Exhibit 10.183
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered on this
22nd day of March, 2002 (the "Closing Date") by and between UNITED METRO
MATERIALS INC., an Arizona corporation ("Purchaser") and MEADOW VALLEY
CONTRACTORS, INC., a Nevada corporation ("Seller").
RECITALS
Purchaser desires to purchase the Purchased Assets, and Seller desires to
sell the Purchased Assets, pursuant to the terms and conditions hereinafter set
forth. The Parties wish to set forth their understanding in this Agreement with
respect to the purchase and sale of such Purchased Assets and with respect to
certain other matters.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties set forth herein, and for such other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
AGREEMENT
ARTICLE I
Definitions
Capitalized words and phrases not otherwise defined within the body of this
Agreement shall have the meanings set forth on Exhibit "A" attached to this
Agreement. Where the context of this Agreement so requires, the use of the
singular includes the plural, and the use of the plural includes the singular.
The use of any gender in this Agreement includes any and all genders.
ARTICLE II
Purchase and Sale
Section 2.l. Agreement to Sell. Subject to the terms and conditions set
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forth in this Agreement, Seller hereby sells, transfers, grants, conveys,
assigns and delivers to Purchaser, all right, title and interest of Seller in
and to the Purchased Assets free and clear of all Liens, with the exception of
the Assumed Liabilities. Purchaser shall have the exclusive control and
possession of the Purchased Assets from and after the Closing Date.
Section 2.2. Agreement to Purchase. Subject to the terms and conditions
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set forth in this Agreement, Purchaser hereby purchases the Purchased Assets
from Seller, in reliance upon the representations, warranties and covenants of
Seller contained herein.
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Section 2.3. Purchase Price. The total consideration to be paid by
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Purchaser for the Purchased Assets shall be the Purchase Price. On the day
prior to the Closing Date, Purchaser and seller shall inspect the Inventory and
shall jointly prepare a calculation of: (a) the amount of Inventory as of the
Closing Date using generally accepted industry methods; and (b) the Inventory
Closing Value.
Section 2.4. Payment of the Purchase Price. On the Closing Date,
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Purchaser shall pay the Purchase Price to Seller by wire transfer of immediately
available funds to an account designated in writing by Seller prior to the
Closing Date.
Section 2.5. Allocation of Purchase Price. The Parties agree that the
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Purchase Price shall be allocated as set forth on Exhibit "B" attached to this
Agreement. Seller and Purchaser each hereby covenant and agree that they will
not take any position on any income tax return, before any Governmental
Authority charged with the collection of any income tax, or in any judicial
proceeding that is in any way inconsistent with the terms of this Section 2.5
and will provide such tax forms requested by the other Party necessary to
reflect such allocation.
Section 2.6. Taxes. To the extent the Transaction is not exempt from
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Arizona state, county or municipal sales taxes, any and all of such taxes that
may become due and owing by reason of the Transaction shall be the
responsibility and liability of Purchaser. Any and all other Taxes that may
become due and owing by reason of the Transaction shall be the responsibility
and liability of Seller, and will be paid by Seller without any contribution by
Purchaser.
Section 2.7. Prorations. Seller shall be responsible for all utilities,
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lease payments, ad valorem, and other similar expenses relating to the Purchased
Assets accruing prior to the Closing Date. Purchaser shall be responsible for
such expenses relating to the Purchased Assets accruing on and after the Closing
Date. Any of the same which Seller has prepaid for any period following the
Closing Date shall be reimbursed by Purchaser within ten (10) days following
receipt of an invoice therefor from Seller, and likewise, Seller shall reimburse
Purchaser for any of the same paid by Purchaser for any period prior to the
Closing Date within ten (10) days following receipt of an invoice therefor from
Purchaser. To the extent that separate xxxxxxxx are not possible, the Parties
will cooperate in prorating the expenses as of the Closing Date. Seller shall
pay all costs and fees in connection with the preparation and issuance of the
required title commitments and title policies with respect to the Leased
Property.
Section 2.8. Assumption of Liabilities. Purchaser hereby assumes and
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agrees to pay, discharge or perform, as appropriate and when due, the Assumed
Liabilities. Except for the Assumed Liabilities, Purchaser assumes no liability
or responsibilities for any Liabilities of any nature whatsoever of Seller or in
connection with the operation of the Business or the Purchased Assets,
including, without limitation, any Liabilities with respect to any Employee
Benefit Plan.
Section 2.9. Seller Employees. Seller shall be responsible for any and
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all obligations to any and all of its employees, including, but not limited to,
the payment of salaries, bonuses, vacation pay, retirement benefits, sick pay,
insurance premiums and other fringe benefits, and Seller hereby agrees to pay
all such obligations directly to or on behalf of its employees when
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due. Seller agrees to pay in a timely manner all amounts (including but not
limited to any and all withholding and unemployment compensation insurance
payment) required to be paid with respect to the compensation and benefits of
its employees. Purchaser shall have the right, but not the obligation, to employ
as Purchaser's employees, any of Seller's employees directly employed in
connection with the Business, and to continue such persons in the employ of
Purchaser for such period of time, and upon such terms, as Purchaser, in its
sole and absolute discretion, may deem appropriate.
Section 2.10. Third Party Consents. To the extent that Seller's rights
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under any agreement, contract, commitment, lease, or other Purchased Asset may
not be assigned without the Consent of another Person which has not been
obtained, this Agreement shall not constitute an agreement to assign the same if
an attempted assignment would constitute a breach thereof or be unlawful, and
Seller, at its expense, shall use its best efforts to obtain any such required
Consent(s) as promptly as possible. If any such Consent shall not be obtained
or if any attempted assignment would be ineffective or would impair Purchaser's
rights under the Purchased Asset in question so that Purchaser would not in
effect acquire the benefit of all such rights, Seller, to the maximum extent
permitted by law, shall act after the Closing, as Purchaser's agent in order to
obtain for it the benefits thereunder and shall cooperate, to the maximum extent
permitted by law, with Purchaser in any other reasonable arrangement designed to
provide such benefits to Purchaser.
Section 2.11. Bulk Transfer. The Parties waive, if required, compliance
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with the Bulk Transfer Laws of the State of Arizona, and Seller agrees to
indemnify Purchaser from and against and hold Purchaser harmless from any and
all Liabilities arising out of any failure or alleged failure to comply with
such laws in respect of the Transaction.
ARTICLE III
Closing
Section 3.1. The Closing. The Closing shall take place at the offices of
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Purchaser, 000 X. 00xx Xxxxxx, Xxxxxxx, Xxxxxxx, at 10:00 a.m. Mountain Time, on
the Closing Date, or at such other place and at such other time as the Parties
may agree. Either Party may terminate this Agreement if Closing has not been
completed by midnight on May, 15, 2002; provided, however, that the failure to
complete the Closing is not due to a breach by the terminating Party of any of
its obligation under this Agreement.
Section 3.2. Conditions to Obligations of Purchaser. The obligations of
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Purchaser to consummate the Transaction on the Closing Date are, at the option
of Purchaser, subject to the satisfaction of all of the following conditions on
the Closing Date:
(a) the representations and warranties set forth in Article IV of this
Agreement must have been true and correct on the date of this
Agreement and must be true and correct on the Closing Date;
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(b) Seller must have complied with its obligations and performed or
observed its covenants under this Agreement;
(c) Purchaser shall be satisfied, in its sole and absolute discretion,
with the results of its due diligence examination of Seller, the
Purchased Assets, the Assumed Liabilities and all related matters;
(d) no Material Adverse Change shall have occurred with respect to Seller,
the Purchased Assets or the Assumed Liabilities;
(e) Purchaser and Seller must have received any consents, approvals, or
authorizations of any Person or Governmental Authority, including,
without limitation the Required Consents, which in the judgment of
Purchaser, are necessary for or appropriate to the operation of the
Purchased Assets and the consummation of the Transaction on the
Closing Date;
(f) no Litigation by any Person or Governmental Authority may be pending
or asserted against any Party which could restrain, prohibit, or
otherwise interfere with the consummation of the Transaction;
(g) Seller must have delivered to Purchaser the documents contemplated by
Section 3.4; and
(h) Seller shall have entered into the Non-Compete Agreement.
Section 3.3. Conditions to Obligations of Seller. The obligations of
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Seller to consummate the Transaction on the Closing Date are, at the option of
Seller, subject to satisfaction of all of the following conditions on the
Closing Date:
(a) the representations and warranties set forth in Article V of this
Agreement must have been true and correct on the date of this
Agreement and must be true and correct on the Closing Date;
(b) Purchaser must have complied with its obligations and performed or
observed its covenants under this Agreement; and
(c) Purchaser must have delivered to Seller the documents contemplated by
Section 3.5.
Section 3.4. Delivery of Documents by Seller. On the Closing Date, Seller
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will deliver, or cause to be delivered, to Purchaser:
(a) such bills of sale with covenants of warranty, assignments,
endorsements, and other good and sufficient instruments and documents
of conveyance and transfer, in form reasonably satisfactory to
Purchaser, as shall be necessary and effective to transfer and assign
to, and vest in, Purchaser all of Seller's right, title, and interest
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in and to the Purchased Assets, including, specifically, all
certificates of title for all motor vehicles included in the Purchased
Assets, duly endorsed for transfer, and the transferable Permits
together with all required Consents necessary for their transfer to
Purchaser;
(b) duly adopted resolutions of the Board of Directors of Seller,
certified by the secretary or other appropriate officer of Seller, as
of the Closing Date, authorizing and approving the execution and
delivery of the Seller Documents, the consummation of the Transaction
in accordance with the terms of the Transaction Documents and all
other necessary and proper actions to enable Seller to comply with the
terms thereof;
(c) certificates from the Arizona Corporation Commission and the Nevada
Secretary of State, dated not more than seven (7) days prior to the
Closing Date, as to the legal existence and good standing of Seller,
under the laws of such state;
(d) a letter dated as of the Closing Date and addressed to Purchaser from
the law firm of Xxxxxxxx, Xxxx & Xxxxxxxxxx, counsel to Seller, in the
form and content reasonably acceptable to Purchaser;
(e) the Assignment and the Assumption Agreement, executed by Seller;
(f) the Non-Compete Agreement, executed by Seller;
(g) all of the agreements, contracts and other documents, books, records,
customer lists and data which are part of the Purchased Assets;
(h) the Required Consents;
(i) the Estoppels;
(j) a duly executed amendment to the Xxxxxxxx Lease extending the term
thereof through 2007 with a five (5) year option to renew in form
acceptable to Purchaser.
(k) commitment(s) for an ALTA lessee's title insurance policy with respect
to the Leased Property issued in the name of Purchaser by a reputable
national title insurance company, that shows marketable fee simple
title to such Leased Property in the lessors named therein and agrees
to insure the leasehold interest therein in Purchaser, provides
coverage in amounts satisfactory to Purchaser, and has no exceptions
other than (i) those approved by Purchaser, and (ii) those requiring a
survey for removal. Such commitment(s) shall, contemporaneous with
the Closing, be marked up by a representative of the issuer so as to
(i) satisfy all requirements to the issuance of the policy pursuant to
it, (ii) advance the effective date to a date not earlier than the
Closing Date without the addition of any title exceptions other than
Purchaser approved exceptions or those in the
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commitment, and (iii) result in an unconditional binding obligation on
the part of the issuer to issue final policies pursuant to such
commitment(s); and
(l) any other usual and customary closing documentation reasonably
requested by Purchaser which is required to consummate the Transaction
in accordance with this Agreement.
Section 3.5. Delivery of Documents by Purchaser. On the Closing Date,
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Purchaser will deliver, or cause to be delivered, to Seller:
(a) the Purchase Price in accordance with Section 2.4;
(b) the Assumption Agreement, executed by Purchaser;
(c) the Non-Compete Agreement, executed by Purchaser;
(d) duly adopted resolutions of the Board of Directors of Purchaser,
certified by the Secretary of Purchaser, as of the Closing Date,
authorizing and approving the execution and delivery of the Purchaser
Documents, the consummation of the Transaction in accordance with the
terms of the Transaction Documents, and authorizing and approving all
other necessary and proper corporate action to enable Purchaser to
comply with the terms thereof;
(e) a certificate from the Arizona Corporation Commission dated not more
than seven (7) days prior to the Closing Date, as to the legal
existence and good standing of Purchaser under the laws of such state;
and
(f) any other usual and customary closing documentation reasonably
requested by Seller which is required to consummate the Transaction in
accordance with this Agreement.
ARTICLE IV
Representations and Warranties of the Seller
Seller represents and warrants to Purchaser that the following
representations and warranties are true, complete and correct as of the Closing
Date.
Section 4.1. Organization and Power. Seller is a corporation duly
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incorporated, validly existing and in good standing under the laws of the State
of Nevada. Seller is duly qualified as a foreign entity under the laws of the
State of Arizona and the laws of each other jurisdiction in which it is required
to be qualified in order to conduct its business. Seller has the corporate
power and authority to own and hold the Purchased Assets and to carry on the
Business as currently conducted.
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Section 4.2. Authority For Agreement. Seller has the power and authority
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to make, execute, deliver and perform this Agreement, the Seller Documents and
to consummate the Transaction. The execution, delivery and performance of this
Agreement, the Seller Documents and the consummation of the Transaction have
been duly authorized by all necessary action on the part of Seller. This
Agreement and the Seller Documents constitute the valid and legally binding
obligations of Seller enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, moratorium or
similar laws affecting creditors' rights and subject to equitable principles.
Section 4.3. No Default. Neither the execution nor delivery of this
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Agreement, the Seller Documents, nor the consummation of the Transaction by
Seller will (a) result in a breach or violation by Seller of its organizational
documents, any Contractual Obligation or Legal Requirement; (b) give to any
Person any claim, rights of termination, cancellation or acceleration, in or
with respect to any agreements, contracts or commitments to which Seller is a
party which relate to the Purchased Assets, the Assumed Liabilities or the
Business; or (c) result in the creation or imposition of (or the right or
obligation to create or impose) any Lien upon any of the Purchased Assets
pursuant to the terms of any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which Seller is a party or by which it may be
bound.
Section 4.4. Tax Matters. Seller has timely filed all necessary Tax
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Returns that would affect the Purchased Assets, the Assumed Liabilities or the
Business, and all such Tax Returns are complete and correct in all material
respects and accurately reflect all liabilities for Taxes for the related
periods. No Governmental Authority with which Seller does not file Tax Returns
has alleged in a written or oral communication received by Seller an obligation
on the part of Seller to so file Tax Returns. Seller has paid or has adequately
provided for, all Taxes payable by, or due from, Seller for all periods ended on
or before the Closing Date, including any and all Taxes required to have been so
withheld or paid in connection with amounts owed or paid to any employee,
contractor or other third party. No Liens or pending, claims exist for failure
or alleged failure to pay Taxes and there is no basis for any such claim. No
deficiency or claim or dispute is outstanding, proposed or assessed against
Seller or any property of Seller with respect to any Tax. No examination or
audit by a Governmental Authority of any Tax Return filed with such Governmental
Authority is in progress nor has Seller received notice that any such
examination or audit is contemplated. Seller is not a "foreign person" for
purposes of Section 1445 of the Code.
Section 4.5. Title. Except for the Assumed Liabilities, Seller has good
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title, free and clear of all title defects, objections and Liens of any nature
whatsoever (except as provided in the following sentence) to all of the
Purchased Assets. Seller has not pre-sold any of the Inventory. There are no
existing agreements, options, commitments or rights with, of, or to any Person
to acquire the Purchased Assets or rights or any interest therein.
Section 4.6. Solvency. The Purchase Price is reasonably equivalent to the
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fair market value of the Purchased Assets. After the Closing, (a) the fair
market value of the remaining assets of Seller will be greater than the amount
that will be required to pay the known Liabilities of Seller as they become due,
and (b) Seller will be able to pay its debts as they mature.
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Section 4.7. Assigned Contracts. Schedule 4.7 attached to this Agreement
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sets forth a complete list of the Assigned Contracts. Seller has not breached,
nor has Seller received notice of any (a) unresolved claim or threat that Seller
has breached any term or condition of any of the Assigned Contracts, or (b)
notice of repudiation or denial of the enforceability of any of the Assigned
Contracts. All Assigned Contracts are in full force and effect and there is no
Default under any such Assigned Contracts.
Section 4.8. Leased Property. Schedule 4.8 attached to this Agreement
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sets forth a complete and accurate description of the Leased Property. Complete
and correct copies of all leases, licenses or other agreements or instruments,
and all amendments, modifications, extensions and renewals thereto, applicable
to the Leased Property are attached hereto as Schedule 4.8. Except as set forth
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in Schedule 4.8, no such lease, license or other agreement or instrument
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applicable to the Leased Property has been modified or amended in writing in any
material respect. Except as set forth in Schedule 4.8, none of the Leased
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Property is subject to any sublease, license or other agreement granting to any
Person any right to the use, occupancy or enjoyment thereof. Seller has not
breached, nor has Seller received notice of any (a) unresolved claim or threat
that Seller has breached any term or condition of any of the leases, licenses or
other agreements or instruments applicable to the Leased Property, or (b) notice
of repudiation or denial of the enforceability of any of such leases, licenses
or other agreements or instruments. All such leases, licenses or other
agreements or instruments applicable to the Leased Property are in full force
and effect and there is no Default under any such leases, licenses or other
agreements or instruments. The zoning is proper for the use of the Leased
Property for the operation of an aggregates mining and sales and ready mix and
asphalt concrete business and such uses are permitted conforming uses under
applicable Legal Requirements. All required certificates of occupancy have been
issued and are in effect for the Leased Property. There are no violations of
any Legal Requirements relating to zoning or land use laws with respect to the
Leased Property.
Section 4.9. Plant, Machinery and Equipment. Schedule 4.9 attached to
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this Agreement sets forth a complete list of all of the Plant, Machinery and
Equipment included in the Purchased Assets. All of such Plant, Machinery and
Equipment are in good operating condition and repair, subject to normal wear and
maintenance, are usable in the Ordinary Course and conform to all Legal
Requirements in all material respects relating to their construction, use and
operation.
Section 4.10. Employees. Schedule 4.10 attached to this Agreement is a
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true and complete list of the names and current salaries of Seller's employees
directly employed in connection with the Business. Seller is in compliance with
all Legal Requirements relating to employment, employment practices, terms and
conditions of employment, occupational health and safety and wages and hours.
Seller has not engaged in any unfair labor practice, and no unfair labor
practice complaint is pending or, to the Knowledge of Seller, threatened against
Seller. No labor strike, dispute, slowdown, stoppage or other material labor
difficulty is pending or, to the Knowledge of Seller, has been overtly
threatened with respect to Seller, and no such action has occurred within the
last five (5) years. No formal grievance or arbitration proceeding is pending
or, has been asserted against Seller, and no formal grievance proceeding has
occurred
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within the last five (5) years resulting in any loss or damage to Seller. The
only Employee Benefit Plans currently maintained or contributed to by Seller for
Seller's employees directly employed in connection with the Business are the
401(K) Plan and a medical insurance plan. Purchaser shall have no obligations or
Liabilities whatsoever with respect to any Employee Benefit Plan.
Section 4.11. Litigation. There is no Litigation pending or, to the
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Knowledge of Seller, threatened against or affecting the Purchased Assets, the
Assumed Liabilities or the Business before any court or by or before any
Governmental Authority or arbitration board or tribunal. To the Knowledge of
Seller, no reasonable grounds exist for any Litigation.
Section 4.12. Environmental. There are no civil or criminal actions,
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notices of violation, or administrative proceedings relating to any
Environmental Laws pending or to the Knowledge of Seller threatened by any
Governmental Authority or other Person, with respect to or affecting the
Purchased Assets, the Assumed Liabilities or the Business. To the Knowledge of
Seller, there is no Fact which may interfere with or prevent compliance with any
Environmental Law. Seller has obtained all permits which are required in
connection with the operation of the Business by any Environmental Law. There
has not been any presence on or under, or any escape, seepage, leakage,
spillage, discharge, or emission from the Leased Property of any Hazardous
Materials during the period of ownership, operation or management by Seller.
Seller has not performed or omitted to performing or suffered to occur any act
which would reasonably be expected to give rise to, or has otherwise, incurred
liability or potential liability to any Person under any Environmental Laws. No
discharge or "release" (as such term is defined in 42 U.S.C. (S)9601(22)) of any
Hazardous Materials exists or is occurring (or has existed or occurred) from, or
upon, the Leased Property during the period of ownership, operation or
management by Seller that is or was in violation of applicable Environmental
Laws or that requires or required any reporting, assessment, monitoring or
remediation under applicable Environmental Laws. There are no underground tanks
situated on the Leased Property. Except as disclosed on the Disclosure
Schedule, there are no above ground tanks situated on the Leased Property.
There are no existing surface or subsurface soil, water, mineral, chemical or
environmental conditions which presently, or which with the passage of time
will, (a) require reporting to any Governmental Authority, (b) constitute a
violation of any Environmental Law, or (c) otherwise adversely affect or
threaten adversely to affect Seller or its property. No Hazardous Waste has
been generated or shipped from, or stored or disposed upon, the Leased Property
during the period of ownership, operation or management by Seller that is or was
in violation of applicable Environmental Laws or that requires or required any
reporting, assessment, monitoring or remediation under applicable Environmental
Laws. Seller has not received notice or a request for information about any
liability or Potential liability under any Environmental Law, or any claim
therefor or submitted notice pursuant thereto to any Governmental Authority.
Section 4.13. Permits and Approvals. The Permits have been validly
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issued, Seller is in compliance with the Permits and no proceeding is pending
or, to the Knowledge of Seller, threatened to revoke or limit any such Permit.
Seller has not received notice from any Governmental Authority to the effect
that any additional Permits are required. The Permits are sufficient and
adequate in all respects to permit the continued lawful conduct of the Business
in
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the manner currently conducted and none of the operations of Seller are being
conducted in a manner that violate, in any material respect, any of the terms or
conditions under which any Permit was granted.
Section 4.14. Brokers or Finders Fees. Seller has not paid, nor has or
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will incur any liability for, any fees, compensation or other expense to any
broker or finder who acted on behalf of Seller in connection with this Agreement
or the Transaction.
Section 4.15. Consents. Except for the Required Consents, no permit,
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Consent, approval, or authorization of, or designation, declaration or filing
with, any Governmental Authority or any other Person on the part of Seller is
required in connection with the execution and delivery by Seller of this
Agreement, the Seller Documents, or the consummation of the Transaction.
Section 4.16. Contractual Obligations. Seller is not in Default under any
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Contractual Obligation which relate to or affect the Purchased Assets, the
Assumed Liabilities, or the Business.
Section 4.17. Legal Requirements. Seller has complied in all material
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respects with, and is in compliance in all material respects with, all Legal
Requirements.
Section 4.18. Disclosure. Seller has delivered to Purchaser the
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Disclosure Schedule attached as Exhibit "G" to this Agreement. A Fact will not
be considered to have been disclosed as an exception to a representation and
warranty set forth in this Agreement unless and to the extent that the Fact is
specifically disclosed in the Disclosure Schedule as an exception to the
representation and warranty. None of the representations, warranties, or
statements contained in this Article IV or incorporated in the Disclosure
Schedule or any certificate delivered herewith contains any untrue statement of
a material Fact or omits to state any material Fact necessary in order to make
any of such representations, warranties, or statements, in light of the
circumstances under which they were made, not misleading. There is no Fact
which has a Material Adverse Effect on Seller or the Purchased Assets and which
has not been set forth in this Agreement or in the Disclosure Schedule hereto or
delivered pursuant to certificates in writing furnished in connection with the
Transaction. Copies of each document referred to in the Disclosure Schedule,
which documents have been provided to Purchaser, are true, complete, and
correct.
Section 4.19. Financial Information. Seller has delivered the most recent
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audited consolidated financial statements of Meadow Valley Corporation, Seller's
parent, to Purchaser. Such financial statements are complete and correct, are
consistent with the books and records of Seller (which books and records are
complete and correct), present fairly (i) the financial condition of Seller as
of the date indicated, and (ii) each item comprising the financial condition of
Seller as of the date indicated, consistently applied throughout the period
indicated. Seller has no Liabilities, except for (i) Liabilities set forth on
or reserved against the face of such financial statements, (ii) Liabilities
incurred in the Ordinary Course since the date of such financial statements
(none of which relates to a breach of a Contractual Obligation or the violation
of a Legal Requirement), or (iii) unknown Liabilities which would not have a
Material Adverse
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Effect. Since the date of such financial statements, the business of Seller has
been conducted in the Ordinary Course and there has not been any event,
occurrence, development, or state of circumstances or facts which has had, or
with the giving of notice or the passage of time or both will have, a Material
Adverse Effect with respect to the Purchased Assets, the Assumed Liabilities, or
the Business.
ARTICLE V
Representations and Warranties of Purchaser
Purchaser represents and warrants to Seller that the following
representations and warranties are true, complete and correct as of the Closing
Date:
Section 5.1. Organization. Purchaser is a corporation duly incorporated,
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validly existing and in good standing, under the laws of the State of Arizona.
Section 5.2. Authority For Agreement. Purchaser has the corporate power
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and authority to make, execute, deliver and perform this Agreement and the
Purchaser Documents and to consummate the Transaction. The execution, delivery
and performance of this Agreement, the Purchaser Documents and the consummation
of the Transaction have been duly authorized by all necessary corporate action
on the part of Purchaser. This Agreement and the Purchaser Documents constitute
the valid and legally binding obligations of Purchaser enforceable in accordance
with their terms, except as enforcement thereof, may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights and subject
to equitable principles.
Section 5.3. No Default. Neither the execution nor delivery of this
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Agreement, the Purchaser Documents nor the consummation of the Transaction by
Purchaser will conflict with or result in a breach of or constitute or result in
a Default under any of the terms, conditions or provisions of the articles of
incorporation or bylaws of Purchaser, any Legal Requirement, or any Contractual
Obligation.
Section 5.4. Consents. No permit, Consent, approval, or authorization of,
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or designation, declaration or filing with, any Governmental Authority or any
other Person on the part of Purchaser is required in connection with the
execution and delivery by Purchaser of this Agreement, the Purchaser Documents
or the consummation of the Transaction.
Section 5.5. Brokers or Finders Fees. Purchaser has not paid, nor has or
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will incur any liability for, any fees, compensation or other expense to any
broker or finder who acted on behalf of Purchaser in connection with this
Agreement or the Transaction.
Section 5.6. Accuracy of Seller's Environmental Representations Regarding
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Asphalt Plant. Pursuant to an agreement with Seller, Purchaser currently
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operates an asphaltic concrete batch plant at the Xxxx Lease portion of the
Leased Property. With respect to Purchaser's operation of such batch plant, to
the knowledge of Purchaser: (a) there is no Fact which would
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make the representations, warranties and statements contained in Section 4.12 of
this Agreement untrue or misleading in material respect; (b) there are no civil
or criminal actions, notices of violation, or administrative proceedings
relating to any Environmental Laws pending or threatened by any Governmental
Authority or other Person with respect to or affecting the such batch plant; (c)
there is no Fact which may interfere with or prevent compliance with any
Environmental Law; (d) Purchaser has obtained all permits which are required in
connection with the operation of such batch plant by any Environmental Law; (e)
there has not been any presence on or under, or any escape, seepage, leakage,
spillage, discharge, or emission from batch plant of any Hazardous Materials
during the period of operation by Purchaser; (f) Purchaser has not performed or
omitted to perform or suffered to occur any act which would reasonably be
expected to give rise to, or has otherwise, incurred liability or potential
liability to any Person under any Environmental Laws; (g) no discharge or
"release" (as such term is defined in 42 U.S.C. (S)9602(22)) of any Hazardous
Materials exists or is occurring (or has existed or occurred) from, or upon,
such batch plant during the period of operation by Purchaser that is or was in
violation of applicable Environmental Laws or that requires or required any
reporting, assessment, monitoring or remediation under applicable Environmental
Laws; (h) there are no underground tanks situated at the batch plant; (i) except
as disclosed on the Disclosure Schedule, there are no above ground tanks
situated at the batch plant; (j) there are no existing surface or subsurface
soil, water, mineral, chemical or environmental conditions which presently, or
which with the passage of time will, (i) require reporting to any Governmental
Authority, (ii) constitute a violation of any Environmental Law, or (iii)
otherwise adversely affect or threaten adversely to affect Purchaser or its
property; (k) no Hazardous Waste has been generated or shipped from, or stored
or disposed upon, the batch plant during the period of operation by Purchaser
that is or was in violation of applicable Environmental Laws or that requires or
required any reporting, assessment, monitoring or remediation under applicable
Environmental Laws; and (l) Purchaser has not received notice or a request for
information about any liability or Potential liability under any Environmental
Law, or any claim therefore or submitted pursuant thereto to any Governmental
Authority.
ARTICLE VI
Covenants
Section 6.1. Further Assurances and Cooperation. Upon the request of a
----------------------------------
Party, each other Party will, at any time and from time to time, execute and
deliver additional agreements and documents, including documents of conveyance
and transfer, and any director consents, or powers of attorney, and take such
other action as may be reasonably necessary or desirable to carry out the
purposes of this Agreement or to consummate, confirm, or evidence the
Transaction. The requesting Party will pay any reasonable third party expenses
incurred by the other Party in complying with such request.
Section 6.2. Non-Compete Agreement. It is expressly understood and agreed
---------------------
between the Parties that the Non-Compete Agreement is an integral part of the
Transaction, that Purchaser would not have entered into this Agreement in the
absence of the Non-Compete Agreement and
12
that the sole purpose of the Non-Compete Agreement is to protect the value of
the Purchased Assets being purchased by Purchaser from Seller.
Section 6.3. Best Efforts. Until Closing, each Party will use its best
------------
efforts (i) to ensure that the conditions applicable to each Party as set forth
in Sections 3.2 and 3.3 of this Agreement are satisfied, and (ii) to consummate
the Transaction, subject to the terms and conditions set forth in this
Agreement. Each Party will use its best efforts to take or to cause to be taken
any and all actions reasonably requested by the other Party to consummate the
Transaction. In connection with using its best efforts, it is understood and
agreed that neither Party shall be required to make payments to third parties.
Section 6.4. Access. Until Closing and subject to the Confidentiality
------
Agreement, Seller shall give Purchaser and its agents (a) reasonable access
during normal business hours to any and all books, records, documents,
contracts, properties, and assets of or relating to the Purchased Assets, the
Assumed Liabilities or the Business, and any other information relating to or
affecting the Purchased Assets, the Assumed Liabilities, or the Business which
is requested by Purchaser or its agents, and (b) reasonable access during normal
business hours to any agent of Seller with respect to the Purchased Assets, the
Assumed Liabilities, or the Business. Seller shall cause all Seller's agents to
cooperate with Purchaser in any investigation of Seller. Furthermore, Seller
shall furnish to Purchaser copies of all documents, records, and information
relating to the Purchased Assets, the Assumed Liabilities or the Business as
Purchaser shall from time to time request, and shall permit Purchaser and its
agents to make such physical inventories and inspections of the property, assets
and liabilities of which relate to or affect the Purchased Assets, the Assumed
Liabilities, or the Business as Purchaser may request from time to time.
Section 6.5. Notices. Seller will notify Purchaser promptly of any event
-------
or occurrence that would cause any representation or warranty set forth in
Article IV of this Agreement to be untrue or incorrect. Purchaser will notify
Seller promptly of any event or occurrence that would cause any representation
or warranty set forth in Article V of this Agreement to be untrue or incorrect.
Section 6.6. Conduct of Business. Until Closing, Seller shall conduct its
-------------------
business which relates to or affects the Purchased Assets, the Assumed
Liabilities, or the Business only in the Ordinary Course and Seller shall not,
without the Consent of Purchaser, (i) make any substantive organizational or
executive personnel changes which relate to or affect the Purchased Assets, the
Assumed Liabilities, or the Business, including, without limitation, entering
into employment agreements, or implementing any general or executive officer
compensation increases not in the Ordinary Course, or (ii) make any purchase or
sale of Inventory, Plant, Machinery and Equipment, vehicles, buildings, or other
physical assets which relate to or affect the Purchased Assets, the Assumed
Liabilities, or the Business not in the Ordinary Course. Furthermore, until
Closing, Seller shall use its best efforts to preserve the goodwill of its
customers, employees, suppliers and others with whom Seller has business
relations which relate to or affect the Purchased Assets, the Assumed
Liabilities, or the Business.
Section 6.7. Exclusivity. Until Closing or termination of this Agreement,
-----------
Seller will not, directly or indirectly, solicit, encourage, entertain, or
negotiate with respect to any
13
acquisition proposal relating to the Purchased Assets or the Business and Seller
will notify Purchaser promptly of the receipt of any proposal with respect to
any such acquisition proposal.
ARTICLE VII
Survival of Representations, Warranties and Covenants; Indemnification
Section 7.1. Survival. All representations, warranties and covenants
--------
made by Seller and Purchaser set forth in this Agreement shall survive the
Closing Date and remain in full force and effect indefinitely.
Section 7.2. Indemnification by Seller. Seller shall indemnify, defend,
-------------------------
and hold Purchaser harmless from and against any and all Losses suffered or
incurred by Purchaser that result from or arise out of any misrepresentation by
Seller set forth in Article IV, any breach by Seller of any warranty set forth
in Article IV, or any breach by Seller of any covenant set forth in this
Agreement.
Section 7.3. Indemnification by Purchaser. Purchaser shall indemnify,
----------------------------
defend, and hold Seller harmless from and against any and all Losses suffered or
incurred by Seller that result from or arise out of any misrepresentation by
Purchaser set forth in Article V, any breach by Purchaser of any warranty set
forth in Article V, or any breach by Purchaser of any covenant set forth in this
Agreement.
Section 7.4. Third Party Claims.
------------------
(a) If an Indemnified Party receives a Third Party Claim Notice, then the
Indemnified Party will promptly notify the Indemnifying Party. A
delay by an Indemnified Party in notifying the Indemnifying Party,
however, will relieve the Indemnifying Party from an indemnification
obligation only if and solely to the extent that the Indemnifying
Party is injured by the delay.
(b) The Indemnifying Party will notify the Indemnified Party within
fifteen (15) calendar days after the Indemnified Party has given
notice of the Third Party Claim as to whether the Indemnifying Party
is assuming the defense of the Third Party Claim. If the Indemnifying
Party assumes the defense of the Third Party Claim, then (i) the
Indemnifying Party will defend the Indemnified Party against the Third
Party Claim with counsel of its choice reasonably satisfactory to the
Indemnified Party, and (ii) the Indemnified Party may retain separate
co- counsel at its sole cost and expense.
(c) An Indemnified Party will not Consent to the entry of any judgment or
enter into any settlement with respect to a Third Party Claim without
the Consent of the Indemnifying Party, which Consent will not be
withheld unreasonably; and the Indemnifying Party will not Consent to
the entry of any judgment with respect to a Third Party Claim or enter
into any settlement which does not include a provision whereby the
plaintiff or claimant in the Third Party Claim releases the
14
Indemnified Party from all Liability with respect to the Third Party
Claim, without the Consent of the Indemnified Party.
(d) If an Indemnifying Party does not notify the Indemnified Party within
fifteen (15) calendar days after the Indemnified Party has given
notice of a Third Party Claim that the Indemnifying Party is assuming
the defense of the Third Party Claim, then the Indemnified Party may
defend against, or enter into any settlement with respect to, the
Third Party Claim in any manner it may reasonably conclude to be
appropriate.
Section 7.5. Equitable Relief. Each Party acknowledges that the other
----------------
Party may be irrevocably damaged if the Party fails to perform any of its
obligations under this Agreement. Each Party, therefore, will be entitled to
injunctive relief to prevent the breach of any of the obligations under this
Agreement and may specifically enforce performance of those obligations.
Section 7.6. Other Remedies. The indemnification provisions set forth in
--------------
this Article VII are in addition to, and not in derogation of, any statutory or
common law remedy which a Party may have for a Breach.
ARTICLE VIII
Miscellaneous
Section 8.1. Amendment. This Agreement may be amended or modified only by
---------
a written agreement executed by each of the Parties.
Section 8.2. Waiver. A Party will be considered to have waived a right or
------
remedy under this Agreement, or with respect to a breach of this Agreement, only
if the Party expressly waives that right in a writing delivered to the other
Party. The waiver by a Party of a right or remedy with respect to a breach of
this Agreement will not be construed as a Waiver of any right or remedy with
respect to any subsequent breach, and any failure or delay in exercising any
right under this Agreement will not be construed as a waiver of that right.
Section 8.3. Expenses. Each Party will pay the other Party, upon demand,
--------
any reasonable out-of-pocket costs or expenses incurred by that Party in
successfully pursuing or enforcing any right or remedy against the other Party
under this Agreement, including any reasonable attorneys' fees and other third-
party costs. Each Party will bear its own expenses in connection with the
Transaction.
Section 8.4. Successors; Assignment.
----------------------
(a) This Agreement will inure to the benefit of and be binding upon the
Successors and the permitted assigns of the Parties. This Agreement
will not confer any right on any other Person.
15
(b) Except as provided in Section 8.4(c), a Party may not assign its
rights or delegate its obligations under this Agreement without the
Consent of the other Party.
(c) Purchaser may assign its rights under this Agreement to any affiliate
of Purchaser without the Consent of Seller. Any such delegation will
not relieve Purchaser of its obligations under this Agreement.
Section 8.5. Other Agreements. This Agreement supersedes all prior
----------------
agreements and understandings between the Parties and constitutes the entire
agreement of the Parties with respect to the matters contemplated by this
Agreement.
Section 8.6. Notices. All notices or other communications which may be
-------
given or are required to be given pursuant to this Agreement will be in writing
and will be either (i) personally delivered, (ii) sent by registered or
certified mail, return receipt requested, postage paid, or (iii) sent by
nationally recognized express delivery service as follows:
(a) if to Purchaser: United Metro Materials Inc.
Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
with a copy to: Kiewit Materials Company
Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
(b) if to Seller: Meadow Valley Corporation
0000 X. 00xx Xx., Xxxxx X-00
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to: Xxxxxxxx, Xxxx & Xxxxxxxxxx
0000 X. Xxxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Each Party may designate by notice in writing a new address to which any notice
may be given, served, or sent. Each notice or other communication will be
deemed sufficiently given, served, sent, or received only if it is delivered to
the addressee (with an affidavit of personal delivery or the delivery receipt
being deemed conclusive evidence of delivery) or when delivery is refused by the
addressee. Each communication will be deemed to have been given on the second
Business Day after it is sent by one of the methods specified in (i), (ii), or
(iii) above.
16
Section 8.7. Announcement. Unless otherwise required by any applicable
------------
Legal Requirement, a Party will not issue a press release or make any other
public announcement or disclosure regarding this Agreement or the Transaction
without the Consent of the other Party.
Section 8.8. Severability. If the final judgment of a court of competent
------------
jurisdiction declares that any term or provision of this Agreement is invalid or
unenforceable, then the court making the determination of invalidity or
unenforceability may reduce the scope, duration, or area of the term or
provision to delete specific words or phrases or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement will be enforceable as so
modified after the expiration of the time within which the judgment may be
appealed.
Section 8.9. Governing Law. This Agreement will be governed by and
-------------
construed in accordance with the internal laws of the State of Arizona.
Section 8.10. Arbitration. In the event of any dispute or controversy
-----------
arising out of this Agreement, its performance or breach, the Parties are unable
to settle the dispute themselves, then upon written notice (the "Arbitration
Notice") of either Party to the other, such dispute shall be submitted to
arbitration, and Seller shall designate one arbitrator and Purchaser shall
designate one arbitrator within seven (7) days following such Arbitration
Notice. The two arbitrators so chosen shall, within seven (7) days of their
appointment, designate a third arbitrator. If the first and second arbitrators
are unable to agree upon a third arbitrator within such time period, then the
first and second arbitrators shall invoke the services of the American
Arbitration Association to appoint a third arbitrator. This third arbitrator
shall, to the extent practicable, have special competence and experience with
respect to the subject matter under consideration. Unless otherwise mutually
agreed upon by the Parties, a full hearing shall be held in Phoenix, Arizona, on
or before the 90th day following the date of such Arbitration Notice, pursuant
to the then current rules of the American Arbitration Association for the
conduct of commercial arbitration proceedings, but without submission to the
American Arbitration Association. The arbitrators shall render a written
decision within twenty (20) days after the final submission of the matter to
them, and a copy of such decision shall be delivered to each of the Parties. The
decision of two of the three arbitrators shall be taken as the arbitration
decision. The arbitrators by their award shall determine the mariner in which
the expenses of the arbitration (including reasonable attorneys' fees of the
Parties) shall be borne. Each Party shall accept and abide by the arbitration
decision. The award of the arbitrators shall be final, except as otherwise
provided by applicable law, and shall be enforceable by any court of competent
jurisdiction over the Parties.
Section 8.11. Counterparts. This Agreement may be executed in
------------
counterparts, all of which together will constitute one agreement.
Section 8.12. Termination of Confidentiality Agreement. Simultaneously
----------------------------------------
with the Closing, the Confidentiality Agreement automatically shall terminate
and be of no further force and effect.
17
Section 8.13. Incorporation of Exhibits and Schedules. This Agreement
---------------------------------------
shall be deemed to have incorporated by reference all Exhibits and Schedules
referred to herein to the same extent as if such Exhibits and Schedules were
fully set forth herein. Each reference to "this Agreement" shall be construed
to include each such Exhibit and Schedule.
IN WITNESS WHEREOF, each of Purchaser and Seller has caused this Agreement
to be duly executed on its behalf as of the day and year first above written.
United Metro Materials Inc., an Arizona
corporation
By: Xxxx X. Xxxxxx
-------------------------------
Title: Exec. Vice President
----------------------------
Meadow Valley Contractors, Inc., a Nevada
corporation
By: Xxxxxxx X. Xxxxxx
-------------------------------
Title: President
----------------------------
18
TABLE OF EXHIBITS
-----------------
EXHIBIT DESCRIPTION
------- -----------
A Definitions
B Allocation of Purchase Price
C Assignment
D Assumption Agreement
E Inventory Cost
F Non-Compete Agreement
G Disclosure Schedule
EXHIBIT "A"
TO
ASSET PURCHASE AGREEMENT
DEFINITIONS
When used in this Agreement, the following terms shall have the following
meanings:
"401(K) Plan" means the Meadow Valley Contractors, Inc. Plan, together with
all amendments, supplements and addenda thereto.
"Agreement" means this Asset Purchase Agreement by and between Purchaser
and Seller, as amended from time to time.
"Arbitration Notice" has the meaning set forth in Section 8.10 of this
Agreement.
"Assigned Contracts" means those certain leases, contracts and agreements
that are included in the Purchased Assets, as more specifically set forth on
Schedule 4.7, attached to this Agreement.
------------
"Assignment" means the assignment between Seller and Purchaser with respect
to Seller's assignment of the Assigned Contracts and the Permits, in the form
attached as Exhibit "C" to this Agreement.
"Assumed Liabilities" means all obligations under the Assigned Contracts
arising subsequent to the Closing Date.
"Assumption Agreement" means the Assumption Agreement dated as of the
Closing Date between Seller and Purchaser, with respect to Purchaser's
assumption of the Assumed Liabilities, in the form attached as Exhibit "D" to
this Agreement.
"Breach" means, with respect to a Person, (a) any misrepresentation by the
Person set forth in any Transaction Document, in any Disclosure Schedule or in
any certificate, (b) any breach of any warranty made or given by the Person in
any Transaction Document, in any Disclosure Schedule or in any certificate, or
(c) any breach by the Person of any obligation set forth in, or failure to
perform or observe any covenant or agreement set forth in, any Transaction
Document.
"Business" means the mining and sale of aggregates and related business and
operations of Seller in Prescott Valley and Chino Valley, in Yavapai County,
Arizona.
"Business Day" means any calendar day other than a Saturday, a Sunday or a
legal holiday.
"Closing" means the closing of the Transaction on the Closing Date.
1
"Closing Date" means April 12, 2002.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidentiality Agreement" means the Confidentiality Agreement dated March
4, 2002, between Purchaser and Seller.
"Consent" means, with respect to an action and a Person, the written
consent of the Person to the action given prior to the occurrence of the action.
The Consent of an Entity may be given only by a Responsible Officer of the
Entity.
"Contractual Obligation" means, with respect to a Person, any obligation or
covenant of, or restriction upon, the Person under any written or oral contract
or agreement (including any lease, license, franchise, indenture, mortgage or
security agreement) to which the Person is a party, by which the Person is bound
or to which the Person or property owned, leased or used by the Person is
subject, and with respect to Seller, which relate to or affect the Purchased
Assets, the Assumed Liabilities, or the Business.
"Default" means, with respect to a Contractual Obligation, any default
thereunder, or any Fact which, with the lapse of a grace period, the passage of
time, the giving of notice or any combination of the foregoing, would be a
breach of, or a default under, or permit termination, modification or
acceleration of the Contractual Obligation.
"Disclosure Schedule" means the Disclosure Schedules attached as Exhibit
"G" to this Agreement.
"Employee Benefit Plan" includes all pension, retirement, disability,
medical, dental or other health insurance plans or other death benefit plans,
profit sharing, deferred compensation, stock option, bonus or other incentive
plans, vacation benefit plans, severance plans or other employee benefit plans
or arrangements, including, without limitation, any "pension plan" as defined in
Section 3(2) of ERISA, and any "welfare plan" as defined in Section 3(l) of
ERISA, whether or not any of the foregoing is funded, to which Seller is a party
or by which it is bound, or with respect to which Seller has during the ten (10)
years preceding the date of this Agreement, made any payments or contributions
or may otherwise have any liability.
"Entity" means any for-profit corporation, not-for-profit corporation,
general partnership, limited partnership, limited liability company, trust,
business trust, business association or other legally recognized association of
persons.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act of 1986, the Resource Conservation and Recovery Act of 1976,
the Federal Water Pollution Control Act of 1962, the Clean Air Act of 1970, the
Safe Drinking Water Act of 1974, the Toxic
2
Substances Control Act of 1976, the Emergency Planning and Community Right-to-
Know Act of 1986, the National Environmental Policy Act of 1969, the Federal
Endangered Species Act, the Clean Water Act (each as amended), or any other
State, Federal or local law concerning or relating to emissions, discharges,
releases or threatened releases of Hazardous Materials or Hazardous Waste into
the environment (including without limitation ambient air, surface water,
groundwater, or land), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
Hazardous Materials or Hazardous Waste, the prevention or minimization of
pollution, or protection of the environment, human health or similar matters
with respect to the foregoing.
"Estoppels" means estoppel certificates dated not more than fifteen (15)
days prior to the Closing Date, addressed to Purchaser from Xxxx Land and Cattle
Company with respect to the Xxxx Lease, Xxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx
with respect the Xxxxxxxx Lease and the Town of Prescott Valley with respect to
the Settlement Agreement, all in the form acceptable to Purchaser. With the
Consent of Purchaser, the Estoppels may be combined with the Required Consents
and the amendment to the Xxxxxxxx Lease.
"Fact" means any fact, circumstance, event, status, condition, practice,
plan, occurrence, incident, action, transaction or failure to act which could
form the basis for any consequence.
"Xxxx Lease" means that certain Mineral Lease Agreement dated January 1,
1999, by and between Xxxx Land and Cattle Company and Xxxxxx Construction
Company, Inc. and that certain Assignment, Amendment and Assumption Agreement
dated February 26, 1999 among Xxxx Land and Cattle Company, Xxxxxx Construction
Company, Inc. and Seller together with all the estates, rights, privileges,
easements and appurtenances thereto.
"Governmental Authority" means any nation or government, any state or
political subdivision of a state, and any person, court, authority, agency,
board or body exercising executive, legislative, judicial, regulatory or
administrative functions pertaining to government.
"Hazardous Materials" means any hazardous or toxic substances, materials or
wastes, pollutants or contaminants, as defined, listed or regulated by any
Environmental Laws, including, without limitation, (a) trichloroethylene,
tetrachloroethylene, perchloroethylene and other chlorinated solvents, (b)
petroleum products or by-products, (c) asbestos, (d) polychlorinated biphenyls,
and (e) waste oils.
"Hazardous Waste" means waste, material or substance defined, identified or
which would be classified as a hazardous waste or regulated substance pursuant
to the Resource Conservation Recovery Act of 1976 (as amended) and each
regulation or other applicable law promulgated thereunder.
"Indebtedness" means, with respect to a Person, (a) all indebtedness of the
Person for borrowed money or the deferred purchase price of property or
services; (b) all indebtedness secured by a Lien on property owned by the
Person, whether or not the Person has assumed the indebtedness; (c) all amounts
representing the capitalization of rental obligations with respect to
3
capital leases under which the Person is lessee; (d) all guarantees,
endorsements (other than endorsements of negotiable instruments in the Ordinary
Course) and other contingent obligations of the Person, whether direct or
indirect; and (e) all other items which, in accordance with accounting
principles consistently applied by the Person based upon past practices,
properly would be included as a liability on the balance sheet of the Person as
of the date on which Indebtedness is to be determined.
"Indemnified Party" means any Party entitled to indemnification from any
other Party pursuant to Article VII.
"Indemnifying Party" means any Party obligated to provide indemnification
to any other Party Pursuant to Article VII.
"Inventory" means the aggregates (sand, rock, and gravel) and raw materials
(including, but not limited to, cement, fly ash and admixtures)stockpiled at the
Leased Property as of the Closing Date.
"Inventory Closing Value" means the product obtained when the tons of
Inventory, as of the Closing Date, is multiplied by the Inventory Cost per ton
unit price for the respective categories of Inventory as set forth on Exhibit
"E".
"Inventory Cost" means, with respect to the Inventory meeting recognized
industry specifications, Seller's actual cost of the Inventory as agreed upon by
the Parties and which is set forth on Exhibit "E" attached to this Agreement.
"Knowledge of Seller" means either (i) the actual knowledge of an officer,
director or manager of Seller, including, without limitation, Xxxx Xxxxxx and
Xxx Xxxxxxxx, or (ii) the actual knowledge such employee of Seller should have
had in the reasonable and ordinary scope of his duties.
"Leased Property" means that certain real property leased by Seller,
together with all the estates, rights, privileges, easements and appurtenances
thereto and improvements thereon, and all minerals in, on or under such real
property, described on Schedule 4.8 attached to this Agreement.
------------
"Legal Requirement" means, with respect to a Person, any law, statute,
rule, regulation, ordinance, code, order, decree, stipulation, injunction,
charge, judgment, ruling, writ, award or other restriction of any Governmental
Authority that is binding on the Person or to which the Person or property
owned, leased or used by the Person is subject, and with respect to Seller,
which relate to the Purchased Assets, the Assumed Liabilities or the Business.
"Liability" means, with respect to a Person, any liability, Indebtedness or
obligation of, or claim against, the Person, whether accrued, known or unknown,
absolute or contingent, direct or indirect, deferred, liquidated or
unliquidated, or matured, due or to be due, including any guarantee or other
similar liability, obligation or claim with respect to the obligations of
another
4
Person.
"Lien" means, with respect to a Person, any valid lien, mortgage, security
interest, pledge, mechanic's lien, contractor's lien, charge, encumbrance or
similar liability or obligation of any kind with respect to the property or
assets of the Person, other than liens for Taxes which are not yet due and
payable.
"Litigation" means, with respect to a Person, (a) any pending or asserted
action, suit, charge, complaint, proceeding, investigation, hearing, claim,
demand or notice, whether civil or criminal, against or affecting the Person or
any property owned, leased or used by the Person, whether before a Governmental
Authority, arbitrator or other dispute resolution tribunal, or (b) any
unsatisfied judgment, order, decree, stipulation, injunction or charge against
or affecting the Person.
"Loss" means, with respect to the effect upon a Party of Facts, including
the Facts underlying a Breach, any economic loss, damage or harm paid, suffered
or incurred by the Party as a result of or arising out of the Facts underlying
the Breach, including any punitive damages, dues, penalties, fines, costs,
amounts paid in settlement, Liabilities, obligations, Taxes, Liens, losses, out-
of-pocket expenses, administrative expenses, attorneys' fees (including any
reasonable attorneys' fees incurred in connection with the successful pursuit of
any rights or remedies under this Agreement), court costs, or other similar
economic losses suffered or incurred by the Party.
"Material Adverse Change" means, with respect to a Person, any Fact or
Facts which have had or are likely to have a Material Adverse Effect on the
Person.
"Material Adverse Effect" means, with respect to a Person, a material
adverse effect on (a) the ability of the Person to conduct its business in the
Ordinary Course, (b) the assets, liabilities, financial condition, results of
operations, business, properties or prospects of the Person, or (c) the ability
of the Person to perform any obligation under any Transaction Document.
"Non-Compete Agreement" means the agreement dated as of the Closing Date
between Purchaser and Seller in the form attached as Exhibit "F" to this
Agreement.
"Ordinary Course" means, with respect to a Person, the ordinary course of
the operation of the business of the Person consistent with its past custom and
practice with respect to quantity, quality or frequency, as applicable.
"Party" means Purchaser and Seller and their permitted successors and
assigns.
"Permits" means all permits, licenses and approvals held by Seller with
respect to the operation of the Business and all water rights relating to the
Leased Property and Business, and those permits, licenses and approvals
currently pending, including such permits, licenses and approvals listed on
Schedule 4.14, attached to this Agreement.
5
"Person" means any natural person, Entity or Governmental Authority.
"Plant, Machinery and Equipment" means the plant machinery, equipment,
vehicles, spare parts, tools and other tangible assets set forth on Schedule 4.9
attached to this Agreement together with the assignable warranties, rights and
interests associated therewith, and any mining plans, surveys, reserves records,
production records, operating records, customer lists, customer records,
supplier lists, open purchase orders, bid books and other records which are used
by or useful in the operation of the Business.
"Purchase Price" means the sum of Three Million Dollars ($3,000,000) plus
the Inventory Closing Value.
"Purchased Assets" means the Assigned Contracts, Inventory, Plant,
Machinery and Equipment, and Permits.
"Purchaser" means United Metro Materials Inc., an Arizona corporation, and
its successors and assigns.
"Purchaser Documents" means the Transaction Documents to which Purchaser is
or will be a party or by which Purchaser is or will be bound.
"Responsible Officer" means, with respect to an Entity, an officer or
employee of the Entity, or a natured person performing a similar function with
respect to the Entity, who has primary responsibility for the matter in
question.
"Required Consents" means the Consent of the third parties listed on
Schedule 4.15, attached to this Agreement.
"Xxxxxxxx Lease" means that certain Agreement dated February 24, 1997, by
and between Xxxxxx X. Xxxxxxxx and Xxxxx Xxxxxxxx, husband and wife, and Xxxxxx
Construction Company, Inc., that certain First Amendment to Agreement dated
April 14, 1997, by and between Xxxxxx X. Xxxxxxxx and Xxxxx Xxxxxxxx, husband
and wife, and Xxxxxx Construction Company, Inc., and that certain Assignment,
Amendment and Assumption Agreement dated February 26, 1999 among Xxxxxx X.
Xxxxxxxx and Xxxxx Xxxxxxxx, husband and wife, and Xxxxxx Construction Company,
Inc., and Seller together with all the estates, rights, privileges, easements
and appurtenances thereto.
"Seller" means Meadow Valley Contractors, Inc., a Nevada Corporation, and
its successors and assigns.
"Seller Documents" means the Transaction Documents to which Seller is or
will be a party or by which Seller is or will be bound.
"Settlement Agreement" means that certain Settlement Agreement dated as of
January 10, 2002, by and between the Town of Prescott Valley and Seller together
with all the estates, rights, privileges, easements and appurtenances thereto.
6
"Tax" means, with respect to a Person, any general or special tax,
assessment, fee or other similar charge of any kind imposed by a Governmental
Authority, and any related interest, costs or penalties, that is assessed on,
levied on, imposed on, becomes a lien upon or relates to the Person, any
property of the Person, the rents or revenues from any such property, or the
ownership, use, occupancy or enjoyment of any such property, including, but not
limited to, all federal, state, local or foreign income, alternative minimum,
property, school, license, ad valorem, sales, use, excise, franchise, added
value, withholding, social security, payroll, receipts, capital stock, transfer,
profits, unemployment, disability, and real estate or personal property taxes.
"Tax Returns" means all State, Federal or local tax returns, tax reports,
annual reports, franchise tax returns, payroll tax returns and other similar
reports or returns of Seller required to be filed by any Governmental Authority
with respect to any Tax that would affect the Purchased Assets, the Assumed
Liabilities or the Business.
"Third Party Claim" means any claim, charge, demand, complaint, action,
suit, proceeding, hearing, investigation, or similar action which (a) is made or
initiated by a Person who is not a Party, (b) is made against an Indemnified
Party, and (c) is alleged to result from or arises out of the Facts underlying a
Breach.
"Third Party Claim Notice" means, with respect to a Third Party Claim, a
pleading, complaint, registered letter, or other similar written notice or
demand from a Person who is not a Party which specifically describes and makes
the Third Party Claim.
"Transaction" means the purchase and sale of the Purchased Assets.
"Transaction Documents" means this Agreement, the Assignment, the
Assumption Agreement, the Non-Compete Agreement, the Estoppels and any and all
certificates and any other agreement, instrument or document contemplated by
this Agreement or entered into in connection with the Transaction.
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