. All indemnity obligations and
liabilities assumed by the parties under the terms of this
Agreement, including, without limitation, this Section 6, shall
be without monetary limit, and without regard to the cause or
causes thereof (including pre-existing conditions or defects),
the negligence of any party or parties (whether the negligence be
sole, joint or concurrent, active or passive), and the fault or
responsibility of any party or parties under any other contract
or any statute, rule or theory of law (including, but not limited
to, strict liability).
6.7 Indemnity Procedure. Upon receipt by a party entitled
to indemnification pursuant to this Section 6 (the "Indemnified
Party") of actual notice of any Losses (as defined in Section 6.1
hereof) with respect to which indemnity may be sought under this
Agreement, the Indemnified Party shall promptly notify the party
obligated to provide indemnification pursuant to this Section 6
(the "Indemnifying Party") in writing of such Losses. Failure by
the Indemnified Party to provide such notification to the
Indemnifying Party shall not relieve the Indemnifying Party from
any obligation or liability which the Indemnifying Party may have
on account of this Agreement or otherwise, except to the extent
the Indemnifying Party shall have been materially prejudiced by
such failure. The Indemnifying Party shall have the right to
assume the defense of any such action related to the Losses,
including the employment of counsel reasonably satisfactory to
the Indemnified Party. The Indemnified Party shall have the
right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the Indemnified Party
unless: (i) the Indemnifying Party has failed promptly to assume
the defense and employ counsel or (ii) the named parties to any
such action related to the Losses (including any impleaded
parties) include the Indemnified Party and the Indemnifying Party
and the Indemnifying Party has not employed counsel to defend the
Indemnified Party for those claims to which the Indemnified Party
is entitled to indemnification. The Indemnifying Party shall
not, without the prior written consent of the Indemnified Party
(which consent shall not be unreasonably withheld) settle,
compromise or consent to the entry of any judgment and/or
otherwise seek to terminate any pending or threatened action with
respect of which indemnification or contribution may be sought
hereunder (whether or not the Indemnified Party is a party
thereto) unless such settlement, compromise, consent or
termination includes an unconditional release of the Indemnified
Party from all potential Losses arising out of such action. The
Indemnifying Party shall reimburse the Indemnified Party for all
Losses as they are incurred in connection with the Indemnified
Party's rights under this Agreement.
6.8 Definition. The word "arising" as used in Section
2.2(b) and Sections 6.1 through 6.5 also refers to the date of
the event, occurrence or cause of action giving rise to the
liability or obligations and not to the date when such claim or
demand is made or the suit is brought.
7. SURVIVAL.
Notwithstanding anything to the contrary herein, express or
implied, the representations and warranties contained in Section
4 hereof, and the indemnity obligation contained in Section 6
hereof, are relied upon by Buyer and Sellers as being true and
shall survive the date hereof for the benefit of the parties for
a period of four years.
8. TAXES.
Ad valorem and/or personal property taxes for the Assets for
calendar year 1996 shall be the liability of and shall be paid by
each respective Seller thereof. Such taxes accruing from and
after the Effective Date shall be the liability of and shall be
paid by Buyer.
9. CONFIDENTIALITY.
Except to the extent required in connection with any
governmental, federal securities laws or stock exchange
disclosure or obtaining any governmental or lender approvals or
as otherwise required by law, the parties hereto agree not to
disclose any of the terms of this Agreement and the terms of the
documents contemplated by this Agreement to any person without
the prior written consent of the other parties hereto. Buyer
agrees to maintain the confidentiality of all information it
obtains pursuant to its due diligence review hereunder, and Buyer
will not use such information for any purpose other than
evaluating the purchase and sale transaction contemplated hereby.
Specifically, except as and to the extent required by law, Buyer
shall not disclose or use, and it shall cause it representatives
not to disclose or use, any Confidential Information (as defined
below) with respect to the Sellers or the Assets furnished, or to
be furnished, by the Sellers or their respective representatives
to Buyer or its representatives, or otherwise obtained by Buyer
or its representatives from Sellers or their representatives, in
connection with Buyer's due diligence inspection of the Assets at
any time or in any manner other than in connection with its
evaluation of the transaction described herein. "Confidential
Information" means any information about the Assets or the
Sellers obtained by Buyer; provided that it does not include
information that Buyer can demonstrate (i) is generally available
to or known by the public other than as a result of improper
disclosure by Buyer or its representatives or (ii) is obtained by
Buyer from a source other than the Sellers, provided that such
source was not bound by a duty of confidentiality with respect to
such information. If this Agreement is terminated as a result of
Buyer's rejection of the condition of the Assets as set forth in
Section 1 hereof, Buyer shall promptly return to the Sellers any
Confidential Information in its possession.
10. MISCELLANEOUS CLAUSES.
10.1 Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto with respect to the
transactions contemplated hereby. It shall not be amended or
modified except by written instrument duly executed by all of the
parties hereto. Any and all previous agreements and understand
ings between or among any or all of the parties regarding the
subject matter hereof, whether written or oral, are superseded by
this Agreement including, without limitation, that certain letter
of intent dated November 12, 1996 by and among the parties
hereto.
10.2 Assignment. This Agreement may only be assigned by a
party with the prior written consent of the other party hereto;
provided, however the Buyer may direct the Sellers to deliver the
Bills of Sale to any one or more affiliates of Buyer. Subject to
the foregoing, all of the terms and provisions of this Agreement
shall be binding upon, inure to the benefit of, and be
enforceable by the successors and assigns of Sellers and Buyer.
10.3 Waiver. A benefit, right or duty provided by this
Agreement shall be deemed waived only by a writing expressly
referring to this Agreement that is signed by the party entitled
to the benefit thereof. The waiver in one instance of any act,
omission, condition or requirement shall not constitute a
continuing waiver unless specifically so stated in the aforesaid
written waiver.
10.4 Notices. All communications under this Agreement shall
be made in writing to the respective addresses set forth below,
or such other addresses as may be designated in writing by notice
given hereunder. Such communications shall be deemed to have
been duly given if either delivered personally or by air courier
service, sent by facsimile, or mailed by postage prepaid
registered or certified U.S. mail, return receipt requested. All
communications under this Agreement shall be effective upon
personal delivery or facsimile transmission, or deposit in the
U.S. mail or with an air courier service. Until changed pursuant
to the terms hereof, the respective addresses for the parties are
as follows:
Xxxx X. Xxxxxxx, Inc.
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, President
Facsimile: (000) 000-0000
Xxxxxx-Xxxxx Equipment Company
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, President
Facsimile: (000) 000-0000
Equipment Asset Recovery Fund
0000 X. Xxxx X., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, General Partner
Facsimile: (000) 000-0000
SFN Corporation
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, President
Facsimile: (000) 000-0000
DSC Venture
c/o Equipment Management, Inc.
Three World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
10.5 Governing Law and Venue. This Agreement shall be
governed by and interpreted and enforced in accordance with the
laws of the State of Texas, without giving effect to any conflict
of law rules or provisions. Except as may be required by
applicable law, each party hereto agrees that any suit, action or
other proceeding arising out of this Agreement shall be brought
and litigated only in the State or Federal courts located in
Xxxxxx County, Texas, and each party hereto hereby irrevocably
consents to personal jurisdiction and venue in any such court and
hereby waives any claim it may have that such court is an
inconvenient forum for the purposes of any such suit, action or
other proceeding. Each party hereto hereby irrevocably consents
to the service of process of any of the aforementioned courts in
any such suit, action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to such
party at the address of such party first above written, or such
other address designated to the preceding Section 10.4.
10.6 Exhibits and Schedules. All Exhibits and Schedules
referred to herein are intended to be and hereby are specifically
made a part of this Agreement.
10.7 Further Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto shall use
its best efforts (i) to take or cause to be taken such action,
(ii) to execute and deliver or cause to be executed and delivered
such additional documents and instruments, and (iii) to do or
cause to be done all things necessary, proper or advisable under
the provisions of this Agreement and under applicable law to
consummate and make effective the transactions contemplated by
this Agreement.
10.8 Severability. If any one or more of the provisions of
this Agreement shall for any reason be held by a court of
competent jurisdiction to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unenforceability
shall not affect the remaining provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been a part hereof.
10.9 Attorneys' Fees. If any litigation is commenced
between the parties concerning this Agreement, the party
prevailing in such litigation shall be entitled to the reasonable
attorneys' fees and expenses of counsel and court costs incurred
by reason of such litigation.
10.10 Counterparts. This Agreement may be executed in
any number of counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
BUYER: XXXX X. XXXXXXX, INC.,
a Washington corporation
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, President
SELLERS: DSC VENTURE,
a Texas joint venture
BY: EQUIPMENT ASSET RECOVERY FUND,
Venture Manager
By: EQUIPMENT MANAGEMENT, INC.,
General Partner
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
EQUIPMENT ASSET RECOVERY FUND,
a Texas limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx,
General Partner
SFN CORPORATION,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
EXHIBIT "A"
MANITOWOC CONSTRUCTION CRANE FLEET
Model and Serial Location
Capacity No.
DSC Units 4100W S-2, 000 Xxx 00000 Xxxxxxx, XX
00000 Xxxxx Xxxxxxx, XX
00000 Xxxxx, XX
00000 Xxxxxxxx, XX
00000 Xxxxxxxxxxxx, XX
00000 Xxxxxxxx, XX
0000X, 200 Ton 41423 Xxxxxxxx, XX
00000 Houma, LA
Ringer, 300 Ton 00000 Xxxxx Xxxxxx, XX
00000 Xxxxxxxx, Xxxxxx
00000 Xxxxxxxx, XX
0000X Tower 13111 Xxxxxx, XX
0000X, 000 Xxx 00000 Xxx Xxxxx, XX
00000 Xxxxxxxx, XX
00000 Xxxxxxxxxxx, XX
00000 Xxxxx Xxxxx, XX
00000 Xxxxx, XX
00000 Xxxxx, XX
00000 Xxxxx, XX
00000 Xxxxx, XX
00000 Xxxxxxxx, XX
00000 Xxxxx, XX
00000 Xxxxxx, XX
00000 Xxxxx, XX
00000 Xxxxx, XX
00000 Xxx Xxxxx, XX
00000 Xxxxxxxx, XX
0000X Tower 13009 Xxxxxxxx, XX
00000 Xxxxxxx, XX
0000, 100 Ton 391131 Xxxxxxxx, XX
000000 Xxxxxxxx, XX
000000 Xxxxxx, XX
000000 Xxxxxxx Xxxxxx,
XX
000000 Xxxxxxx, XX
000000 Xxxxxxxxxxxx
Xxxx, XX
000000 Xxx Xxxxx, XX
000000 Xxxxx, XX
000000 Xxxxxx, LA
EARF Xxxxx 0000X X-0, 230 Ton 41547 Westlake, LA
00000 Xxxxx Xxxxxx, XX
00000 Xxxxxxxxxxxx, XX
0000X, 150 Ton 40646 Xxxxx, XX
00000 Xxxxxxxxxx, XX
00000 Xxxxxxxx, XX
0000, 100 Ton 391206 Xxxxxx, XX
000000 Xxx Xxxxxxx, XX
000000 Xxxxxxx, XX
SFN Units 4000W, 150 Ton 40697 Xxxxxxx, XX
00000 Xxxxxxxx, XX
0000X Tower 13220 Pearland, TX
3900 391221 Xxxxxx, XX
000000 San Antonio, TX
Exhibit "B"
SPARE PARTS INVENTORY
YARD - PEARLAND, TX
YARD INVENTORY - AREA 1
1 - Gantry crossover sheaves
1 - Equalizer link
1 - Used boom hoist cable 4000W
4 - 40' pendants
1 - Gantry crossover sheaves
2 - Equalizer links
1 - Used boom hoist cable
1 - 30' #22 Boom Butt
4 - 10' pendants
1 - Used boom hoist cable
1 - 10' #22 boom insert w/ pendants
3 - Equalizer adapters for #27 boom
2 - Mast straps for 4000W tower
1 - 30' #122 Jib top
1 - 4100W Tower xxxxxx wheel w/ masts stops legs and pendants
2 - 4000W Tower latches
1 - 4100W Tower hold back
1 - Box of misc. parts for 3900 auxiliary drum
1 - Sheave assembly for ringer boom carrier
1 - 4100W Tower hold back
1 - #22 boom top cable guide (no sheaves)
1 - Home made upper cable guide for #22 boom
12 - rolls of misc. cables
2 - Block sheaves for S2 load block
3 - 3 Sheave adapters for #27 boom top
2 - 3 Sheave adapters for 300 ton load block
1 - Single sheave adapter for #22 OT boom top
2 - 3"x 4'x 8' Steel plates
1 - Used roller for ringer boom carrier
1 - Universal anchor joint
1 - 40' #27 Boom Insert
1 - 10' #122A Boom Insert
3 - Spools of used cable for xxxxxx XX, LL, SEC
5 - Spools of cable from Ringer S/N 10224
2 - Becket and wedges (1-1 1/8"- 1 1/4" Xxxxxxx, 1-part #15865C)
1 - #27 40' Boom insert with pins
1 - #122 10' Jib insert
1 - Bent back stay leg
Miscellaneous pendants
2 - 10' #123 Jib Inserts
YARD INVENTORY - AREA 2
1 - 10' #8 boom insert no pendants
6 - 30' #8 boom inserts, no pendants
3 - 30' #8 boom inserts w/pendants no pins
(No boom bolts for above boom)
YARD INVENTORY - AREA 3
1 - Stack of misc. carbody steps
1 - Used load drum for 4100W
1 - Roll Cable - Used
1 - Stack steel plates
2 - 4000W boom hoist drums (used)
1 - Stand for 3900 auxiliary drum
4 - Adapters for ringer to carbody screw xxxx beams
5 - Sets 4100W whip line drum lagging
1 - Tumbler axle
1 - Hydraulic 3rd drum
1 - 300 Ton hook block (hook missing)
4 - #22 Boom point sheave dividers
1 - Pallet of 4000W boom hoist drum lagging
4 - 4 1/2 offset links for 4600 boom
1 - 4100W Equalizer frame
1 - Power down tank for 3900
1 - Stack boom cable roller
3 - S2 block, 5 or 6 sheave adapters
1 - Set 300 ton block adapter
1 - 3900 spreader bar
2 - #22 boom spreader bars - 2 more missing parts
1 - Misc. cab and car body steps/ 4100W
1 - Cable guard for #22 boom top
2 - Cheet weights for single sheave load block
1 - 100 Ton load block
1 - 200 Ton load block
XXXX
0 - Xxx Xxxxxxxxx 0xx xxxx xxxxx
0 - Xxxxxx jib pins
2 - Crane seats
1 - Boom point sheave shaft
1 - Deck gear (Used)
1 - Hydraulic 3rd drum unit (Poor)
4 - Air cylinder for boom stop #27 boom
1 - Pallet miscellaneous clutch and brake linings
6 - Gantry sheaves
4 - #22 Boom stop air cylinder
1 - 4000W Rear cab door
1 - 4000W Deck cover
7 - Miscellaneous mainshaft spiders
2 - Swing shaft spider 3900
6 - Boom hoist spiders
1 - Set mainshaft clutches old - 4
1 - Set mainshaft clutches new - 2
6 - Engine fans
3 - Exhaust flex pipes
1 - Muffler pipe (roof)
1 - Set equalizer pennant links 4100W
1 - Lot miscellaneous wedge and sockets
8 - Miscellaneous pendants top links for boom top
1 - Miscellaneous air cylinder
1 - Pallet miscellaneous clutch linings (18)
1 - Pallet miscellaneous off links, Jib 5 + 10 degrees
4 - Main shaft slingers (sides)
1 - Pallet misc. becket + wedges - pins and bolts etc.
1 - Pallet misc. chain links - new and used
1 - Lot miscellaneous sheaves - 30
4 - Hook rollers - 3900
CONEX
1 - Set transmission case chains
1 - 4100W Boom hoist drive chain
1 - Boom hoist drive pinion
1 - Swing shaft air cylinder (new)
2 - 3900 Hook roller
1 - 4100W Hook roller
3 - Miscellaneous load ball swivels
1 - Slide pinion
1 - New boom hoist pinion
2 - Used converter positioner air cylinder
1 - Transmission xxxx (new)
2 - New cable load indicator
1 - Miscellaneous lot flex air valves
1 - Grease hose reel and hose
1 - Battery charger
2 - Boom angle indicator
1 - Transmission case chain
3 - 76605 Bushings brass
7 - Miscellaneous chain case seals
1 - 4100W (deck) air swivel
1 - No pack cylinder - 3900
2 - Cables for drum rotation indicators
1 - Box misc. main shaft parts
1 - Boom hoist controller
1 - Compensator valve
1 - Xxxxxxxxx 0xx xxxx xxxx
XXXX XXXX
0 - 0000X Upper boom point cable guide (no sheaves)
3 - 10' #123 Jib Inserts
1 - Lot miscellaneous pendants
3 - 30' #8 boom inserts - 1 with X.X.
1 - #122 Jib pendent strut
1 - 30' #122 Jib butt
1 - 20' #8 insert no pendants
1 - 30' #8 insert with pendants no pins
1 - 40' #27 Boom insert
1 - 30'#8 insert with pendants
1 - 4000W Gantry frame (bent)
1 - 40' #22 insert no pendants with jib lugs no pins
1 - 40' #22 insert with tower rails and pendants
5 - 30' #8 insert no pendants
1 - 10' #8 insert no pendants
1 - 20' #22 Insert no pendants
1 - Upper cable guide 3900
1 - Set drum lagging 4100 whip line
1 - 20' #22 insert no pendants
1 - 10' #123 Jib insert and pendants
2 - #123 Jib struts (Bad)
1 - #123 Jib butt no pendants
1 - #123 Jib point no pendants
4 - #123 Jib points damaged (Bad)
1 - 40' #27 insert
1 - 10' #8 insert no pendants
1 - 30' #8 insert no pendants
1 - 40' #123 Jib Complete
1 - 30' #8 insert with pendent (with jib lugs)
1 - 20' #8 insert with pendent (with jib lugs)
1 - 30' #8 insert with pendants
1 - 3900 Spreader bar
2 - 4000W Tower attachments Complete
1 - 300 Ton Ringer load block with sister hook
1 - #27 boom point sheave adapter
1 - #27 mast top (no parts)
4 - 40' #22 boom pendants
1 - Roll Ringer boom cable (7/8") (Used)
1 - Roll Ringer load cable (1-1/8") (Used)
2 - 4100W gantry top rollers
2 - 4100W equalizer pendant pins
NOTE: 1 - 40' #27 boom insert at Coastal Equipment, Birmingham,
AL
EXHIBIT "C"
XXXX OF SALE
__________________, a ________________ ___________ (the
"Seller"), for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, has and does hereby
bargain, sell, convey, assign and transfer to XXXX X. XXXXXXX,
INC., a Washington corporation (the "Buyer"), pursuant to that
certain Asset Purchase and Sale Agreement dated November ____,
1996, between the Seller and the Buyer (the "Purchase Agreement")
all of the Seller's right, title and interest in and to the
equipment described on the attached Schedule (the "Assets"). All
capitalized terms not otherwise defined in this Xxxx of Sale
shall have the meanings assigned to those terms in the Purchase
Agreement.
The Seller represents and warrants that it has, and this
Xxxx of Sale when delivered to the Buyer will convey to the
Buyer, good title to the Assets, free and clear of all liens,
pledges, claims, charges, encumbrances, and liabilities of any
kind other than Permitted Liens.
TO HAVE AND TO HOLD, all and singular, the Assets to the
Buyer, its successors and assigns, forever.
IN WITNESS WHEREOF, this Xxxx of Sale is executed effective
the ____ day of January, 1997.
SELLER:
BY:
NAME:
TITLE:
Exhibit "D"
RENTAL AND LEASE AGREEMENTS,
ACCOMPANYING LESSEE INSURANCE CERTIFICATES,
PURCHASE ORDERS AND RELATED DOCUMENTS
Model Serial Number Lessee R-File Number
4100W S2 41311 KCI Constructors, Inc. 2742
41357 Austin Commercial 2690
41417 WHC, Inc. 2735
41443 ABB Xxxxxx Global, Inc. 2716
41505 American Tank and Vessel 2753
41547 ABB Xxxxxx Global, Inc. 2733
41556 American Tank and Vessel 2739
41594 Union Carbide 2756
41629 ABB Xxxxxx Global, Inc. 2718
4100W 41423 ABB Xxxxxx Global, Inc. 2714
41452 Gulf Island Fabrication 2659
Ringers 10175 American Tank and Vessel 2739
10224 Shell (Pecten) 2722
10261 ABB Xxxxxx Global, Inc. 2715
4000W 40507 Western Summit
Constructors, Inc. 2748
40546
40586 Solar Turbines 2703
40597 Xxxxxxx/Perini 2639
40605 Gulf Island Fabrication 2413
40616 Gulf Island Fabrication 2164
4000W 40625 Centric-Xxxxx Co. 2759
40641 Gulf Island Fabrication 1734
40643 ABB Xxxxxx Global, Inc. 2712
40646 Gulf Island Fabrication 1586
40650 Gulf Island Fabrication 1833
40672
40688 Ranger Plant 2743
40692 Gulf Island Fabrication 2065
40694 Gulf Island Fabrication 1815
40696 Xxxxxxx Xxxxxx Xxxxxxxxxxxx Xx. 0000
40697 Kiewit Western 2702
40707 Xxxxx & Root, Inc. 2741
40708 Xxxxx & Root, Inc. 2740
40714 ABB Xxxxxx Global, Inc. 2737
4100W
Tower 13111 Xxxxxxxx Xxxxx Service, Inc. 2754
4000W
Towers 13009
13055
13220
3900 391131 Ambar Fluids, Inc. 2440
391156 ABB Xxxxxx Global, Inc. 2711
391159 Ambar Fluids, Inc. 2439
3900 391168 Ambar Fluids, Inc. 2687
391177 Elion Concrete, Inc. 2658
391186 Ambar Fluids, Inc. 2466
391206 Flintco, Inc. 2692
391208 Western Xxxxxxx Constructors Co. 2752
391219 X. X. Xxxxxx Constructors 2751
391221 Xxxxx Xxxxxx Inteq 2694
391228 X.X. Xxxxx Construction, Inc. 2757
391238 KCI Constructors, Inc. 2746
391240
391243 McDermott Shipbuilding, Inc. 2724
EXHIBIT "E"
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement")
is entered into this ____ day of January, 1997, by and between
________________, a _________ __________ ("Seller"), and XXXX X.
XXXXXXX, INC., a Washington corporation ("Buyer").
IN CONSIDERATION of the mutual covenants and agreements set
forth below, Seller and Buyer agree as follows:
(a) Introduction. Seller and Buyer have entered into that
certain Asset Purchase and Sale Agreement dated November ____,
1996 (the "Purchase Agreement"). This Agreement effectuates the
assignment by Seller to Buyer of certain agreements, and the
assumption by Buyer from Seller of all liabilities and
obligations of Seller under such agreements, as contemplated by
the Purchase Agreement. All capitalized terms not otherwise
defined in this Agreement shall have the meanings assigned to
those terms in the Purchase Agreement.
(b) Assignment and Assumption. Subject to the Purchase
Agreement, Seller hereby assigns, transfers and conveys to Buyer
all of Seller's rights, title and interest in and to the Assigned
Contracts of Seller, including, without limitation, the
agreements and other instruments of Seller listed on the attached
Schedule, and Buyer hereby assumes and agrees with Seller to
fulfill and carry out, as of the Effective Date, all liabilities,
obligations, duties, terms and conditions of and applicable to
Seller under the Assigned Contracts to the extent they arise or
are to be first performed from and after the Effective Date.
(c) Miscellaneous.
(i) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of Buyer and Seller and their respective
successors and assigns.
(ii) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State
of Texas, without giving effect to any conflict of law rules or
provisions.
(iii) Effective Date. This Agreement shall be effective
as of the Effective Date.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Assumption Agreement to be executed by their
respective duly authorized representatives on the day and year
first written above.
SELLER:
By:
Name:
Title:
BUYER: XXXX X. XXXXXXX, INC.
By:
Name:
Title:
Exhibit "F"
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is entered into this
20th day of November, 1996, by and among Xxxx X. Xxxxxxx, Inc., a
Washington corporation ("Xxxxxxx," sometimes hereafter referred
to as "Buyer"), DSC Venture, a Texas joint venture ("DSC
Venture"), Equipment Asset Recovery Fund, a Texas limited
partnership ("EARF") and SFN Corporation, a Texas corporation
("SFN") (DSC Venture, EARF and SFN are referred to hereafter
collectively as the "Seller"), and Gardere Xxxxx Xxxxxx & Xxxxx,
L.L.P., a Texas limited liability partnership ("GWS&R").
Recitals
(1) Buyer and Seller have entered into that certain Asset
Purchase and Sale Agreement (the "Purchase Agreement") of even
date herewith, pursuant to which Xxxxxxx, subject to certain
terms and conditions, has agreed to purchase and DSC Venture,
EARF and SFN have agreed to sell certain Manitowoc construction
cranes, towers, ringers and related spare parts.
(2) Pursuant to the provisions of Section 3 of the Purchase
Agreement, Buyer is obligated to deliver the sum of $1,500,000 as
xxxxxxx money (the "Xxxxxxx Money") to GWS&R, as escrow agent, on
the date of the Purchase Agreement.
(3) This Agreement is being entered into by and among
Buyer, Seller, and GWS&R in order to set forth the rights,
duties, liabilities and obligations of GWS&R with respect to the
Xxxxxxx Money.
Agreement
NOW, THEREFORE, for and in consideration of the mutual
covenants, conditions and agreements contained herein, the
parties hereto agree as follows:
(1) Appointment and Acceptance by Escrow Agent. Buyer and
Seller hereby jointly select and designate GWS&R to act as the
escrow agent pursuant to Section 3 of the Purchase Agreement.
GWS&R hereby accepts such appointment on and subject to the
specific terms, conditions and provisions contained in this
Agreement.
(2) Relationship of Parties. It is hereby acknowledged and
agreed by all of the parties hereto that GWS&R is representing,
and will continue to represent, Seller in connection with all of
the transactions contemplated by the Purchase Agreement. Nothing
contained herein shall imply, or be construed to imply, that
GWS&R is providing any legal services for or on behalf of Buyer.
It is specifically understood and acknowledged that GWS&R's sole
obligations to Buyer shall be those which are specifically set
forth herein. The parties hereto acknowledge that GWS&R is
acting, at the special instance and request of Seller, in its
capacity as the legal representative of Seller, subject to the
specific contractual limitations contained herein with respect to
delivery of the Xxxxxxx Money. GWS&R is not being compensated in
the form of any escrow fee in connection with the fulfillment of
its obligations hereunder.
(3) Deposit of Xxxxxxx Money, Notice of Acceptance of
Xxxxxxx Money. Pursuant to the provisions of Section 3 of the
Purchase Agreement, on the date hereof, Buyer shall deliver the
sum of $1,500,000 to GWS&R in its capacity as escrow agent.
Immediately upon its receipt of such $1,500,000, GWS&R shall give
written notice of such receipt to Buyer by facsimile.
(4) Investment of Xxxxxxx Money. During the term of this
Agreement, the Xxxxxxx Money shall be held in the GWS&R Trust
Account, shall be invested only in securities, instruments,
certificates of deposit or accounts with Bank One, Texas, N.A.
Houston or NationsBank of Texas, N.A. All interest earned on the
Xxxxxxx Money shall be deemed to be a part of the Xxxxxxx Money,
except as otherwise provided herein.
(5) Delivery of Xxxxxxx Money. The ultimate rights of
Seller and Buyer to receive the Xxxxxxx Money shall in all
respects be governed by and determined in accordance with the
following:
(a) Upon Closing of the transactions contemplated in the
Purchase Agreement, GWS&R shall pay the Xxxxxxx Money over to
Buyer or, upon the written instruction of Buyer, to Sellers to be
applied against the Purchase Price under the Purchase Agreement.
(b) If the Purchase Agreement is terminated pursuant to
Section 1 of the Purchase Agreement, then GWS&R shall immediately
upon demand by Buyer pay over to Buyer the Xxxxxxx Money.
(c) Notwithstanding anything herein to the contrary,
in the event of any dispute between Buyer and Seller relating to
entitlement to the Xxxxxxx Money, GWS&R shall have no obligation
whatsoever to deliver the Xxxxxxx Money to either Buyer or to
Seller unless and until:
(i) GWS&R has received, in form and substance reasonably
satisfactory to GWS&R, a written instrument signed by Buyer and
Seller jointly directing and authorizing GWS&R to deliver the
Xxxxxxx Money in accordance with the terms thereof; or
(ii) a court of competent jurisdiction has ruled in the
form of a final judgment directing and authorizing GWS&R to deliver
the Xxxxxxx Money in accordance with the terms thereof.
Notwithstanding the foregoing, it is specifically understood
and agreed that, should any dispute or other disagreement
arise between Buyer and Seller with respect to who is
entitled to receive the Xxxxxxx Money, at any time
hereafter, GWS&R shall have the right to petition any court
of competent jurisdiction requesting such dispute to be
resolved by such court of competent jurisdiction and GWS&R
shall specifically have the right, in connection therewith,
to interplead or otherwise deliver the Xxxxxxx Money into
the registry of such court. In the event of a dispute over
entitlement of the Xxxxxxx Money, the prevailing party shall
be entitled to recover its reasonable attorneys' fees and
costs of court, as well as any costs, expenses or liability
paid in connection with indemnification of the escrow agent
hereunder.
(6) Successor Escrow Agents. GWS&R may at any time resign
by giving notice in writing to Buyer and Seller, and shall be
discharged from its duties under this Agreement on the first to
occur of the appointment of a successor escrow agent or the
expiration of thirty (30) calendar days after such written notice
is given. In the event of any resignation, a successor escrow
agent, which shall be an insured state or national bank with
trust powers and whose principal office is in Houston, Texas,
must be appointed within thirty (30) days by Buyer, subject to
the reasonable approval of Seller. The successor escrow agent
shall deliver to Seller, Buyer and GWS&R a written instrument
accepting appointment under this Agreement and thereupon it shall
succeed to all of the rights and duties of GWS&R under this
Agreement and shall be entitled to receive the Xxxxxxx Money then
held by GWS&R under this Agreement. If a successor escrow agent
has not been selected by Buyer and approved by Seller within
thirty (30) calendar days after notice of the resignation of
GWS&R hereunder, then Seller shall have the right, for an
additional thirty (30) calendar days, to appoint a successor
escrow agent, which shall be an insured state or national bank
with trust powers and whose principal office is in Houston,
Texas, subject to the reasonable approval of Buyer. If a
successor escrow agent has not been appointed by Seller and
approved by Buyer within such additional thirty (30) calendar day
period, then, at any time thereafter, GWS&R shall have the
express right to interplead or otherwise deliver the Xxxxxxx
Money into the registry of any court of competent jurisdiction
requesting such court to determine who should be entitled to
receive the Xxxxxxx Money in accordance with the terms of this
Agreement. The indemnity provisions contained herein in favor of
GWS&R shall survive resignation of GWS&R as escrow agent
hereunder.
(7) Rights, Privileges, Immunities and Liabilities of
Escrow Agent. The following provisions shall govern the rights,
privileges, immunities and liabilities of GWS&R, in its capacity
as recipient of the Xxxxxxx Money:
(a) Except for this Agreement, GWS&R is not a party to, and is
not bound by, any agreements between Seller and Buyer, including,
without limitation, the Purchase Agreement or any Definitive Agreement.
(b) In the event GWS&R becomes involved in litigation or
threatened litigation in connection with this Agreement or the
Xxxxxxx Money, including, without limitation, litigation arising
as a result of the release of the Xxxxxxx Money by GWS&R to any
party hereto, Seller and Buyer agree, jointly and severally, to
indemnify and save GWS&R harmless from and reimburse GWS&R for
all losses, costs, damages, expenses and attorneys' fees suffered
or incurred by GWS&R as a result thereof and such losses, costs,
damages, expenses and attorneys' fees shall be reimbursed to
GWS&R as incurred by GWS&R. The indemnity contained herein shall
include all legal fees and other costs incurred by GWS&R in
connection with any interpleader or other action instituted by
GWS&R which may be necessary to obtain a judicial determination
of the rightful recipient of the Xxxxxxx Money.
(c) GWS&R shall be protected in acting on any written
notice, request, waiver, consent, certificate, receipt,
authorization, power of attorney or other paper or document, including,
without limitation, any written notice from Buyer or Seller, which GWS&R
in good faith believes to be genuine and what it purports to be.
(d) GWS&R shall not be liable for anything which it may do or
refrain from doing in connection herewith provided that it acts in good
faith.
(e) GWS&R may consult with legal counsel in the event of
any dispute or question as to the construction of any provision
of this Agreement or its duties hereunder, and it shall incur no
liability and shall be fully protected in acting in accordance
with the opinion and instructions of its counsel.
(f) In the event of any disagreement resulting in adverse
claims or demands being made in connection with the Xxxxxxx
Money, or in the event that GWS&R, in good faith, shall be in
doubt as to what action it should take hereunder, GWS&R may, at
its option, refuse to comply with any claims or demands on it or
refuse to take any other action hereunder, so long as such
disagreement continues or such doubt exists, and in such event,
GWS&R shall not be or become liable in any way or to any person
for its failure or refusal to act, and GWS&R shall be entitled to
continue to so refrain from acting until (i) the rights of all
interested parties shall have been fully and finally adjudicated
by a court of competent jurisdiction or (ii) all differences
shall have been adjusted and all doubt resolved by agreement
among all of the interested parties and GWS&R shall have been so
notified in a written instrument signed by all such parties. The
rights of GWS&R under this paragraph are cumulative to all other
rights it may have at law or otherwise.
(g) GWS&R, on delivery of the Xxxxxxx Money either to
a successor escrow agent or to Buyer and/or Seller pursuant to
the terms of this Agreement, shall be discharged from any further
obligations hereunder.
(8) Notices. Any notice permitted or required to be given
under the terms of this Agreement shall be in writing, may be
given by facsimile or mail (unless otherwise specified herein),
and shall be deemed given when received by the party to whom it
is directed or, if sooner, 5 business days after deposited in the
United States Mail, certified or registered, return receipt
requested, with postage prepaid, and addressed to the party to be
notified at the appropriate address specified below. The
addresses of the parties are as follows:
Seller: DSC Venture, Equipment Asset Recovery Fund, and SFN
Corporation
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Facsimile No. 713/621-2443
Telephone No. 713/000-0000
with a copy to: Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P.
000 Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. X.X. Xxxxxxx III
Facsimile No. 713/308-5807
Telephone No. 713/000-0000
Buyer: Xxxx X. Xxxxxxx, Inc.
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, President
Facsimile No. 509/586-0825
Telephone No. 509/000-0000
GWS&R: Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P.
000 Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. X.X. Xxxxxxx III
Facsimile No. 713/308-5807
Telephone No. 713/000-0000
The above addresses may be changed by any party by notice given
in the manner provided in this Paragraph 8.
(9) Effect of Agreement. This Agreement shall be binding on,
inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns. Any term used
herein but not defined herein shall have the meaning ascribed to
it in the Acquisition Agreement.
(10) Applicable Law and Jurisdiction. The validity of this
Agreement, its construction, interpretation and enforcement, and
the rights of the parties hereunder, shall be determined under,
governed by and construed in accordance with the laws of the
State of Texas without giving effect to the principles of
conflicts of laws thereof. Each party hereto agrees that any
suit, action or other proceeding arising out of this Agreement
shall be brought and litigated only in the state or federal
courts located in the County of Xxxxxx, State of Texas and each
party hereto hereby irrevocably consents to personal jurisdiction
and venue in any such court and hereby waives any claim it may
have that such court is an inconvenient forum for the purposes of
any such suit, action or other proceeding. Each party hereto
hereby irrevocably consents to the service of process of any of
the aforementioned courts in any such suit, action or proceeding
by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at the address of such party
specified herein.
(11) Counterparts. This Agreement may be executed in multiple
counterparts each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
Witness the execution hereof as of the day and year first
above written.
XXXX X. XXXXXXX, INC.
BY:
NAME:
TITLE:
DSC VENTURE
BY:
NAME:
TITLE:
EQUIPMENT ASSET RECOVERY FUND
BY:
NAME:
TITLE:
SFN CORPORATION
BY:
NAME:
TITLE:
GARDERE XXXXX XXXXXX & XXXXX,
L.L.P.
BY:
NAME:
TITLE:
