Exhibit 10.2
AMENDMENT
THIS AMENDMENT, dated as of November 26, 1997, to the Stock Purchase
Agreement between Eastern Environmental Services, Inc. ("Buyer") and Delmarva
Capital Technology Company ("Seller"), dated as of October 17, 1997 (the
"Agreement"), is made by and between the Buyer and the Seller. (Terms used but
not otherwise defined herein have the same meanings as in the Agreement.)
BACKGROUND
The parties hereto desire to amend the terms of the Agreement as set
forth hereby.
NOW THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
1. The new disclosures made pursuant to the Supplemental Disclosure
Statement 5.9 shall not modify Seller's representations and warranties made in
the Agreement with respect to any additional Encumbrances disclosed pursuant to
AAC Title Commitment #905381. Seller hereby indemnifies Buyer against any
Damages pursuant to the matters disclosed in Sections 1 and 2 of the
Supplemental Disclosure Statement 5.6. Seller will pay, post closing, the title
insurance premium required to have the title policy reflected by Commitment
#905381 issued.
2. A new Section 5.25 is added to the Agreement as follows:
Section 5.25 Landfill Gas Collection System.
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The Landfill Gas Collection System, as presently operated and
maintained by PGL (including, without limitation, ongoing extension of
the system in response to the filling of new cells) effectively controls
malodors, in all material respects, as required by all applicable laws
regulating air emissions and malodors beyond the Premises.
3. Seller shall indemnify and hold harmless Company and the
Subsidiaries from and against any Damages incurred by them by reason of certain
obligations purportedly imposed on PGL by reason of Section 20 of the purchase
agreement entered into with respect to the Xxxxx Property, as contemplated by
Section 7.6 of the Agreement.
4. Notwithstanding Section 3.5(a) of the Agreement, the parties shall
not be required to agree prior to closing on the definition of "Operating
Revenues" as referred to therein, but shall in good faith negotiate such term
following closing.
5. The consent of the Federal Communication Commission referred to in
Disclosure Statement 5.2(b) and the tax clearance certificates required under
Section 11.2(a) (iv) shall not be obtained prior to closing, but pursuant to
Section 14.8 of the Agreement shall be obtained by Seller following Closing.
6. Buyer and Seller jointly appoint Drinker Xxxxxx & Xxxxx LLP (DB&R)
to hold in escrow all of the agreements, instruments, certificates and other
documents executed as of December 1, 1997, relating to the Closing (the "Closing
Papers") and DB&R agrees to hold all such Closing Papers in escrow. The duties,
rights and obligations of DB&R with respect to the Closing Papers shall in all
regards be subject to and governed by the Escrow Agreement, which is
incorporated herein by reference, except as otherwise expressly provided herein.
7. Upon receipt by Buyer of $34,032,031.13, constituting the purchase
price payable at the Closing, as adjusted by the agreement of Buyer and Seller,
DB&R is directed (A) to deliver the Closing Papers to each of Buyer and Seller
as contemplated by the Agreement (including, without limitation, to deliver to
Buyer the certificates representing the Shares, together with an executed stock
power) and (B) to pay to Seller the amount of the Exclusivity Fee.
8. Buyer and Seller direct DB&R that, if the condition set forth in
paragraph 7 above has not been satisfied by December 2, 1997, DB&R shall not
deliver the Closing Papers to any party, except that all certificates
representing shares of Company and the Subsidiaries shall be delivered to
Seller.
9. Except as expressly modified herein, all other terms and conditions
set forth in the Agreement shall remain in full force and effect.
10. This amendment has been duly authorized, executed and delivered by
each of the parties hereto in accordance with Section 14.12 of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
1st day of December, 1997.
EASTERN ENVIRONMENTAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Executive Vice-President
DELMARVA CAPITAL TECHNOLOGY COMPANY
By: /s/ J. Xxxxxxx Xxxxxx
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General Manager
ACKNOWLEDGE as to Paragraphs
6, 7 and 8
DRINKER XXXXXX & XXXXX LLP
/s/ F. Xxxxxxx Xxxxxxx, III
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F. Xxxxxxx Xxxxxxx, III