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ASSET PURCHASE AND REAL ESTATE
ACQUISITION AGREEMENT
THIS ASSET PURCHASE AGREEMENT is executed and delivered as of May,
1999 among DELTA RESOURCES CORP., a Florida corporation, and/or its assigns
("Buyer"), XXXXXXX XXXXXX and XXXXXX XXXXXX, together hereinafter referred to as
("XXXXXX"), and XXXXXX DIRT SERVICES, INC., a Florida corporation hereinafter
referred to as ("HDS") (XXXXXX and HDS are hereinafter collectively referred to
as "Seller" or "Sellers") (Buyer and Seller collectively referred to as the
"Parties").
W I T N E S S E T H:
WHEREAS, Buyer, has actively participated in the environmental services
industry in Florida, operating in the areas of owning, operating and
maintaining construction and demolition debris recycling and landfilling
services; and
WHEREAS, Xxxxxxx and Xxxxxx Xxxxxx own that certain real property
which, in the aggregate, amounts to approximately 46 total acres, the combined
total of which is located near Altoona, Xxxxxx County, Florida, more
particularly identified and described in EXHIBIT "A" attached hereto (the "Real
Property"), of which approximately 13 acres of the Real Property is fully
licensed, permitted and zoned to be owned, operated and maintained as a
Construction and Demolition (C&D) Debris Landfill and Sand Mining Operation"
operated by HDS; and
WHEREAS, HDS owns various fixtures and items of personal property
located on the Real Property, which items are more particularly identified and
described in Exhibit "B" attached hereto (the "Fixtures and Personal Property");
and
WHEREAS, HDS is the owner or holder of all the permits and licenses
necessary for the operation of the Real Property maintained as a Construction &
Demolition Debris Landfill and Sand Mining operation and Lake Fill operation;
and
WHEREAS, Buyer desires to acquire the Assets from Sellers and Sellers
desire to sell such assets to Buyer as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations, warranties and obligations in this Agreement, the
parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings: Agreement means this Agreement, as it may be amended from time to
time.
1.2 Assets means only the real property, fixtures and personal property,
and the licenses and permits.
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1.3 Closing means generally the execution and delivery of those documents and
funds necessary to effect the sale of the Assets from Sellers to Buyer.
1.4 Closing Date means the date on which the Closing occurs.
1.5 Contracts, Contractual Rights and Agreements means all service contracts,
agreements or other instruments concerning the Assets, the Real Property and/or
the Operational Property which shall be transferred by Sellers to Buyer at
Closing.
1.6 Effective Date means the date on which all of the Parties have executed
this Agreement.
1.7 Escrow Date means the party described as such herein and any successor
escrow agent.
1.8 Governmental Approval means any permit, license, variance, certificate,
consent, letter, clearance, closure, exemption, decision, action or approval of
a governmental authority.
1.9 improvements means any buildings, structures or other improvements situated
on the Real Property.
1.10 Inspection Period means the period of time which expires at 5:00 PM on the
thirtieth (30th) or sixtieth (60th) day (as applicable) after the Effective
Date. If such expiration date is a weekend or national holiday, the Inspection
Period shall expire at 5:00 IM on the next immediately succeeding business day.
1.11 licenses and Permits means those licenses and permits issued by and applied
for with the State of Florida, or by such other county, municipality or other
local authority, as may be required for the Operational Property to be engaged
in the business of C&D Debris Landfilling and Sand Mining.
1.12 Materials means all financial records, economic data, Contracts,
Contractual Rights and Agreements, plans, drawings, specifications, soil test
reports, environmental reports, surveys, and similar documentation, if any,
owned by or in the possession of Sellers with respect of the Assets, which
Sellers may lawfully transfer to Buyer except that, as to such records,
Materials shall include any photocopies.
1.13 Permitted Exceptions means only the following interests, liens and
encumbrances:
(a) Liens for ad valorem and any other taxes relating to the property or
operation not yet due;
(b) Encumbrances, easements and restrictions of record as shown on the
Title Commitment which a licensed title company will accept; and
(c) Other matters determined by Buyer to be acceptable.
1.14 Purchase Price means the consideration agreed to be paid by Buyer to
Sellers for the purchase of the Assets as set forth in Section 3.1 (subject to
adjustments as provided herein).
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1.15 Real Property, Fixtures and Personal Property means the various fixtures
and items of personal property located on the Real Property, which items are
more particularly identified and described in Exhibit "B" attached hereto (the
"Fixtures and Personal Property").
1.16 Title Defect means any exception in the Title Insurance Commitment of
proposed Title Insurance Policy or any matter disclosed by the Survey, or any
other lien, encumbrance or defect becoming known to Buyer, other than a
Permitted Exception.
1.17 Title Insurance means an ALTA Form B Owners Policy of Title Insurance for
the full Purchase Price insuring marketable title in Buyer in fee simple,
subject only to the Permitted Exceptions, issued by Attorney's Title Insurance
Fund, Inc., or such other similar title insurance company (the "Title Company").
1.18 Title Insurance Commitment means a binder whereby the Title Company agrees
to issue the Title Insurance to Buyer.
1.19 Transaction Documents means this Agreement, the General Warranty Deed
conveying the Real Property, the Xxxx of Sale conveying the Personal Property,
the Non-compete Agreement and all other documents required or appropriate in
connection with the transaction contemplated hereby.
1.20 Recitations Adopted. The recitations set forth above in the "Whereas"
clauses are hereby adopted and incorporated herein as part of this Agreement.
2. DELIVERY OF ASSETS
Delivery of Assets. Upon the terms and subject to the conditions set forth
in this Agreement, Sellers shall, at the Closing, sell, assign, convey, transfer
and deliver the Assets to Buyer. Sellers shall make such transfer of the Assets
to Buyer free and clear of all liens, security interests, encumbrances, adverse
claims, liabilities, pledges, charges, voting trusts, equities and other
restrictions of any nature whatsoever except for the Permitted Exceptions. In
furtherance of such transfer of the Assets, the Parties shall have executed and
delivered at the Closing a General Warranty Deed, a Xxxx of Sale, a Non-compete
Agreement and any and all other documents necessary to effect the transfer
thereof in such form as shall be agreed upon by the Parties.
3. PURCHASE PRICE
3.1 Purchase Price. In accordance with Section 3.2 below, at the Closing, in
consideration of the sale of the Assets to Buyer in accordance with this
Agreement, Buyer shall pay the Sellers the aggregate sum of One Million Eight
Hundred Thousand Dollars ($1.8 Million). Such consideration Xxxxxx Dirt Service
to Delta Resources shall be allocated between the Assets and the Sellers as
follows:
(a) One Hundred Thousand ($100,000.00) Dollars to XXXXXX for the 934,136
thousand cubic yards of Air Space;
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(b) One Million Five Hundred and Forty Thousand ($1,540,000.00) Dollars to
XXXXXX for the Real Property;
(c) One Hundred Thousand Dollars ($100,000.00) to XXXXXX for the
Non-compete Agreement (the "Non-compete Agreement") from XXXXXX in favor of the
Buyer;
(d) Six Thousand ($6,000.00) Dollars to XXXXXX as per Exhibit B for the
purchase of the Fixtures and Personal Property;
(e) One Hundred and Four Thousand ($104,000.00) Dollars to HDS as per
Exhibit B for the purchase of the Fixtures and Personal Property;
(f) Fifty Thousand ($50,000.00) Dollars to HDS for all of their right, title
and interest in and to the licenses and permits owned or controlled by HDS.
3.2 Payment of Purchase Price. The Parties agree that the Purchase Price for the
acquisition of the Assets shall be payable in a Promissory Note as follows:
(a) An aggregate of Four Hundred Forty Thousand ($440,000.00) Dollars will
be paid by certified check at Closing. A Promissory Note and Mortgage payable to
XXXXXX in the amount of One Million Three Hundred and Sixty Thousand Dollars
($1,360,000.00), which shall be delivered from Buyer to Sellers on the Closing
Date (as described hereinafter, the "Promissory Note"). The Promissory Note
shall bear interest at the annual rate of 7.75 percent (7.75%) to be amortized
over a 20-year period and such principal and interest shall be payable in
consecutive quarterly installments (see attached Amortization Schedule C-1).
The Promissory Note will balloon the earlier of seven (7) years and the then
remaining principal balance and unpaid interest, if any will be payable in full
or the landfill space being fully utilized. See Promissory Note marked EXHIBIT
D-1 attached hereto and made a part hereof. The Promissory Note will be
guaranteed by DELTA RESOURCES CORP. See the Guaranty marked EXHIBIT D-2. See
Mortgage Agreement marked Exhibit D-3. attached hereto and made a part hereof.
(b) The Promissory Note shall be secured by a mortgage which shall have
a thirty (30) day grace period, providing for late charges in the event payment
is more than ten (10) days late, shall provide for right of prepayment in whole
or in part without penalty, shall permit acceleration in event of transfer of
property, shall provide for insurance having the name of the seller as an
additional insured, provide that all notices of environmental inspections by
governmental agencies be provided to the seller, and such other provisions
normal and customary with this type of transaction.
3.3 Adjustments to the Purchase Price. The Purchase Price shall be adjusted as
of the Closing Date by:
(a) subtracting the portion of the current year's real and tangible
personal property taxes for the period from January I of that year, through the
Closing Date (if the amount of the current year's property taxes are not
available on the Closing Date, such taxes will be prorated based upon the prior
year's assessment); and
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(b) subtracting the amount of operating, utility and other deposits,
if any.
(c) The Purchase Price Air Space set forth in Paragraph 3.1 shall be
adjusted and increased during the 7 years of this Agreement, conditional upon
the following:
The total Purchase Price shall increase to $2,200,000 with either
Vertical Expansions (40ft. above existing grade) or Horizontal Expansion
(minimum of 10 acres to the North (see amortization schedule attached hereto and
made a part hereof marked Exhibit "C-2"); and
The total Purchase Price shall increase to $2,600,000 for Vertical and
Horizontal Expansion (see amortization schedule attached hereto and made a part
hereof marked Exhibit "C-3").
3.4 Closing Costs.
(a) At or prior to Closing, the Sellers shall pay:
(i) Sellers' attorneys' fees relating to the sale of the
Assets;
(ii) Documentary stamp and intangible taxes imposed, by the
State of Florida and/or other governmental entities upon the
transfer of the Assets to Buyer as contemplated hereby;
(iii) Cost of satisfying any and all liens, fines, claims or
other encumbrances on or against the Assets;
(iv) Cost of title insurance (with a title agent selected by
the Seller) and the costs, if any, of curing title defects and
recording any curative title documents as same relate to the Real
Property; and
(b) At or prior to Closing, the Buyer shall pay:
(i) Buyer's attorneys' fees;
(ii) Cost of preparation of the Survey;
(iii) Cost of Buyer's due diligence inspection, including,
without limitation, the costs associated with a Phase 1, modified
Phase I and/or Phase II environmental site assessment to be
conducted for the Real Property and obtained by Buyer;
(iv) Cost of recording the deed (excluding documentary stamps
on the deed and intangible tax due to be paid by the Sellers);
(v) Documentary stamp and intangible taxes imposed by the
State of Florida and/or other governmental entities upon delivery
of the Promissory Note from Buyer to Sellers customarily paid by
BUYER.
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3.5 Prorations. All other matters of income and expense associated with the
Assets shall be prorated as of the Closing Date. At Closing, provisions
reasonably acceptable to the Buyer for payment of applicable sales and use tax,
if any, such amounts are due for the month of Closing will be agreed upon in
order to assure that said sales and use has or will be paid.
3.6 Pre-Closing Submissions. To the extent not previously provided, the Buyer
agrees to provide the Seller with the latest available versions of the following
pre-closing submittals within ten (10) days of the date hereof-
(i) a true and correct copy of the survey of the property;
(ii) a true and correct copy of all licenses, permits,
certificates of occupancies and any other governmental approvals,
certificates, consents, exemptions, decisions, actions or approval of
any governmental body;
(iii) all engineering plans, topographic surveys, drawings and
specifications;
(iv) a list of all contracts and agreements;
(v) copies of the last year tax bills;
(vi) all environmental reports that are in the care, custody
and control of the Seller;
(vii) all Financial statements and records; and
(viii) a Certificate of Good Standing of the corporation from
the State of Florida.
3.7 Right of Offset. Buyer shall have the right to offset against the next due
payment on and mortgage any loss, cost, damage or expense incurred by Buyer as a
result of a breach of any representation or warranty set forth in this Agreement
or any other Agreement between the parties including, but not limited to,
unpaid, undisclosed liabilities, taxes, fines or penalties.
4. INSPECTION PERIOD, FINANCING CONTINGENCY AND CLOSING
4.1 Inspection Period of Buyer.
(a) Buyer agrees that it will have the period of time from the Effective
Date to 5:00 p.m. on the thirtieth (30th) day following the Effective Date to
physically inspect the Assets, review the economic data, review copies of the
Contracts, Contractual Rights and Agreements, review the Licenses and Permits
and Zoning and to otherwise conduct its due diligence review of the Assets and
the Materials. Buyer hereby agrees to indemnify and hold Sellers harmless from
any damages, liabilities or claims for property damage or personal injury
arising out of such inspection and investigation by Buyer or its agents or
independent contractors. If, at any time during the Inspection Period, for "Good
Cause" Buyer determines in its sole and absolute
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discretion that the Assets are unsatisfactory to Buyer, then Buyer shall notify
Sellers or Sellers' attorney in writing prior to the expiration of the
Inspection Period that it has elected not to proceed to Closing hereunder and to
terminate this Agreement, and in that event, the Parties shall be released from
all further rights and obligations under this Agreement. ("Good Cause" shall
include, without limitation, environmental restrictions or other impediments to
Buyer's contemplated use of the Real Property.) At or prior to expiration of the
initial thirty (30) days following the Effective Date, the Buyer shall, at its
election, have an additional thirty (30) days within which to extend the
Inspection Period and continue its inspection of the Property. In order to
extend the Inspection Period, the Buyer or Buyer's attorney shall have delivered
notice of such extension at or before 5:00 P.M. on the thirtieth (30th) day
following the Effective Date to Sellers or Sellers' attorney. Thereafter, Buyer,
at its election, in its sole and absolute discretion, may elect to cancel this
Agreement which election shall be made by written notice to Sellers or Sellers'
attorney given at or before 5:00 P.M. on the sixtieth (60') day following the
Effective Date. If either of such notices is not timely given, Buyer will be
deemed to have elected to Close.
(b) Throughout the Inspection Period, Buyer, its agents and
representatives, at any time and from time to time, may contract for the
services of persons (the "Site Reviewers") to perform environmental site
assessments ("Site Assessments") on the Real Property. The Site Assessments may
be performed at any time or times, upon reasonable notice, and under reasonable
conditions established by Sellers which do not impede the timely and efficient
performance of the Site Assessment. Sellers hereby grant access to the Real
Property to perform both above and below the ground testing for environmental
conditions and such other tests on the Real Property as may be reasonably
necessary in the reasonable opinions of the Site Reviewers to conduct the Site
Assessment. Sellers shall, upon request, supply to the Site Reviewers such
historical and operational information regarding the Real Property as may be in
their respective possessions to facilitate the Site Assessment and will make
available for meetings with the Site Reviewers appropriate personnel having
knowledge of such matters.
(c) Buyer, through its officers or other authorized representatives,
shall have the right to reasonable access to all Materials for the purpose of
reviewing and copying the same. The materials will be made available upon
reasonable notice given by the Buyer to the Seller.
(d) In appreciation of the contingent status of the Property during the
Inspection Report, Buyer shall in good faith inform Sellers as soon as possible
of Buyer's intent to cancel this Agreement in the event such decision has been
made by Buyer prior to the expiration of the Inspection Period.
4.2 Time and Place of Closing. Unless otherwise agreed in writing by the
Sellers and Buyer, Closing on the transactions contemplated hereby shall take
place at the offices of Seller's counsel in Florida, at 10:00 A.M., as soon as
practical but not later than the first business day that is thirty (30) days
from the later of, the end of the Inspection Period, or any extension thereof.
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5. WARRANTIES, REPRESENTATION AND COVENANTS OF SELLERS
Sellers warrant and represent as follows as of the date of this
Agreement and as of the Closing and, where indicted, covenants and agrees as
follows:
5.1 Organization; Authority. The Corporation is duly formed and authorized
pursuant to the laws of the State of Florida, and Sellers have full power and
authority to enter into and perform this Agreement in accordance with its terms,
and the persons executing this Agreement and other Transaction Documents have
been duly authorized to do so on behalf of Sellers.
5.2 Authorization; Validity. The execution and delivery of this Agreement and
the consummation of the transaction contemplated by this Agreement have been
duly and validly authorized by the Sellers. This Agreement has been duly and
validly executed and delivered by Sellers and (assuming the valid execution and
delivery of this Agreement by Buyer) constitutes a legal, valid and binding
agreement of Sellers enforceable against Sellers in accordance with its terms.
Title. Sellers are the owners in fee simple of all Assets and own the Real
Property that is subject only to the Permitted Exceptions. All of the Assets are
owned by Sellers, free and clear from any liens, claims or encumbrances except
for the liens and encumbrances listed on the attached Schedule of Liens and
Encumbrances. The buyer shall either assume the indebtedness or satisfy the debt
at closing. The buyer shall exercise it best efforts to obtain a release of the
seller from the obligation. Further:
(a) There are no proceedings or amendments pending and brought by or,
to the best of Sellers' knowledge, threatened by any third party which would
result in a change in the allowable uses of any of the Real Property or which
would modify the right of Buyer to use the Real Property for the conduct of the
a construction and demolition debris recycling and landfill and sand mining
Operation Business after the Closing Date. The parties may agree to file an
amendment to the permit to allow the expansion of the permit in accordance with
the amounts, set out in the prior provisions.
(b) Sellers have made available to Buyer all engineering, geologic and
other similar reports, documentation and maps relating to the Real Property in
the possession or control of Sellers.
(c) No third parties have any rights to possession or use of the Assets,
nor does any third party have any future right to occupy or possess all or any
part of the Assets.
(d) Neither the Sellers as it relates to the Real Property, nor the Real
Property, now is or ever have been involved in any litigation or administrative
proceeding seeking to impose fines, penalties or other liabilities or seeking
injunctive relief for violation of any applicable laws relating to the
environment.
(e) No portion of the Real Property contains any areas that could be
characterized as disturbed, undisturbed or man-made wetlands or as "waters of
the United States" pursuant to any
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Applicable Laws or the procedural manuals of the Environmental Protection
Agency, U.S. Army Corps of Engineers or the Florida Department of Environmental
Protection, whether such characterization reflects current conditions or
historic conditions which have been altered without the necessary permits or
approvals.
(f) Sellers have provided to the government agencies requiring the
same, all material reports, notices, filings and other disclosures required by
Applicable Laws and all such reports, notices, filings and other documents were
complete and accurate in all material respects at the time provided to said
Government agencies.
5.3 Commissions. Sellers have neither dealt with nor does it have any knowledge
of any broker or other party who has or may have any claim against Sellers or
the Property for a brokerage commission or finder's fee, his assigns, heirs or
successor in interests or like payment arising out of or in connection with the
transaction provided herein, and Sellers agree to indemnify Buyer from any such
claim arising by, through or under Sellers.
5.4 Sale Agreements. The Property is not subject to any outstanding
agreement(s) of sale, option(s), or other right(s), of third parties to acquire
any interest therein, except for Permitted Exceptions and this Agreement.
5.5 Litigation. There is no litigation or proceeding pending, or to the best of
Sellers' knowledge, threatened against Sellers relating to the Property.
5.6 Leases; Agreements; Contracts. There are no leases, agreements or contracts
affecting the Assets, oral or written, and any such leases, agreements or
contracts or modifications thereof entered into between the date of this
Agreement and the Closing Date will be made with the consent of Buyer. Copies of
such documents, which have been delivered to Buyer, are, to the best knowledge
of Sellers, true, correct and complete copies thereof. Between the date hereof
and the Closing Date, Sellers will not terminate or modify the contracts,
Contractual Rights and Agreements or other such existing leases, agreements or
contracts without the consent of Buyer. No party to any such instruments has
asserted any claim of default or offset against Sellers with respect thereto and
no event has occurred or failed to occur which would in any way materially
affect the validity or enforceability of any of same.
5.7 Financial Statements. Each of the operating statements of the Sellers
delivered or to be delivered to Buyer hereunder presents fairly in all material
respects the financial condition, results of operations as of and for the
periods referenced therein. Sellers covenant to furnish Buyer with unaudited
updated monthly reports for interim periods promptly after such statements are
first made available to Sellers.
5.8 Environmental.
(a) For purposes of this Agreement, the following terms shall have the
following meanings: (i) the term "Hazardous Material" shall mean any material,
waste or substance, including, without limitation, petroleum products that,
whether by their nature or use, are subject to regulation under any
Environmental. Requirements; (ii) the term "Environmental
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Requirement" shall collectively mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980(42 U.S.C. 9601, et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. 1801, et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. 6901, et. seq.), the Toxic Substances
Control Act (15 U.S.C. 2601, et seq.), the Clean Air Act (42 U.S.C. 7401, et
seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.), the
Florida Air and Water Pollution Control Act, Section 403.011-403.4153, Florida
Statutes, the Pollutant Spill Prevention and Control Act, Section 376.011-17,
376.19-21, 376.30-.319, Florida Statutes, the Resource Recovery and Management
Act, Section 403.702-403.7893, Florida Statutes, the Florida Safe Drinking Water
Act, Section 403.85040-').90, Florida Statutes, any regulation pursuant thereof,
or any other Law addressing environmental, health or safety issues of or by any
Governmental Authority; (iii) the term "Governmental Authority" shall mean the
Federal government, or any state or other political subdivision thereof, or any
agency or body of the Federal government, or any state or other political
subdivision thereof, or any court asserting jurisdiction over Sellers, which is
exercising executive, legislative, judicial, regulatory or administrative
functions; and (iv) the term "Offsite Facility" shall mean any offsite waste
disposal facility, site or location utilized by or associated with the business
of Sellers or the Purchased Assets.
(b) Except as set forth in Schedule 5.9 hereto, (i) no Hazardous
Material has been or is currently located at, in, on, under or about any Real
Property in a manner which violates any Environmental Requirement, or which
requires investigation, cleanup or corrective action of any kind under any
Environmental Requirement; (ii) there has been no release, emission, discharge,
leaching, dumping or disposal of any Hazardous Material by Sellers in the
conduct of their business or otherwise which has adversely affected the quality
or quantity of groundwater in a. manner which is reasonably expected to form the
basis of a claim, at law or in equity, against Sellers or, after the Closing,
against the Buyer, by any Person, nor are Sellers aware of, nor have they
received notice of any such claim; (iii) no releasing, emitting, discharging,
leaching, dumping or disposing of any Hazardous Material by Sellers or others
in, on or from any Real Property has occurred, is occurring or, to the best of
Sellers' knowledge, may occur in the conduct of its business or otherwise in
violation of any Environmental Requirement or zoning law or regulation; (iv)
Sellers have all applicable federal, state and local permits, certifications,
licenses or approvals, including zoning approvals, and is in material compliance
with such permits, certification, licenses and approvals required pursuant to
any Environmental Requirement; (v) Sellers are not aware of, nor have Sellers
received notice of, any violation, lien, complaint, suit, order or other
obligation with respect to any past, present or future event concerning the
environmental condition of any Real Property, its business or the Assets; nor
has any such notice been issued by any Governmental Authority which has not been
fully satisfied and complied with in a timely fashion as required by
Environmental Requirements; (vi) to the best of Sellers' knowledge, there has
been no release or threatened release of Hazardous Material at, in, on or from
any Offsite Facility; (vii) neither the execution of this Agreement, nor the
Environmental Requirement, or consent order or similar agreement with any
Governmental Authority, to perform any environmental investigation or cleanup,
or to install additional pollution control equipment at any Real Property, or to
amend or modify its business and/or its' operations and equipment, or permits,
certifications, licenses or approvals held by it; (viii) there has been no
investigation, litigation, directive or administrative enforcement proceeding,
nor
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have any settlements been reached by or with any Governmental Authority or
public or private party alleging the release, threatened release, disposal,
storage or use of any Hazardous Material at any Real Property or, to the best of
Sellers' knowledge, any Offsite Facility; (ix) there are no underground storage
tanks, asbestos-containing materials, polychlorinated biphenyls or urea foam
insulation present at any Real Property at levels or in a condition in violation
of any Environmental Requirement; and (x) the Real Property does not contain any
wetlands, as defined in the Clean Water Act and regulations promulgated
thereunder, 33 C.F. R. 328.3 or any state analogue thereof, or other especially
environmentally sensitive or protected areas or species of flora or fauna.
(c) To the best of Sellers' knowledge, there has been no environmental
investigation, study, audit, test, review or other analysis conducted in
relation to the current or prior business of the Sellers or of the Real Property
which has not been delivered to the Buyer.
5.9 Maintenance and Operation of Assets. From and after the date hereof and
until the Closing, Sellers covenant to keep and maintain and operate the Assets
substantially in the manner in which it is currently being maintained and
operated and covenants not to cause or permit any waste of the Assets nor
undertake any action with respect to the operation thereof outside the ordinary
course of business without Buyer's prior written consent. Sellers covenant to
make all necessary repairs and replacements until the Closing so that the Assets
shall be of substantially the same quality and condition at the time of Closing
as on the date hereof Sellers covenant not to remove from the Improvements or
the Real Property any article included in the Personal Property. Sellers
covenant to maintain such casualty and liability insurance on the Assets as it
is presently being maintained.
5.10 Condemnation. Neither the whole nor any portion of the Real Property,
including access thereto or any easement benefiting the Real Property, is
subject to temporary requisition of use by any governmental authority or has
been condemned, or taken in any proceeding similar to a condemnation proceeding,
nor is there now pending any condemnation, expropriation, requisition or similar
proceeding against the Real Property or any portion thereof Sellers have
received no notice nor has any knowledge that any such proceeding is
contemplated.
5.11 Governmental Matters. Sellers have not entered into any commitments or
agreements with any Governmental authorities or agencies affecting the Assets
that have not been disclosed in writing to Buyer and Sellers have received no
notices from any such governmental authorities or agencies of uncured violation
at the Real Property of building, fire, air pollution or zoning codes, rules
ordinances or regulations, environmental and hazardous substances laws, or other
rules, ordinances or regulations relating to the Property. Sellers shall be
responsible for the remittance of all sales and use tax for periods occurring
prior to the Closing Date directly to the appropriate State Department of
Revenue.
5.12 Repairs. Sellers have received no notice of any requirements or
recommendations by any lender, customer. insurance companies, or governmental
body or agencies requiring or recommending any repairs or work to be done on the
Real Property `which have not already been completed.
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5.13 Consent, and Approvals; No Violation. Neither the execution and delivery of
this Agreement by Sellers nor the consummation by Sellers of the transactions
contemplated hereby will (a) require Sellers to file or register with, notify,
or obtain any permit, authorization, consent, or approval of, any governmental
or regulatory authority other than as set forth herein; (b) conflict with or
breach any provision of the organizational documents of Sellers; (c) violate or
breach any provision of, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under any note, bond,
mortgage, indenture, deed of trust, license, franchise, permit, lease, contract,
agreement or other instrument, commitment or obligation to which Sellers are a
party, or by which Sellers, or any of the Assets may be bound; or (d) violate
any order, writ, injunction, decree, judgment statute, law or ruling of any
court or governmental authority applicable to Sellers or any of the Assets.
5.14 Foreign Investment and Real Property Tax Act. Sellers are not "foreign
persons" within the meaning of Sections 1445 or 897 of the Code, and have
furnished Buyer with their federal tax identification number, and at closing
will execute and deliver to Buyer an affidavit regarding the same, or if Sellers
fail to execute and deliver such affidavit, Buyer may deduct and withhold from
the Purchase Price such amounts as may be required by Buyer in order to satisfy
its tax withholding obligations.
5.15 No Untrue Statement. Neither this Agreement nor any Exhibit, Schedule nor
any written statement or Transaction Document furnished or to be furnished by
Sellers to Buyer in connection with the transaction contemplated by this
Agreement contains or will contain any known untrue statement of material fact
or omits or will omit any known material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
5.16 Licenses and Permits. The Real Property shall be as of the Closing, fully
licensed and permitted, including required zoning approvals for the construction
of and operation as a C&D Debris Landfill. Sellers as of the Closing shall have
obtained from the State of Florida Department of Environmental Protection the
following: (a) an Environmental Resource Permit for storm/surface water systems
or evidence of an exemption from all the appropriate governmental agencies; and
(b) a Modified C&D Debris Construction and Operational General Permit for the
ongoing operations of the Real Property.
5.17 Complete Disclosure. This Agreement and the Schedules hereto and all other
documents and information furnished to Buyer and its representatives pursuant
hereto or pursuant to the negotiation of this transaction or the investigations
of or the employees or representatives of the Buyer, do not and will not include
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading. If either or both
Sellers become aware of any fact or circumstance which would change a
representation or warranty of the Sellers in this Agreement or any other
statement made or document provided to Buyer, the party with such knowledge
shall promptly give written notice of such fact or circumstance to Buyer. None
of (a) such notification, (b) any pre-Closing investigation made by Buyer or the
Sellers, their respective properties, businesses or assets, or (c) the Closing
contemplated by this
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Agreement, shall relieve Sellers of their obligations under this Agreement,
including their representations and warranties made in this Section 5.
5.18 Noncompete Agreement. At Closing, XXXXXX and HDS, its shareholders, each
agree to execute a noncompete agreement in favor of the Buyer. Set agreement
will provide that the Seller will not own, operate, or apply for permits for a
landfill within 100 miles of the subject site for a period of three (3) years.
In the event of non payment of the promissory note or uncured violation of the
mortgage provisions securing the promissory note, the Noncompete Agreement shall
be terminated.
5.19 No Public Announcement. Between the date of this Agreement and the Closing
Date, Sellers shall not, without the prior written consent of each of the Buyer,
make any oral or written announcement concerning this transaction except as may
be required by applicable laws including, but not limited to, the Securities
Laws.
6. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
Buyer hereby warrants and represents as of the date of this Agreement
and as of the Closing and where indicated covenants and agrees as follows:
6.1 Organization; Authority. Buyer is a corporation duly organized, validly
existing and in good standing under laws of Florida and has full power and
authority to enter into and perform this Agreement in accordance with its terms,
and the persons executing this Agreement and other Transaction Documents on
behalf of Buyer have been duly authorized to do so.
6.2 Authorization; Validity. The execution, delivery and performance of this
Agreement and the other Transaction Documents have been duly and validly
authorized by the Board of Directors of Buyer. This Agreement has been duly and
validly executed and delivered by Buyer and (assuming the valid execution and
delivery of this Agreement by Sellers) constitutes a legal, valid and binding
agreement of Buyer.
6.3 Commissions. Buyer has neither dealt with nor does it have any knowledge of
any broker or other party who has or may have any claim against Buyer or Sellers
for a brokerage commission or finder's fee or like payment arising out of or in
connection with the transaction provided herein; and Buyer agrees to indemnify
Sellers from any such claims arising by, through or under Buyer.
6.4 No Public Announcement. Between the date of this Agreement and the Closing
Date, Buyer shall not, without the prior written consent of the Sellers, make
any oral or written announcement concerning this transaction except as may be
required by applicable law, including but not limited to, the Securities Laws.
6.5 Knowledge of Business Operations. Buyer represents to Sellers that Buyer is
knowledgeable in the operation of C&D Debris Landfills and in carrying out its
due diligence will, in addition to reliance on the information supplied by
Sellers under the term of this Agreement, rely on its own expertise in such
matters.
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7. TITLE MATTERS AND SURVEY
Title Insurance. Within twenty (20) days after execution of this Agreement
by the last to sign of Sellers and Buyer, Sellers shall deliver the Title
Insurance Commitment to Buyer. Buyer will have fifteen (15) days from receipt of
the Title Commitment (including legible copies of all recorded exceptions noted
therein) and Survey to notify Sellers in writing of any Title Defects,
encroachments or other matters not acceptable to Buyer which are not permitted
by this Agreement. Sellers shall use diligent efforts to cure the Title Defects
and/or objections by the Closing Date (as it may be extended). If Sellers elect
not to cure or if such Title Defects and/of objections are not cured, Buyer
shall have the right and Sellers shall have the obligation, in lieu of my other
remedies, as follows: (i) Buyer may refuse to purchase the Property, terminate
this Agreement and receive a return of the Xxxxxxx Money Deposit plus all
interest thereon from the Escrow Agent; in the event such amount is not paid
from Sellers to Buyer within fifteen (15) days of the delivery to Sellers of
Buyer's decision to terminate this Agreement, Buyer shall have the right without
any further acknowledgment by Sellers to file a lien in the amount of any
Xxxxxxx Money Deposit, plus interest at the maximum rate allowed by law, costs,
and reasonable attorney's fees associated with the same, against the Property,
which lien shall be valid, enforceable and subject only to the Permitted
Exception; or (ii) cure such Title Defects and deduct the cost thereof from the
purchase price, down payment first; and (iii) waive such Title Defects and/or
objections and close the purchase of the Property subject to them.
7.1 Miscellaneous Title Matters. If a search of the title discloses judgments,
bankruptcies or other returns against other persons having names the same as or
similar to that of Sellers, Sellers shall on request deliver to Buyer an
affidavit stating, if true, that such judgments, bankruptcies or the returns are
not against Sellers. Sellers further agree to execute and deliver to the Title
Insurance agent at Closing such documentation, if any, as the Title Insurance
underwriter shall reasonably require to evidence that the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized and that there are no mechanics' liens on the Property
or parties in possession of the Property other than tenants under the Leases and
Sellers.
7.2 Survey. If Buyer desires a survey of the Real Property, Buyer may order
same surveyed to show the following:
(a) the exact boundary lines of the Real Property;
(b) the location thereon of all, if any, buildings, improvements, and
easements now existing;
(c) the number of acres in the Real Property;
(d) the location of any buildings, fences or other improvements which
encroach on the Real Property;
(e) the location of any improvements on the Real Property which encroach on
any neighboring property or on any property which is subject to any
easement or right-of-way;
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(f) all building lines established in respect of the Real Property; and
(g) all public access to the Real Property, and representing that the
boundaries of the Real Property are contiguous with the boundaries of all
adjoining parcels (the "Survey").
(h) the topography of the Property.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS
The obligations of Sellers hereunder are subject to the completion,
satisfaction, or at their option, waiver, on or prior to the Closing Date, of
the following conditions:
8.1 Representations and Warranties. The representations and warranties of Buyer
contained in this Agreement shall be accurate on and as of the Closing Date with
the same effect as though such representations and warranties had been made on
and as of such date; and each and all of the terms, covenants and conditions of
this Agreement to be complied with and performed by Buyer on or before the
Closing Date shall have been duly complied with and performed.
8.2 Consents. All necessary notices to, consents of and filings with any
governmental authority or agency or other third party relating to the
consummation of the closing or the other transactions contemplated herein to be
made or obtained by Buyer shall have been obtained and made.
8.3 No Adverse Proceeding. No action or proceeding before a court or any other
governmental agency or body shall have been instituted or, to the best of
Buyer's knowledge, threatened to restrain or prohibit any of the transactions
contemplated by this Agreement.
8.4 Noncompete Agreement. Xxxxxxx Xxxxxx shall have executed and delivered at
the Closing Non-compete Agreement in a form to be agreed upon by the Parties.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer hereunder are subject to the completion, satisfaction
or, at their option, waiver, on or prior to the Closing Date, of the following
conditions:
9.1 Representations and Warranties. The representations and warranties of
Sellers contained in this Agreement shall be accurate on and as of the Closing
Date with the same effect as though such representations and warranties had been
made on and as of such date, and Buyer shall have received a certificate from
Sellers to that effect, or setting forth any discrepancies in such
representations and warranties which have arisen since the date of this
Agreement. The foregoing notwithstanding, Sellers agree that no limitation of
any representations and warranties set forth in the certificate contemplated in
the first sentence of this Section 9.1 shall restrict Buyer's right to terminate
this Agreement if any representation or warranty of either or both Sellers is
inaccurate as of the Closing Date.
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9.2 Buyer Approvals. This Agreement and the transactions contemplated hereby
shall have been approved by the requisite vote of the Board of Directors and
shareholders, if required, of Buyer.
9.3 No action or proceeding before a court or any other governmental agency or
body shall have been instituted or threaten ed to restrain or prohibit any of
the transactions contemplated by this Agreement, and no governmental agency or
body shall have taken any other action or made any request of Buyer as a result
of which the management of Buyer deems it inadvisable to proceed with the
transactions hereunder.
9.4 General Release. Sellers shall have delivered to Buyer an instrument dated
the Closing Date releasing the Buyer from any and all claims of Sellers against
the Buyer arising out of events which occurred prior to the Closing (but not
including any claims pursuant to this Agreement).
9.5 Owners' Policy. The Title Company shall have issued the preliminary title
commitment and shall have agreed to issue the Owners' Policy in each case in
accordance with Article 3 and otherwise acceptable to Buyer.
9.6 Non-compete Agreement. XXXXXX shall have executed and delivered at the
Closing a Non-compete Agreement in a form to be agreed upon by the Parties.
9.7 Environmental Review. Buyer, through its authorized representatives, must
have completed a review (including, without limitation, all testing, inspections
and other procedures, review of existing files of, and discussions with,
governmental agencies and officials having jurisdiction over the Real Property,
permits and licenses) of the environmental and land use practices, procedures,
operations and activities related to the Assets; the results of which review,
without limiting the generality of the foregoing, reflects compliance with all
Applicable Laws, discloses no actual or probable violations, compliance
problems, required capital expenditures or other substantive environmental, land
use or real Property-related concerns and are otherwise satisfactory in all
respects to Buyer in its sole discretion.
9.8 Licenses and Permits; Transferability of Permits. Sellers shall have
complied with Section 5.17 and the permits and licenses referred to in Section
5.17 shall have been issued. Buyer shall have determined, in its sole
discretion, that prior to, or as a result of, this transaction, all of the
permits required for the operation of the Business have been transferred to
Buyer or will be transferred to Buyer without a public hearing before any
governmental body.
9.9 Certificates. Sellers shall have delivered to Buyer a certificate to the
effect that each of the conditions specified in this Article 9 have been
satisfied in all respects.
9.10 General. All actions taken by Sellers in connection with the consummation
of the transactions contemplated hereby and all certificates, opinions and other
documents required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to Buyer.
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9.11 Audit. An audit has been completed for the Corporations last two (2) fiscal
years; the parties will split the cost. If the audit is not complete but the
parties reasonably believe that the audits will be completed within thirty (30)
days, the Closing may proceed.
10. POSSESSION; RISK OF LOSS; DAMAGE OR CONDEMNATION
10.1 Possession. Occupancy and possession of the Assets will be transferred to
Buyer at the conclusion of the Closing.
10.2 Risk of Loss. All risk of loss to the Assets shall remain upon Sellers
until the conclusion of the Closing. If, before the occupancy and possession of
the Assets has been transferred to Buyer, any material portion of the Assets is
damaged by fire or other casualty and will not be restored by the Closing Date
or if any material portion of the Real Property is taken by eminent domain or
similar doctrine , or there is a material obstruction of access to the
Improvements by virtue of a taking by eminent domain, Sellers shall, within ten
(10) days of such damage or taking, notify Buyer thereof and Buyer shall have
the option to:
(a) terminate this Agreement upon notice to Sellers given within ten (10)
business days after such notice from Sellers; or
(b) proceed with the purchase of the Real Property, in which event Sellers
shall assign to Buyer all Sellers' right, title and interest in all amounts due
or collected by Sellers under the insurance policies or as condemnation awards.
In such event, the Purchase Price shall be reduced by the amount of any
insurance deductible to the extent it reduced the insurance proceeds payable.
11. POST-CLOSING COVENANTS
11.1 Taxes
(a) Sellers irrevocably agree to indemnify Buyer against, and to hold
Buyer harmless from:
(i) any and all federal, state, local and other taxes related
to the Assets arising from the audit, examination, review or other
adjustment of tax liabilities for periods ending on or prior to the
Closing Date;
(ii) any and all taxes, interest, penalties, additions to tax
(or additional amounts imposed with respect to any such interest,
penalties, or additions to tax) related to the Assets imposed with
respect to any federal, state, local or other taxes for periods ending
on or before the closing Date; and
(iii) any and all federal, state, local, or other taxes of
Buyer arising as the result of any payment by the Sellers to Buyer in
fulfillment of its obligation pursuant to this Section 10.1(a).
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(b) SELLERS agree that they shall be responsible, at their sole expense,
for the preparation of any required federal, state, local and other income and
franchise tax returns for the tax periods beginning January 1, 1999 and ending
on its Closing Date. Buyer agrees to cooperate with Seller in the preparation of
such returns. Sellers further agree that they shall pay all taxes (including all
penalties and interest, if any) due for such tax period. Prior to filing the
returns provided for in this paragraph, Seller agrees to allow Buyer 20 business
days to review and approve its returns, approval of which will not unreasonably
be withheld.
11.2 Further Assurance. From time to time on and after the Closing and without
further consideration, the parties hereto shall each deliver or cause to be
delivered to any other party at such times and places as shall be reasonably
requested, such additional instruments as any of the others may reasonably
request for the purpose of carrying out this Agreement and the transaction
contemplated hereby. Sellers, also without further consideration, agree to
cooperate with Buyer on and after the Closing Date in furnishing to Buyer
information, evidence, testimony, and other assistance in connection with
Buyer's efforts to obtain all necessary permits and approvals and in connection
with any actions, proceedings, arrangements or disputes of any nature with
respect to matters pertaining to all periods prior to the Closing Date. Sellers
acknowledge and agree that, from and after the Closing, Buyer shall be entitled
to possession of all documents, books, records (including tax records),
agreements and financial and operating data of any sort related to Assets.
11.3 Survival. The covenants in this Article II shall survive the Closing.
12. NON-ASSUMPTION OF LIABILITIES
12.1 Non-Assumption of Liabilities. Buyer shall not, by the execution and
performance of this Agreement or otherwise, assume, become responsible for or
incur any liability or obligation of any nature of the Sellers whether legal or
equitable, matured or contingent, known or unknown, foreseen or unforeseen,
ordinary or extraordinary, patent or latent, whether arising out of occurrences
prior to, at or after the date of this Agreement. The Buyer does hereby agree to
assume only the outstanding indebtedness listed on Schedule E of this Agreement
for Sale.
Sellers hereby agree to indemnify Buyer, its respective successors and
assigns from and against all of the above liabilities and obligations in
accordance with Section. I'). I below. Sellers shall, by the Closing Date,
either (a) discharge, (b) obtain novations, in form and substance satisfactory
to Buyer discharging Buyer as obligors, on, or (c) make other arrangements
satisfactory to Buyer, in Buyer's sole judgment, to hold harmless Buyer from any
claim, obligation, duty or liability on or with respect to all non-assumed
liabilities.
13. INDEMNIFICATION
13.1 Indemnification by Sellers. Sellers agree that they will, jointly and
severally, indemnify, defend (as to third-party claims only), protect and hold
harmless Buyer and its respective officers, shareholders, directors, divisions,
subdivisions, affiliates, subsidiaries, agents, employees, successors and
assigns at all times from and after the date of this Agreement, from and
against all liabilities claims, damages, actions, suits, proceedings, demands,
assessments, adjustments, penalties, losses, costs and expenses whatsoever
(including specifically, but without
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limitation, court costs, reasonable attorneys' fees and expenses, and expenses
of investigation) whether equitable or legal, matured or contingent, known or
unknown, foreseen or unforeseen, ordinary or extraordinary, patent or latent,
whether arising out of occurrences prior to, at or after the date of this
Agreement, but not after closing, incurred as a result of or incident to, except
for those set out in this Agreement:
LIMITATION FOR CLAIMS ACCRUING PRIOR TO TRANSFER
(a) any breach of, misrepresentation in, untruth in or inaccuracy in the
representations and warranties by either or both Sellers (including, without
limitation, those relating to the environmental condition of the Real Property
and Sellers' environmental compliance) set forth herein or in the Schedules,
Exhibits or certificates attached hereto or delivered pursuant hereto;
(b) nonfulfillment or nonperformance of any agreement, covenant or
condition on the part of either or both Sellers made in this Agreement and to be
performed on or before the Closing Date;
(c) the matters set forth in Section 12.1;
(d) the existence of liabilities of the Sellers; and
(e) any claim by a third party that, if true, would mean that a
condition for indemnification by Sellers under any of subsections (a) through
(e) of this Section 13.1 had been satisfied.
13.2 Sellers' Indemnification of Buyer for Environmental Matters. Seller hereby
agrees that it shall indemnify, defend, save and hold harmless the Indemnified
Parties against and from, and to reimburse the Indemnified Parties with respect
to, any and all damages, claims, liabilities, lost costs and expenses
(including, without limitation, reasonable paralegal, experts' and attorneys'
fees and expenses, whether in court, out of court, in bankruptcy or
administrative proceedings or on appeal), penalties, or fines, incurred by or
asserted against the Indemnified Parties by reason or arising out of.
(a) the breach of any representation or undertaking of Sellers under this
Section;
(b) any Environmental Condition that exists as of the date of this
Agreement or as of the date of the Closing on or arising from the Property or
any facilities or operations on the Property, except as otherwise stated in this
Agreement;
(c) any obligation or liability arising out of or resulting from
non-compliance by Sellers with, or remedial work imposed upon Sellers under any
Law relating to protection of the environmental; the use, transport, disposal,
handling or storage of hazardous or toxic materials, pollutants, contaminants,
or wastes including, without limitation:
(i) any obligations, loss, cost, expense, claim or liability
arising out of any investigation, monitoring, clean-up, containment,
removal, storage, or
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restoration work required by, or incurred by Buyer or any entity or
person as required by Environmental Requirement or any environmental
governmental agencies, and
(ii) any claims of third parties for loss, injury, expense, or
damage arising out of the handling of any Hazardous Materials on,
under, in, above, to, or from the Property.
(d) any claim by a third party that, if true, would mean that a condition for
indemnification by Seller under subsections (a), (b) or (c) of Section 13.3 had
been satisfied.
Notwithstanding anything in this Agreement, the covenants, representations,
warranties set forth in Section 5.9 and the indemnities and undertakings of
Sellers set forth in this Section shall survive the Closing and the delivery of
the Deed to the Buyer.
(e) This indemnity shall not extend to matters which may reasonably
discovered as a result of the environmental assessment and surveys performed by
the Buyer pursuant to its due diligence inspection prior to the closing of the
transaction as set forth in the scope of services between Delta and SCS
Engineering (see attached scope of service) Exhibit F.
13.3 Indemnification by Buyer. Buyer agrees that it will indemnify, defend,
protect and hold harmless Sellers, their successors and assigns, at all times
from and after the date of this Agreement from and against all liabilities,
claims, damages, actions, suits, proceedings, demands, assessments, adjustments,
penalties, losses costs and expenses whatsoever (including specifically, but
without limitation, court costs, reasonable attorneys' fees and expenses and
reasonable expenses of investigation) incurred by Sellers as a result of or
incident to:
(a) any breach of, misrepresentation in, untruth in or inaccuracy in the
representations and warranties set forth herein, or in the Schedules or
certificates attached hereto or delivered pursuant hereto by Buyer;
(b) nonfulfillment or nonperformance of any agreement, covenant or
condition on the part of Buyer made in this Agreement; and any claim by a third
party that, if true, would mean that a condition for indemnification by Buyer
under subsections (a) or (b) of Section 13.3 had been satisfied.
Any claim by third parties arising from the maintenance and operation of the
assets after the closing of the sale.
13.4 Buyer's Indemnification of Sellers for Environmental Matters. Buyer hereby
agrees that it shall indemnify, defend, save and hold harmless the Indemnified
Parties against and from, and to reimburse the Indemnified Parties with respect
to, any and all damages, claims, liabilities, lost costs and expenses
(including, without limitation, reasonable paralegal, experts' and attorneys'
fees and expenses, whether in court, out of court, in bankruptcy or
administrative proceedings or on appeal), penalties, or fines, incurred by or
asserted against the Indemnified Parties by reason or arising out of:
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(a) the breach of any representation or undertaking of Buyer under this
Section;
(b) any Environmental Condition that exists after the date of the closing
on or arising from the Property or any facilities or operations on the Property,
except as otherwise stated in this Agreement;
(c) any obligation or liability arising out of or resulting from
non-compliance by Buyer with, or remedial work imposed upon Buyer, other than
resulting from seller act, under any Law relating to protection of the
environmental; the use, transport, disposal, handling or storage of hazardous or
toxic materials, pollutants, contaminants, or wastes including, without
limitation:
(i) any obligations, loss, cost, expense, claim or liability,
arising out of any investigation, monitoring, clean-up, containment,
removal, storage, or restoration work required by, or incurred by
Buyer or any entity or person as required by any Environmental
Requirement or any environmental governmental agencies, and
(ii) any claims of third parties for loss, injury, expense, or
damage arising out of the handling of any Hazardous Materials on,
under, in, above, to, or from the Property.
(d) any claim by a third party that, if true, would mean that a condition
for indemnification by Seller under subsections (a), (b) or (c) of Section 13.3
had been satisfied.
13.5 Procedure for Indemnification with Respect to Third Party Claim
(a) If any third party shall notify a party to this Agreement (the
"Indemnified Party") with respect to any matter (a "Third Party Claim") that may
give rise to a claim for indemnification against any other party to this
Agreement (the "Indemnifying Party") or if any party who may make a claim for
indemnification under this Agreement otherwise becomes aware of any matter that
may give rise to such a claim or wishes to make such a claim (whether or not
related to a Third Party Claim), then the Indemnified Party shall promptly
notify each indemnifying party thereof in writing, provided, however, that no
delay on the part of the Indemnified Party in notifying any Indemnifying Party
shall relieve the Indemnifying Party from any obligation hereunder unless (and
then solely to the extent) the Indemnifying Party is thereby prejudiced.
(b) Any Indemnifying Party shall have the right to defend the Indemnified
Party against Third Party Claim with counsel of its choice satisfactory to the
Indemnified Party so long as:
(i) the Indemnifying Party notifies the Indemnified Party in
writing within a reasonable time after the Indemnified Party has given
notice of the Third Party Claim that the Indemnifying Party will
indemnify the Indemnified Party from and against the entirely of any
adverse consequences (which will include,
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without limitation, all losses, claims, liens, and attorneys' fees and
related expenses) the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the Third
Party Claim.
(ii) The Indemnifying Party provides the Indemnified Party
with evidence acceptable to the Indemnified Party that the
Indemnifying Party will have the financial resources to defend against
the Third Party claim and fulfill its indemnification obligations
hereunder;
(iii) settlement of, or adverse judgment with respect to the
Third Party Claim is not, in the good faith judgment of the
Indemnified Party, likely to establish a precedential custom or
practice adverse to the continuing business interests of the
Indemnified Party; and
(iv) the Indemnifying Party conducts the defense of the Third
Party Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting the defense of the
Third Party Claim in accordance with Section 13.
(i) the Indemnified Party may retain separate counsel at its
sole costs and expense and participate in the defense of the Third
Party Claim;
(ii) the Indemnified Party will not consent to the entry of
any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnifying
Party (which will not be unreasonably withheld); and
(iii) the Indemnifying Party will not consent to the entry of
any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnified Party
(which will not be unreasonably withheld).
(d) In the event or to the extent that any of the conditions set forth in
Section 13 above is or becomes unsatisfied, however:
(i) the Indemnified Party may defend against, and consent to
the entry of any judgment or enter into any settlement with respect
to, the Third Party Claim and any matter it may deem appropriate in
its sole discretion and the Indemnified Party need not consult with,
or obtain any consent from, any Indemnifying Party in connection
therewith (but will keep the Indemnifying Party reasonably informed
regarding the progress and anticipated cost thereof);
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(ii) the Indemnifying Party will reimburse the Indemnified
Party promptly and periodically for the cost of defending against the
Third Party Claim (including attorneys' fees and expenses); and
(iii) the Indemnifying Party will remain responsible
for any adverse consequences the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim to the fullest extent provided in this
Section 13; and
(iv) the Indemnifying Party shall be deemed to have waived any
claim that its indemnification obligation should be reduced because of
the matter in which the counsel for the Indemnified Party handled the
Third Party Claim.
14. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
14.1 Non-disclosure by Sellers. Sellers recognize and acknowledge that they have
had in the past, currently have, and in the future may possibly have, access to
certain confidential information that is valuable, special and unique assets of
the Business. Sellers agree that they will not disclose such confidential
information to any person, firm, corporation, association or other entity for
any purpose or reason whatsoever, except to authorized representatives of Buyer,
unless such information becomes known to the public generally through no fault
of Sellers. In the event of a breach or threatened breach by Sellers of the
provisions of this Section, Buyer shall be entitled to an injunction restraining
Sellers from disclosing, in whole or in part, such confidential information.
Nothing herein shall be construed as prohibiting Buyer from pursuing any other
available remedy for such breach or threatened breach, including, without
limitation, the recovery of damages. The provisions of this Section shall apply
at all times prior to the Closing Date and for a period of one year following
the Closing.
14.2 Non-disclosure by Buyer. Buyer recognizes and acknowledges that it has had
in the past, currently has, and prior to the Closing Date, will have access to
certain confidential information of the Sellers. Buyer agrees that, except as
may be required by Applicable Laws or other legal process, it will not disclose
such confidential information to any person, firm, corporation, association, or
other entity for anv purpose or reason whatsoever, prior to the Closing Date
without Sellers' prior written consent. In the event of a breach or threatened
breach by Buyer of the provisions of this Section. Sellers shall be entitled to
an injunction restraining Buyer from disclosing in whole or in part, such
confidential information. Nothing contained herein shall be construed as
prohibiting Sellers from pursuing any other available remedy for such breach or
threatened breach, including, without limitation, the recovery of damages. The
provisions of this Section shall apply at all times prior to the Closing Date
and for a period of one year following the termination of this Agreement without
a Closing having occurred.
15. BREACH, REMEDIES
15.1 Breach by Sellers. In the event of a beach of Sellers' covenants or
warranties and failure by Sellers to cure such breach after notice within the
time provided for Closing, in addition to remedies provided under law and
elsewhere in this Agreement, Buyer may, at Buyer's election
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(i) terminate this Agreement; (ii) enforce this Agreement by suit for specific
performance; or (iii) waive such breach (if discovered prior to the Closing) and
close the purchase of the Assets contemplated.
15.2 Breach By Buyer. In the event of a breach of Buyer's covenants or
warranties herein and failure of Buyer to cure such breach after notice within
the time provided for Closing, in addition to remedies provided under law and
elsewhere in this Agreement, Sellers, at Sellers' election, may (i) terminate
this Agreement; and (ii) shall have the right to recover damages arising from
such breach.
16. GENERAL
16.1 Assignment; Binding Effect, Amendment. This Agreement and the rights of the
parties hereunder may be assigned by the Buyer. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, the successors of the
corporate parties hereto, and the respective heirs and legal representations of
Sellers. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, the successors of the corporate parties hereto, and the
respective heirs and legal representatives of Sellers. This Agreement, upon
execution and delivery, constitutes a valid and binding agreement of the parties
hereto enforceable in accordance with its terms and may be modified or amended
only by a written instrument executed by all parties hereto.
16.2 Entire Agreement. This Agreement is the final, complete and exclusive
statement and expression of the agreement among the parties hereto with relation
to the subject matter of this Agreement, it being understood that there are
no oral representations, understandings or agreements covering the same subject
matter as this Agreement. This Agreement supersedes, and cannot be varied,
contradicted or supplemented by evidence of any prior or contemporaneous
discussions, correspondence, or oral or written agreements of any kind.
16.3 Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
16.4 Notices. All notices or other communications required or permitted
hereunder shall be in writing and may be given by depositing the same in United
States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, by overnight courier or
by delivering the same in person to such party.
If to Buyer, addressed to at: Delta Resources Corp.
0000 X. Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
with a copy to: Xxxxxx X. Xxxxxx, Xx., Esq.
0000 X. Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
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with a copy to: Xxxxxx X. Xxxxx, Esq.
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
If to HDS, addressed to at: Xxxxxx Dirt Services, Inc.
X.X. Xxx 000
Xxxxxxx, Xxxxxxx 00000
If to Xxxxxx, addressed to at: Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxx 00000
with a copy to: Xxxxx Xxxxxxx, Esq.
X.X. Xxxxxx 0000
Xxxxxx, Xxxxxxx 00000-0000
Notice shall be deemed given and effective the day personally delivered, the day
after being sent by overnight courier. subject to signature verification, and
three business days after the deposit in the U.S. Mail of a writing addressed as
above and sent first class mail, certified, return receipt requested, or when
actually received, if earlier. Any party may change the address for notice by
notifying the other parties of such change in accordance with this Section 16.4.
16.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida, without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Florida or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Florida.
16.6 Appointment of Agent. Sellers agree that Xxxxxx Dirt Service, Inc. will
maintain a registered agent in the State of Florida to accept and acknowledge
service of process. Each party agrees that service of process or notice in any
such action, suit or proceeding shall be effective if in writing and delivered
to the address provided in Section 16.6 for such party, in the manner prescribed
in such Section.
16.7 No Waiver. No delay of or omission in the exercise of any right, power or
remedy accruing to any party as a result of any breach or default by any other
party under this Agreement shall impair any such right, power or remedy, nor
shall it be construed as a waiver of or acquiescence in any such breach or
default, or of or in any similar breach or default occurring later; nor shall
any waiver of any single breach or default be deemed a waiver of any other
breach of default occurring before or after that waiver.
16.8 Time of the Essence. Time is of the essence of this Agreement.
16.9 Captions. The headings of this Agreement are inserted for convenience only,
shall not constitute a part of this Agreement or be used to construe or
interpret any provision hereof.
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16.10 Severability. In case any provisions of this Agreement shall be invalid,
illegal or unenforceable, it shall, to the extent possible, be modified in such
manner as to be valid, legal and enforceable but so as most nearly to retain the
intent of the parties, If such modification is not possible, such provision
shall be severed from this Agreement. In either case the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
16.11 Construction. The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local or foreign statute
shall be deemed to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise. The word "including" means including,
without limitation. The parties intend that representation, warranty and
covenant contained herein shall have independent significance. If any party has
breached any representation, warranty or covenant contained herein in any
respect, the fact that there exists other representation, warranty or covenant
relating to the same subject matter (regardless of the relative levels of
specificity) that the party has not breached shall not detract from or mitigate
the fact the party is in breach of the first representation, warranty or
covenant.
16.12 Standstill Agreement. Unless and until this Agreement is terminated
without the Closing having taken place, Sellers will not directly or indirectly
solicit offers for any of the Assets, or respond to inquiries from or negotiate
with third parties who express or who have heretofore expressed an interest in
acquiring such assets.
16.13 Attorneys' Fees. In the event either party hereunder files a suit in
connection with this contract or any provision contained herein, then the party
which prevails in such action shall be entitled to recover, in addition to all
other remedies or damages, reasonable attorneys' fee and paralegals' fee
(including those incurred out of court, at trial or in any appellate or
bankruptcy proceedings) and costs of court incurred in such suit.
16.14 Memorandum of Contract. Upon the request of either party hereto, the
parties shall both execute a Memorandum of Contract in recordable form which may
then be recorded by either party in the Public Records of Brevard County,
Florida. If either party fails to so execute the memorandum of Contract the
attorney for the other party is hereby granted a power of attorney to execute
such document.
16.15 Contract to Survive. It is understood and agreed that any and all
representations, warranties, covenants and agreements contained herein, whether
to be performed before or after the Closing Date, shall not be deemed to be
merged into or waived by the instruments of Closing, but shall expressly survive
Closing and shall be binding upon the party obligated thereby from and after the
Closing Date.
IN WITNESS WHEREOF, the parties hereto have execute this Agreement as
of the day and first above written.
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BUYER:
Witnesses: DELTA RESOURCES CORP., a Florida
corporation
By:
-------------------------- ------------------------------------
Its:
-------------------------- -----------------------------------
SELLERS:
Xxxxxx Dirt Services, Inc.
Witnesses A Florida corporation
By:
------------------------------------
--------------------------
Its:
-------------------------- -----------------------------------
---------------------------------------
Xxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx
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STATE OF FLORIDA )
) SS
COUNTY OF Lake )
The foregoing instrument was acknowledged before me this day of _____, 1999 by
Xxxxxx Xxxxxx, President of Xxxxxx Dirt Services, Inc., who is personally known
to me or who produced a valid Driver's License as identification and who did
take an oath.
-----------------------------------
Notary Public
STATE OF FLORIDA )
) SS
COUNTY OF Lake )
The foregoing instrument was acknowledged before me this ______ day of
___________ 1999 by Xxxxxxx Xxxxxx, who is personally known to me or who
produced a valid Driver's License as identification and who did take an oath.
-----------------------------------
Notary Public
STATE OF FLORIDA )
) SS
COUNTY OF Lake )
The foregoing instrument was acknowledged before me this ____ day of __________,
1999 by Xxxxxx Xxxxxx, who is personally known to me or who produced a valid
Driver's License as identification and who did take an oath.
-----------------------------------
Notary Public
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STATE OF FLORIDA )
) SS
COUNTY OF Lake )
The foregoing instrument was acknowledged before me this ______ day of
___________ 1999 by Xxxxxx Xxxxxx, President of Xxxxxx Dirt Services, Inc., who
is personally known to me or who produced a valid Driver's License as
identification and who did take an oath.
-----------------------------------
Notary Public
STATE OF FLORIDA )
) SS
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this ______ day of
___________ 1999 by ________________, THE ____________ of the DELTA RESOURCES
CORP. who is personally known to me or who produced a valid Driver's License as
identification and who did take an oath.
-----------------------------------
Notary Public
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EXTENSION AGREEMENT
The parties to the agreement agree to extend the contract and the time
for closing this agreement for a period of the sooner of ninety days, October
12, 1999, or fifteen days after the governmental approval, a letter resolving
the ground water conditions and the above ground storage tank issue as set out
below:
Permit v. Zoning
Difference between the DEP Permit and Xxxxxx Counting Zoning Xxxxxx
will request Xxxxxx County to approve the zoning consistent with the existing
DEP Permit. The changes to the Zoning will provide the Special Use Permit will
expire in August, 2003 and the foot print of the Permit will be the description
provided in the DEP permit consisting of 13.1 acres.
Ground Water
Xx. Xxxxxxxxxxx will provide information for clarification of the
ground water issues raised by the SCS report to the mutual satisfaction of the
parties.
Storage Tank
The above ground storage tank will either be permitted or removed. The
area will be tested and freed of contaminants as certified by an engineer.
All the remaining terms and conditions of the agreement are hereby ratified and
incorporated herein.
Dated Monday, July 12, 1999
Seller: Buyer:
-------------------------------- ------------------------------------
Xxxxxx X. Xxxxxx Delta Resources Corporation
By Xxxxxxx X. Xxxxxxx, President
--------------------------------
Xxxxxxx X. Xxxxxx
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