EXHIBIT 10.4
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
into this 30th day of October, 2001, by and among EarthAmerica Company, a Texas
corporation ("EAC") and those direct and indirect subsidiaries of EarthCare
Company, a Delaware corporation, listed on Annex I hereto (the "Subsidiary
Sellers") (EAC and the Subsidiary Sellers are jointly, severally and
collectively the "Sellers"), EarthCare Company, a Delaware corporation, the
ultimate corporate parent of the Sellers (the "Shareholder"), and EarthAmerica,
L.L.C., a Delaware limited liability company (the "Acquiror") and EarthAmerica
of Texas, L.P., a Texas limited partnership (the "Subsidiary Buyer") (the
Subsidiary Buyer and the Acquiror are jointly, severally and collectively, the
"Buyers"), and, for the purposes of Sections 4.4 and 4.5 and Article 8 only,
Xxxxxxx X. Xxxx, Xxxxxxx Xxxx, Xxxxxxx X. Xxxxxxx, Xx., Xxxxxx X. Xxxxxxxxx, Xx.
and Xxxxx X. Xxxxxx.
WITNESSETH:
WHEREAS, each of the Sellers desires to transfer to the Buyers the
Business and certain properties, assets and certain of the liabilities related
to the Business, and the Buyers desire to acquire such Business, properties and
assets and assume such liabilities, all upon the terms and subject to the
conditions set forth herein; and
WHEREAS, the parties hereto desire to set forth certain
representations, warranties and agreements, all as more fully set forth below.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 Transferred Assets.
(a) In consideration of the obligations of the Buyers as provided
herein, and except as otherwise provided in Section 1.2 hereof, the Sellers
jointly and severally hereby sell, assign, transfer, grant, bargain, deliver and
convey to the Buyers, free and clear of all Liens, the Sellers' entire right,
title and interest in, to and under the Business, as a going concern, and all
assets owned or used by the Sellers (other than Excluded Assets) in connection
with, relating to or arising out of the Business of every type and description,
tangible and intangible, wherever located and whether or not reflected on the
books and records of the Sellers (all of such assets, properties, rights and
business collectively referred to as the "Transferred Assets"), including, but
not limited to:
(i) all Equipment, including the Equipment set forth on
Schedule 1.1(a)(i) with such changes as may occur in the ordinary
course of business from the date of the Schedule to Closing;
(ii) all Inventories, including the Inventories set forth on
Schedule 1.1(a)(ii) with such changes as may occur in the ordinary
course of business from the date of the Schedule to Closing;
(iii) all rights in and to the Real Property set forth on
Schedule 1.1(a)(iii) with such changes as may occur in the ordinary
course of business from the date of the Schedule to Closing;
(iv) all Motor Vehicles set forth on Schedule 1.1(a)(iv) with
such changes as may occur in the ordinary course of business from the
date of the Schedule to Closing; (including leasehold interests)
(v) all Trade Names and Trademarks set forth on Schedule
1.1(a)(v) with such changes as may occur in the ordinary course of
business from the date of the Schedule to Closing;
(vi) all Proprietary Information, including the Proprietary
Information set forth on Schedule 1.1(a)(vi) with such changes as may
occur in the ordinary course of business from the date of the Schedule
to Closing;
(vii) all Contracts with Customers set forth on Schedule
1.1(a)(vii) with such changes as may occur in the ordinary course of
business from the date of the Schedule to Closing;
(viii) subject to Section 1.1(b) hereof, the benefit of all
unfilled or outstanding purchase orders, sales or service contracts,
other commitments, contracts, engagements and leases to which the
Sellers are entitled at the Closing and which relate to the Business,
but exclusive of any liabilities arising from the Seller's performance
of or warranties arising from Sellers' operations thereunder prior to
the Closing (the "Entitlements"), all of which Entitlements (except for
those that might not be material to the Business) are set forth on
Schedule 1.1(a)(viii);
(ix) subject to Section 1.1(b) hereof and to the extent same
are transferable under applicable law, all Permits which relate to the
Transferred Assets or the Business set forth on Schedule 1.1(a)(ix);
(x) the Leasehold Interests set forth on Schedule 1.1(a)(x);
(xi) all prepaid expenses and deposits made by the any of the
Sellers relating to the Business;
(xii) all non-competition agreements relative to the
restaurant and food service business of the Sellers as received on the sale of
any septic, plumbing or other business anywhere in the United States as they
relate to the Business, all as set forth on Schedule 1.1(a)(xii) (the
"Non-Competition Agreements"); and
(xiii) all goodwill associated with the Business.
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(b) Each of the Sellers and the Shareholder shall use all
commercially reasonable efforts to obtain such consents of third parties as are
necessary for the assignment of the Transferred Assets. To the extent that any
of the Transferred Assets are not assignable by the terms thereof or consents to
the assignment thereof cannot be obtained as provided herein, the Transferred
Assets shall be held by the Sellers in trust for the Buyers and shall be
utilized by the Buyers in the name of the Sellers and all benefits and
obligations derived thereunder shall be for the account of the Buyers; provided,
however, that where entitlement of the Buyers to such Transferred Assets
hereunder is not recognized by any third party, each of the Sellers shall, at
the request of the Buyers, enforce in a reasonable manner, at the cost of, and
for the account of the Buyers, any and all rights of any of the Sellers against
such third party.
(c) Within three (3) days of the Closing Date, each of the
Sellers shall notify each Person which may have possession of any of the
Transferred Assets at the Closing Date, whether by consignment or otherwise, of
the transfer of such Transferred Assets to the Buyers. Schedule 1.1(c) with such
changes as may occur in the ordinary course of business prior to Closing sets
forth all of the Transferred Assets that are not in the Sellers' possession at
the Closing Date.
(d) The Buyers shall determine and notify the Sellers as of the
Closing which of the Buyers will take title to each of the Transferred Assets.
1.2 (A) Excluded Assets. Anything in Section 1.1(a) to the contrary
notwithstanding, there shall be excluded from the assets, properties, rights and
business to be transferred to the Buyers hereunder those assets of each of the
Sellers listed or described on Schedule 1.2 (collectively, the "Excluded
Assets"). (Corporate minute book and shareholder records, cash, Accounts
Receivable and other "current assets," but not prepaid expenses and deposits,
inventories, parts and fittings and other operating inventory items.)
1.3 Closing.
1.3.1 Closing Procedure. Subject to the conditions set forth in this
Agreement, the Closing shall take place at the offices of Doerner, Saunders,
Xxxxxx & Xxxxxxxx, L.L.P., at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxxx, at 10:00 a.m. on October 30, 2001 (the "Closing Date"). Title to,
ownership of, control over, and risk of loss of the Transferred Assets shall
pass to the Buyers at the Closing.
1.3.2 Closing Deliveries.
(a) Sellers' Deliveries. Each of the Sellers and the Shareholder,
as the case may be, shall deliver to Buyers at the time of Closing on the
Closing Date the following documents:
(i) A xxxx of sale or other instruments of transfer to Buyers
for the personal property and goodwill described in this Agreement in a
form reasonably satisfactory to Buyers and Sellers.
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(ii) Motor Vehicle title certificates or other evidence of
ownership of the Motor vehicles described on Schedule 1.1(a)(iv) duly
assigned to Buyers together with such additional transfer documents as
the laws of the state of their registry may require.
(iii) Assignment of any Contracts and Leases in a form
reasonably satisfactory to Buyers and Sellers assigning to Buyers the
benefits of the Contracts and Leases not otherwise conveyed by the Xxxx
of Sale including, but not limited to, the assignment and assumption of
that certain lease for one (1) vehicle in Houston, Texas designated on
Schedule 1.1(a)(iv) (the "Vehicle Lease").
(iv) Opinion of counsel for Sellers dated as of the Closing
Date substantially in the form attached as Exhibit 1.3.2(a)(v).
(v) Copies (certified by the Secretary of each of the Sellers)
of corporate resolutions of directors and the stockholder of each
Seller authorizing the entry by each of the Sellers into this Agreement
and such other agreements or undertakings contemplated by the Agreement
and the consummation of the transactions contemplated hereby and
thereby.
(vi) The assignment of the assignable Permits.
(vii) The Assignment of the Non-Competition Agreements.
(viii) As of a recent date, a certificate of existence as a
domestic corporation for (a) each of the Sellers from the Secretary of
State of Texas for each of the Sellers that is a Texas corporation and
a certificate of good standing for each of the Sellers from the
Comptroller of the State of Texas for each of the Sellers that is a
Texas corporation and certificates of good standing or similar state
governmental certificates (existence and tax clearance) from the
jurisdiction of each Seller's incorporation and each state in which
they are qualified to transact business as a foreign corporation and
(b) the Shareholder as well as a good standing certificate from the
Delaware Secretary of State.
(ix) [Intentionally omitted.]
(x) The Consent and Release by the Banks releasing the
Transferred Assets from the Banks' security interest in form reasonably
acceptable to Buyer's counsel and such other releases as may be
required for the release of any other security interest as reflected in
the UCC-1 filings listed on Annex III attached hereto.
(xi) (a) The consent of Bank of America, N.A. and Fleet Bank,
N.A. (collectively, the "Banks") to the application of the collection
of the Sellers' Accounts Receivable (collected on Sellers' behalf by
the Buyers pursuant to Section 1.9) and to the payment of Sellers'
Accounts Payable included within the Debt Obligations during the term
specified in Section 1.9; (b) confirmation from the Banks that all
conditions of the Consent to the Heritage asset sale, except for the
payment of $2,041,000, have been received; and (c) authorization to the
Buyers to wire directly to the Banks the sum of $2,041,000, each in
form satisfactory to Buyers' counsel.
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(xii) A current listing with aging of all of the Sellers' Debt
Obligations other than those that are Assumed Liabilities.
(xiii) Sales and use tax clearance letters from each
jurisdiction in which any of the Sellers or their Affiliates operated
the assets included within the Business within the past three (3) years
and where they currently transact their business certifying the payment
of all sales and use taxes from all of its operations or such
Affiliate's business in each such jurisdiction. (To the extent that
these are not available at Closing, an undertaking that they will be
obtained by each of the Sellers and delivered to the Buyers prior to
the release of the payment of the Retained Purchase Price.)
(xiv) The Assignment of all Trade Names and Trademarks.
(xv) The License Agreement.
(xvi) Such other documents as are reasonably requested by
Buyers.
(b) Buyers' Documents. At the time of Closing on the Closing
Date, Buyers shall deliver to the Sellers the following documents:
(i) A copy, certified by the Manager of each of the Buyers, of
resolutions duly adopted by the Manager of each Buyer approving the
execution and delivery of this Agreement and other agreements or
undertakings contemplated by this Agreement and authorizing all
necessary or proper entity action to enable Buyers to comply with the
terms of this Agreement and other agreements or undertakings
contemplated by this Agreement.
(ii) The wire transfer required under Section 1.4, adjusted as
provided in the Agreement.
(iii) Opinion of Counsel for the Buyers dated as of the
Closing Date in the form of Exhibit 1.3.2(b)(iii).
(iv) The Shared Rental Agreement.
(v) Vehicle Lease assumption.
(vi) The financial guarantee by Heritage Operating, L.P.
guaranteeing the payment of the Retained Portion of the Purchase Price
to the Sellers to the extent of the obligations under this Agreement.
(vii) The License Agreement.
(viii) Such other documents as are reasonably requested by any
of the Sellers.
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1.4 Purchase Price for the Assets. In consideration of the
transfer to the Buyers of the Transferred Assets, the Buyers shall, on the
Closing Date, (a) pay to the Sellers an aggregate amount equal to Four Million
Dollars ($4,000,000) (less an amount reflective of the fair market value of the
Motor Vehicles leased under leases to be assigned and assumed by the Buyers
taking into account the economic terms of such lease) in United States dollars
in immediately available funds by wire transfer to a bank account or accounts to
be designated by each of the Sellers, (b) assume the obligation for future
payments of each of the Sellers under the motor vehicle lease, and (c) assume
the obligation to perform under the terms of the Entitlements following the
Closing to the extent and only to the extent such obligations are not
Pre-Closing Obligations (the amounts for Sections 1.4(b) and 1.4(c) are
collectively the "Assumed Liabilities"), which Assumed Liabilities are listed on
Schedule 1.4. The amount specified in this Section 1.4 and the Assumed
Liabilities are herein collectively referred to as the "Purchase Price".
1.4.1 Payment in Cash at Closing. The Purchase Price, plus such
additions and credits as provided in this Agreement and less such deductions and
credits as provided in this Agreement, shall be paid by wire transfer delivered
by Buyers to the Sellers or the holders of Debt Obligations against their
release of the Transferred Assets on the day of Closing.
1.4.2 Payment of Retained Purchase Price. The sum of $500,000.00
(the "Retained Portion of the Purchase Price") plus an amount (the "AP
Holdback") equal to the total amount owed by the Sellers on account of their
accounts payable as of Closing as reflected on Schedule 1.4.2 updated as of
Closing (the "Seller's Accounts Payable") shall be deducted from the Purchase
Price. The AP Holdback shall be utilized and paid in accordance with Section
1.9. The Retained Portion of the Purchase Price shall be paid by Buyers to
Sellers following the last to occur of (i) 215 days following Closing or (ii)
the (a) resolution of any claims asserted under Article 5 within 215 days
following the Closing and (b) satisfaction of the allocations asserted within
215 days under the terms of Sections 1.6, 1.8, and 1.9 hereof.
1.5 Liabilities Not Assumed by the Buyers.
(a) Except for the Assumed Liabilities, each of the Sellers and
the Shareholder shall pay and discharge in due course all liabilities, debts and
obligations relating to the Sellers, the Transferred Assets or the Business,
whether known or unknown, now existing or hereafter arising, contingent or
liquidated, including, without limitation:
(i) any Tax liabilities pertaining to any of the Sellers, the
Transferred Assets or the Business for periods prior to and including
the Closing Date;
(ii) any Debt Obligations;
(iii) all liabilities and obligations relating to any products
sold or distributed or services provided by or on behalf of any of the
Sellers or with respect to any claims made pursuant to warranties to
third Persons in connection with products sold or distributed or
services provided by or on behalf of any of the Sellers including, but
not limited to, the Retained Warranties;
(iv) all Pre-Closing Obligations;
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(v) all liabilities and obligations of any Person arising
prior to the Closing or related to the conduct or operation of the
Transferred Assets or the Business on or prior to the Closing Date; and
(vi) all costs, expense and judgments in any way associated
with or related to the Pending Litigation
(collectively, the "Retained Liabilities"), and the Buyers shall not assume, or
in any way be liable or responsible for, any of such Retained Liabilities.
1.6 Transfer Taxes; Recording Fees. The Buyers and the Sellers
acknowledge and agree that the Purchase Price does not include any vehicle
transfer fees or taxes, sales, use or transfer Taxes imposed as a result of the
consummation of the transactions contemplated by this Agreement, and any such
transfer fees and Taxes shall be paid by the Sellers, and if not paid by the
Sellers, or deducted for payment at Closing, may be paid by the Buyer from the
Retained Portion of the Purchase Price. The Sellers shall be responsible for all
recording, filing or other fees relating to the conveyance or transfer of the
Transferred Assets from each of the Sellers to the Buyers and to the extent that
they are not paid by the Sellers, the Buyers may deduct the same from the
Retained Portion of the Purchase Price.
1.7 Allocation of Purchase Price. The Buyers and each of the Sellers
acknowledge and agree that the Purchase Price shall be allocated among the
Transferred Assets as set forth on Schedule 1.7. The Buyers, each of the Sellers
and Shareholder shall file all Tax Returns (including amended returns and claims
for refunds) and information reports in a manner consistent with such values.
1.8 Prorations of Certain Expenses and Real Property Taxes.
(a) Each of the Sellers warrant that, to the best of its
knowledge, the Transferred Assets are not, and on the Closing Date will not be,
subject to or liable for any material special assessments or similar types of
material impositions (other than described in this Agreement or the Schedules).
Any general property Tax assessed against or pertaining to the real property to
be deeded to the Buyers for the taxable period that includes the Closing Date
shall be prorated between the Buyers and each of the Sellers as of the Closing
Date. In the event the amount of any such real property Tax cannot be
ascertained as of the Closing Date, proration shall be made on the basis of the
preceding year, the Buyers shall receive a credit against the Purchase Price on
the Closing Date for each of the Sellers' pro rata portion of such real property
Taxes, and to the extent that such proration may be inaccurate, each of the
Sellers and the Buyers agree to make such payment to the other after the tax
statements have been received as is necessary to allocate such real property Tax
properly between each of the Sellers and the Buyers as of the Closing Date. To
the extent that any such Taxes are not ascertained as of the Closing Date, the
Buyer shall add or deduct the allocation from/to the payment of the Retained
Portion of the Purchase Price.
(b) Except as otherwise provided in this Agreement, each of the
Sellers and the Buyers agree that amounts payable with respect to utility
charges and other items of expense attributable to the conduct of the Business
shall be prorated as of the Closing Date to the extent the charges and expenses
can be identified as to the party that received the benefits to which such
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charges and expenses relate. In addition, the Sellers will give the Buyers
credit to the extent that any employees of Sellers become employees of Buyers
and Buyers assumes the obligation for Sellers' employees' accrued sick days and
vacations, including wages, wage burdens, FICA and other employment taxes. To
the extent such amounts are estimated on the Closing Date and such prorations
are inaccurate, each of the Sellers and the Buyers agree to make such payment to
the other after such amounts are correctly computed as is necessary to allocate
such charges properly between any of the Sellers and the Buyers as of the
Closing Date. To the extent that any such allocations are not available as of
the Closing Date, then the Buyer shall add or deduct the allocation from/to the
Retained Portion of the Purchase Price.
1.9 ACCOUNTS RECEIVABLE. For a period of six (6) months following the
day of the Closing (the "Collection Period"), each of the Sellers grant to
Buyers the exclusive right to collect the accounts receivable of each of the
Sellers related to the Business as of the Closing (the "Accounts Receivable").
During such period Buyers agree to use its commercially reasonable efforts
consistent with this Section 1.9 to collect the Accounts Receivable of each of
the Sellers. Buyers shall be entitled to a processing fee of three percent (3%)
of the monies collected on the Accounts Receivable. A record of collections
shall be kept by Buyers, which records shall be available to any of the Sellers
at all reasonable times. During the Collection Period the net proceeds of the
collection of the Accounts Receivable shall be utilized for the payment of the
Sellers' Accounts Payable, and to the extent that the Sellers' Accounts Payable
or claims for payment for an account payable not originally scheduled on this
Agreement but made upon any Buyer (the "Excess AP Claims") exceeded the amount
of the AP Holdback for the payment of the Excess AP Claims, the net collections
of the Accounts Receivable shall be held by the Buyers for the payment of the
resolution of claims against the Sellers for Excess AP Claims, provided that
after the initial two (2) months of the Collection Period, to the extent that
the proceeds of the Buyers' net collection of the Accounts Receivable exceeds
the then outstanding balance of the Sellers' Accounts Payable plus (i) any
Excess AP Claims and (ii) any costs allocations as provided in this Agreement,
such net amount shall be remitted by the Buyers to the each of the Sellers
within fifteen (15) days following the close of the accounting period for the
books and records then applicable to the Accounts Receivable. Buyers shall be
entitled to rely upon each of the Sellers' listing of an account as a payable
that Buyers may pay hereunder unless express written notice is delivered to the
Buyers or is noted on the listing provided to the Buyers as a disputed account.
To the extent that any accounts payable is a disputed account, the Buyers shall
be entitled to treat the amount thereof as an Excess AP Claim until reasonable
proof of the resolution of the account in question is submitted to the Buyers.
To the extent Buyers receive notice of an account of any of the Sellers which
Buyers reasonably believe is a payable, but which is not listed on the listing
of Sellers' Accounts Payable, Buyers shall notify the Sellers of such account.
Sellers shall, within ten (10) days of Buyers' notice, advise Buyers whether
such account should be an Excess AP Claim. In the event that the Sellers fail to
provide such advice to Buyers within such 10-day period, each of the Sellers
hereby waives any objection it may have to the payment of such account as an
Excess AP Claim.
In the collection of the Accounts Receivable, the first payments
received by Buyers from any Customer shall be applied to the payment of the
oldest outstanding balance of such Customer's account, except where a Customer
is on a COD basis on the day of the Closing or is thereafter converted in good
faith to COD by the Buyers. Payments made to Buyers by any Customer for products
sold or services rendered by Buyers on a COD basis shall not be applied to the
Accounts Receivable that existed prior to the Closing, but shall be retained
exclusively by Buyers. But in such cases, Buyers agree to use their commercially
reasonable efforts to also collect an additional
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amount to be applied against the past due Accounts Receivable but shall not be
required to terminate service to a Customer. Buyers agree to notify each of the
Sellers at the time it places any Customer on a COD basis but shall not be
required to institute legal action for any collection. Upon expiration of the
Collection Period, the obligations of Buyers under this Section shall terminate
and uncollected Accounts Receivable may be collected by any of the Sellers
utilizing such means as it shall determine, unless the parties agree in writing
to a different manner of disposing of collection of such Accounts Receivable.
Collection efforts by any of the Sellers shall not be deemed any violation of
the Covenant Not to Compete set forth in Section 4.5. Any credits due a Customer
and not previously adjusted in the Purchase Price will be offset against the
Sellers' Accounts Receivable collections.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF EACH OF THE SELLERS AND THE SHAREHOLDER
Each of the Sellers and the Shareholder hereby jointly and severally
represent and warrant to the Buyers and covenant and agree as follows:
2.1 Corporate Matters. Each Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation. The Shareholder is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. Each
Seller and the Shareholder is duly authorized, qualified and licensed and has
all requisite power and authority under all applicable laws, ordinances and
orders of public authorities to own, operate and lease their properties and
assets and to carry on its business in the places and in the manner currently
conducted except where the failure to be so authorized, qualified or licensed or
to have such power and authority would not have a material adverse effect.
Except, where the failure to be so qualified or in good standing would not have
a material adverse effect, each of the Sellers are qualified to transact
business as a foreign corporation and is in good standing in each of the
jurisdictions specified on Schedule 2.1, and there is no other jurisdiction in
which the nature and extent of the Business or the character of each of the
Sellers' assets makes such qualification necessary. Each of the Sellers and the
Shareholder has all requisite corporate power and authority to enter into this
Agreement and to perform its obligations under this Agreement. The Shareholder
directly or indirectly owns beneficially and of record all of the issued and
outstanding stock of each of the Sellers.
2.2 Validity of Agreement and Conflict with Other Instruments.
(a) This Agreement, and all transactions and agreements
contemplated hereby, have been duly authorized and approved by the board of
directors and the shareholders of any of the Sellers. No further corporate
action is necessary on the part of any of the Sellers to execute and deliver
this Agreement and other agreements contemplated hereby or to consummate the
transactions contemplated hereby or thereby. This Agreement has been (and each
of the other agreements contemplated hereby will be) duly executed and delivered
by each of the Sellers and the Shareholder and is (and each of the other
agreements contemplated hereby will be) a legal, valid and binding obligation of
each of them enforceable against them in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
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reorganization, moratorium or similar laws from time to time in effect that
affect creditors' rights generally and by legal and equitable limitations on the
availability of specific remedies.
(b) The execution, delivery and performance of this Agreement and
the other agreements and documents to be delivered by any of the Sellers and the
Shareholder to the Buyers, the consummation of the transactions contemplated
hereby or thereby, and the compliance with the provisions hereof or thereof, by
any of the Sellers and the Shareholder will not, with or without the passage of
time or the giving of notice or both, or as would not have a material adverse
effect: (i) conflict with, constitute a breach, violation or termination of any
provision of, or give rise to any right of termination, cancellation or
acceleration, or loss of any right or benefit or both, under, any of the
Entitlements; (ii) conflict with or violate the articles of incorporation or
by-laws of any of the Sellers; (iii) result in the creation or imposition of any
Lien on any of the Transferred Assets other than Assumed Liabilities; (iv)
result in an acceleration or increase of any amounts due with respect to any of
the Assumed Liabilities; (v) violate any law, statute, ordinance, regulation,
judgment, writ, injunction, rule, decree, order or any other restriction of any
kind or character applicable to any of the Sellers or any of its properties or
assets; or (vi) conflict with, constitute a breach, violation or termination of
any agreement or understanding, whether written or otherwise, to which any of
the Sellers is a party or by which any one of them are bound.
2.3 Approvals, Licenses and Authorizations.
(a) Except as would not have a material adverse effect or as will
be acquired as contemplated by this Agreement, no order, license, consent,
waiver, authorization or approval of, or exemption by, or the giving of notice
to, or the registration with, or the taking of any other action in respect of,
any Person not a party to this Agreement, including any Governmental Entity, and
no filing, recording, publication or registration in any public office or any
other place is now, or under existing law in the future will be, necessary on
behalf of any of the Sellers or the Shareholder to authorize their execution,
delivery and performance of this Agreement or any other agreement contemplated
hereby to be executed and delivered by any of the Sellers or the Shareholder and
the consummation of the transactions contemplated hereby or thereby (including,
but not limited to, assignment of the Transferred Assets), or to effect the
legality, validity, binding effect or enforceability thereof.
(b) Except as would not have a material adverse effect, all
licenses, permits, concessions, warrants, franchises and other governmental
authorizations and approvals of all Governmental Entities required or necessary
for any of the Sellers to carry on the Business in the places and in the manner
currently conducted have been duly obtained and are in full force and effect and
are listed on Schedule 1.1(a)(ix). Except as would not have a material adverse
effect, no violations are in existence or have been recorded with respect to
such licenses, permits or other authorizations and no proceeding is pending or,
to the knowledge of each of the Sellers and the Shareholder, threatened with
respect to the revocation or limitation of any of such licenses, permits or
other authorizations. Except as would not have a material adverse effect, each
of the Sellers has in all respects complied with all laws, rules, regulations
and orders applicable to the Business, and all rules, regulations and orders
respecting the providing of services by any of the Sellers.
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2.4 Title to and Condition of Properties.
(a) All Equipment is in all material respects set forth on
Schedule 1.1(a)(i). Each of the Sellers has good and marketable title to all
Equipment free and clear of all Liens other than the leasehold interests set
forth in Schedule 2.4(a). Except as set forth on Schedule 2.4(a), all of the
Equipment is in the possession and control of each of the Sellers and is in good
operating condition, consistent with industry standards.
(b) As of the date of this Agreement, all Inventories are in all
material respects set forth on Schedule 1.1(a)(ii). Each of the Sellers has good
and marketable title to its portion of all Inventories free and clear of all
Liens except as set forth in Schedule 2.4(b). All Inventories are in the
possession and control of each of the Sellers and are in good, salable
condition, consistent with industry standards.
(c) All Real Property utilized by each of the Sellers in the
Business is set forth on Schedule 1.1(a)(iii). Each of the Sellers has good and
marketable title to all Real Property identified on Schedule 1.1(a)(iii) as
being owned by any of the Sellers, free and clear of any mortgage, pledge, lien,
conditional sales agreement, lease, judgment, or other claim, charge, or
encumbrance of any kind or character, except as shown on Schedule 2.4(c) or
except for liens for current property taxes not delinquent, the materiality of
which does not impair marketability. With respect to the Real Property
identified on Schedule 1.1(a)(iii) as leased property, each lease or sublease is
in full force and effect as of the date hereof, and each of the Sellers, or an
affiliate of any of the Sellers, if applicable, is not, and to the knowledge of
any of the Sellers no other party to such lease or sublease is, in material
breach or default, or has repudiated any material provision thereof. The Real
Property owned or leased by any of the Sellers and listed on Schedule
1.1(a)(iii), except as would not have a material adverse effect or except as set
forth on Schedule 2.4(c) (i) has all reasonable access to public roads,
electricity, water and other utilities used and necessary in the Business; (ii)
is not subject to any special assessment, condemnation or eminent domain
proceeding; (iii) is not subject to any agreement that would preclude the
transfer to the Buyers or the continued operation of the Business by the Buyers
thereon; (iv) all improvements constructed thereon are within the boundaries
thereof, do not encroach on any other parcel of adjacent real estate and, where
appropriate, are set back from the boundaries to comply with all applicable
codes and regulations covering the Business; and (v) no structure primarily
located on another parcel of real property encroaches thereon.
(d) All Motor Vehicles used by any of the Sellers in the Business
are listed on Schedule 1.1(a)(iv), and are in good operating condition, normal
wear and tear excepted. Motor Vehicles identified as owned are free and clear of
all Liens except as would not have a material adverse effect, and those
identified as leased are not subject to any lien by or through any of the
Sellers except for the lease or liens identified on Schedule 1.1(a)(iv). All
Motor Vehicles comply in all material respects with the requirements and
standards as promulgated by the United States Department of Transportation and
all relevant governmental codes, good operating practices and safety standards
in the jurisdictions in which each of the Sellers conducts its Business with
respect to such asset.
(e) Each of the Sellers owns, free and clear of all Liens except
as would not have a material adverse effect or except as set forth on Schedule
2.4(e), or possesses licenses or other rights to use all rights to all
Trademarks and Proprietary Information necessary for the
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conduct of the Business as it is currently conducted by such Seller. At the
Closing, each of the Sellers will transfer or cause to be transferred all
Trademarks and Proprietary Information utilized for the conduct of the Business
as currently conducted. Set forth on Schedule 1.1(a)(v) and Schedule 1.1(a)(vi)
is a complete and accurate list of all patents, trademarks, trade names and
licenses that each of the Sellers owns or possesses or otherwise has rights to
use and that pertain to the Business except as would not have a material adverse
effect. No licenses, sublicenses, covenants or agreements have been granted or
entered into by any of the Sellers in respect of the items listed on Schedule
1.1(a)(v) and Schedule 1.1(a)(vi) except as noted thereon or except as
contemplated by this Agreement. None of the Sellers or the Shareholder has
received any notice of infringement, misappropriation or conflict from any other
Person with respect to such Trademarks and Proprietary Information and the
conduct of the Business has not infringed, misappropriated or otherwise
conflicted with any Trademarks and Proprietary Information of any such Person
which could have a material adverse effect. None of the Sellers or the
Shareholder has given any indemnification for patent, trade name, trademark,
service xxxx or copyright infringements except to licensees or customers in the
ordinary course of business or except as contemplated by this Agreement. All of
the Trademarks and Proprietary Information that is owned by any of the Sellers
is owned free and clear of all Liens except as set forth on Schedule 2.4(e) and
all such Trademarks and Proprietary Information will be transferred to the
Buyers free and clear of all Liens (other than Assumed Liabilities), including
any claims by any claimed or alleged co-inventors or co-owners. All Trademarks
and Proprietary Information that is licensed by any of the Sellers from third
parties is to the knowledge of any of the Sellers licensed pursuant to valid and
existing license agreements and such interests are not subject to any Liens
other than those under the applicable license agreements except as would not
have a material adverse effect. The consummation of the transactions
contemplated by this Agreement will not result in the loss of any Trademarks and
Proprietary Information except as would not have a material adverse effect and
will not conflict with, constitute a breach, violation or termination of any
agreement or understanding, whether written or otherwise, relating to any
Trademarks and Proprietary Information necessary for the conduct of the Business
as currently conducted except as would not have a material adverse effect.
Notwithstanding the foregoing, (i) the Sellers and Buyers retain the right to
utilize the Trademarks and Proprietary Information under the terms of a Limited
Licensing Agreement for the restaurant and food service business in the states
of New York, New Jersey, and Pennsylvania, and service from those locations into
parts of Massachusetts, Maryland, Delaware, and Connecticut in the form of
Exhibit 2.4(e) and (ii) Sellers have previously sold the Trademarks and
Proprietary Information related to operations in the septic business in Pompano,
Florida; Gainesville, Georgia; and Orlando, Florida pursuant to agreements
previously made available to the Buyers.
(f) Each of the Sellers that is the lessee (or has succeeded to
the rights of the lessee) under any of the Leasehold Interests, owns the
Leasehold Interests free and clear of all Liens except as would not have a
material adverse effect. None of the Sellers owns the improvements and fixtures
located on the Leasehold Interests and each such Seller validly occupies and
uses such improvements and fixtures in accordance with the terms of the
Leasehold Interests, in each case free and clear of Liens except as would not
have a material adverse effect. A true and complete copy of each of the leases
containing all their terms and provisions and governing the Leasehold Interests,
as amended to date, have been furnished by each of the Sellers to the Buyers.
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(g) The Transferred Assets include all material assets used in
connection with or relating to the Business of every type and description,
tangible and intangible, wherever located and whether or not reflected on the
books and records of each of the Sellers (but not including Excluded Assets). To
the extent that any of the Transferred Assets are not in the possession by any
of the Sellers, each of the Sellers shall use commercially reasonable efforts to
cause the holder thereof to transfer and assign such assets to the Buyers at the
Closing.
2.5 Contracts and Commitments.
(a) Except as set forth on Schedule 2.5, none of the Transferred
Assets is subject to and none of the Sellers is a party to or bound by:
(i) any agreement, contract or commitment requiring the
expenditure or series of related expenditures of funds in excess of
$25,000 (other than purchase orders in the ordinary course of business
for goods necessary for each of the Sellers to conduct the Business);
(ii) any agreement, contract or commitment requiring the
payment for goods or services whether or not such goods or services are
actually provided or the provision of goods or services at a price less
than any of the Sellers' cost of producing such goods or providing such
services except as would not have a material adverse effect;
(iii) any loan or advance to, or investment in, any Person or
any agreement, contract, commitment or understanding relating to the
making of any such loan, advance or investment except as would not have
a material adverse effect;
(iv) any Debt Obligations;
(v) any management service, employment, consulting or other
similar type contract or agreement except as would not have a material
adverse effect;
(vi) any agreement, contract or commitment that would limit
the freedom of the Buyers or any of its Affiliates following the
Closing Date to engage in any line of business, to own, operate, sell,
transfer, pledge or otherwise dispose of or encumber any of the
Transferred Assets or to compete with any Person or to engage in any
business or activity in any geographic area except as would not have a
material adverse effect;
(vii) any agreement, lease, contract or commitment or series
of related agreements, leases, contracts or commitments not entered
into in the ordinary course of business or, except for agreements to
purchase or sell goods and services entered into in the ordinary course
of business of Sellers, not cancelable by any of the Sellers without
penalty to any of the Sellers within thirty (30) calendar days except
as would not have a material adverse effect;
(viii) any agreement or contract obligating any of the
Sellers, or that would obligate or require any subsequent owner of the
Business or any of the Transferred
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Assets to provide for indemnification or contribution with respect to
any matter except as would not have a material adverse effect;
(ix) any sales, distributorship or similar agreement relating
to the products sold or services provided by any of the Sellers except
as would not have a material adverse effect; or
(x) any license, royalty or similar agreement except as would
not have a material adverse effect on the Business following the
Closing.
(b) None of the Sellers are in breach of any provision of, or in
default (and none of the Sellers or the Shareholder has knowledge of any event
or circumstance that with notice, or lapse of time or both, would constitute an
event of default) under the terms of any of the Entitlements that constitute a
part of the Transferred Assets except as would not have a material adverse
effect. All of the Entitlements that constitute a part of the Transferred Assets
are in full force and effect except as would not have a material adverse effect.
None of the Sellers or the Shareholder is aware of any pending or threatened
disputes with respect to any of the Entitlements except as would not have a
material adverse effect. The enforceability of the Entitlements that constitute
a part of the Transferred Assets will not be affected in any manner by the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby except as would not have a material adverse effect.
2.6 Financial Statements.
(a) Attached as Schedule 2.6 are true, correct and complete
copies of: (i) the audited consolidated balance sheets of each of the Sellers as
of December 31, 2000 and the unaudited balance sheets for each of the Sellers as
of August 31, 2001, (ii) the audited consolidated statement of income of the
Sellers for the period ended December 31, 2000, and the unaudited statements of
income for each of the Sellers as of August 31, 2001, (iii) the proposed
financial budgets for the Business for the 2001 and 2002 fiscal years, and (iv)
a pro forma balance sheet and income statement reflecting (A) the elimination of
any operations sold by the Sellers since December 31, 2000 and (B) the resulting
operations to be included within the Business, each as of December 31, 2000 and
August 31, 2001 (the "Financial Statements").
(b) The Financial Statements (i) fairly present in all material
respects the financial position of each of the Sellers as of their respective
dates and the results of operations of the Business for the periods indicated
therein; (ii) have been prepared in accordance with GAAP applied (except for the
omission of footnotes and statement of cash flows) on a consistent basis
throughout the periods covered by the Financial Statements and (iii) have not
been rendered materially untrue, incomplete or unfair as representations of the
financial condition of the Transferred Assets or the Business by events
subsequent to the date of the Financial Statements.
2.7 No Adverse Change. Since August 31, 2001, (a) no material business
segment of the Business has been adversely affected in any material way as the
result of any fire, explosion, accident, riot, civil or labor disturbance,
strike, boycott, lockout, flood, drought, storm, earthquake, embargo or other
casualty or act of God or the public enemy, and (b) there has been no material
adverse change in the condition of any material business segment of the Business
or
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in the condition of the assets of any of the Sellers nor has any event or
condition occurred that could reasonably result in such a material and adverse
change.
2.8 Taxes.
(a) Except as would not have a material adverse effect, all Tax
Returns that are required to be filed (taking into account all extensions) on or
before the Closing Date for, by, on behalf of or with respect to any of the
Sellers, including, but not limited to, those relating to the Business, the
Transferred Assets and the Assumed Liabilities, and those which include or
should include any of the Sellers, the Transferred Assets or the Assumed
Liabilities, have been or will be timely filed with the appropriate foreign,
federal, state and local authorities on or before the Closing Date. Except as
would not have a material adverse effect, all Taxes shown to be due and payable
on such Tax Returns or related to such Tax Returns have been or will be timely
paid in full on or before the Closing Date.
(b) Except as would not have a material adverse effect or except
as set forth on Schedule 2.8(b), none of such Tax Returns are now under audit or
examination by any foreign, federal, state or local authority and there are no
agreements, waivers or other arrangements providing for an extension of time
with respect to the assessment or collection of any Tax or deficiency of any
nature against any of the Sellers, the Business or the Transferred Assets, or
with respect to any such Tax Return, or any suits or other actions, proceedings,
investigations or claims now pending or threatened against any of the Sellers,
the Business or the Transferred Assets with respect to any Tax, or any matters
under discussion with any foreign, federal, state or local authority relating to
any Tax, or any claims for any additional Tax asserted by any such authority.
2.9 No Litigation. Except as would not have a material adverse effect
or except as set forth on Schedule 2.9 ("Pending Litigation") there is no
action, suit, claim, judgment, investigation or legal, administrative,
arbitration or other proceeding, or governmental investigation or examination,
pending or, to the knowledge of any of the Sellers and the Shareholder,
threatened against or affecting any of the Sellers, the Business or any of the
Transferred Assets, at law or in equity, before or by any Governmental Entity.
Except as would not have a material adverse effect, to the knowledge of any of
the Sellers and the Shareholder, there is no change in any zoning or building
ordinance pending or threatened against or affecting any of the Sellers, the
Business or any of the Transferred Assets.
2.10 Warranties and Product Liability.
(a) Except for (i) warranties implied by or imposed under
application of law and (ii) warranties disclosed on Schedule 2.10 ((i) and (ii)
are the "Retained Warranties"), none of the Sellers has given or made any
warranties in connection with the sale or rental of goods or services on or
prior to the Closing, including, without limitation, warranties covering the
customer's consequential damages. None of the Sellers or the Shareholder is
aware of any event forming the basis of any present claim against any of the
Sellers with respect to warranties relating to products sold or distributed by
any of the Sellers or services performed by or on behalf of any of the Sellers
on or prior to the Closing.
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(b) To the knowledge of each Seller and the Shareholder, there is
no present claim against any of the Sellers, the Business or the Transferred
Assets not fully covered by insurance, except for deductibles and self-insurance
retentions, for personal injury or property damage alleged to be caused by
products shipped or services rendered by or on behalf of any of the Sellers.
2.11 Employee Matters.
(a) Schedule 2.11(a) contains a true, complete and accurate list
of each person employed by any of the Sellers for the operation of the
Transferred Assets or Business as is currently conducted, together with such
individual's title or job description and date of hire by any of the Sellers,
and, for each employee of any of the Sellers who is compensated on a salaried
basis, such individual's salary, the last date of increase of his/her salary,
and his/her incentive compensation arrangements with any of the Sellers.
(b) Except as and to the extent set forth on Schedule 2.11(b),
(i) there is no labor strike, work stoppage, lockout or material dispute or
material slowdown pending or, to the knowledge of any of the Sellers and the
Shareholder, threatened against any of the Sellers which could have a material
adverse effect, and there has not been any such action during the last three
years; (ii) none of the Sellers is a party to or bound by any (A) collective
bargaining or similar agreement with any labor organization or (B) written work
rules or practices agreed to with any labor organization or employee association
applicable to employees of any of the Sellers; (iii) no employee of any of the
Sellers is represented by any labor organization and, to the knowledge of any of
the Sellers and the Shareholder, there are no current union organizing
activities among the employees of any of the Sellers; and (iv) there are no
material written personnel policies, rules or procedures applicable to employees
of any of the Sellers.
(c) During the last four years, none of the Sellers has
effectuated (i) a "plant closing" (as defined in the Worker Adjustment
Retraining Notification Act of 1988 (the "WARN Act")) affecting any site of
employment or one or more facilities or operating units within any site of
employment or facility of any of the Sellers, or (ii) a "mass layoff" (as
defined in the WARN Act) affecting any site of employment or facility of any of
the Sellers; and none of the Sellers has been affected by any transaction or
engaged in layoffs or employment terminations sufficient in number to trigger
application of any similar state or local law. None of the employees of any of
the Sellers has suffered an "employment loss" (as defined in the WARN Act)
during the past six months.
(d) None of the Sellers has violated any federal, state or local
law relating to discrimination in the hiring, promotion or pay of employees or
any applicable wage or hour laws, or any provisions of ERISA or the rules and
regulations promulgated thereunder, nor has any of the Sellers engaged in any
unfair labor practice, which in either case could have a material adverse
effect.
(e) As of Closing, there will be no employment agreements and
non-compete agreements with any of the employees listed on Schedule 2.11(a)
except as set forth on Schedule 2.5.
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2.12 Employee Benefit Plans.
(a) Schedule 2.12 sets forth a complete list of all material
employee benefit plans (within the meaning of Section 3(3) of ERISA) and all
material employee pension benefit plans (as defined in Section 3(2) of ERISA).
(b) To the extent applicable, all employee benefit plans have
been operated in compliance in all material respects with COBRA, ERISA, the
Internal Revenue Code and any applicable state or federal law, rule or
regulation as of the Closing Date.
(c) No employee pension benefit plan that is maintained or
contributed to by any of the Sellers or the Shareholder or any ERISA Affiliate
had a material accumulated funding deficiency as defined in Section 302 of ERISA
and Section 412 of the Code, whether or not waived, as of the last day of the
most recent fiscal year of the plan ending on or prior to the Closing.
(d) None of the Sellers nor any Person that was at any time
during the six-year period ending on the date of this Agreement an ERISA
Affiliate has ever maintained, had an obligation to contribute to, contributed
to, or incurred any liability with respect to a multi-employer plan, as defined
in Section 3(37) of ERISA, or a plan described in Section 4063(a) of ERISA.
(e) All contributions to, and payments from, each of the plans
set forth on Schedule 2.12 that are required to be made in accordance with the
terms of the respective plan and any applicable law have been timely made.
(f) Each of the Sellers will be responsible for and hold Buyers
and its affiliates harmless from and against any and all claims in respect of
payment to employees of all salary, wages, commissions, overtime, or bonuses,
plus any applicable payroll taxes and any and all other employee benefits
accruing to any of the Sellers' employees under applicable wage and hour laws
and employee benefit plans of any of the Sellers, including, but not limited to,
xxxxxxx'x compensation, medical, retirement and profit sharing, all to and
including the day of Closing.
2.13 Finder's Fees. None of the Sellers, the Shareholder or any of
their respective Affiliates has employed or retained any investment banker,
broker, agent, finder or other party, or incurred any obligation for brokerage
fees, finder's fees or commissions, with respect to the sale by any of the
Sellers of any of the Transferred Assets or with respect to the transactions
contemplated by this Agreement or otherwise dealt with anyone purporting to act
in the capacity of a finder or broker with respect thereto whereby any party
hereto may be obligated to pay such a fee or commission. Each of the Sellers and
the Shareholder jointly and severally agree to indemnify and hold the Buyers and
their Affiliates harmless from and against any and all claims, liabilities or
obligations with respect to all fees, commissions or expenses asserted by the
Advisor or any Person on the basis of any act, statement, agreement or
commitment alleged to have been made by any of the Sellers, the Shareholder or
any Affiliate of any of the Sellers or the Shareholder with respect to any such
fee, commission or expense.
2.14 [Intentionally omitted.]
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2.15 Insurance. Each of the Sellers has continuously maintained in
force for the three-year period prior to the Closing policies of liability
insurance, in the amount of at least [$10,000,000] and worker's compensation
insurance coverage in compliance with the minimum standards of the jurisdictions
in which any of the Sellers' Business is conducted. Schedule 2.15 sets forth all
such insurance policies held by any of the Sellers relating to the Business or
the Transferred Assets and a listing of all claims known and reported and
worker's compensation claims made or being paid during such three-year period
prior to the Closing. Each such policy is in full force and effect and is with
responsible insurance carriers. There is no dispute with respect to such
policies and all claims arising from events or circumstances occurring prior to
the date hereof have been paid in full or adequate reserves therefor are
recorded in the Financial Statements. There are no existing conditions, claims
or injuries to any current employee that will give rise to any claims under the
worker's compensation laws.
2.16 Environmental Matters.
(a) None of the Sellers nor any affiliate of any of the Sellers
involved in the operation of the Business have been charged with, convicted of,
or investigated for any violation of any federal state or local law or
regulation relating to pollution or the protection of the environment
("Environmental Laws") by any court, governmental body or agency with respect to
the Transferred Assets or the Business, nor does any environmental condition
exist on any portion of the Real Property for any period owned or occupied by
any of the Sellers that would likely give rise to a claim that any of the
Sellers are in violation of any such Environmental Law, except as would not have
a material adverse effect.
(b) There have been no disposals, releases of hazardous
substances, materials or wastes, or pollutants or contaminants, from, in or
under any of the Real Property for any period owned or occupied by any of the
Sellers, except as would not have a material adverse effect. For purposes of
this Agreement, the terms "release" and "hazardous substances" shall have the
definitions assigned thereto by the Federal Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601, et
seq., as amended ("CERCLA").
(c) Except as set forth in Schedule 2.16 or except as would not
have a material adverse effect, to the knowledge of any of the Sellers or the
Shareholder there (i) are presently no tanks for storage of petroleum products
or other material located on the Real Property; (ii) for any period owned or
occupied by any of the Sellers have been no, nor are there now any, electrical
transformers or other equipment containing PCBs located on or under the Real
Property; (iii) have been no, nor are there now any drums, cans, canisters, or
containers buried underground located on the Real Property; (iv) for any period
owned or occupied by any of the Sellers have been no, nor are there now any,
wastes buried underground on the Real Property; (v) for any period owned or
occupied by any of the Sellers has been no, nor is there now any, asbestos of
any type or character located on the Real Property; (vi) is no contamination of
soil, ground water or surface water on or under the Real Property; (vii) is no
portion of the Real Property that is or has been on any list prepared by any
federal, state or local governmental body or agency as requiring remedial
environmental action; (viii) are no environmental studies or reports referring
or relating to the Real Property, (ix) for any period owned or occupied by any
of the Sellers has been no release of any hazardous substance, material or
waste, or pollutants or contaminants on, in, from or under any property adjacent
to the Real Property.
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2.17 No Violation of Governmental Regulations. The Business and the
Transferred Assets have not been, and were not prior to the day of the Closing,
conducted in any material violation of any statute, law, ordinance, or
regulation of any governmental entity. The Real Property is zoned and permitted
for its current use and each of the Sellers is in compliance in all material
respects with all zoning laws and any applicable permit. The current uses of the
Real Property from which any of the Sellers conducts its Business are not
nonconforming or special uses or special exceptions, which uses could be
terminated upon the sale of the Business to the Buyers. The current uses and
improvements located on the Real Property sites from which any of the Sellers
conducts its Business are not "grandfathered" under any previous zoning laws or
ordinances; and none of the Sellers has any knowledge of any contemplated
changes under current zoning classification which would adversely affect the
Business.
2.18 [Intentionally omitted.]
2.19 Changes to Transferred Assets. To the extent that the data
provided on any of Schedules 1.1(a)(i) to 1.1(a)(vii) are as of a date prior to
the Closing, each of the Sellers and the Shareholder represent and warrant that
except as set forth on Schedule 2.19:
(i) No item of Equipment or Motor Vehicle with a fair market
value in excess of $25,000 has been disposed of as of Closing unless
the same shall have been replaced by a similar item of Equipment or
Motor Vehicle of equal or greater value; and
(ii) No Contract requiring the capital expenditure on the part
of any of the Sellers in excess of $10,000 has been entered into by any
of the Sellers.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
The Buyers jointly and severally represent and warrant to each of the
Sellers and the Shareholder as follows:
3.1 Corporate Matters. Each of the Buyers is a limited liability
company validly existing and in good standing under the laws of the state of its
organization and such other states as the nature of its business so requires.
The Buyers have all requisite power and authority to enter into this Agreement
and the agreements contemplated hereby and thereby and to perform their
obligations under this Agreement and the agreements contemplated hereby and
thereby. This Agreement has been and each of the agreements contemplated by the
Agreement will be duly authorized, executed and delivered by the Buyers and is
and each of the agreements contemplated by the Agreement will be a legal, valid
and binding obligation of the Buyers, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect that
affect creditors' rights generally and by legal and equitable limitations on the
availability of specific remedies. The execution and delivery of this Agreement
and the agreements contemplated hereby and thereby by the Buyers and the
consummation of the transactions contemplated hereby and thereby by the Buyers
will not violate any provision of, or constitute a default under, any contract
or other agreement to which any Buyer is a party or by which it is
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bound, or conflict with its operating agreement, other than violations, defaults
or conflicts that would not materially and adversely affect the ability of the
Buyers to consummate the transactions provided for in this Agreement or any of
the Agreements contemplated hereby.
3.2 Finder's Fees. None of the Buyers nor any of the Buyers' Affiliates
has employed or retained any investment banker, broker, agent, finder or other
party, or incurred any obligation for brokerage fees, finder's fees or
commissions, with respect to the transactions contemplated by this Agreement, or
otherwise dealt with anyone purporting to act in the capacity of a finder or
broker with respect thereto whereby any party hereto may be obligated to pay
such a fee or a commission. The Buyers agree to indemnify and hold each of the
Sellers and the Shareholder harmless from and against any and all claims,
liabilities or obligations with respect to all fees, commissions or expenses
asserted by any Person on the basis of any act, statement, agreement or
commitment alleged to have been made by any of the Buyers or any of their
Affiliates with respect to any such fee, commission or expense.
3.3 Validity of Agreement and Conflict with Other Instruments.
(a) This Agreement, and all transactions and agreements
contemplated hereby, have been duly authorized and approved by the Managers of
each of the Buyers. No further entity action is necessary on the part of any of
the Buyers to execute and deliver this Agreement and other agreements
contemplated hereby or to consummate the transactions contemplated hereby or
thereby. This Agreement has been (and each of the other agreements contemplated
hereby will be) duly executed and delivered by each of the Buyers and is (and
each of the other agreements contemplated hereby will be) a legal, valid and
binding obligation of each of them enforceable against them in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws from time to time in
effect that affect creditors' rights generally and by legal and equitable
limitations on the availability of specific remedies.
(b) The execution, delivery and performance of this Agreement and
the other agreements and documents to be delivered by the Buyers to the Sellers,
the consummation of the transactions contemplated hereby or thereby, and the
compliance with the provisions hereof or thereof, by the Buyers will not, with
or without the passage of time or the giving of notice or both, or as would not
have a material adverse effect: (i) conflict with or violate the articles of
organization or operating agreement of any of the Buyers; (ii) violate any law,
statute, ordinance, regulation, judgment, writ, injunction, rule, decree, order
or any other restriction of any kind or character applicable to any of the
Buyers or any of its properties or assets; or (iii) conflict with, constitute a
breach, violation or termination of any agreement or understanding, whether
written or otherwise, to which any of the Buyers is a party or by which it is
bound.
3.4 Approvals, Licenses and Authorizations. Except as would not have a
material adverse effect or as will be acquired as contemplated by this
Agreement, no order, license, consent, waiver, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with, or the
taking of any other action in respect of, any Person not a party to this
Agreement, including any Governmental entity, and no filing, recording,
publication or registration in any public office or any other place is now, or
under existing law in the future will be, necessary on behalf of any of the
Buyers to authorize their execution, delivery and performance of this Agreement
or any other agreement contemplated hereby to be executed and
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delivered by any of the Buyers and the consummation of the transactions
contemplated hereby or thereby (including, but not limited to, assignment of the
Transferred Assets), or to effect the legality, validity, binding effect or
enforceability thereof.
3.5 No Litigation. Except as would not have a material adverse effect,
there is no action, suit, claim, judgment, investigation or legal,
administrative, arbitration or other proceeding, or governmental investigation
or examination, pending or, to the knowledge of each of the Buyers, threatened
against or affecting any of the Buyers or the transactions, at law or in equity,
before or by any Governmental Entity.
3.6 Financing. The Buyers have obtained the commitment of financial
institutions necessary to fund the Purchase Price.
ARTICLE 4
ADDITIONAL AGREEMENTS
4.1 Access to Information. Each party hereto agrees to hold in
confidence, and not to disclose to others for any reason whatsoever, all
non-public information received by it or its representatives from the other
party hereto in connection with the transactions contemplated by this Agreement
except (a) as required by law or, after notice to the other party, by a court or
administrative judge; (b) for disclosure to officers, directors, employees and
representatives of such party as necessary in connection with the transactions
contemplated hereby or as necessary to the operation of such party's business;
and (c) for information that becomes publicly available other than through such
party. Because of the unique nature of the non-public information, each of the
parties may receive from the other as contemplated by this Agreement, and all
parties hereto agree that the breach or anticipated breach of the obligations
under this Section 4.1 will result in immediate and irreparable harm and injury
to the other parties, for which a party will not have an adequate remedy at law,
and that the party that has provided such non-public information and their
successors and assigns shall be entitled to relief in equity to enjoin such
breach or anticipated breach and to seek any and all other legal and equitable
remedies to which they may be entitled.
4.2 Delivery of Business Documents. At Closing, each of the Sellers
shall deliver to the Buyers all Documents and Other Papers relating to the
Transferred Assets, the Assumed Liabilities and the current and proposed
operations of the Business, including, without limitation, all files relating to
any of the Sellers' Accounts Receivable, a summary of all insurance policies and
all files relating thereto, computer disks reflecting any books or records,
documents or other papers, or other information or data relating to the
operation of the Business, the Transferred Assets or the Assumed Liabilities
stored on any electronic media, including computers. Each of the Sellers,
however, shall be entitled to retain the corporate minute books of such Seller
and to have access to the books and records relating to the Business to the
extent such books and records are necessary for the preparation of tax returns.
4.3 Further Assurances. Each of the Sellers and the Shareholder shall
execute, acknowledge and deliver or cause to be executed, acknowledged and
delivered to the Buyers such bills of sale, assignments (including but not
limited to assignments of leases) and other
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instruments of transfer, assignment and conveyance, in form and substance
reasonably satisfactory to counsel for the Buyers, as shall be reasonably
necessary to vest in the Buyers all the right, title and interest in and to the
Transferred Assets free and clear of all Liens (including the release of all
Liens of record) other than Assumed Liabilities, and shall use their
commercially reasonable efforts to cause to be taken such other action as the
Buyers reasonably may require to more effectively implement and carry into
effect the transactions contemplated by this Agreement, including, but not
limited to, the execution of the assignment of the motor vehicle titles when
delivered to the Buyers by the Banks.
4.4 Nondisclosure of Proprietary Information.
(a) Each of the Restricted Parties, Sellers and the Shareholder
agrees that, from and after the Closing, it and its Affiliates shall (i) hold in
confidence and will not directly or indirectly at any time reveal, report,
publish, disclose or transfer to any Person other than the Buyers any of the
Proprietary Information that is not generally known to the public or utilize any
of the Proprietary Information for any purpose and (ii) not for a period five
(5) years (A) solicit or hire any employees of any of the Sellers directly
involved in the Business who pursuant to the offer by Buyers pursuant to Section
4.7(a) are subsequently employed by the Buyers; notwithstanding the foregoing,
neither a general advertisement nor the hiring hourly employees responding to a
general advertisement shall be a violation of this agreement not to solicit or
hire.
(b) Each of the Sellers and the Shareholder acknowledges that all
Documents and Other Papers and objects containing or reflecting any Proprietary
Information, whether developed by any of the Sellers or by someone else for any
of the Sellers or any of the Sellers' Affiliates, will after the Closing become
the exclusive property of the Buyers, subject to any rights thereto granted by
any of the Sellers previously as listed on Schedule 4.4, and be delivered to the
Buyers to the extent held by any of the Sellers.
(c) Because of the unique nature of the Proprietary Information,
each of the Sellers and the Shareholder understands and agrees that the breach
or anticipated breach of the obligations under this Section 4.4 will result in
immediate and irreparable harm and injury to the Buyers and its Affiliates, for
which it will not have an adequate remedy at law, and that the Buyers and its
Affiliates and their successors and assigns shall be entitled to relief in
equity to enjoin such breach or anticipated breach and to seek any and all other
legal and equitable remedies to which they may be entitled.
4.5 Covenant Not to Compete With the Business.
(a) As an inducement for the Buyers to acquire the Business and
in consideration of the payments made by Buyers hereunder, each of the Sellers,
the Shareholder, their respective affiliates and Xxxxxxx X. Xxxx, Xxxxxx X.
Xxxxxxxxx, Xx., Xxxxxxx Xxxx, Xxxxxxx X. Xxxxxxx, Xx., and Xxxxx X. Xxxxxx (the
"Restricted Parties") jointly and severally agree that for a period of five (5)
years from the Closing Date, the Restricted Parties will not, directly or
indirectly, other than as part of a contract with a state, city, town or
community entity in solid waste markets (a "Governmental Contract") or as a
holder of an equity or other security interest in a public company that does not
exceed five percent (5%) of its total outstanding voting stock or without the
consent of the Buyers:
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(i) Engage in any business, sell products or provide services
that compete with the Business being acquired by the Buyers hereunder
in any of the 29 states listed on Annex I attached hereto and made
apart hereof in the restaurant and food service business as conducted
with the Transferred Assets acquired by Buyers pursuant to this
Agreement (the "Territory").
(ii) Invest in, own, manage, operate, finance, control or
participate in any business that competes with the Business, or that
sells products or provides services similar to those sold or provided
by the Business in the Territory other than (i) pooled investment funds
where the Restricted Party has no participation in the management or
selection of investments of such fund, (ii) the note receivable from
Tempered Air Systems, Inc. relating to the Sellers' sale of plumbing
and industrial plumbing assets in Gainesville and Atlanta, Georgia, and
(iii) the note receivable from Xxxxxxxxx Septic Services, L.L.C.
relating to the sale of Sellers' Orlando septic business.
(iii) Solicit for itself or any other Person, a customer of
Buyers, with respect to products or services that compete in whole or
in part with the products and services of the Business in the
Territory.
(iv) Solicit or hire any of the Business' employees or the
Employees of any of the Buyers or their affiliates to become employees
of any entity in which any of the Restricted Parties is the holder of
any ownership interest or to which any of the Restricted Parties
renders any service in the Territory; notwithstanding the foregoing,
neither a general advertisement nor the hiring of hourly employees
responding to a general advertisement shall be a violation of this
agreement not to solicit or hire.
Provided, however, that (i) nothing herein shall restrict the
Shareholder, Sellers and their subsidiaries from owning and operating the bulk
hauling, portable toilet, septic service, and their industrial disposal business
(other than restaurant and food service) (the "Non-Food Service Business")
throughout the United States, (ii) the Shareholder, Sellers and their
subsidiaries, subject to the License Agreement, may own and operate the
restaurant and food service business (the "RFS Business") within a 100-mile
radius of each of Xxxxxx, New Jersey; Deer Park, New York; and Beacon, New York
(provided that, except for their existing customers, Shareholder, Sellers and
their subsidiaries will not offer restaurant and food service services within a
00-xxxx xxxxxx xx Xxxxxxxxx, Xxx Xxxx) and may continue to service existing
customers in Massachusetts, Connecticut, Maryland and Delaware if these
customers are outside the 100-mile radius. In addition, the Buyers agree that
for a period of five (5) years from the Closing Date, the Buyers will not engage
in the RFS Business within a 100-mile radius of each of Xxxxxx, New Jersey; Deer
Park, New York; and Xxxxxx, New York, except that the Buyers may engage in the
RFS Business within a 35-mile radius of Fallsburg, New York. In the event that
any part of the RFS Business or the Non-Food Service Business are sold, the
Sellers' sale of the trade names in such locations will be subject to the
License Agreement, and the Shareholder and the Sellers will negotiate in good
faith to obtain for the benefit of Buyers a covenant not to compete with the
Business.
(b) The Restricted Parties acknowledge and agree that the
covenants contained in this section relate to matters which are of special and
unique character which give Buyers peculiar value, impossible of replacement,
and for the lack of which Buyers cannot be
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adequately compensated in damages. Buyers would not enter into this Agreement
except for the covenants of the Restricted Parties as contained herein. The
Restricted Parties acknowledge and agree that a remedy at law for any breach or
attempted breach of this Section 4.5 will be inadequate and will result in
irreparable harm to the Business, and that the Buyers shall, in addition to any
other remedy that may be available to it, be entitled to specific performance
and injunctive and other equitable relief in case of any such breach or
attempted breach.
(c) The Restricted Parties acknowledge and agree that this
covenant not to compete is being provided as an inducement to the Buyers to
acquire the Business and the Transferred Assets and that this Section 4.5
contains reasonable limitations as to time, geographical area and scope of
activity to be restrained that do not impose a greater restraint than is
necessary to protect the goodwill or other business interest of the Buyers.
(d) Whenever possible, each provision of this Section 4.5 shall
be interpreted in such a manner as to be effective and valid under applicable
law but if any provision of this Section 4.5 shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remaining provisions of this
Section 4.5. If any provision of this Section 4.5 shall, for any reason, be
judged by any court of competent jurisdiction to be invalid or unenforceable,
such judgment shall not affect, impair or invalidate the remainder of this
Section 4.5 but shall be confined in its operation to the provision of this
Section 4.5 directly involved in the controversy in which such judgment shall
have been rendered. In the event that the provisions of this Section 4.5 should
ever be deemed to exceed the time or geographic limitations permitted by
applicable laws, then such provision shall be reformed to the maximum time or
geographic limitations permitted by applicable law.
4.6 Use of Trade Names and Trademarks. All uses of the Trade Names and
Trademarks identified on Schedule 1.1(a)(v) are being transferred to the Buyers
hereunder as part of the Transferred Assets. Each of the Sellers and the
Shareholder agrees not to take any action which could reasonably be expected to
adversely affect in any material respect the Buyers' right to the Trade Names
and Trademarks or cause confusion with respect to the Buyers' use of the Trade
Names and Trademarks. All goodwill with respect to the use of the Trade Names
and Trademarks will inure to the benefit of the Buyers, and none of the Sellers
or the Shareholder will have any rights to xxx or recover against any person
with respect to the use of the Trade Names and Trademarks. Within ten days after
Closing, each of the Sellers and the Shareholder agrees to take all necessary
action to change each of the Sellers' names to one bearing no resemblance to any
of the Trade Names or Trademarks or any derivation thereof, and will forever
cease the use of such names.
4.7 Retention of Employees.
(a) The employees of the Business, in the ordinary course of any
of the Sellers' business, shall be employees of such Seller up to and including
the Closing Date. Buyers will offer employment to those employees of the
Business deemed to be necessary to conduct the Business on terms substantially
similar to those offered by the Buyers to similarly situated employees. All of
the Sellers' employees who are not employed by the Buyers or one of its
Affiliates immediately after the Closing Date shall hereinafter be referred to
as the "Sellers' Retained Employees". Each of the Sellers shall be responsible
and liable for any and all
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severance obligations with respect to the Sellers' Retained Employees, including
any COBRA obligations.
(b) The parties hereto do not intend to create any third-party
beneficiary rights respecting any employee of any of the Sellers as a result of
the provisions hereof and specifically hereby negate any such intention.
4.8 Buyers' Right of First Refusal. To the extent that the Shareholder
or any of its affiliates during the five (5) years following the Closing shall
enter into a Governmental Contract in an area where the Buyers conduct
restaurant and food services business, it will give to the Buyers the right of
first refusal to engage in such part of the Governmental Contract as a
subcontractor for the services that are in the restaurant and food service part
of the Business. Such right must be offered and accepted within a commercially
reasonable timeframe given the circumstances of the individual Governmental
Contract.
ARTICLE 5
INDEMNIFICATION
5.1 Indemnification by each of the Sellers and the Shareholder. Except
as otherwise limited by this Article 5 and Article 6 hereof, each of the Sellers
and the Shareholder, jointly and severally, agrees to indemnify, defend and hold
each of the Buyers, each of its Affiliates and each of their respective
officers, directors, employees, agents, stockholders and controlling Persons and
their respective successors and assigns harmless from and against and in respect
of Damages actually suffered, incurred or realized by such party (collectively,
"Buyers Losses"), arising out of or resulting from or relating to:
(a) Any misrepresentation, breach of warranty or breach of any
covenant or agreement made or undertaken by any of the Sellers or the
Shareholder in this Agreement or any misrepresentation in or omission from any
other agreement, certificate, exhibit or writing delivered to the Buyers
pursuant to this Agreement, including the Schedules hereto; or
(b) Any Environmental Liability arising from or attributable to
(i) any condition, event, circumstance, activity, practice, incident, action or
omission existing or occurring prior to the Closing Date and related in any way
to the Transferred Assets or the Business; or (ii) the use, storage, disposal or
treatment, or the transportation for storage, disposal or treatment, of
Hazardous Materials prior to the Closing Date and related in any way to the
Transferred Assets or the Business;
(c) Any liabilities and obligations or claims asserted against
any of the Buyers resulting from the operations of EarthCare Houston, Inc. d/b/a
EarthAmerica Houston, Inc. in Houston, Texas; or
(d) Any Retained Liability.
For purposes of determining the Buyer's right to indemnification for a
misrepresentation or breach of warranty made by the Seller in this Agreement,
all such representations and warranties that have
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been made subject to a materiality qualification shall be deemed to have been
made without that qualification, it being understood that the threshold provided
for in Section 5.7 is intended to be the only materiality qualification for
purposes of indemnification.
5.2 Indemnification by the Buyers. Except as otherwise limited by this
Article 5 and Article 6 hereof, the Buyers jointly and severally agree to
indemnify, defend and hold each of the Sellers, Shareholder and each of their
officers, directors, employees, agents, shareholders, Affiliates and controlling
Persons and Messrs. Xxxxxxxxx and Xxxxxx and their successors and assigns
harmless from and against and in respect of Damages actually suffered, incurred
or realized by such party (collectively, "Sellers' Losses"), arising out of or
resulting from or relating to:
(a) Any misrepresentation, breach of warranty or breach of any
covenant or agreement made or undertaken by any of the Buyers in this Agreement
or any misrepresentation in or omission from any other agreement, certificate,
exhibit or writing delivered to any of the Sellers pursuant to this Agreement;
or
(b) Any Assumed Liability or, after the Closing Date, any
operations utilizing the Transferred Assets or any claim of an employee other
than Retained Employees arising from his or her employment with any of the
Buyers.
5.3 Procedure. All claims for indemnification under this Article 5
shall be asserted and resolved as follows:
(a) An Indemnitee shall promptly give the Indemnitor written
notice of any matter which an Indemnitee has determined has given or could give
rise to a right of indemnification under this Agreement, stating the amount of
the Losses, if known, and method of computation thereof, all with reasonable
particularity, and stating with particularity the nature of such matter. Failure
to provide such notice shall not affect the right of the Indemnitee to
indemnification except to the extent such failure shall have resulted in
liability to the Indemnitor that could have been actually avoided had such
notice been provided within such required time period.
(b) The obligations and liabilities of an Indemnitor under this
Article 5 with respect to Losses arising from claims of any third party that are
subject to the indemnification provided for in this Article 5 ("Third Party
Claims") shall be governed by and contingent upon the following additional terms
and conditions: if an Indemnitee shall receive notice of any Third Party Claim,
the Indemnitee shall give the Indemnitor prompt notice of such Third Party Claim
and the Indemnitor may, at its option, assume and control the defense of such
Third Party Claim at the Indemnitor's expense and through counsel of the
Indemnitor's choice reasonably acceptable to Indemnitee. In the event the
Indemnitor assumes the defense against any such Third Party Claim as provided
above, the Indemnitee shall have the right to participate at its own expense in
the defense of such asserted liability, shall cooperate with the Indemnitor in
such defense and will attempt to make available on a reasonable basis to the
Indemnitor all witnesses, pertinent records, materials and information in its
possession or under its control relating thereto as is reasonably required by
the Indemnitor. In the event the Indemnitor does not elect to conduct the
defense against any such Third Party Claim, the Indemnitor shall pay all
reasonable costs and expenses of such defense as incurred and shall cooperate
with the Indemnitee (and be entitled to participate) in such defense and attempt
to make available to it on a reasonable basis
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all such witnesses, records, materials and information in its possession or
under its control relating thereto as is reasonably required by the Indemnitee.
Except for the settlement of a Third Party Claim that involves the payment of
money only and for which the Indemnitee is totally indemnified by the
Indemnitor, no Third Party Claim may be settled without the written consent of
the Indemnitee or the Indemnitor.
5.4 Payment. At any time that a claim is made under this Article 5 that
alleges that any of the Sellers and Shareholder have liability therefor, the
Buyers may give notice to the Sellers and hold the amount of such claim from the
Retained Portion of the Purchase Price pending the resolution of such claim. If
the claim is by any of the Sellers against the Buyers, or if the Retained
Portion of the Purchase Price has been paid to the Sellers, or the claim exceeds
the amount of the Retained Portion of the Purchase Price, then the party seeking
indemnification shall be entitled, upon agreement as to the amount by the
parties or upon a final determination of the amount pursuant to Section 8.4 or
by a final, non-appealable decision of a court of competent jurisdiction, to
prompt payment in United States dollars in immediately available funds by wire
transfer to a bank account or accounts to be designated by the Indemnitee within
10 Business Days.
5.5 Failure to Pay Indemnification. If and to the extent the Indemnitee
shall make written demand upon the Indemnitor for indemnification pursuant to
this Article 5 and the Indemnitor shall refuse or fail to pay in full within 10
Business Days of such written demand the amounts demanded pursuant hereto and in
accordance herewith, then the Indemnitee may utilize any legal or equitable
remedy to collect from the Indemnitor the amount of its Losses. Nothing
contained herein is intended to limit or constrain the Indemnitee's rights
against the Indemnitor for indemnity, the remedies herein being cumulative and
in addition to all other rights and remedies of the Indemnitee.
5.6 Adjustment of Liability. The amount which an Indemnitee shall be
entitled to receive from an Indemnitor with respect to any indemnifiable Losses
under this Article 5 shall be net of any insurance recovery by the Indemnitee on
account of such Losses from an unaffiliated party.
5.7 Indemnification Limitations. Each of the Sellers and the
Shareholder shall be liable under Section 5.1(a) in respect of a
misrepresentation or breach of warranty or the indemnity obligation of Section
5.1(b) only if the aggregate amount of Buyers Losses for which the Buyers are
entitled to indemnification pursuant to such clauses exceeds $40,000.
ARTICLE 6
NATURE OF STATEMENTS AND SURVIVAL OF COVENANTS,
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
All statements of fact contained in any written statement (including
financial statements), certificate, instrument or document delivered by or on
behalf of any of the Sellers or the Shareholder pursuant to this Agreement shall
be deemed representations and warranties of each of the Sellers and the
Shareholder. All covenants and agreements contained herein shall survive the
Closing Date without limitation. All representations and warranties contained
herein shall survive the Closing Date for a period of twenty-four (24) months
from the Closing Date, except (i) the representations and warranties set forth
in Section 2.8 which shall survive the Closing
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Date until thirty (30) days following the expiration of the federal and state
statute of limitations for the underlying claim and (ii) the representations and
warranties set forth in Section 2.16 shall survive the Closing Date for a period
of five (5) years (the period during which the representations and warranties
shall survive being referred to herein with respect to such representations and
warranties as the "Survival Period"), and shall be effective with respect to any
inaccuracy therein or breach thereof (and a claim for indemnification under
Article 5 hereof may be made thereon) if a written notice asserting the claim
shall have been given within the Survival Period with respect to such matter.
Any claim for indemnification made during the Survival Period shall be valid and
the representations and warranties relating thereto shall remain in effect for
purposes of such indemnification notwithstanding such claim may not be resolved
within the Survival Period.) All representations and warranties made by the
parties shall not be affected by any investigation heretofore or hereafter made
by and on behalf of any of them and shall not be deemed merged into any
instruments or agreements delivered in connection with this Agreement or
otherwise in connection with the transactions contemplated hereby.
ARTICLE 7
DEFINITIONS OF CERTAIN TERMS
In addition to terms defined elsewhere in this Agreement, the following
terms shall have the meanings assigned to them herein, unless the context
otherwise indicates, both for purposes of this Agreement and all Schedules and
Exhibits hereto:
7.1 "Accounts Receivable" shall have the meaning assigned in Section
1.9.
7.2 "Affiliate" shall mean, with respect to any specified Person, a
Person that, directly or indirectly, controls, is controlled by or is under
common control with such specified Person.
7.3 "Agreement" shall mean this Purchase Agreement among each of the
Sellers, the Shareholder and the Buyers, as amended from time to time by the
parties hereto, including the Schedules.
7.4 "AP Holdback" shall have the meaning assigned to such term in
Section 1.4.2.
7.5 "Assumed Liabilities" shall have the meaning given such term in
Section 1.4(b) hereof.
7.6 "Banks" shall have the meaning assigned in Section 1.3.2(a)(xv).
7.7. "Board" shall mean the board of directors or other governing body
of the General Partner of Heritage Propane Partners, L.P.
7.8 "Business" shall mean the business of product sales and services
relating to restaurant and food service grease-trap and waste water disposal, as
conducted or proposed to be conducted by any of the Sellers at Sellers'
locations in the greater Atlanta, Georgia, Dallas, Texas, Houston, Texas, and
Orlando, Florida areas, and the associated complementary septic service business
in each location, except for Orlando, Florida.
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7.9 "Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in Dallas, Texas are authorized by law to
close.
7.10 "Buyers" shall mean each limited liability company, or one or more
of its designees.
7.11 "Buyers Losses" shall have the meaning given such term in Section
5.1 hereof.
7.12 "CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 et seq.
7.13 "Closing" shall mean the transfer by any of the Sellers to the
Buyers of the Transferred Assets, the assumption by the Buyers of the Assumed
Liabilities and the transfer by the Buyers to any of the Sellers of the Purchase
Price.
7.14 "Closing Date" shall have the meaning given such term in Section
1.3.1 hereof.
7.15 "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, or similar provisions of legislation replacing such law from
time to time.
7.16 "Collection Period" shall have the meaning set forth in Section
1.9.
7.17 "Contract" shall mean any contract, agreement, obligation,
promise, or undertaking (whether written or oral and whether express or implied)
that is legally enforceable.
7.18 "Customers" shall mean any Person to whom any of the Sellers or
any affiliate involved in the operation of the Business provides goods or
services in the ordinary course of business.
7.19 "Damages" shall mean any and all liabilities, losses, damages,
demands, assessments, claims, costs and expenses (including interest, awards,
judgments, penalties, settlements, fines, costs of remediation, diminutions in
value, costs and expenses incurred in connection with investigating and
defending any claims or causes of action (including, without limitation,
attorneys' fees and expenses and all fees and expenses of consultants and other
professionals)).
7.20 "Debt Obligations" shall mean any material contract, agreement,
indenture, note or other instrument relating to the borrowing of money or any
guarantee or other contingent liability in respect of any indebtedness or
obligation of any Person, including, without limitation, the carry value of all
capital leases and all current and non-current liabilities, including deferred
income taxes (other than the endorsement of negotiable instruments for deposit
or collection in the ordinary course of business).
7.21 "Documents and Other Papers" shall mean and include any document,
agreement, instrument, certificate, writing, notice, consent, affidavit, letter,
telegram, telex, statement, file, computer disk, microfiche or other document in
electronic format, schedule, exhibit or any other paper or record whatsoever.
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7.22 "EBITDA" shall mean net earnings before any deduction of interest,
taxes, depreciation or debt amortization as determined in good faith by the
Buyers.
7.23 "Entitlements" shall have the meaning given such term in Section
1.1(a)(viii) hereof.
7.24 "Environmental Laws" shall mean all national, federal, state,
provincial, municipal or local laws, rules, regulations, statutes, ordinances or
orders of any Governmental Entity relating to (a) the control of any potential
pollutant or protection of the air, water or land, (b) solid, gaseous or liquid
waste generation, handling, treatment, storage, disposal or transportation and
(c) the regulation of or exposure to hazardous, toxic or other substances
alleged to be harmful.
7.25 "Environmental Liabilities" shall mean any and all Damages
(including any remedial, removal, response, abatement, clean-up, investigation
and/or monitoring costs and associated legal costs) incurred or imposed (a)
pursuant to any agreement, order, notice of responsibility, directive (including
directives embodied in Environmental Laws), injunctions, judgment or similar
documents (including settlements) arising out of, in connection with, or under
Environmental Laws, or (b) pursuant to any claim by a Governmental Entity or any
other Person for personal injury, property damage, damage to natural resources,
remediation, or payment or reimbursement of response costs incurred or expended
by such Governmental Entity or other Person pursuant to common law or statute
and related to the use or release of Hazardous Materials.
7.26 "Environmental Permits" shall mean any permit, license, approval,
registration, identification number or other authorization with respect to any
of the Sellers under any Environmental Law.
7.27 "Equipment" shall mean all office machines, computers, machinery,
transportation equipment, tools, equipment, furnishings and fixtures owned,
leased or subject to a contract of purchase and sale, or lease commitment that
is used in the Business as operated by any of the Sellers.
7.28 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
7.29 "Excess AP Claims" shall have the meaning given such term in
Section 1.9.
7.30 "Excluded Assets" shall have the meaning given such term in
Section 1.2 hereof.
7.31 "Financial Statements" shall have the meaning given such term in
Section 2.6 hereof.
7.32 "GAAP" shall be the generally accepted accounting principals as
adopted in the United States of America.
7.33 "Governmental Contract" shall have the meaning set forth in
Section 4.5(a).
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7.34 "Governmental Entity" shall mean any arbitrator, court,
administrative or regulatory agency, commission, department, board or bureau or
body or other government or authority or instrumentality or any entity or Person
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
7.35 "Hazardous Materials" shall mean (a) any substance or material
that is listed, defined or otherwise designated as a "hazardous substance" under
Section 101(14) of CERCLA, (b) any petroleum or petroleum products, (c)
radioactive materials, urea formaldehyde, asbestos and PCBs and (d) any other
chemical, substance or waste that is regulated by any Governmental Entity under
any Environmental Law.
7.36 "Indemnitee" shall mean the Person or Persons indemnified, or
entitled, or claiming to be entitled to be indemnified, pursuant to the
provisions of Section 5.1 or Section 5.2 hereof, as the case may be.
7.37 "Indemnitor" shall mean the Person or Persons having the
obligation to indemnify pursuant to the provisions of Section 5.1 or Section 5.2
hereof, as the case may be.
7.38 "Inventories" shall mean all material inventories of any kind of
supplies and consumables and related items relating to the Business, wherever
situated.
7.39 "Leasehold Interests" shall mean the interest of any of the
Sellers as lessee under all material leases of any of the assets used in the
Business as operated by any of the Sellers.
7.40 "Leases" shall mean all material leases and subleases of leased
motor vehicles, all leases or subleases of Real Property, and all leases or
subleases pertaining to the Leasehold Interests.
7.41 "License Agreement" shall mean the agreement of Buyers to license
back to the Sellers the limited use of the Trade Names and Trademarks in the
form of Exhibit 2.4(e).
7.42 "Lien" shall mean any material lien, pledge, claim, charge,
security interest or other encumbrance, option, defect or other rights of any
third Person of any nature whatsoever.
7.43 "Losses" shall mean Sellers Losses or Buyers Losses, as the case
may be.
7.44 "Motor Vehicles" shall mean all motorized and non-motorized
vehicles utilized in the Business as operated by any of the Sellers for which a
certificate of title or registration has been issued.
7.45 "Non-Competition Agreements" shall have the meaning given to such
term in Section 1.1(a)(xii).
7.46 "Pending Litigation" shall mean those matters set forth on
Schedule 2.9.
7.47 "Permits" shall mean any material license, permit, franchise,
consent, approval, variance, exemption or other authorization of or from any
Governmental Entity.
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7.48 "Person" shall mean a corporation, an association, a partnership,
an organization, a business, an individual or a Governmental Entity.
7.49 "Pre-Closing Obligations" shall mean all material liabilities,
debts and obligations of either of the Sellers or the Shareholder (including
indemnification and other contingent obligations) relating to (i) acts, events
or omissions by any Person or circumstances existing at or prior to the Closing;
(ii) goods or services provided to or for the benefit of any of the Sellers or
any of their Affiliates prior to the Closing; (iii) goods or services
manufactured or provided by or on behalf of any of the Sellers or any of its
Affiliates or licensees prior to the Closing; (iv) any pending or threatened
litigation, claims or disputes made or threatened prior to the Closing; (v) any
Retained Liabilities; (vi) the conduct of the Business; the ownership or
operation of the Transferred Assets or any benefit realized by any of the
Sellers prior to the Closing; (vii) any Excluded Assets; (viii) Debt Obligations
of any of the Sellers; (ix) the employees of any of the Sellers under any
contracts, agreements, arrangements or understandings with such employees
entered into or existing at or prior to the Closing and all other obligations of
any of the Sellers or any of their respective Affiliates with respect to their
employees at or prior to the Closing; (x) any obligations with respect to any of
the Sellers Retained Employees; (xi) use of the Proprietary Information; (xii)
Taxes; (xiii) any obligations under any Entitlements that were required to be
listed on Schedule 2.5 but were not; and (xiv) any liabilities that were not
reflected on the Financial Statements.
7.51 "Primary States" shall be New York, New Jersey, and Pennsylvania.
7.51 "Proprietary Information" shall mean collectively (a) the items
set forth on Schedule 1.1(a)(vi), (b) Proprietary Rights and (c) any and all
other information and material proprietary to any of the Sellers, owned,
possessed or used by any of the Sellers, whether or not such information is
embodied in writing or other physical form, and which is not generally known to
the public, that (i) relates to financial information regarding any of the
Sellers or the Business, including, without limitation, (y) business plans and
(z) sales, financing, pricing and marketing procedures or methods of any of the
Sellers or (ii) relates to specific business matters concerning any of the
Sellers, including, without limitation, the identity of or other information
regarding sales personnel or customers of any of the Sellers.
7.52 "Proprietary Rights" shall mean all rights to the Trade Names and
Trademarks and any derivations thereof, and all patents, including the patents
set forth on Schedule 1.1(a)(vi), any patent rights, inventions, know how, trade
secrets, market plans, designs, drawings, art work, plans, prints, manuals,
models, design registrations, technical information and data, copyrightable
works, product information literature, computer files, computer software, hard
copy files, catalogs, specifications, confidentiality agreements, confidential
information and other proprietary technology and similar information; all
registered and unregistered trademarks, service marks, logos, trade names and
all other trademark rights; all registered and unregistered copyrights; and all
registrations for, and applications for registration of, any of the foregoing,
that are used in the conduct of the Business.
7.53 "Purchase Price" shall have the meaning given such term in Section
1.4 hereof.
7.54 "Real Property" shall mean all real property, whether owned or
leased, and utilized in the Business as operated by any of the Sellers.
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7.55 "Restricted Parties" shall have the meaning assigned in Section
4.5(a).
7.56 "Retained Liabilities" shall have the meaning given such term in
Section 1.5 hereof.
7.57 "Retained Operations" shall have the meaning given to such term in
section 4.5(a).
7.58 "Retained Portion of the Purchase Price" shall have the meaning
given to such term in Section 1.4.2.
7.59 "Retained Warranties" shall have the meaning given such term in
Section 2.10.
7.60 "Schedules" shall mean the schedules attached to and made a part
of this Agreement.
7.61 "Sellers' Accounts Payable" shall have the meaning specified in
Section 1.4.2.
7.62 "Sellers" shall have the meaning assigned in the initial paragraph
of this Agreement.
7.63 "Sellers' Losses" shall have the meaning given such term in
Section 5.2 hereof.
7.64 "Sellers' Retained Employees" shall have the meaning given such
term in Section 4.7(a) hereof
7.65 "Shared Rental Agreement" shall have the meaning assigned in
Section 1.3.2(ix).
7.66 "Taxes" shall mean all federal, state, local, foreign and other
taxes, charges, fees, duties, levies, imposts, customs or other assessments,
including, without limitation, all net income, gross income, gross receipts,
sales, use, ad valorem, transfer, franchise, profits, profit share, license,
lease, service, service use, value added, withholding, payroll, employment,
excise, estimated, severance, stamp, occupation, premium, property, windfall
profits, or other taxes, fees, assessments, customs, duties, levies, imposts, or
charges of any kind whatsoever, together with any interests, penalties,
additions to tax, fines or other additional amounts imposed thereon or related
thereto, and the term "Tax" means any one of the foregoing Taxes.
7.67 "Tax Returns" shall mean all returns, declarations, reports,
statements and other documents of, relating to, or required to be filed in
respect of, any and all Taxes, and the term "Tax Return" means any one of the
foregoing Tax Returns.
7.68 "Third Party Claims" shall have the meaning given such term in
Section 5.3(b) hereof.
7.69 "Trade Names and Trademarks" shall mean all registered and
unregistered trade names, trademarks, service marks and logos relating to and
utilized in the Business as operated by any of the Sellers.
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7.70 "Transferred Assets" shall have the meaning given such term in
Section 1.1(a) hereof.
7.71 "US$", "dollar" or "$" shall mean United States dollars.
7.72 "Vehicle Lease" shall have the meaning given such term in Section
1.3.2(iii).
ARTICLE 8
MISCELLANEOUS
8.1 Expenses. Except as otherwise set forth herein, and whether or not
the transactions contemplated by this Agreement shall be consummated, each party
agrees to pay, without right of reimbursement from any other party, the costs
incurred by such party incident to the preparation and execution of this
Agreement and performance of its obligations hereunder, including without
limitation the fees and disbursements of legal counsel, accountants and
consultants employed by such party in connection with the transactions
contemplated by this Agreement.
8.2 Notices. All notices, requests, consents, directions and other
instruments and communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered in person, by courier, by overnight delivery service with proof of
delivery or by prepaid registered or certified United States first-class mail,
return receipt requested, addressed to the respective party at the address set
forth below, or if sent by facsimile or other similar form of communication
(with receipt confirmed) to the respective party at the facsimile number set
forth below:
If to the Sellers or the Shareholder, to:
EarthAmerica Company, Inc.
00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Facsimile: 972/858-6024
Confirm: 972/868-6025, Ext. 113
Copies to: EarthCare Company
00000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Chief Executive Officer
Facsimile: 000-000-0000
Confirm: 000-000-0000
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If to Messrs. Addy, Moorehead, Cash, Solomon, or Xxxxxx:
Xxxxxx X. Xxxxxxxxx, Xx. Xxxxxxx X. Xxxxxxx, Xx.
00000 Xxxxxx Xxxxx, Xxxxx 000 00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Facsimile: 972/858-6024 Facsimile: 972/858-6024
Confirm: 972/858-6025 Confirm: 972/858-6025
Xxxxxxx Xxxx Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxx 00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000 Xxxxxx, Xxxxx 00000
Facsimile: 770/435-7753 Facsimile: 972/858-6024
Confirm: 770/319-6421 Confirm: 972/858-6025
Xxxxxxx X. Xxxx
00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: 972/858-6024
Confirm: 972/858-6025
If to the Buyers, to:
c/o Heritage Holdings, Inc.
Attention: H. Xxxxxxx Xxxxxxxx
0000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Facsimile: 000-000-0000
Confirm: 918-492-7272
Copies to:
Attention: Xxxxxxxx X. Xxxxxxxx, Xx.
Doerner, Saunders, Xxxxxx & Xxxxxxxx, L.L.P.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Facsimile 000-000-0000
Confirm: 918-582-1211
or to such other address or facsimile number and to the attention of such other
Person(s) as either party may designate by written notice. Any notice mailed
shall be deemed to have been given and received on the third Business Day
following the day of mailing.
8.3 Specific Performance. It is specifically understood and agreed
that any breach by any of the Sellers or the Shareholder of the provisions of
this Agreement is likely to result in irreparable harm to the Buyers and that an
action at law for damages alone will be an inadequate remedy for such breach.
Accordingly, in addition to any other remedy that may be available to
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it, in the event of breach or threatened breach by any of the Sellers or the
Shareholder of the provisions of this Agreement, including, without limitation,
Section 4.5 hereof, the Buyers shall be entitled to enforce the specific
performance of this Agreement by any of the Sellers and the Shareholder and to
seek both temporary and permanent injunctive relief (to the extent permitted by
law), without the necessity of providing actual damages, and such other relief
as the court may allow.
8.4 Arbitration. Except as set forth in Section 8.3, in the event
there shall exist any dispute or controversy with respect to this Agreement or
any matter relating hereto or the transactions contemplated hereby, including,
but not limited to Article 5, the parties hereto agree to seek to resolve such
dispute or controversy by mutual agreement. If the parties hereto are unable to
resolve such dispute or controversy by agreement within 60 days following notice
by any party hereto of the nature of such dispute or controversy setting forth
in reasonable detail the circumstances and basis of such dispute or controversy,
the parties agree that such dispute or controversy be resolved by binding
arbitration pursuant to the provisions of this Section 8.4 and in accordance
with the then current Commercial Arbitration Rules of the American Arbitration
Association. All arbitration proceedings shall be held in Chicago, Illinois. If
a party elects to submit such matter to arbitration, such party shall provide
notice to the other party of its election to do so, which notice shall name one
arbitrator. Within 10 days after the receipt of such notice, the other party
shall provide written notice to the electing party naming a second arbitrator.
The two arbitrators so appointed shall name a third arbitrator, or failing to do
so, a third arbitrator shall be appointed pursuant to the Commercial Arbitration
Rules of the American Arbitration Association. Each arbitrator selected to act
hereunder shall be qualified by education and experience to pass on the
particular question in dispute and shall be independent and not affiliated with
any of the parties hereto. The arbitrators shall resolve all disputes in
controversy in accordance with the Texas substantive law. All statutes of
limitations that would otherwise be applicable shall apply to any arbitration
proceeding. The arbitrators appointed pursuant to this Section 8.4 shall
promptly hear and determine (after due notice and hearing and giving the parties
reasonable opportunity to be heard) the questions submitted, and shall render
their decision within 60 days after appointment of the third arbitrator or as
soon as practical thereafter. If within such period a decision is not rendered
by the board or a majority thereof, new arbitrators may be named and shall act
hereunder at the election of either party in like manner as if none had
previously been named. The decision of the arbitrators, or a majority thereof,
made in writing, shall absent manifest error be final and binding upon the
parties hereto as to the questions submitted, and each party shall abide by such
decision.
8.5 Successors. Except as specifically contemplated by this
Agreement, no party hereto shall assign this Agreement, or any part hereof,
without the prior written consent of the other party; provided, however, the
Buyers may assign its rights and obligations in this Agreement to an Affiliate
of the Buyers, subject to Buyers remaining obligated to perform. Sellers may
assign any benefits arising under this Agreement to their lending banks,
provided that the Buyers shall retain any right of offset for matters arising
under this Agreement. This Agreement shall inure to the benefit of, be binding
upon and be enforceable by the parties hereto and their respective successors
and assigns.
8.6 Entire Agreement. This Agreement and the Schedules constitute
the entire agreement and understanding between the parties relating to the
subject matter hereof and thereof and supersede all prior representations,
endorsements, premises, agreements, memoranda
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communications, negotiations, discussions, understandings and arrangements,
whether oral, written or inferred, between the parties relating to the subject
matter hereof. This Agreement may not be modified, amended, rescinded, canceled,
altered or supplemented, in whole or in part, except upon the execution and
delivery of a written instrument executed by a duly authorized representative of
each of the parties hereto. No reference to or disclosure of any item or other
matter in the attached Schedules to the Agreement (collectively, the "Disclosure
Schedule") shall be construed as an admission or indication that such item or
other matter is material or that such item or other matter is required to be
referred to or disclosed in the Disclosure Schedule. No reference made in the
Disclosure Schedule to a qualification of Sellers' "knowledge" shall qualify the
representation or warranty in the Agreement except for the existence of any
disclosed items. No disclosure in the Disclosure Schedule relating to any
possible breach or violation of any agreement, law or regulation shall be
construed as an admission or indication that any such breach or violation exists
or has actually occurred.
8.7 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Texas without
giving effect to conflicts of laws principles.
8.8 Waiver. The waiver of any breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
8.9 Severability. Any provision hereof that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.10 No Third Party Beneficiaries. Any agreement contained, expressed
or implied in this Agreement shall be only for the benefit of the parties hereto
and their respective legal representatives, successors and assigns, and such
agreements shall not inure to the benefit of the obligees of any indebtedness of
any party hereto, it being the intention of the parties hereto that no Person
shall be deemed a third party beneficiary of this Agreement, except to the
extent a third party is expressly given rights herein.
8.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.12 Headings. Each statement set forth in the Schedules with respect
to a particular section herein shall be deemed made solely with respect to such
section and not with respect to any other section hereof unless specifically set
forth in the Schedules as also being made with respect to such other section.
The headings of the Articles and Sections of this Agreement have been inserted
for convenience of reference only and shall in no way restrict or otherwise
modify any of the terms or provisions hereof or affect in any way the meaning or
interpretation of this Agreement.
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8.13 Negotiated Transaction. The provisions of this Agreement were
negotiated by the parties hereto, and this Agreement shall be deemed to have
been drafted by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
SELLERS: SELLERS:
EARTHAMERICA COMPANY EARTHCARE COMPANY
By: By:
-------------------------------------- --------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President/Chief Financial Officer Title: Vice President/Chief Financial Officer
BONE-DRY ENTERPRISES, INC. EA OF HOUSTON, INC.
By: By:
-------------------------------------- --------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President/Chief Financial Officer Title: Vice President/Chief Financial Officer
EC ACQUISITIONS, INC. EARTHCARE COMPANY OF TEXAS
By: By:
-------------------------------------- --------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President/Chief Financial Officer Title: Vice President/Chief Financial Officer
EARTHCARE COMPANY OF FLORIDA LIQUID WASTE CONTROL SYSTEMS, INC.
By: By:
-------------------------------------- --------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President/Chief Financial Officer Title: Vice President/Chief Financial Officer
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SHAREHOLDER:
EARTHCARE COMPANY
By:
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President and Chief Financial Officer
BUYERS: BUYERS:
EARTHAMERICA, L.L.C. EARTHAMERICA OF TEXAS, L.P.
BY EARTHAMERICA, L.L.C., GENERAL
PARTNER
By: By:
-------------------------------- ----------------------------------
Name: Name:
-------------------------------- ----------------------------------
Title: Title:
-------------------------------- ----------------------------------
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FOR PURPOSES OF SECTIONS 4.4, 4.5 AND FOR PURPOSES OF SECTIONS 4.4, 4.5 AND
8.1 THROUGH 8.13 ONLY: 8.1 THROUGH 8.13 ONLY:
------------------------------------- -------------------------------------
XXXXXX X. XXXXXXXXX, XX. XXXXXXX XXXX
------------------------------------- -------------------------------------
XXXXX X. XXXXXX XXXXXXX X. XXXXXXX, XX
-------------------------------------
XXXXXXX X. XXXX
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