Exhibit 10.66
AMENDED PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into as of the 5th day of
August, 2002 (the "Effective Date"), by and between XXXXXX CHEMICALS AND
PLASTICS OPERATING LIMITED PARTNERSHIP ("Seller"), a Delaware limited
partnership, and X.X. XXXXXXXX D/B/A L.J.G. LAND COMPANY ("Buyer").
RECITALS
WHEREAS, on April 3, 2001, Seller filed a voluntary petition
for relief under chapter 11 of the Bankruptcy Code, 11 U.S.C. Sections 101-1330
(the "Bankruptcy Code"), in the United States Bankruptcy Court for the District
of Delaware (the "Bankruptcy Court"), under case number 01-1268 (the "Bankruptcy
Case"). Seller is continuing in possession of its properties and acting as a
debtor in possession pursuant to section 1107 and 1108 of the Bankruptcy Code;
WHEREAS, Buyer desires to purchase from Seller a certain tract
of land in Ascension Parish, Louisiana, which is shown on a plat thereof
attached hereto as Exhibit "A", which contains 161.55 acres, more or less, and
is more particularly described on Exhibit "B" hereto (the "Property");
WHEREAS, this Agreement and the transaction contemplated
herein are subject to the prior approval of the Bankruptcy Court, after notice
and hearing in the Bankruptcy Case (the "Bankruptcy Court Approval"); and
WHEREAS, upon Bankruptcy Court Approval, Seller desires to
sell, and Buyer desires to purchase, the Property in accordance with the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. SALE AND PURCHASE. Seller agrees to sell the Property
to Buyer, and Buyer agrees to purchase the Property from Seller subject to the
terms and conditions set forth herein. Buyer hereby acknowledges and agrees that
the purchase of the Property is without reliance on any representations or
warranties by Seller as to the title thereto or the use or conditions thereof;
that as to title, Buyer will rely on a current survey of the Property and a
commitment for title insurance to be issued by a title company of Buyer's
choice; and that Buyer's purchase of the Property shall be based on the
inspection of the Property by Buyer and/or Buyer's representatives or agents.
The act of sale (the "Act of Sale") by which the Property will be conveyed shall
contain provisions substantially as set forth on Exhibit "C" hereto, to give
effect to the foregoing insofar as the Property is concerned.
2. PURCHASE PRICE. Buyer shall pay to Seller for the
Property a price of $1,350,000.00 in cash (the "Purchase Price"). Within
forty-five (45) days after Bankruptcy Court Approval, Buyer shall cause a
Louisiana licensed surveyor or civil engineer to prepare a survey of the
Property (the "Survey") which shall include among other things, any servitudes
or rights of way on the Property, a plan of resubdivision of property as
required by the Parish of Ascension of Seller if required to deliver
merchantable and insurable title to the Property, a full legal description of
the Property as per the Survey and a certification of the correctness of the
Survey in favor of Seller, Buyer and the title company of Buyer's choice. Seller
shall fully cooperate with an application for approval of the survey reflecting
a plan of subdivision so that the Property shall be a separate tract or tracts
of record, all in compliance with the subdivision ordinance of Ascension Parish,
provided that Buyer shall bear the costs or expenses involved in securing the
approval of the plan of subdivision of property by said Parish.
3. FUNDING PURCHASE PRICE. The Purchase Price shall be
payable in immediately available federal funds, which funds are to be wire
transferred before 12:00 PM (Noon) (Central Standard Time) on the date of
closing pursuant to such wiring instructions as Seller shall deliver to Buyer at
least five (5) business days before the "Closing Date" as defined below.
4. EVIDENCE OF TITLE. Within forty-five (45) days after
Bankruptcy Court Approval, Buyer shall obtain a commitment from a title company
of Buyer's choice to insure Buyer's title to the Property upon the acquisition
thereof from Seller (the "Title Commitment").
5. TITLE TO THE PROPERTY. Seller shall be obligated to
convey to Buyer merchantable title to the Property, but without any warranty of
title, free of all liens and encumbrances except (a) all servitudes and rights
of way and other matters of record impacting the use or condition of the
Property exclusive of any restriction on the Property which would otherwise
prohibit the use thereof for residential purposes, (b) all building and zoning
laws, ordinances, and local, State and Federal regulations which may bear on the
use or condition of the Property, and (c) encroachments and all other matters
that the Survey should show, to all of which the sale and purchase of the
Property shall be expressly made subject, and all of which are collectively
referred to herein as the "Permitted Exceptions". Nothing contained in this
Section 5 shall be construed as negating or in any way limiting Buyer's right to
terminate this Agreement pursuant to Section 7 hereof.
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6. DEPOSIT. Buyer has deposited with Seller, the sum of
$5,000 as a deposit (the "Deposit") on the Purchase Price of the Property. The
Deposit shall not be deemed xxxxxxx money. If the sale and purchase hereunder is
consummated, the Deposit, shall be credited against the Purchase Price at the
closing hereunder.
7. BUYER'S INSPECTION OF THE PROPERTY. Commencing not
later than three (3) business days after Bankruptcy Court Approval and
terminating not later than forty-five (45) days after such approval (the
"Inspection Period"), Buyer, at its sole expense, shall (a) make or have made
such reasonable non-destructive inspections, investigations, tests or
assessments, in connection with the Property as Buyer, in its sole discretion,
desires including, without limitation, the condition of soils and sub-surfaces,
survey, environmental assessment, or other test and inspection as may relate to
Purchaser's intended use of the Property; and (b) review the Title Commitment
and the Survey (the matters set out in (a) and (b) of this Section are sometimes
hereinafter referred to as "Buyer's Due Diligence"). If Buyer has any objection
whatsoever in Buyer's sole discretion, to any of the matters set out in (a) and
(b) of this Section, Buyer shall have the right to terminate this Agreement by
notifying Seller of such termination not later than the end of the Inspection
Period. In the event of termination of the Agreement pursuant to this Section 7,
Seller will return Buyer's Deposit promptly and neither party shall have any
further obligation or liability hereunder except as otherwise provided herein.
Upon the expiration of the Inspection Period without objection, as provided
herein, or upon Buyer's notification to Seller that Buyer has no objection or
will proceed notwithstanding any objection or objections, the Deposit will
become non-refundable, except in the case of Seller's default hereunder or as
may be otherwise provided herein.
8. BANKRUPTCY COURT APPROVAL. Seller will promptly after
both parties have executed this Agreement, file and diligently pursue an
application for Bankruptcy Court Approval of this Agreement so that it will have
authority to consummate the transaction contemplated hereby. Notwithstanding
anything in this Article 8 to the contrary, should Seller fail to obtain
Bankruptcy Court Approval for this Agreement within ninety (90) days after the
Effective Date hereof, Buyer shall have the right to terminate this Agreement,
or the option to grant Seller more time.
9. INDEMNIFICATION. Buyer agrees to indemnify Seller and
hold it harmless from and against all claims, damages or losses arising out of
Buyer's inspections, including, without limitation, claims for personal injury
or property damage and all reasonable costs, expenses and attorney's fees. If
this agreement is terminated for any reason before the closing hereunder, Buyer
shall restore the Property to its
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condition prior to Buyer's inspections. The obligations in this paragraph shall
survive the closing hereunder or the termination of this Agreement for any
reason.
10. POSSESSION. Seller shall deliver possession of the
Property, subject to the Permitted Exceptions, not later than the Closing Date
(as defined in Section 12 hereof), provided that all the terms and conditions of
this Agreement have been complied with.
11. CONDITION OF OBLIGATIONS. Anything contained herein to
the contrary notwithstanding, Seller's obligation to convey the Property shall
be conditioned on Bankruptcy Court Approval.
12. THE CLOSING. The Act of Sale shall be consummated
within twenty (20) days after the Inspection Period (the "Closing Date") and at
such time and place as the Seller will designate in a notice given to Buyer at
least five (5) business days prior to the Closing Date. In that connection, it
is contemplated that Seller shall execute the Act of Sale at its home office in
Geismar, Louisiana, and will deliver such documents to the agent for the title
company so that Buyer (i) can execute same and (ii) give instructions to its
bank to wire the funds in payment of the Purchase Price, whereupon the Act of
Sale shall be consummated.
13. DEFAULT. In the event Seller is unable, within the
time specified, to convey Buyer merchantable and insurable title to the Property
free of all liens and encumbrances other than the Permitted Exceptions, then
Seller shall forthwith return the Deposit, to Buyer and neither party shall have
any further responsibility or liability to the other hereunder except as
otherwise provided in Sections 9 and 17 hereof. In the event Seller fails to
comply with this Agreement within the time specified for any reason other than
its inability to obtain Bankruptcy Court Approval or to convey to Buyer a
merchantable and insurable title to the Property free of all liens and
encumbrances other than the Permitted Exceptions, then Buyer shall have the
right, at Buyer's option, either to demand the return of the Deposit, plus an
amount equal to said Deposit, with no interest attributed thereto, to be paid as
liquidated damages, or to demand specific performance of this Agreement. In the
event Buyer fails to comply with this Agreement within the time specified for
any reason other than Seller's inability to obtain Bankruptcy Court Approval or
to convey to Buyer a merchantable and insurable title to the Property, free of
all liens and encumbrances other than the Permitted Exceptions, then Seller
shall have the right, at Seller's option, either to retain the Deposit and
demand an amount equal to said Deposit, to be paid as liquidated damages, or to
demand specific performance of this Agreement.
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14. ADJUSTMENTS AND PRORATIONS. All real estate taxes
pertaining to the Property shall be prorated to the Closing Date. If the amount
of said taxes is not known on the Closing Date, they shall be apportioned on the
basis of the amounts for the preceding year, with a reapportionment as soon as
the new amounts can be ascertained. If such taxes shall thereafter be reduced by
abatement, the Buyer shall be entitled to the amount of such abatement.
The adjustment to the Purchase Price resulting from this
Section 14 shall be added to or deducted from, as the case may be, the balance
due on the Purchase Price set forth in Section 2.
15. COSTS AND ATTORNEY'S FEES. Buyer shall bear the costs
of the Survey and compliance with any resubdivision of property ordinance, the
commitment for title insurance, the cost of registering the Act of Sale in the
conveyance records of Ascension Parish, Louisiana, and the premium for Buyer's
title insurance policy insuring title to the Property upon the purchase thereof.
Seller shall bear the costs of the mortgage and tax research certificates. With
respect to attorney's fees and expenses, Seller agrees to pay such fees and
expenses of Seller's counsel in this transaction and Buyer agrees to pay all
fees and expenses of Buyer's counsel in this transaction.
16. CONDEMNATION. In the event that prior to the Closing
Date any portion of the Property becomes the subject of a condemnation
proceeding by a public or quasi-public authority having the power or eminent
domain, then either (a) the parties shall proceed with the transaction
contemplated herein, in which even Buyer shall be entitled to receive any
condemnation proceeds, or (b) in the event such condemnation involves, in the
reasonable estimation of Buyer, a loss of all or a material portion of access to
the Property, Buyer, at its option, may terminate this Agreement by notice of
such proceeding, in which case the Deposit, shall be refunded, and thereafter
neither party shall have any further obligation or liability to the other by
virtue of this Agreement, except as otherwise expressly provided herein.
17. BROKER'S COMMISSION. Seller and Buyer hereby warrant
and represent to each other that neither has dealt with any broker or finder in
connection with this transaction. Seller and Buyer hereby agree to indemnify and
hold each other harmless from and against, any and all claims for brokerage or
finder's fee or other similar commissions or compensation made by any and all
other brokers or finders claiming to have dealt with Buyer or Seller, as the
case may be, in connection with this Agreement or the consummation of the
transaction contemplated hereby. The obligations in this Section 17 shall
survive the consummation of the Act of Sale or the termination of this Agreement
for any reason.
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18. CLOSING DOCUMENTS. Each party shall deliver to the
other party or the title insurance company such duly executed and acknowledged
or verified certificates, affidavits and other usual closing documents
respecting the power and authority to perform the obligations hereunder and as
to the due authorization thereof by the appropriate corporate, partnership,
limited liability company or other representatives acting for it, as counsel for
the other party or the title insurance company may reasonably request.
19. NON-FOREIGN CERTIFICATE. On the Closing Date, Seller
shall deliver to Buyer (i) a certification that Seller is not a non-resident
alien (a foreign corporation, partnership, trust, or estate as defined in the
Internal Revenue Code and Treasury Regulations promulgated thereunder), and (ii)
an affidavit to the effect that no construction work has been done on the
Property within a period of at least three (3) months before the Closing Date.
20. WAIVER. No waiver of any breach of any agreement or
provision contained herein shall be deemed a waiver of any preceding or
succeeding breach of any other agreement or provision herein contained. No
extension of time for the performance of any obligation or act shall be deemed
an extension of time for the performance of any other obligation or act.
21. GOVERNING LAW. This Agreement shall be governed and
construed under the laws of the State of Louisiana, subject to the provisions of
Section 30 hereof.
22. NOTICES. Any notice or other communication required or
permitted to be delivered to any party under this Agreement shall be in writing
and shall be deemed duly given, delivered and received on the date received when
delivered by hand, by certified mail-return receipt requested, or by courier or
express delivery service, or when transmitted by electronically confirmed
facsimile, to the address or facsimile number set forth beneath the name of such
party below, or to such other address or facsimile number as such party shall
have specified in a written notice to the other party hereto:
If to Seller: Xx. Xxxxxxxx X. Xxxxx, Xx.
Vice President-Manufacturing
Xxxxxx Chemicals & Plastics
Operating Partnership
00000 Xxxxxxxxx Xxxxxxx 00
Xxxxxxx, Xxxxxxxxx 00000
FAX NO.: 000-000-0000
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Copy to: c/o Lemle & Xxxxxxxx, L.L.P.
Attn.: Messrs. B. Xxxxxxx Xxxxx, Jr.
and Xxxxxx X. Good
21st Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
FAX NO.: 000-000-0000
If to Buyer: X.X. Xxxxxxxx
X.X. Xxx 000
Xxx Xxxxx, Xxxxxxxxx 00000
FAX NO.: 000-000-0000
Copy To: Xxxxxx & Xxxxxx
X.X. Xxx 000
Xxx Xxxxx, Xxxxxxxxx 00000
FAX NO.: 000-000-0000
23. COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall constitute an original and all of
which, when taken together, shall constitute one agreement, provided that if for
any reason this Agreement has not been executed by both parties and a fully
executed copy has not been delivered to each party on or before August 9, 2002,
then this Agreement shall be deemed invalid and unenforceable and neither party
shall have any obligation or liability to the other arising out of the
negotiation for and the preparation of this Agreement.
24. HEADINGS. The section headings used herein are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
25. ATTORNEY'S FEES. If any legal action or other legal
proceeding relating to this Agreement or the enforcement of any provision hereof
is brought against any party hereto, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements, in addition to any
other relief to which the prevailing party may be entitled.
26. CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement, and no rule of
construction, presumption or burden of proof favoring any party shall arise by
reason of the authorship of any specific
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provision of this Agreement, if any ambiguity or question of intent,
construction or interpretation of this Agreement arises.
27. ENTIRE AGREEMENT. This instrument sets forth the
entire agreement between the parties and may not be cancelled, modified, or
amended except by a written instrument executed by both Seller and Buyer.
28. JURISDICTION OF THE BANKRUPTCY COURT. The Bankruptcy
Court shall retain jurisdiction to (i) implement and enforce this Agreement,
(ii) resolve any disputes arising under or related to this Agreement, and (iii)
interpret, implement and enforce the provisions of any of its order entered in
respect of this Agreement. For all purposes hereof, Bankruptcy Court Approval
shall mean an order of the Bankruptcy Court or an appellate court with
jurisdiction over the Bankruptcy Court in the Bankruptcy Case, which is a final
order and one which is binding on all parties at interest in the Bankruptcy
Case, and with respect to which there is no right or further right, as the case
may be, of appeal by any party at interest in the Bankruptcy Case.
29. TAX FREE EXCHANGE OPTION. Buyer shall have the option
to effect a tax free exchange hereunder in his favor, provided Buyer can work
out the details and secure the necessary consent from his lenders on or before
the Closing Date. Seller agrees to execute all documents required to complete
the exchange on or before the Closing Date and Buyer shall be responsible for
the payment of all costs and fees incurred by Seller and/or Buyer in connection
with closing an exchange transaction, including, without limitation, attorney
fees and recording costs.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in triplicate originals at the place and on the date
indicated, and in the presence of the witnesses who sign, opposite their
respective signatures.
Wilmington, Delaware
September , 2002
WITNESSES: SELLER:
XXXXXX CHEMICALS AND PLASTICS
OPERATING LIMITED PARTNERSHIP
By its General Partner
BCP Management, Inc.
---------------------------
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------
Xxxxxxxx Xxxxx
--------------------------- Its: Vice President
New Roads, Louisiana
September , 2002
WITNESSES: BUYER:
---------------------------
/s/ X.X. Xxxxxxxx
-----------------------------
X.X. XXXXXXXX
---------------------------
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EXHIBIT "A"
TO
PURCHASE AND SALE AGREEMENT
Attach plat of Property
EXHIBIT "B"
TO
PURCHASE AND SALE AGREEMENT
A CERTAIN TRACT OR PARCEL OF LAND, and all rights, privileges and servitudes
thereunto belonging or in anywise appertaining (including alluvion and batture),
situated in Section 50, Township 9 south, Range 2 East, ASCENSION PARISH,
Louisiana, in the Southeast quadrant, intersection of Louisiana Highway 73,
6,388.9 feet of frontage on Louisiana Highway 30 by 1,362.68 feet of frontage on
Louisiana Highway 73, Southeastern Land District of Louisiana, containing 161.55
acres, more or less, and being designated as Xxxxxx Chemicals and Plastics tract
Site 236.
EXHIBIT "C"
TO
PURCHASE AND SALE AGREEMENT
This sale and purchase of the Property is made and accepted
(i) without any warranty as to title except against the act(s) of Seller, but
with substitution and subrogation in and to all the rights and actions of
warranty which Seller has or may have against all preceding owners and vendors,
and (ii) "AS IS, WHERE IS" without any warranties of any kind whatsoever as to
the use or condition of the Property or any of the component parts thereof or
the absence of apparent or hidden defects in the Property, including, without
limitation, or the environmental condition of the Property. Buyer hereby waives
(i) the warranty against hidden defects or redhibitory vices in the Property
otherwise imposed by Article 2475 of the Louisiana Civil Code or other
applicable law, and (ii) any rights it may otherwise have in redhibition or for
reduction of the Purchase Price pursuant to Articles 2530 through 2548 of the
Louisiana Civil Code or other applicable law, and release Seller from any
liability which may otherwise arise out of such warranty and rights in
connection with the sale of the Property. Buyer then declared and acknowledged
that such waivers and release of liability constitute a material part of the
consideration for the sale of the Property, that such waivers and release of
liability and the legal effect thereof have been explained in detail, and that
Buyer has voluntarily and knowingly agreed thereto. Buyer hereby acknowledges
and confirms that Buyer has had ample opportunity to inspect the Property fully,
has inspected the Property to the extent Buyer desires, is purchasing the
Property in its present condition "AS IS, WHERE IS" with all defects, and does
hereby waive and
relinquish, to the fullest extent permitted by law, any and all rights to void
the sale, to claim damages or for a reduction or return of the Purchase Price on
account of any latent, hidden, or apparent vice or defect in the Property.
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