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ASSET PURCHASE AGREEMENT
THIS AGREEMENT is dated as of December 22, 1997, between and among
BONE-DRY ENTERPRISES, INC., a Georgia corporation (the "Buyer"), XXXXXXX
ENVIRONMENTAL SERVICES, INC. , a Georgia corporation, located at 0000 Xxxxxx
Xxx, Xxxxxxxxx, Xxxxxxx 00000 (the "Seller"), and W. XXXXXX XXXXXXX, a Georgia
resident ("Xxxxxxx").
RECITALS
WHEREAS, Seller owns certain contract rights, customer accounts, trucks
and containers and is engaged in the non-hazardous liquid waste and septic waste
collection, transportation, management and disposal business (the "Business");
and
WHEREAS, Seller desires to sell and Buyer desires to purchase
substantially all of assets of Seller, including the Business; and
WHEREAS, pursuant to the terms and conditions of this Agreement, Buyer
agrees to purchase from Seller, and Seller agrees to sell to Buyer,
substantially all of the assets of Seller, including the Business.
NOW, THEREFORE, for good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged by each of the parties to
this Agreement, the parties contract and agree as follows:
SECTION 1. PURCHASE AND SALE
Pursuant to the terms and conditions of this Agreement, Seller hereby
agrees to sell, convey, transfer and deliver to Buyer, and Buyer hereby agrees
to purchase from Seller at the Closing, the Business and all of the other assets
of Seller (other than the Excluded Assets), including but not limited to the
following assets (collectively, the "Assets"):
(a) All goodwill, if any, associated with, and all of Seller's right,
title and interest in and to, all customer accounts, names, lists, purchase
orders, service agreements and contracts (including implied or quantum meruit
contractual rights) or other rights of Seller to provide liquid waste removal,
collection, transportation and storage services to customers of Seller, and all
rights to and in connection with any activities commonly associated with such
services, customer service agreements and contract rights (including implied or
quantum meruit contractual rights) with customers; and all files,
correspondence, records (including billing and service records for the preceding
twelve (12) months) and related proprietary information and material and other
intellectual property which is necessary, helpful or related to providing such
services described above (collectively, the "Accounts"); excluding, however, (x)
all customer accounts, rights or contracts which deal in hazardous chemical,
toxic or low-level radioactive waste, Hazardous Materials or Extremely Hazardous
Substances which Buyer determines it does not wish to purchase, and (y) all
small business set aside contracts which Buyer determines it does not wish to
purchase. All of the customer accounts, contracts and other rights which are not
being purchased, including those
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accounts described in subparagraphs (x) and (y) of this paragraph, shall be set
forth on Schedule 1 and are hereinafter referred to collectively as the
"Excluded Accounts."
(b) All tangible personal property (such as containers, reservoirs,
compactors, carts, repair parts, machinery, equipment, inventories of raw
materials and supplies, manufactured and purchased parts, goods in process and
finished goods, furniture, automobiles, trucks, tractors, trailers, tankers,
tools, pumps, stabilizers, jigs, and dies), including, but not limited to, those
items set forth on Schedule 2.
(c) All intellectual property, goodwill associated therewith, licenses
and sublicenses granted and obtained with respect thereto, and rights
thereunder, remedies against infringements thereof, and rights to protection of
interests therein under the laws of all jurisdictions.
(d) All personal property leases, subleases and rights thereunder.
(e) All agreements (such as equipment rental agreements and service
agreements), contracts, customer agreements, disposal agreements, service
agreements, indentures, mortgages, instruments, security interests, guaranties,
other similar arrangements, and rights thereunder.
(f) All claims, deposits, prepayments, refunds, causes of action,
choses in action, rights of recovery, rights of set off, and rights of
recoupment (including any such item relating to the payment of taxes).
(g) All franchises, approvals, permits, licenses (including but not
limited to radio transmitter licenses), orders, registrations, certificates,
variances and similar rights obtained from governments and governmental
agencies, service marks, trademarks and logos.
(h) All securities, telephone numbers, yellow page advertising, books,
records, ledgers, files, documents, correspondence, lists, plats, architectural
plans, drawings and specifications, creative materials, advertising and
promotional materials, operational, billing and payable information, studies,
reports and other printed or written materials, computer hardware and software.
(i) All rights in and with respect to the assets associated with
Seller's employee benefit plans.
Notwithstanding the above, the Assets shall not include (1) any real
property, leaseholds and subleaseholds therein, improvements, fixtures and
fittings thereon, and easements, rights-of-way and other appurtenants thereto;
(2) the Excluded Accounts; (3) any accounts receivable, notes receivable or
other receivables of Seller; (4) any cash or cash equivalents of Seller; or (5)
those assets set forth on Schedule 3 (collectively, the "Excluded Assets").
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SECTION 2. OTHER AGREEMENTS
(a) On and subject to the terms and conditions of this Agreement, and
in consideration for the sale, transfer, conveyance and deliverance of the
Assets by Seller, Buyer shall pay to Seller the following (the "Purchase
Price"), subject to the terms hereto and any adjustments thereto: (1) Six
Hundred Sixty Thousand Dollars ($660,000.00) in immediately available funds or
by wire transfer to Seller's designated account; and (2) Twenty-Eight Thousand
(28,000) shares (the "SanTi Stock") of the authorized but unissued common
capital stock of SanTi Group, Inc., a Delaware corporation ("SanTi"). At the
Closing, Buyer shall tender to Seller the cash portion of the Purchase Price,
and shall tender (A) 2,800 shares of the SanTi Stock to Xxxx X. Xxxxxx (on
behalf of Seller), and (B) 14,320 shares of the SanTi Stock to Xxxxxxx (on
behalf of Seller). Buyer shall retain the balance of the SanTi Stock (10,880
shares) to hold as security to offset against any Losses asserted against,
imposed upon or incurred by Buyer arising out of any of the matters listed in
items (1) through (6) of Section 8(b) hereof, and Buyer shall deliver the
remaining balance of said SanTi Stock (after any such offset) to Xxxxxxx (on
behalf of Seller) on that date which is no later than ninety (90) days after the
first anniversary of the Closing Date.
(b) At the Closing, Buyer shall assume and agree to pay, discharge and
perform all liabilities and obligations of Seller that arise after the Closing
in connection with the operation of the Business by Buyer, including all
post-Closing Seller liabilities and obligations under the contracts and
agreements included in the Accounts and other Assets (the "Assumed
Liabilities"); provided, however, Buyer shall not be responsible for obligations
or liabilities: (1) in the nature of any taxes, including sales or transfer
taxes, arising out of the sale of the Assets; or (2) in which the event giving
rise thereto occurred prior to Closing. Except as otherwise stated herein, Buyer
does not assume, agree to perform or discharge, or otherwise have any
responsibility for, any liabilities, contingent or otherwise, or contractual or
other obligations of Seller or the Business.
(c) The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of Buyer on December 22, 1997, or
such other date or place as the parties may mutually determine (the "Closing
Date"); provided, however, the Closing Date shall be no later than December 31,
1997.
(d) On or prior to the Closing Date, Seller and Xxxxxxx shall enter
into, execute and deliver to Buyer an agreement, substantially in the form of
Exhibit "A" attached hereto (the "Noncompetition Agreement"), restricting each
such person's ability to compete with Buyer in the Business, and to solicit the
customers, suppliers and employees of the Business, Seller or Buyer for a period
of five (5) years after the Closing Date.
(e) On or prior to the Closing Date, Seller and Buyer will enter into,
execute and deliver a sublease substantially in the form of Exhibit "B" attached
hereto (the "Sublease") providing for the sublease by Seller to Buyer of certain
office, shop and storage space at Seller's current facility at 0000 Xxxxxx Xxx,
Xxxxxxxxx, Xxxxxxx 00000. The Closing Date shall be the effective date of the
Sublease. The Sublease will have an initial term of one month, which term will
automatically renew
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until either party provides the other with fifteen (15) days written notice of
termination. Seller will also cause KAB Enterprises, LLC ("KAB") to assign to
Buyer, on or before the Closing, its option (the "Option") to purchase the
entire facility located at 0000 Xxxxxx Xxx, Xxxxxxxxx, Xxxxxxx 00000, from Early
Xxxxx Xxxxx, which Option must be exercised no later than July 16, 1998, a copy
of which assignment is attached hereto as Exhibit "C" (the "Assignment"). The
price for the Assignment shall be $250,000, which shall be payable by Buyer to
KAB if and only if the Option is exercised by Buyer.
(f) On or prior to the Closing Date, Seller shall pay and discharge all
of its then current due and payable obligations to all third party creditors,
including but not limited to, those obligations set forth on Schedule 4. Buyer
reserves the right at Closing to make such payments directly to such creditors
out of the cash portion of the Purchase Price.
(g) On or prior to the Closing Date, Seller and Xxxxxxx shall enter
into, execute, deliver to Buyer an agreement, substantially in the form of
Exhibit "D" attached hereto (the "Release") fully releasing Buyer and its
shareholders, officers, directors, employees, counsel, agents, assigns, the
Business and the Assets (collectively, the "Releasees"), from and against any
and all claims any of such parties may have against the Releasees, or any of
them, other than the rights which accrue or will accrue to Seller and Xxxxxxx
under this Agreement.
(h) At the Closing, (1) Seller and Xxxxxxx will deliver to Buyer the
various certificates, instruments and documents referred to in Section 6(a)
below; (2) Buyer will deliver to Seller the various certificates, instruments
and documents referred to in Section 6(b) below; (3) Seller and Xxxxxxx will
execute, acknowledge (if appropriate) and deliver to Buyer such instruments of
sale, transfer, conveyance and assignment as Buyer and its counsel may request;
(4) the parties will deliver to each other the agreements and documents referred
to above in this Section 2; (5) Buyer will deliver to Seller the Purchase Price;
and (6) Seller and Xxxxxxx will deliver to Buyer the following information
relating to the Accounts on such forms as are acceptable to Buyer: (A) a list of
all Accounts, which will include all names, addresses, telephone numbers and
names of individuals to contact for each of the Accounts; (B) all collection
information concerning the frequency of collection, approximate volume of waste
per collection and a brief description of the types of waste involved with each
Account; (C) the complete service and accounting records of each of the Accounts
for the 12 month period ending on the last day of the month immediately
preceding the Closing Date; and (D) all other proprietary information necessary
or appropriate to enable Buyer to service the Accounts properly.
(i) The parties shall allocate the Purchase Price among the Assets for
all purposes (including financial accounting and tax purposes) consistent with
the Internal Revenue Code of 1986, as amended, and in accordance with the
allocation schedule prepared by Buyer; however, the portion of the Purchase
Price consisting of SanTi Stock shall be allocated based on a valuation of the
SanTi Stock at the time of the Closing, to be undertaken by an appraiser
commissioned by Buyer.
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(j) Any insurance deposits, prepaid Accounts and similar items payable
or paid by any party and related to the Assets shall be prorated as of the
Closing Date. There shall be prorated between Buyer and Seller as of the Closing
Date all accrued or prepaid items relating to (1) ad valorem and other taxes
(except sales taxes) with respect to the Assets; (2) rent (including percentage
rent) and other payments due under any lease or contract related to the Assets;
(3) deposits with respect to the Assets; (4) license fees relating to any of the
Assets, and (5) governmental assessments and charges for services to or with
respect to any of the Assets.
(k) Following the Closing Date, Seller and Xxxxxxx shall not use or
give permission to any other party to use the name "Xxxxxxx Environmental
Services, Inc., or any substantially similar name in connection with the
operation of a liquid waste collection and disposal business.
(l) The parties recognize that Buyer and/or its affiliates intend to
acquire numerous liquid waste businesses throughout the country, and that the
violation of this Section 2(l) will result in substantial injury and damage to
Buyer and its affiliates. Seller and Xxxxxxx agree that for a period of five (5)
years from date of this Agreement, neither of them, nor their agents, employees
or affiliates, nor any other person connected with them, except as required by
applicable federal or local statutes, shall at any time divulge the existence
and terms of the negotiations resulting in this Agreement, the terms and
conditions of this Agreement and the financing arrangements of Buyer and its
affiliates. In addition, the parties agree to keep such negotiations, terms and
conditions confidential and to cause their agents, employees and other persons
connected with them to observe the terms of this Section 2(l).
(m) From and after the Closing Date, Seller and Xxxxxxx shall refer,
and cause their agents to refer, all telephone calls to any of them for liquid
waste collection and disposal to Buyer.
(n) The parties agree as follows with respect to the period between the
execution of this Agreement and the Closing:
(1) Each of the parties will use his or its best efforts
to take all actions and to do all things necessary,
proper or advisable in order to consummate and make
effective the transactions contemplated by this
Agreement (including the satisfaction, but not the
waiver, of the closing conditions set forth in
Section 6 below).
(2) Seller will give all notices to third parties, and
Seller will obtain all third party consents, that
Buyer may request in connection with the consummation
of the transactions described herein. Each of the
parties will give any necessary notices to, make any
necessary filings with, and use its reasonable best
efforts to obtain any necessary authorizations,
consents, and approvals of, governments and
governmental agencies in connection with the
consummation of the transactions described herein.
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(3) In the operation of the Business, Seller will not
engage in any practice, take any action, or enter
into any transaction outside the ordinary course of
business. Without limiting the generality of the
foregoing, Seller will not (A) declare, set aside, or
pay any dividend or make any distribution with
respect to its capital stock or redeem, purchase or
otherwise acquire any of its capital stock, (B) pay
any amount to any third party with respect to any
liability or obligation (including any costs and
expenses Seller has incurred or may incur in
connection with this Agreement and the transactions
contemplated hereby) which would not constitute an
Assumed Liability if in existence as of the Closing,
(C) pay any compensation to its employees,
independent contractors or affiliates (i) that is in
excess of the rates and/or amounts of compensation
currently paid to such persons, or (ii) at times
prior to the current normally scheduled payment
times, (D) otherwise operate the Business outside the
ordinary course of business.
(4) Seller will keep the Business substantially intact,
including its present operations, physical
facilities, working conditions and relationships with
lessors, licensors, suppliers, customers and
employees.
(5) Seller will permit representatives of Buyer to have
full access to all premises, properties, personnel,
books, records (including tax records), contracts and
documents of or pertaining to Seller and/or the
Business.
(6) Each party will give prompt written notice to the
other party of any material adverse development
causing a breach of any of its own representations
and warranties in this Agreement.
SECTION 3. EMPLOYEES
(a) At the Closing, Seller shall identify by name, address and social
security number eight (8) employees who currently perform sales, operations,
compliance, driving and supervisory services for Seller who will be available
for full time employment by Buyer (the "Employees") as set forth on Schedule 5.
Seller agrees to terminate said Employees prior to Closing, conditioned upon
Buyer's employment of them after Closing.
(b) Buyer shall not be responsible to Seller or to any current or
former employee of Seller for any employee benefits due with respect to their
employment while an employee of Seller. Buyer does not purchase, recognize,
assume or otherwise acquire any rights, obligations, assets or liabilities
under, arising from or resulting from any employment agreement in existence
between Seller and any employee, or any person employed to consult or perform
work by or for Seller, or otherwise.
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SECTION 4. REPRESENTATIONS AND WARRANTIES OF
SELLER AND XXXXXXX
Seller and Xxxxxxx jointly and severally represent and warrant to Buyer
the following (which representations and warranties will also be true and
correct at the Closing):
(a) Title to the Assets. Seller currently owns, and Seller shall
deliver at the Closing to Buyer, good and marketable title to all of the Assets,
free and clear of all claims, liens, encumbrances and security interests.
(1) Assignability of Accounts. All Accounts are now, and
will be at Closing, freely assignable by Seller, and
such assignment, transfer and delivery thereof to
Buyer of all or any portion of each of the Accounts
will not be or result in a breach, violation or
default of any agreements relating to such Accounts,
and such agreements and Accounts shall remain in full
force and effect as if there had been no assignment,
transfer or delivery.
(2) Credits, Refunds, Defaults. No customer of Seller has
any rights to any credit or refund pursuant to any
agreement, understanding or practice of Seller which,
singularly and in the aggregate, would have a
material adverse effect on the Business, or the
operation or use of the Assets. To the best of
Seller's and Xxxxxxx' knowledge, after due inquiry,
there is no material default by any party under any
of the Accounts, nor has any event occurred which,
with notice or the passage of time, or both, would
constitute a material default by any party under any
of the Accounts.
(b) Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia, and has
all necessary corporate power and authority to own its properties as such
properties are now owned and to conduct its business as and when its business is
conducted.
(c) Authority. Seller has full right, power, authority and
capacity to execute and deliver this Agreement and to perform its obligations
under this Agreement. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the performance and
fulfillment of the obligations and understandings hereunder, have been duly
authorized by all requisite corporate action of Seller.
(d) Financial Statements; Undisclosed Liabilities. Seller has
provided Buyer with certain financial information regarding Seller as prepared
by Seller's accountant concerning the Business, including the financial
information set forth in Exhibit "E" attached hereto (collectively, the
"Financial Data"). The Financial Data is true, correct and complete in all
material respects, was
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maintained on a basis consistent with prior years and presents fairly the
information set forth (including, without limitation, the gross revenues and
gross profits of Seller) as at the dates therefore and the results of operations
for the periods then ended. Seller has no liabilities, debts or obligations of
any nature whatsoever (and there is no basis for any present or future action,
suit, proceeding, hearing, investigation, charge, complaint, claim or demand
against Seller giving rise to any liability, debt or obligation), except for (1)
liabilities set forth on the face of the most recent balance sheet included in
the Financial Data and (2) liabilities which have arisen after the date of the
most recent balance sheet included in the Financial Data in the ordinary course
of business (none of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of warranty, tort,
infringement or violation of law).
(e) Taxes. Seller has properly and accurately prepared and filed all
federal, state, local and other tax returns and reports required to be filed by
all applicable statutes, laws and regulations on or before the due dates
thereof. Seller has paid all federal, state, local and other taxes, including
all interest, penalties and assessments, which are due and payable, and all such
taxes due and payable by Seller have been fully discharged.
(f) Employment Taxes. Proper and accurate amounts have been withheld by
Seller from its employees for all periods in full and complete compliance with
the tax withholding provisions of applicable federal, state and local laws.
Proper and accurate federal, state and local returns have been filed by Seller
for all periods for which returns were due with respect to employee income tax
withholding, social security and unemployment taxes, and the amounts shown
thereon to be due and payable have been paid in full.
(g) Authorizations. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the performance and
fulfillment of its obligations and undertakings hereunder by Seller, will not
(1) violate any provision of, result in the breach of, or accelerate or permit
the acceleration of any performance required by, the terms of (A) any applicable
law, ordinance, rule or regulation of any governmental body, (B) the Articles of
Incorporation or Bylaws of Seller, (C) any agreement or undertaking relating to
the Business to which Seller is a party, or by which Seller may be bound, or (D)
any judgment, decree, writ, injunction, order or award of any arbitration panel,
court or governmental authority applicable to Seller; (2) result in the creation
of any claim, lien, charge or encumbrance upon any of the Assets, or (3)
terminate or cancel, or result in the termination or cancellation of, any
Account.
(h) Contracts. Except for the written and oral agreements described on
Schedule 6, the Assets are not bound or affected by any agreements, written or
oral. Seller is not a party to any written or oral contract, agreement or
commitment of any kind containing covenants by Seller not to compete in the
Business. Seller has delivered to Buyer a correct and complete copy of each
written agreement listed in Schedule 6 (as amended to date) and a written
summary setting forth the terms and conditions of each oral agreement referred
to in Schedule 6. With respect to each such agreement: (1) the agreement is
legal, valid, binding, enforceable and in full force and effect; (2) the
agreement will continue to be legal, valid, binding, enforceable and in full
force and effect on
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identical terms following the consummation of the transactions contemplated
hereby (including the assignments and assumptions referred to in Section 2
above); (3) no party is in breach or default, and no event has occurred which
with notice or lapse of time would constitute a breach or default, or permit
termination, modification or acceleration, under the agreement; and (4) no party
has repudiated any provision of the agreement.
(i) Litigation and Pending Proceedings. There are no claims of any
kind, or any actions, suits, proceedings, arbitrations or investigations pending
or, to the best of Seller's and Xxxxxxx' knowledge, threatened in any court or
before any governmental agency or instrumentality or arbitration panel or
otherwise against, by or affecting Seller's Business or business prospects or
condition (financial or otherwise) or any of the Assets, or of the kind
described in Section 6(a)(4) below.
(j) No Finder. No broker or finder has acted on Seller's behalf in
connection with this Agreement or the transactions contemplated herein.
(k) Working Relationships. To the best of Seller's and Xxxxxxx'
knowledge, Seller enjoys good working relationships under substantially all
Accounts or arrangements necessary to the normal operation of the Business, and
Seller has conducted the Business in substantially the same manner in which the
same has traditionally been conducted during the past six (6) weeks.
(l) Physical Assets. To the best of Seller's and Xxxxxxx' knowledge,
the tangible Assets are in good working order, condition and repair, subject to
normal wear and tear, and are suited for their present use, and are operated in
conformity with all applicable ordinances, laws and regulations.
(m) Environmental, Health and Safety Matters.
(1) Seller and its predecessors and affiliates have
complied with all Environmental, Health, and Safety
Requirements, and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against
any of them alleging any failure so to comply.
Without limiting the generality of the preceding
sentence, Seller and its predecessors and affiliates
have obtained and been in compliance with all of the
terms and conditions of all permits, licenses and
other authorizations which are required under, and
have complied with all other limitations,
restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables
which are contained in, all Environmental, Health,
and Safety Requirements;
(2) Seller has not (and none of its respective
predecessors and affiliates have) handled or disposed
of any substance, arranged for the disposal of any
substance, exposed any employee or other individual
to any
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substance or condition, or owned or operated any
property or facility in any manner that could form
the basis for any present or future action, suit,
proceeding, hearing, investigation, charge,
complaint, claim or demand against Seller that could
give rise to any liability for damage to any location
or body of water (surface or subsurface), for any
illness of or personal injury to any employee or
other individual, or for any reason under any
Environmental, Health and Safety Requirements, except
in compliance with all applicable Environmental,
Health and Safety Requirements;
(3) All tangible assets used in Seller's Business, and
its predecessors' and affiliates' businesses, have
been free of asbestos, PCBs, methylene chloride,
trichloroethylene, 1, 2-trans-dichloroethylene,
dioxins, dibenzofurans, and Extremely Hazardous
Substances;
(4) Schedule 7 sets forth all licenses, permits,
clearances and consents with respect to environmental
and waste management matters (collectively the
"Environmental Permits") currently held by Seller,
and for each such Environmental Permit accurately
describes the expiration and/or renewal date thereof.
Such Environmental Permits constitute the only
permits necessary for the continued conduct of the
Business and the waste management activities and
other businesses of Seller as such activities and
businesses are currently being conducted. Seller has
complied with all applicable covenants and conditions
of the Environmental Permits, including without
limitation that all facilities have been constructed
in accordance with applicable Environmental Permits,
as well as all applicable requirements under federal,
state and local laws, and the Environmental Permits
are in full force and effect. There is no action,
proceeding, permit revocation, permit amendment,
writ, injunction, claim or investigation pending or
threatened concerning or relating to the
Environmental Permits or the Hazardous Materials
activities of Seller, including, but not limited to,
the treatment, storage or disposal of Hazardous
Materials or liquid or solid waste materials which
have been handled by Seller or its predecessors or
affiliates;
(5) Seller has not transported, stored, treated or
disposed of, nor has it allowed or arranged for any
third person to transport, store, treat or dispose
of, waste to or at any location other than a site
lawfully permitted to receive such waste for such
purposes. Seller has not transported, stored, treated
or disposed of, nor has it allowed or arranged for
any third person to transport, store, treat or
dispose of, waste to or at any location designated
for remedial action pursuant to
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the Comprehensive Environmental Response,
Compensation and Liability Act, as from time to time
amended, or any similar federal or state statute
assigning responsibility for the cost of
investigating or remediating releases of contaminants
into the environment;
(6) Schedule 7 contains a complete and accurate list of
(A) locations (identified by name, address,
owner/operator, type of facility and type of waste)
to which Seller has ever transported, or ever caused
to be transported, or allowed or arranged for any
third party to transport, any type of waste material,
generated by Seller or customers of Seller for
storage (other than at a customer's facility),
treatment, burning, recycling or disposal, and (B)
storage (other than at a customer's facility),
treatment, burning, recycling or disposal activities
which Seller has undertaken, at any time, at
locations then or presently owned or occupied by
Seller (such list to include the property address,
the nature of Seller's interest in property, the
nature of the activity conducted at such location,
the type and form of waste, the estimated volume of
waste disposal on or in ground, and the period of
time the activity was conducted);
(7) Seller has never engaged in any manner or respect in
any application of oil or hazardous substances on
roads, or in any application of oil or hazardous
substances for dust control or paving purposes; and
(8) Seller has not received any notification (including
requests for information directed to Seller or
Xxxxxxx from any governmental agency or any other
person) asserting that Seller is or may be a
"potentially responsible person" or otherwise liable
with respect to a remedial action or the payment of
response costs at a waste storage treatment or
disposal facility, pursuant to the provisions of the
Comprehensive Environmental Response, Compensation
and Liability Act, as from time to time amended, or
any similar federal, state or local law assigning
responsibility for the costs of investigating or
remediating releases of contaminants into the
environment.
(9) For purposes of this Section 3(m), the following
terms shall have the following meanings:
(A) "Environmental, Health, and Safety Requirements"
shall mean all federal, state, local and foreign
statutes, regulations, ordinances and other
provisions having the force or effect of law, all
judicial and administrative orders and
determinations, all contractual obligations and all
common law
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concerning public health and safety, worker health
and safety, and pollution or protection of the
environment, including without limitation all those
relating to the presence, use, production,
generation, handling, transportation, treatment,
storage, disposal, distribution, labeling, testing,
processing, discharge, release, threatened release,
control or cleanup of any Hazardous Materials,
substances or wastes, chemical substances or
mixtures, pesticides, pollutants, contaminants, toxic
chemicals, petroleum products or byproducts,
asbestos, polychlorinated biphenyls, noise or
radiation, each as amended and as now or hereafter in
effect.
(B) "Extremely Hazardous Substance" has the meaning
set forth in Section 302 of the Emergency Planning
and Community Right-to-Know Act of 1986, as amended.
(C) "Hazardous Materials" means any substance that
has been designated by any governmental authority
whose requirements are applicable to Seller to be
radioactive, toxic, hazardous or otherwise pose
potential danger to health or the environment,
including, but not limited to, volatile organic
compounds and all substances listed pursuant to the
Comprehensive Environmental Response, Compensation
and Liability Act, the Resource Conservation Recovery
Act, the Clean Air Act, the Water Pollution Control
Act, the Toxic Substance Control Act and the
Occupational Safety and Health Act, as such acts are
amended prior to the Closing Date, and the
regulations and publications promulgated pursuant to
said acts.
(n) Schedule 8 sets forth the following information with respect
to each insurance policy (including policies providing property, casualty,
liability, and workers' compensation coverage and bond and surety arrangements)
to which Seller has been a party, a named insured, or otherwise the beneficiary
of coverage at any time within the past 5 years:
(1) the name, address, and telephone number of the agent;
(2) the name of the insurer, the name of the policyholder, and
the name of each covered insured;
(3) the policy number and the period of coverage;
(4) the scope (including an indication of whether the coverage
was on a claims made, occurrence, or other basis) and amount (including
a description of how deductibles and ceilings are calculated and
operate) of coverage; and
(5) a description of any retroactive premium adjustments or
other loss-sharing arrangements.
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With respect to each such insurance policy: (A) the policy is legal, valid,
binding, enforceable, and in full force and effect; (B) the policy will continue
to be legal, valid, binding, enforceable, and in full force and effect on
identical terms following the consummation of the transactions contemplated
hereby (including the assignments and assumptions referred to in Section 2
above); (C) Seller is not in breach or default thereof (including with respect
to the payment of premiums or the giving of notices), and no event has occurred
which, with notice or the lapse of time, would constitute such a breach or
default, or would permit termination, modification or acceleration, under the
policy; and (D) no party to the policy has repudiated any provision thereof.
Seller has been covered during the past 5 years by insurance in scope and amount
customary and reasonable for the Business and the other businesses in which it
has engaged during the aforementioned period.
(o) Investment. Each of Seller and Xxxxxxx (1) understands that the
SanTi common stock (the "SanTi Stock") has not been, and will not at Closing be,
registered under the Securities Act of 1933, or under any state securities laws,
and is being offered and sold in reliance upon federal and state exemptions for
transactions not involving any public offering, (2) understands that Seller or
Xxxxxxx, as the case may be, is acquiring the SanTi Stock solely for its or his
own account for investment purposes, and not with a view to the distribution
thereof, (3) is a sophisticated investor with knowledge and experience in
business and financial matters, (4) has received certain information concerning
Buyer and SanTi and has had the opportunity to obtain additional information as
desired in order to evaluate the merits and the risks inherent in holding the
SanTi Stock, (5) is able to bear the economic risk and lack of liquidity
inherent in holding the SanTi Stock, and (6) is an "accredited investor," as
that term is defined in Regulation D promulgated under the Securities Act of
1933.
(p) Annualized Gross Revenue. The annualized gross revenue of the
Business for fiscal year 1997 was at least $1,225,000.00. If during the 365-day
period immediately following the Closing, the annualized gross revenue of the
Business is less than $1,225,000.00, the parties agree that Buyer shall be
deemed to have suffered a Loss (as defined in Section 8) equal to $1.11 for each
$1.00 of such deficiency resulting from a breach of this Agreement by Seller,
and that Buyer shall be entitled, at Buyer's option, to (1) indemnity from
Seller in the full amount of such Loss pursuant to the terms of Section 8, or to
(2) offset the amount of said Loss against the portion of the SanTi Stock
withheld by the Buyer pursuant to Section 2(a) hereof. For the purposes of
exercising the rights described in the immediately preceding sentence of this
Section 4(p), and only for such purposes, the value of each share of SanTi Stock
shall be deemed to be $25.00.
(q) Containers. The collection containers included in the Assets are in
serviceable condition. All containers, including reservoirs, meet all
requirements of applicable laws.
(r) Permits, Etc. Seller possesses all franchises, certificates,
licenses, permits and other authorizations from governmental political
subdivisions or regulatory authorities, free from burdensome restrictions, that
are necessary for (1) the ownership, maintenance and operation of the Business,
(2) the operation, use and ownership of the Assets and (3) the servicing of the
Accounts. Seller is not in any way whatsoever in violation of such franchises,
certificates, licenses, permits and other authorizations.
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(s) Relationships. Seller enjoys good working relationships in
accordance with past practices with all suppliers, subcontractors and other
parties necessary or appropriate for the normal operation of the Business. The
consummation of the subject transaction will not result in any injury to or
disruption of such relationships, and Buyer will not incur any costs or expenses
in order to continue such relationships as they had been maintained previously.
(t) Completeness of Statements. No statement, Exhibit, Schedule, annex,
certificate, information, representation or warranty of Seller or Xxxxxxx
contained in this Agreement or furnished by or on behalf of Seller or Xxxxxxx to
Buyer or its agents pursuant hereto or in connection with the transactions
contemplated hereby contains or shall contain any untrue statement of a material
fact or omits to state a material fact necessary in order to make a statement
contained therein not misleading.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller the following (which
representations and warranties shall also be true and correct at the Closing):
(a) Organization. Buyer is a corporation duly organized and validly
existing under the laws of the State of Georgia.
(b) Authority. Buyer has full right, power, authority and capacity to
execute and deliver this Agreement and to perform its obligations under this
Agreement.
(c) Authorizations. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the performance and
fulfillment of its obligations and undertakings hereunder by Buyer will not (1)
violate any provision of, result in the breach of, or accelerate or permit the
acceleration of any performance required by the terms of, (A) any applicable
law, ordinance, rule or regulation of any governmental body, (B) the Articles of
Incorporation or Bylaws of Buyer, or (C) any agreement or undertaking relating
to Buyer to which Buyer is a party, or by which Buyer may be bound, or any
judgment, decree, writ, injunction, order or award of any arbitration panel,
court or governmental authority applicable to it.
(d) Broker. No broker or finder has acted on Buyer's behalf in
connection with this Agreement or the transactions contemplated herein.
(e) Completeness of Statements. No statement, Exhibit, Schedule, annex,
certificate, information, representation or warranty of Buyer contained in this
Agreement or furnished by or on behalf of Buyer to Seller or its agents pursuant
hereto or in connection with the transactions contemplated hereby contains or
shall contain any untrue statement of a material fact or omits to state a
material fact necessary in order to make a statement contained therein not
misleading.
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SECTION 6. CONDITIONS TO OBLIGATIONS TO CLOSE
(a) The obligation of Buyer to consummate the transactions to be
performed by it in connection with the Closing is subject to satisfaction of the
following conditions:
(1) The representations and warranties set forth in Section 4
above shall be true and correct in all material respects at and as of
the Closing Date.
(2) Each of Seller and Xxxxxxx shall have performed and
complied with all of its covenants hereunder in all material respects
through the Closing, including but not limited to those set forth in
Section 2 above.
(3) Seller shall have procured all of the third party consents
specified in this Agreement.
(4) No action, suit or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency
of any federal, state, local or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation or (C) affect adversely the right of Buyer to own the
Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate to the
effect that each of the conditions specified above in this Section
6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and
delivered the Noncompetition Agreement, Sublease, Release and the other
agreements referred to in Section 2 above, and the same shall be in
full force and effect.
(7) Buyer shall have received copies, certified by the
President of Seller, of resolutions adopted by the Board of Directors
of Seller and by Xxxxxxx approving this Agreement and the consummation
of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement
with Xxxxxxx and with Xxxx X. Xxxxxx as to the SanTi Stock, which
Shareholders' Agreement contains terms and conditions satisfactory to
SanTi.
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(9) Buyer shall have obtained on terms and conditions
satisfactory to it all of the financing it needs in order to consummate
the transactions contemplated hereby and to fund the working capital
requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Xxxxxxx in
connection with consummation of the transactions contemplated hereby,
and all certificates, opinions, instruments and other documents
required to effect the transactions contemplated hereby, will be
satisfactory in form and substance to Buyer.
Buyer may waive any condition specified in this Section 6(a) if it executes a
writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be
performed by it in connection with the Closing is subject to satisfaction of the
following conditions:
(1) The representations and warranties set forth in Section 5
above shall be true and correct in all material respects at and as of
the Closing Date.
(2) Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing,
including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any
court or quasi-judicial or administrative agency of any federal, state,
local or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling or charge would
(A) prevent consummation of any of the transactions contemplated by
this Agreement or (B) cause any of the transactions contemplated by
this Agreement to be rescinded following consummation.
(4) The relevant parties shall have entered into, executed and
delivered the Noncompetition Agreement, Sublease, Release and the other
agreements referred to in Section 2 above, and the same shall be in
full force and effect.
Seller or Xxxxxxx may waive any condition specified in this Section 6(b) if it
executes a writing so stating at or prior to the Closing.
SECTION 7. TERMINATION
(a) Certain of the parties may terminate this Agreement as
provided below:
(1) Buyer and Seller may terminate this Agreement by mutual
written consent at any time prior to the Closing.
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(2) Buyer may terminate this Agreement by giving written
notice to Seller on or before the Closing Date if Buyer is not
satisfied with the results of its continuing business, legal and
accounting due diligence regarding Seller.
(3) Buyer may terminate this Agreement by giving written
notice to Seller at any time prior to the Closing (A) in the event
Seller or Xxxxxxx has breached any representation, warranty or covenant
contained in this Agreement in any material respect, Buyer has notified
Seller or Xxxxxxx of the breach, and the breach has continued without
cure for a period of 10 days after the notice of breach, or (B) if the
Closing shall not have occurred on or before December 31, 1997, by
reason of the failure of any condition precedent under Section 6(a)
hereof (unless the failure results primarily from Buyer itself
breaching any representation, warranty or covenant contained in this
Agreement); and
(4) Seller may terminate this Agreement by giving written
notice to Buyer at any time prior to the Closing (A) in the event Buyer
has breached any material representation, warranty or covenant
contained in this Agreement in any material respect, Seller has
notified Buyer of the breach, and the breach has continued without cure
for a period of 10 days after the notice of breach, or (B) if the
Closing shall not have occurred on or before December 31, 1997, by
reason of the failure of any condition precedent under Section 6(b)
hereof (unless the failure results primarily from Seller itself
breaching any representation, warranty or covenant contained in this
Agreement).
(b) If any party terminates this Agreement pursuant to Section
7(a) above, all rights and obligations of the parties hereunder shall terminate
without any liability of any party to any other party (except for any liability
of any party then in breach).
SECTION 8. SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; INDEMNIFICATION
(a) All representations, warranties, agreements, covenants and
obligations made or undertaken by Seller and Xxxxxxx in this Agreement are,
whether specified as such or not, the joint and several representations,
warranties, agreements, covenants and obligations of Seller and Xxxxxxx, unless
otherwise specifically indicated to the contrary herein with respect to a
particular representation, warranty, agreement, covenant or obligation; are
material, have been relied upon by Buyer, shall survive the Closing hereunder,
and shall not merge in the performance of any obligation by any party hereto;
and, as to the representations and warranties, shall terminate or expire on the
fifth (5th) anniversary of the Closing Date, provided that such representations
and warranties shall not terminate or expire, but shall continue, during the
pendency of any suit, action, claim or other proceeding brought in respect of
such representations and warranties prior to the termination or expiration of
such five (5) year period. Notwithstanding the above, all representations and
warranties made by Seller and Xxxxxxx in this Agreement that in any manner
relate to (1) tax matters, (2) environmental matters, and (3) title matters, or
as to the terms and performance of this Agreement (collectively, the "Special
Matters"), or any of the foregoing, shall terminate or expire
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only upon the termination or expiration of all applicable statutes of
limitation. All representations, warranties, agreements, covenants and
obligations made or undertaken by Buyer in this Agreement shall survive the
Closing hereunder, and shall not merge in the performance of any obligation by
any party hereto; and, as to the representations and warranties, shall terminate
or expire on the fifth (Th) anniversary of the Closing Date, provided that such
representations and warranties shall not terminate or expire, but shall
continue, during the pendency of any suit, action, claim or other proceeding
brought in respect of such representations and warranties prior to the
termination or expiration of such five (5) year period.
(b) Subject to the limitations contained in this Section 8, Seller
and Xxxxxxx, jointly and severally, shall defend, indemnify and hold Buyer, its
shareholders, officers, directors, employees, counsel, agents, affiliates and
assigns (collectively, the "Buyer Indemnitees") harmless from and against, any
and all direct or indirect demands, claims, payments, obligations, recoveries,
deficiencies, fines, penalties, interests, assessments, actions, causes of
action, suits, losses, diminution in the value of Assets, damages, liabilities,
costs and expenses (collectively, the "Losses") asserted against, imposed upon
or incurred by the Buyer Indemnitees, or any of them, by reason of or resulting
from, arising out of, based upon or otherwise in respect of:
(1) any inaccuracy in any representation or warranty made by
Seller or Xxxxxxx pursuant to this Agreement or the Schedules;
(2) any breach of any covenant or agreement made or to be
performed by Seller or Xxxxxxx pursuant to this Agreement or evidenced
by the Exhibits;
(3) any claim by any broker, finder or other person employed
or engaged or allegedly employed or engaged by Seller or Xxxxxxx in
connection with the transactions contemplated by this Agreement;
(4) any violation or alleged violation of any Environmental,
Health and Safety Requirements or the presence of any Hazardous
Materials or Extremely Hazardous Substances on the Assets, that
occurred at any time prior to Closing;
(5) the parties' failure to comply with any of the bulk sales
laws and any other similar laws in any applicable jurisdiction in
respect of the transactions contemplated by this Agreement, and any
action brought or levy made as a result thereof; and
(6) any liability or obligation of Seller or Xxxxxxx in any
manner related to the Business, the Assets or the Excluded Assets,
other than the Assumed Liabilities.
(c) Subject to the limitations contained in this Section 8, Buyer
shall defend, indemnify and hold Seller and Xxxxxxx and their respective heirs,
beneficiaries, officers, directors, partners, employees, counsel, agents,
affiliates and assigns (collectively, the "Seller Indemnitees") harmless from
and against any and all Losses asserted against, imposed upon or incurred by the
Seller
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Indemnitees, or any of them, by reason of or resulting from, arising out of,
based upon or otherwise in respect of:
(1) any inaccuracy in any representation or warranty made by
Buyer pursuant to this Agreement;
(2) any breach of any covenant or agreement made or to be
performed by Buyer pursuant this Agreement;
(3) any claim by any broker, finder or other person employed
or allegedly employed by Buyer in connection with the transactions
contemplated by this Agreement; and
(4) any Assumed Liability.
(d) No later than sixty (60) days (or sooner, if the nature of the
Asserted Liability (defined below) so requires) after (1) actually becoming
aware of circumstances that have resulted in a Loss for which any person or
persons entitled to indemnification pursuant to Section 8(b) or (c) hereof (the
"Indemnified Party") intends to seek indemnification under such Section, or (2)
receipt by the Indemnified Party of written notice of any demand, claim or
circumstances which, with the lapse of time, the giving of notice or both, would
give rise to a claim or the commencement (or threatened commencement) of any
litigation or other legal proceeding that may result in a Loss (an "Asserted
Liability"), the Indemnified Party shall give notice thereof (the "Claims
Notice") to any other party (or parties) obligated to provide indemnification
pursuant to Section 8(b) or (c) hereof (the "Indemnifying Party"). The Claims
Notice shall describe the Loss or the Asserted Liability in reasonable detail,
and shall indicate the amount (estimated, if necessary) of the Loss that has
been or may be suffered by the Indemnified Party. The Claims Notice may be
amended on one or more occasions with respect to the amount of the Asserted
Liability or the Loss at any time prior to final resolution of the obligation to
indemnify relating to the Asserted Liability or the Loss.
(e) (1) Subject to the provisions of Section 8(f) hereof, if the
Indemnifying Party acknowledges and agrees that the Asserted Liability is one
for which the Indemnified Party is entitled to indemnification under Section
8(b) or (c) hereof, the Indemnifying Party may elect to compromise or contest,
at its own expense and with counsel reasonably acceptable to the Indemnified
Party, any such Asserted Liability, subject to the following conditions of this
Section 8(e). If the Indemnifying Party elects to compromise or contest such
Asserted Liability, it shall within thirty (30) days (or sooner, if the nature
of the Asserted Liability so requires) notify the Indemnified Party of its
intent to do so by sending a notice to the Indemnified Party (the "Contest
Notice"), and the Indemnified Party shall cooperate, at the expense of the
Indemnifying Party, in the compromise or contest of such Asserted Liability.
(2) If, after the Indemnifying Party has investigated the
merits of the Asserted Liability and has determined that it wishes to compromise
or settle the Asserted Liability pursuant to certain terms (the "Proposed
Terms"), it must within fifteen (15) days after such determination
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seek the consent of the Indemnified Party to such compromise or settlement on
the Proposed Terms by delivering a written request for such consent to the
Indemnified Party, which request will set forth in detail and with specificity
the particulars of the Asserted Liability and the Proposed Terms. If the
Indemnified Party delivers to the Indemnifying Party a consent in writing to the
compromise or settlement of the Asserted Liability on the Proposed Terms within
fifteen (15) days after its receipt of the written request from the Indemnifying
Party, the Indemnifying Party shall compromise and settle the Asserted Liability
on the Proposed Terms. If, however, the Indemnified Party does not deliver to
the Indemnifying Party a consent in writing to the compromise or settlement of
the Asserted Liability on the Proposed Terms within fifteen (15) days after its
receipt of the written request from the Indemnifying Party, the Indemnifying
Party shall not compromise or settle the Asserted Liability, and the Indemnified
Party shall thereafter have the sole right to contest or compromise the Asserted
Liability on behalf of and for the account and risk of the Indemnifying Party
and shall also have the rights set forth in Section 8(h) (without having to
again comply with this Section 8(e)); provided, however, if the dollar amount of
the actual Loss incurred that is ultimately and finally determined by
settlement, compromise or the judicial process exceeds the dollar amount of the
actual Loss that would have been incurred had the Indemnified Party consented to
the compromise or settlement on the Proposed Terms, the Indemnified Party shall
not be entitled to indemnification under this Agreement with respect to the
dollar amount of such excess Loss incurred.
(3) If, after the Indemnifying Party has investigated the
merits of the Asserted Liability and has determined that it does not wish to
compromise or settle the Asserted Liability, either because it reasonably
believes that there is no liability owed to the third party who has asserted the
Asserted Liability (the "Third Party"), or because the Indemnifying Party
reasonably believes that the compromise or settlement terms offered by the Third
Party are unacceptable, the Indemnifying Party shall contest the Asserted
Liability.
(4) If the Indemnifying Party elects not to compromise or
contest the Asserted Liability, fails to notify the Indemnified Party of its
election as herein provided or contests its obligation to indemnify the
Indemnified Party with respect to such Asserted Liability, the Indemnified Party
(upon further notice to the Indemnifying Party) shall have the right to pay,
compromise or contest such Asserted Liability on behalf of and for the account
and risk of the Indemnifying Party, and shall also have the rights set forth in
Section 8(h) (without having to again comply with this Section 8(e)).
(5) Anything in this Section 8(e) to the contrary
notwithstanding, the Indemnifying Party shall not, without the Indemnified
Party's written consent, settle or compromise any Asserted Liability or consent
to entry of any judgment which does not include an unconditional term releasing
the Indemnified Party from all Losses in respect of such Asserted Liability. In
any event, the Indemnified Party and the Indemnifying Party may participate, at
their own expense, in the contest of such Asserted Liability. Each party shall
cooperate fully with the others as to all Asserted Liabilities, shall make
available to the others as reasonably requested all information, records and
documents relating to all Asserted Liabilities and shall preserve all such
information, records and
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documents until the termination of any Asserted Liability. Each party also shall
make available to the others, as reasonably requested, its personnel, agents and
other representatives who are responsible for preparing or maintaining
information, records or other documents, or who may have particular knowledge
with respect to any Asserted Liability.
(f) The determination of the amount of any Loss for which
indemnification may be claimed under this Section 8 shall take into account and
be offset by any tax benefit or benefit under any policy of insurance derived,
accrued or received by the Indemnified Party as a result thereof. No party
otherwise entitled to indemnification under this Agreement shall be indemnified
pursuant to this Agreement to the extent that such party's Losses are increased
or extended by the gross negligence, willful misconduct, violation of law or bad
faith of such party.
(g) In the event that the Indemnifying Party shall be obligated to
indemnify the Indemnified Party pursuant to this Section 8, the Indemnifying
Party shall, upon payment of such Loss in full, be subrogated to all rights of
the Indemnified Party with respect to the Loss to which such indemnification
relates; provided, however, that the Indemnifying Party shall only be subrogated
to the extent of any amount paid by it pursuant to this Section 8 in connection
with such Loss.
(h) An Indemnifying Party shall pay to the Indemnified Party the full
amount of any and all Losses (other than Losses resulting from an Asserted
Liability) for which it is required to indemnify the Indemnified Party under
this Section 8 within ten (10) days after receipt of the Claims Notice thereof,
and the full amount of any and all Losses resulting from an Asserted Liability
within ten (10) days after the date such litigation is terminated or the date a
final order is rendered and no appeal is taken. After complying with the
provisions of Sections 8(d) and 8(e) hereof with respect to any Loss that
results from an Asserted Liability, Buyer shall be entitled to offset, from any
payments otherwise due Seller or Xxxxxxx, the full amount of any and all Losses
(whether or not resulting from an Asserted Liability) for which Seller or
Xxxxxxx is required to indemnify any Buyer Indemnitee pursuant to Section 8(b)
hereof, and Buyer shall not be liable for any amounts so offset.
(i) The indemnification rights of the parties under this Section 8 are
independent of and in addition to such other rights and remedies that the
parties may have at law or in equity or otherwise for any misrepresentation,
breach of warranty or failure to fulfill any agreement or covenant hereunder on
the part of any party hereto, including, without limitation, the right to
offset, seek specific performance, rescission or restitution, none of which
rights or remedies shall be adversely affected or diminished hereby.
SECTION 9. MISCELLANEOUS
(a) The invalidity or unenforceability of any particular provision in
this Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid and unenforceable
provision was omitted.
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(b) This Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their heirs, beneficiaries, Successors and permitted
assigns. As used in this Agreement, the term "Successor" shall include any
person, firm, corporation or other business entity which at any time, whether by
merger, purchase or otherwise, acquires all or substantially all of the assets
or businesses of Seller or Buyer. This Agreement may not be assigned by any
party hereto without the prior written consent of the other parties hereto,
except that Buyer may assign this Agreement and its rights and obligations
hereunder to one or more of its affiliates, or to any of its lenders as
collateral security.
(c) This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
(d) This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of Georgia. Titles of the sections and
subsections herein have been inserted as a matter of convenience of reference
only, and shall not affect the meaning or construction of any of the terms or
provisions herein.
(e) Any notice or other communication provided for or required by this
Agreement shall be in writing and shall be deemed to have been given and
received when delivered by hand or three (3) business days after having been
deposited in the United States Mail, certified or registered, return receipt
requested, postage prepaid, properly addressed to the person to whom such notice
or other communication is intended to be given, at such address as such person
has set forth herein, or if such person has subsequently furnished another
address in writing, at such new address.
(f) This Agreement may be amended or modified only by an instrument in
writing executed by the parties sought to be bound. No waiver by any party of
any right or remedy with respect to any breach or default by any other party
hereto shall be deemed to constitute a continuing waiver of any other breach or
default or of any other right or remedy. No failure, forbearance or delay by any
party in exercising any right or remedy available hereunder, or otherwise
available under law, shall constitute a waiver or modification of any such right
or remedy or of any obligation of the other party to perform strictly in
accordance with the terms hereof.
(g) All Exhibits and Schedules referred to herein, and the agreements
evidenced by the Exhibits, are incorporated into and made a part of this
Agreement. This Agreement is the sole and exclusive agreement among the parties
with respect to the subject matter hereof, superseding all prior negotiations,
writings and agreements relating to the subject matter of this Agreement.
(h) Time is of the essence of this agreement.
(i) The parties hereby waive compliance by Buyer and Seller with the
bulk sales law and any other similar laws in any applicable jurisdiction in
respect of the transactions contemplated by this Agreement.
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(j) Seller shall pay all federal, state and local income, sales, use,
other transfer, documentary, stamp and other taxes, if any, due as a result of
the purchase, sale or transfer of the Assets in accordance herewith, whether
such taxes are imposed by law on Seller or Buyer.
(k) As used in this Agreement, "knowledge" shall be deemed to include
actual knowledge, and any knowledge which a person or entity should, in the
exercise of reasonable care, have had or acquired.
BUYER:
BONE-DRY ENTERPRISES, INC.
By: /s/ Xxxxx Xxxx
----------------------------------------
Xxxxx Xxxx, President
SELLER:
XXXXXXX ENVIRONMENTAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx, President
XXXXXXX:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxx
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Xxxx X. Xxxxxx, by signing below, hereby agrees to enter into the
Shareholders' Agreement described in Section 6(a)(8) of this Agreement at
Closing, and hereby makes the representations and warranties to Buyer set forth
in Section 4(o)(1)-(6) of this Agreement.
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
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EXHIBIT A
NONCOMPETITION AGREEMENT
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EXHIBIT B
SUBLEASE
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EXHIBIT C
ASSIGNMENT
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EXHIBIT D
RELEASE
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EXHIBIT E
FINANCIAL DATA
To be attached by clients.
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SCHEDULE 1
EXCLUDED ACCOUNTS
None
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SCHEDULE 2
CERTAIN PERSONAL PROPERTY
1998 Ford Louisville 9000; Xxxxx Xxxxx 3000 Gallon Vacuum Unit; 000 Xxxxxx Xxxxx
Xxxxx; Vibrator Xxxxxx XX 44 Vacuum Pump; Cat Jet Pump - 3000 lb/ 18
Gallons/Minute
1995 Ford LTS 9000; Xxxxx Xxxxx 3000 Gallon Vacuum Unit; 000 Xxxxxx Xxxxx Xxxxx;
Kaiser 1000 GPM Liquid Ring Pump; Xxxxxx Jet Pump - 2000 lb/35 Gallons/Minute
1991 Ford LTS 8000; Xxxxx Xxxxx 3000 Gallon Vacuum Unit; 300 Gallon Fresh Water;
Xxxxxx XX 44 Vacuum Pump; Set Up for Jet
1988 LTA Ford Tractor; 3406 Catepillar 9 Speed - Air Ride
Safety Equipment, including Confined Space Entry Equipment, Oxygen-Mask Harness
Hoist
Tanker - 9000 Gallon
1991 Ford Drum Truck with Slide Rail; Xxxx Xxxx - 00' Xxx Xxx - XX0000
1 Xxxxxx 53' Van Trailer (this is leased, and Purchaser will assume the lease as
of 1/1/98)
1982 Ford L 7000 Dump Truck
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SCHEDULE 3
EXCLUDED ASSETS
1995 Ford LT 9000; 16 lb Accumulator; Guzzler Ace; 29" Mercur Vacuum at 3000
CFM; 5600 CFM Free Vacuum
The Hazardous Materials Certificate of Registration from the US Department of
Transportation
The Tennessee Permit to Transport Hazardous Wastes
The Hazardous Materials Registration Statement (US Department of Transportation)
All of the assets that Seller has the option to purchase from Xxxxx Xxxxx
pursuant to that certain Asset Purchase Agreement between Seller and Mr. Price
dated on or about July 17, 1996. A copy of the list of these assets is attached.
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SCHEDULE 4
CERTAIN CREDITORS WHOSE DEBTS WILL BE PAID AT CLOSING
Xxxxxxxx Xxxxxx Industries
Dekalb State Bank
Ford Motor Credit
Chorey, Taylor & Xxxx
USA Waste
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SCHEDULE 5
EMPLOYEES TO BE HIRED BY BUYER
See attached list. The employees are the ones not crossed out.
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SCHEDULE 6
LIST AND DESCRIPTION OF WRITTEN AND ORAL CONTRACTS
See Attached
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SCHEDULE 7
ENVIRONMENTAL PERMITS AND RELATED INFORMATION
See Attached
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SCHEDULE 8
INSURANCE INFORMATION
See Attached.
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