EXHIBIT 2.1
MEMORANDUM OF AGREEMENT
This is a Memorandum of Agreement (the "MOA") between the parties named herein,
for the assignment and sale of the leasehold property and improvements described
herein (the "Property"), pursuant to the terms, conditions and consideration, as
follows:
1. PARTIES: UNIFAB INTERNATIONAL, INC., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("SELLER") agrees to assign, sell and convey to
TRUNKLINE LNG COMPANY, LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
("BUYER") and BUYER agrees to buy from SELLER the Property described
below, subject to the terms and conditions hereof.
2. PROPERTY: The Property to be assigned and sold by this MOA is leasehold
property situated in Calcasieu Parish, Louisiana at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, leased by Seller from the LAKE
▇▇▇▇▇▇▇ HARBOR & TERMINAL DISTRICT, a political subdivision of the
State of Louisiana as Lessor pursuant to that certain Ground Lease
Agreement dated September 1, 1998, as amended, together with
improvements thereon, which Property is more particularly described in
Section 3 below and on EXHIBIT "A", which is attached hereto and made a
part hereof for all purposes. The Purchase Price of the Property is not
dependant upon the exact number of square feet comprising the Property.
Any statement in the legal description of the Property contained in any
Instrument as to the area or quantity of Property is not a
representation that such area or quantity is correct, but is made only
for informational and/or identification purposes.
THE PROPERTY TO BE ASSIGNED AND SOLD BY THIS MOA AND SUBSEQUENT CLOSING
IS CONTINGENT UPON THE BID CONTINGENCIES LISTED BELOW AND ATTACHED
HERETO AS "APPENDIX A" AND AS SUBMITTED WITH THE "OFFICIAL BID FORM" ON
MONDAY, NOVEMBER 15, 2004.
1. The Lake ▇▇▇▇▇▇▇ Harbor and Terminal District consents to the
assignment of the lease to Trunkline LNG Company, LLC and grants
such waivers and consents as necessary to give Trunkline LNG the
following rights:
a. Trunkline LNG has the right to exercise the lease for two
additional five-year terms.
b. Trunkline LNG has the right to utilize the property for a
use other than an offshore oil exploration/production
fabrication and refurbishing facility.
c. Trunkline LNG is not required to employ five hundred
full-time permanent employees.
2. The rig sitting in the water in the southeast corner of the
property will be removed by UNIFAB prior to closing or no later
than 10 business days following closing.
3. The property is free of any material claims, liens, subleases, or
licenses and there are no material outstanding disputes with the
lessor.
3. IMPROVEMENTS AND OTHER PROPERTY: The leasehold property is being
assigned and sold together with:
A. all buildings, improvements and fixtures, except as herein
otherwise specified and shown on EXHIBIT "B" (the "Improvements");
B. all rights, privileges, and appurtenances pertaining to the
Property, including SELLER'S right, title, and interest in any
minerals, utilities, adjacent streets, alleys, strips, gores, and
rights-of-way (the "Associated Rights");
C. SELLER'S interest in any leases, rents, and security deposits for
all or part of the Property and Improvements (the "Landlords
Interests");
D. SELLER'S interest in any licenses and permits related to the
Property and Improvements (the "Licenses and Permits");
E. SELLER'S interest in any third party warranties or guaranties, if
transferable, relating to the Property or any fixtures (the
"Warranties and Guaranties");
F. the following personal property (the "Personal Property"), to wit:
N/A
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The Property, Improvements, Associated Rights, Landlord's Interests,
Licenses and Permits, Warranties and Guaranties and Personal Property,
if any, are herein sometimes referred to collectively as the
"Property". Except as may otherwise be specifically identified herein,
SELLER makes no representation in this MOA that there are any specific
Associated Rights, Landlord Interests, Licenses and Permits, Warranties
and Guaranties or Personal Property, which will be subject to this MOA
and transferred and conveyed to Buyer.
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4. SALES PRICE: At or before closing, BUYER will pay the following sales
price for the Property (the "Sales Price"):
A. Bid Price (or Sales Price in event of Negotiated Sale) $3,000,000.00
B. Ten Percent (10%) Buyer's Premium...............................$ 300,000.00
C. TOTAL SALES PRICE...............................................$3,300,000.00
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5. FINANCING: BUYER shall pay to SELLER the Sales Price, less the amount
of the Purchase Deposit described in Section 6 below, the balance of
which is $2,970,000, in the form of all cash on the Closing Date.
NOTE: THIS MOA AND BUYER'S LIABILITIES AND OBLIGATIONS UNDER
THIS MOA ARE NOT CONTINGENT UPON OR SUBJECT TO BUYER OBTAINING
THIRD PARTY FINANCING.
IF BUYER FAILS TO CLOSE FOR ANY REASON OTHER THAN DUE TO THE
DEFAULT OF SELLER OR DUE TO THE FAILURE TO ACHIEVE
SATISFACTION OF ANY OF THE BID CONTINGENCIES DESCRIBED IN
SECTION 2 ABOVE AND ON APPENDIX A HERETO, IT SHALL BE AN ACT
OF DEFAULT AND THIS MOA SHALL BE SUBJECT TO SELLER'S REMEDIES
SET FORTH IN PARAGRAPH 16. THE FAILURE OF BUYER TO OBTAIN
FINANCING SHALL NOT BE GROUNDS FOR BUYER FAILING TO CLOSE.
6. PURCHASE DEPOSIT: On November 15, 2004 BUYER submitted a deposit of ten
percent (10%) of the Total Sales Price (Bid Price plus Ten Percent
Buyer's Premium) $330,000.00 as Purchase Deposit with Tranzon VenueBid
at ▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, upon
submission of BUYER'S Sealed Bid. Such Purchase Deposit shall be
applied to the Total Sales Price at Closing.
7. ASSIGNMENT OF LEASE AND UCC SEARCH:
A. ASSIGNMENT OF LEASE: SELLER, at SELLER'S expense, will furnish
BUYER an Assignment of Lease, Associated Rights, Landlord's
Interests, Licenses and Permits, Warranties and Guaranties
(the "Assignment") in a form mutually acceptable to both
Seller and Buyer, dated as of the Closing Date.
B. UCC SEARCH: Within 7 Business Days after the Effective Date of
this Agreement (as defined herein), SELLER will furnish to
BUYER at SELLER'S expense a Uniform Commercial Code ("UCC")
search (the "UCC Search") prepared by a reporting service and
dated after the Effective Date. The UCC Search must identify
documents that are on file with the Louisiana Secretary of
State and Calcasieu Parish that relate to all personal
property on the Property and show SELLER as debtor.
SELLER has provided all Legal Instruments including the original lease
agreement, amendments and any other recorded documents (the
"Instruments") attaching to or modifying said original lease agreement
for review by prospective purchasers. SELLER makes no warranty as to
the completeness or accuracy thereof. SELLER, at its expense, will
furnish an assignment of lease (the "Assignment") to BUYER, together
with a ▇▇▇▇ of sale for the Improvements (the "▇▇▇▇ of Sale") prior to
Closing for Buyer's approval, and such Assignment and ▇▇▇▇ of Sale, as
mutually agreed to, shall be executed and delivered at the Closing. The
Assignment will contain as exceptions, all exceptions contained in the
Instruments, all matters reflected on the Instruments and all matters
which are otherwise accepted by BUYER as provided for herein. Should
any matter arise after the Effective Date of the Assignment which
affects the status of the Property, except as provided explicitly in
the Assignment SELLER will have no obligation to cure the same and, if
SELLER declines to cure the same, the sole remedy for the BUYER will be
to cancel its contract to purchase the Assignment, receiving a return
of any Deposit with respect to the same.
Except as may be explicitly provided by the Assignment, BUYER'S
acceptance of the Assignment shall be deemed to be compliance by SELLER
with any requirements with respect to matters of record and conclusive
of said BUYER'S acceptance of the Assignment represented thereby and as
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being in accordance with the obligations of SELLER as set forth herein.
Thereafter, the BUYER shall look solely to the Lake ▇▇▇▇▇▇▇ Harbor &
Terminal District and the coverage afforded by the Assignment in the
event the BUYER later discovers a defect, lien, encumbrance or other
matter of record, which was not excluded from coverage by the
Assignment.
8. PROPERTY CONDITION
A. SELLER MAKES NO REPRESENTATION, WARRANTY, STATEMENT, OR OTHER
ASSERTION, EXPRESS OR IMPLIED, WITH RESPECT TO THE PHYSICAL OR
ENVIRONMENTAL CONDITION OF THE PROPERTY TO BE CONVEYED, THEIR
HABITABILITY, TENANTABILITY OR SUITABILITY FOR COMMERCIAL
PURPOSES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
OTHER THAN AS CONTAINED HEREIN AND BUYER WILL ACKNOWLEDGE THE
SAME AT THE CLOSING OF THE PURCHASE OF THE PROPERTY.
B. BUYER will take the Property "AS IS", "WHERE IS", with any and
all latent and patent defects. BUYER shall be fully
responsible for making its own evaluation and determination as
to the condition of the Property.
C. BUYER will acknowledge and stipulate at the closing of the
purchase of the Property that having been given the
opportunity to inspect the Property, said BUYER will be
relying solely on said BUYER'S own investigation and not on
any information provided by SELLER (except for SELLER'S
warranty of title).
9. BROKERS AND AUCTIONEER: All obligations of the parties for payment of
Auctioneer and Brokers' fees are contained in separate written
agreements. Both SELLER and BUYER agree to indemnify and hold the other
party harmless against any claim for any broker's or other fees and/or
commissions due as the result of the execution of this MOA, which may
be claimed or asserted as the result of the actions of the indemnifying
party in connection with the negotiation and/or execution of this MOA.
Such obligation of indemnity shall include indemnifying and reimbursing
the indemnified party for all attorneys fees and other expenses of the
type described in Paragraph 16 of this MOA, which are incurred by the
indemnified party in defending against any such indemnified claim.
10. CLOSING:
A. The closing of the transaction contemplated herein will be on
Wednesday, December 15, 2004 or the date that is 3 business
days after all of Buyers Bid Contingencies are satisfied,
whichever is later (the "Closing Date") at the offices of
SELLER at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. If
either party fails to close by the Closing Date and such
failure is not excused by any provision hereof, the
non-defaulting party may exercise the remedies in Paragraph
16.
B. On the Closing Date, SELLER will deliver, at SELLER'S expense,
(i) the Assignment in a form previously agreed to by the
Parties as herein provided, and (ii) a ▇▇▇▇ of Sale in a form
previously agreed to by the Parties for the Improvements. The
Assignment must show no exceptions other than those permitted
under Paragraph 7 or other provisions of this MOA. SELLER must
convey the Property at closing:
(1) with no liens, assessments, or Uniform Commercial
Code or other security interests against the
Property, which will not be satisfied out of the
Sales Price;
(2) with no persons in possession of any part of the
Property as lessees, tenants at sufferance, or
trespassers except tenants under the leases assigned
to BUYER under this MOA.
C. At closing, BUYER will:
(1) pay the Sales Price in immediately available funds;
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(2) deliver evidence that the person executing this MOA
is legally capable and authorized to bind Buyer;
(3) execute and deliver any notices, statements,
certificates, or other documents required by this MOA
or law necessary to close the sale.
D. The Assignment will list as exceptions to its coverage, all
easements provided for in this MOA.
11. POSSESSION: SELLER will deliver possession of the Property to BUYER on
closing and funding in its present condition, ordinary wear and tear
excepted. From the Effective Date of this Agreement until Closing,
BUYER agrees to keep and maintain the Property as nearly as reasonably
practicable in its present condition and not to do or permit anything
to be done which would materially diminish the value of the Property or
deprive SELLER of its bargain except in the normal course of BUYER's
business and except for normal wear and tear or to events beyond
SELLER's control. Any possession by BUYER before closing or by SELLER
after closing that is not authorized by a separate written lease
agreement is a Landlord-tenant at sufferance relationship between the
parties.
12. SPECIAL PROVISIONS: In the event of a dispute concerning this MOA or
any payment that may be due hereunder, both SELLER and Agent agree to
use binding standard form arbitration as outlined by the American
Arbitration Association as the method for resolving such a dispute and
such arbitration will occur in New Orleans, Louisiana. This clause will
supercede paragraph 17 of this MOA, only for the relationship between
BUYER and Auctioneer/Broker.
13. SALES EXPENSES:
A. SELLER'S EXPENSES: SELLER will pay for the following in cash
at or before the Closing Date:
(1) releases of existing liens, other than those liens
assumed by BUYER, including prepayment penalties and
recording fees;
(2) tax statements or certificates;
(3) preparation of the Assignment and ▇▇▇▇ of Sale;
(4) other expenses that SELLER will pay under other
provisions of this MOA.
B. BUYER'S EXPENSES: BUYER will pay for the following in cash at
or before the Closing Date:
(1) tax prorations.
14. PRORATIONS: Ad Valorem Taxes for the current year, interest,
maintenance fees, assessments, dues and rents will be prorated through
the Closing Date. If taxes for the current year vary from the amount
prorated at the Closing Date, the parties shall adjust the prorations
when tax statements for the current year are available. BUYER shall pay
the premium for a new insurance policy if desired. If taxes are not
paid at or prior to the Closing Date, BUYER will be obligated to pay
taxes for the current year.
The conveyance of the Property and Improvements will be subject to all
standby fees, taxes and assessments by any taxing authority for the
year 2004, which BUYER will assume and agree to pay.
15. CASUALTY LOSS: If any part of the Property is damaged or destroyed by
fire or other casualty after the Effective Date, BUYER may:
(A) terminate this MOA and the Purchase Deposit will be refunded
to Buyer;
(B) accept the Property in its damaged condition and accept an
assignment of any insurance proceeds SELLER is entitled to
receive.
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Notwithstanding the foregoing, if the amount of damage which has
occurred as the result of such casualty is less than $25,000, this MOA
shall not terminate and BUYER shall accept the Property in its damaged
condition and accept an assignment of any insurance proceeds SELLER is
entitled to receive.
16. DEFAULT: If either party fails to comply with this MOA, and such
failure is not excused by any provision hereof, that party is in
default and the other party may:
(A) enforce specific performance, or seek other relief as may be
provided by law, or both; or
(B) terminate this MOA and receive the Purchase Deposit as
liquidated damages, or return the Purchase Deposit in the
event of default by SELLER, thereby releasing the parties from
this MOA.
17. DISPUTE RESOLUTION: The parties agree to negotiate in good faith in an
effort to resolve any dispute related to this MOA that may arise. If
the dispute cannot be resolved by negotiation, the parties will submit
the dispute to mediation before resorting to arbitration or litigation
and will equally share the costs of a mutually acceptable mediator. Any
mediations or arbitrations shall be held in New Orleans, Louisiana.
18. EXPENSES AND FEES OF ACTIONS: If any arbitration proceeding,
administrative proceeding or any legal action, at law or in equity (an
"Action"), is commenced, including an Action for declaratory relief, to
enforce or interpret the terms of this MOA, or any document or
instrument executed in connection with or pursuant to this MOA, or
involving any controversy or claim between or among the parties to this
MOA, whether sounding in MOA, tort or statute, whether through
arbitration, probate, bankruptcy, receivership or other judicial or
administrative proceeding, the prevailing party in such Action (the
"Prevailing Party") shall be entitled to recover reasonable attorney's
fees, paralegal costs, expert witness and consulting expert fees and
costs, and other expenses, costs and necessary disbursements incurred
by such Prevailing Party in the investigation, preparation, pursuit or
defense of any claim asserted by any party in such Action (including
allocated costs for in-house legal services), in addition to any other
relief to which the Prevailing Party may be otherwise entitled, at law,
equity or hereunder, in the amount determined by the fact-finder(s) or
arbitrator(s). This Paragraph survives the Closing Date.
19. NOTICES: All notices between the parties under this MOA must be in
writing and are effective when hand delivered or sent by overnight
delivery by a recognized national delivery service such as Federal
Express, etc., to:
BUYER AT: SELLER AT:
Trunkline LNG Company, LLC UNIFAB International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ New ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Such notices shall be deemed to have been given and received when
actually received. Notwithstanding the foregoing, in the event a party
is unable to deliver a notice by either of the foregoing methods due to
the absence of the other party from the foregoing addresses, the other
party may thereafter send such notice to the other party by certified
mail, return receipt requested to the foregoing addresses. In such
event, delivery will be deemed to have occurred two (2) Business Days
after a certified letter containing such notice, properly addressed,
with postage prepaid, is deposited in the United States mail. Any party
hereto may, at any time by giving five (5) Business Days written notice
to the other parties hereto, designate any other address and/or
facsimile telephone number in substitution of a foregoing address and
facsimile telephone number to which such notice shall be given.
20. AGREEMENT OF THE PARTIES:
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A. This MOA is binding on the parties, their heirs, executors,
representatives, successors, and permitted assigns.
B. This MOA is to be construed in accordance with the laws of the
State of Louisiana.
C. This MOA contains the entire agreement of the parties and may
not be changed except by written agreement.
D. If this MOA is executed in a number of identical counterparts,
each counterpart is an original and all counterparts,
collectively, constitute one agreement.
21. TIME: Time is of the essence in this MOA. The parties require strict
compliance with the times for performance. The term "Business Day" as
used herein means each calendar day the corporate headquarters of
SELLER is open to the general public. If the last calendar day to
perform under a provision of this MOA falls on a calendar day other
than a Business Day, the time for performance is extended until the end
of the next calendar day, which is a Business Day.
22. EFFECTIVE DATE: The "Effective Date" of this MOA for the purpose of
performance of all obligations is the date Tranzon VenueBid receives
this MOA fully executed by BUYER and SELLER. SELLER shall cause Tranzon
VenueBid to advise BUYER promptly upon its receipt of the fully
executed MOA.
23. EXECUTION OF OTHER DOCUMENTS; FURTHER ACTION: Each party shall, on
demand, execute or obtain such other documents or instruments and
corrective filings or instruments and use all commercially reasonable
efforts to do or cause such other things as may be reasonably necessary
or desirable to effect the provisions and purposes of this MOA.
24. SCHEDULES, ADDENDA, EXHIBITS AND ATTACHMENTS: All schedules, addenda,
exhibits and attachments and other documents or items identified as
being attached hereto (the "Attachments") shall be a part of this MOA
for all purposes. Attachments may be changed from time to time as the
parties may agree. When Attachments are changed, they shall be
redrafted in accordance with agreed changes, dated as of the Effective
Date of such change and signed by the parties. Copies of changed
Attachments shall be furnished to each party and such changed
Attachments shall become a part of this MOA for all purposes. An
Attachment, which has been changed, shall cease to be a part of this
MOA, and the most recently dated Attachment, signed by all parties,
shall govern.
25. WAIVER: No waiver of any term of this MOA shall be valid unless it is
in writing and signed by both parties. The failure of any party at any
time or times to require performance of any provision hereof shall in
no manner affect the right to enforce the same. No waiver by any party
of any condition contained in this MOA, or of the breach of any term,
provision, representation, warranty or covenant contained in this MOA,
in any one or more instances, shall be deemed to be or construed as a
further or continuing waiver of any such condition or breach, or as a
waiver of any other condition or of the breach of any other term,
provision, representation, warranty or covenant.
THIS IS A LEGALLY BINDING DOCUMENT. READ IT CAREFULLY. THE BROKERS AND AGENTS
MAKE NO REPRESENTATION OR RECOMMENDATION AS TO THE LEGAL SUFFICIENCY, LEGAL
EFFECT, OR TAX CONSEQUENCES OF THIS DOCUMENT OR TRANSACTION. CONSULT YOUR
ATTORNEY BEFORE SIGNING.
BUYER: SELLER:
TRUNKLINE LNG COMPANY, LLC UNIFAB INTERNATIONAL, INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Its: Senior Vice President Operations & Its: Vice President, Secretary
Engineering and General Counsel
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Date: November 22, 2004 Date: November 23, 2004
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