Exhibit 10.9
PURCHASE and SALE AGREEMENT
made this 4th day of June, 1997.
Between:
Canadian Waste Services Inc., an Ontario company;
Canadian Waste Services of Ontario Ltd., an Ontario company;
CWS Canadian Waste Services Ltd., a Canada company;
CWS Canadian Waste Services (Canada) Ltd., a Canada company; and
1236886 Ontario Inc., an Ontario company,
all having a business address at 0000 Xxxxx Xxxxxxx Xxxx Xxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxx, X0X 0X0 (collectively the
"Vendor")
324 of 20 Canada Inc.
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1233666 Ontario Inc., an Ontario company having an address at
Xxxx 000, 0000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxx X0X 0X0
(the "Purchaser")
WHEREAS, the Vendor is required by the Director of
Investigations (the "Director") acting under the authority of the Competition
Act of Canada to divest of certain solid waste collection, removal and
transportation for disposal businesses in the communities of Barrie, Brantford,
Kitchener, Ottawa and Sarnia, Ontario, and in Calgary and Edmonton, Alberta, and
in Vancouver, British Columbia;
AND WHEREAS, the Purchaser is willing to purchase the said
business from the Vendor;
NOW, THEREFORE, this Purchase and Sale Agreement witnesses that
in consideration of the articles of agreement set out herein, the parties agree
with each other as follows:
ARTICLE ONE
1.1 Definitions
In this Purchase and Sale Agreement (the "Agreement"), unless there is
something in the subject matter or context inconsistent therewith, the following
terms shall have the following meanings respectively:
"Assets" means the waste collection motor vehicles, containers, and the
equipment listed in Schedules 1.1 to 1.9 collectively.
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"Business" means collectively; (a) the solid waste collection, removal and
transportation for disposal service businesses conducted by the Vendor as
of the Closing date for the customers listed in Schedules 1.1 to 1.9
collectively, in the communities of Barrie, Brantford, Kitchener, Ottawa
and Outaouais, and Sarnia in the Province of Ontario, and Calgary and
Edmonton in the Province of Alberta, and Vancouver in the Province of
British Columbia; and (b) the transfer station business in Strathcona,
Alberta and the landfill operating and management business in Xxxxx,
Xxxxxxx.
"Closing" means the completion of the purchase and sale contemplated by
this Agreement on or before June 6, 1997.
"Customer Contracts" means the solid waste collection, removal and
transportation for disposal service customer accounts and contracts listed
in Schedules 1.1 to 1.8 collectively, and the transfer station customer
accounts and contracts and the Beaver County Regional Waste Commission
operating agreement set out in Schedule 1.9, and including all files, data
and information relating thereto in the possession or control of the
Vendor.
"Permits" means any and all authorizations, licenses or permits used in
the conduct of the Business, including but not limited to the transfer
station permit for the facility located in Strathcona, Alberta.
"Purchased Assets" means collectively the Assets, the Permits, the
Customer Contracts and the Real Property.
"Real Property" means the real property owned by the Vendor and used in
the conduct of the Business in Brantford and Kitchener, Ontario, as
identified in Schedules 1.2, and 1.5, and the leased property, including
all leasehold improvements owned by the Vendor and forming part of such
leased property, used by the Vendor in the Business in Sarnia, Ontario, a
copy of which lease is set out in Schedule 1.7, and in Strathcona,
Alberta, a copy of which lease is set out in Schedule 1.8.
1.2 Schedules
The following schedules are incorporated into this Agreement as if set out
in full herein, and are deemed to be an integral part of this Agreement:
Schedules 1.1 to 1.9 - Assets, Customer Contracts, Real Property &
Employees
Schedule 2 - Disposal Agreements
Schedule 3 - Promissory Note
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ARTICLE TWO
2.1 Purchase and Sale
Subject to the terms and provisions of this Agreement, the Purchaser shall
purchase and assume, and the Vendor shall sell, transfer and assign to the
Purchaser, the Purchased Assets.
The parties acknowledge that some of the Customer Contracts proposed to be
assigned may not be assignable without the consent of the customer or, even if
assignable, the customer may object to assignment. The parties agree that
customer satisfaction is important and the Vendor will substitute other
contracts of approximately equal value to offset losses as a result of customer
dissatisfaction or route efficiency considerations.
2.2 Price and Payment
The total purchase price (consisting of the price for the Purchased Assets
and the transitional license and assistance set out in Sections 2.03 and 2.10
below) payable by the Purchaser to the Vendor for the Purchased Assets shall be
SIXTEEN MILLION AND SEVENTY-FOUR THOUSAND DOLLARS ($16,074,,000.00), subject to
adjustment as hereinafter provided, which shall be paid by Purchaser to Vendor
as follows:
(a) the amount of $825,000.00 shall be paid on or before June 30th, 1997;
(b) the amount of $800,000.00 shall be paid on or before July 15th, 1997;
(c) the amount of $2,500,000.00 shall be paid on the date six months after the
Closing date;
(d) the Purchaser shall make monthly payments of interest only on the last day
of each month, calculated at 6.75% per year from the Closing date, on the
outstanding principal for such month;
(e) the Purchaser shall make annual installment payments of $1,195,000.00 each
on the first and second anniversary dates of the Closing date; and
(f) the Purchaser shall pay the remaining principal balance and interest in
full on the third anniversary date of the Closing date.
Attached as Schedule 3 is an unexecuted promissory note setting out the
foregoing payments, which note the Purchaser shall execute and deliver to the
Vendor at Closing.
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2.3 Allocation, Security and Taxes
The Purchaser and Vendor acknowledge that $5,500,000.00 of the purchase
price is allocated to the grant by the Vendor to the Purchaser of the
transitional licence and assistance set out in Section 2.10 below, which
allocated monies shall be treated as an expense to the Purchaser and as revenue
to the Vendor. The allocation of the remaining part of the purchase price shall
be agreed to by the parties and finalized within 30 days of the Closing date,
and the Vendor and the Purchaser shall record the purchase and sale for tax
purposes in accordance with such allocation.
As security for the payment of the purchase price, the Purchaser hereby
grants the Vendor a security interest in and first lien and charge against the
Purchased Assets, and shall enter into a security agreement with Vendor within
30 days following Closing date in this regard. Notwithstanding the foregoing
sentence, the Vendor agrees to postpone its security interest in the Purchased
Assets to the security interest of a third party lender to the Purchaser, on
notice in writing to the Vendor, and the Vendor will execute and deliver such
documents as may reasonably be required by the Purchaser to evidence such
postponement. The Purchaser and its solicitors are hereby authorized to file any
statements required pursuant to the Personal Property Security Act of Ontario to
record the postponement of the Vendor's security interest in the Purchased
Assets.
The Purchaser shall be solely responsible for and shall pay, and shall
indemnify the Vendor from and against, any and all GST, retail sales taxes, and
similar taxes or charges relating to the purchase and sale of the Purchased
Assets.
2.4 Price Adjustment
The Vendor represents and warrants to the Purchaser that the aggregate
projected earnings before interest, depreciation and amorization ("EBITDA") of
the Business for the twelve month period commencing August 1, 1997 and ending
July 31, 1998 shall not be less than $4,994,000.00. The aggregate EBITDA
calculation provided for in this Section 2.4 shall not incorporate any EBITDA
arising by virtue of the transfer station business in Strathcona, Alberta and
the landfill operating and management business in Xxxxx, Xxxxxxx, set out in
Schedule 1.8. In the event the aggregate EBITDA in such twelve month period is
less than $4,994,000.00 then the purchase price shall be reduced by 4.5 times
the amount of any such shortfall in the EBITDA, provided always that no
reduction in the purchase price shall be made by reason of a shortfall in the
EBITDA arising from:
(a) the cancellation of any of the Customer Contracts or the withholding
or reduction of any amounts otherwise payable pursuant to the
Customer Contracts as a result of the Purchaser's default during the
said 12 month period;
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(b) any failure of the Purchaser to comply with applicable laws, regulations,
by-laws, Permits or any other authorizations, orders or judgments relating
to the conduct of the Business during the said 12 month period;
(c) any event of force majeure which affects the Purchaser or the Business and
which causes a disruption in service to the Customer Contracts, including
but not limited to unusually severe weather, labour disruptions (including
strikes, lockouts or work-to-rule actions, except to the extent that any
of these events result from the non-compliance with a collective agreement
relating to the transfer of the Purchased Assets set out in this
Agreement), earthquakes, fires, blockage or failure of transportation
systems, or change in the laws applicable to the conduct of the Business
which increases the costs of doing business; and
(d) any material increase from or after the Closing date in the costs
reasonably and properly incurred by the Purchaser in the conduct of the
Business, as measured against the historical costs incurred in the conduct
of the Business, and any sales, general or administrative costs in excess
of 9% of the gross revenues of the Business.
In calculating the EBITDA the parties shall treat any event referred to in
subsections (a) through (d) above as if it had not occurred for the purposes of
such calculation, and shall project the applicable EBITDA accordingly based upon
historical information and the best information available to the parties.
The parties shall exercise their best efforts to complete the EBITDA
calculation and corresponding price adjustment, if any, by September 30th, 1998,
failing which either party may take the matter to arbitration in accordance with
and subject to the provisions of the Arbitration Act of Ontario and for the
purposes of any such arbitration the parties shall promptly select a person from
a chartered accounting firm to act as the sole arbitrator.
2.5 Closing
The Closing of the purchase and sale set out in this Agreement shall occur
on or before June 6th, 1997, simultaneously with and subject to the completion
of that certain transaction between the Vendor and WMI Waste Management of
Canada Inc., at the offices of the Vendor's lawyers in Toronto, Ontario at a
time to be mutually agreed upon by the parties. At Closing the Vendor shall
sell, deliver, transfer and assign to the Purchaser, and the Purchaser shall
assume, take possession of and pay for, the Purchased Assets.
2.6 Employees
At Closing the Purchaser shall assume the employment of the employees of
the Business listed in Schedules 1.1 to 1.9, as well as any and all obligations
arising from and after the Closing date with respect to such employees,
including all wages, salaries, bonuses, vacation and vacation pay, benefits and
pensions, and collective agreements
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with respect to such employees. The Purchaser shall recognize the seniority of
the employees listed in Schedules 1.1 to 1.9 in terms of salaries, vacation and
benefits. The Vendor shall pay all wages, salaries and bonuses and all amounts
due in lieu of holiday pay to all employees listed in Schedules 1.1 to 1.9 owing
up to and including the Closing date.
2.7 Assumed Liabilities
Subject to the representations, warranties and undertakings of the Vendor
set out in this Agreement from and after the time of Closing the Purchaser
shall, without any further responsibility or liability of or recourse to the
Vendor or its affiliated companies or their respective officers, directors,
employees or representatives, indemnify and hold the Vendor harmless for any and
all claims, liabilities, obligations, losses, costs, expenses, litigation, and
demands whatsoever related to, arising from, asserted against or associated with
any and all Assumed Liabilities. For the purposes of this Agreement, "Assumed
Liabilities" shall mean:
(a) all liabilities, claims, proceedings, demands or litigation, and
obligations or debts of the Purchaser, relating to the use, ownership or
possession by the Purchaser of the Purchased Assets;
(b) all liabilities relating in any manner to the obligations of Vendor
arising from and after the Closing date under the Customer Contracts or
with respect to the Real Property, including but not limited to any
violation, breach or failure to perform any obligation or requirement
relating to the Customer Contracts or with respect to the Real Property.
The Purchaser shall from and after the Closing date fulfill and comply
with all the terms and provisions of the Customer Contracts as if the
Purchaser were originally a party to the said agreements; and
(c) all liabilities and obligations arising from and after the Closing date
with respect to the employees of the Business listed in Schedules 1.1 to
1.9, including any and all obligations relating to salary, wages, bonuses,
vacations and vacation pay, benefits, pensions, collective agreements,
terminations of any such employees after the Closing date.
In the event the landfill operating and management agreement with the
Beaver Regional Waste Management Services Commission set out in Schedule 1.8 is
not assigned and transferred to the Purchaser, then the Purchaser shall not
assume or be liable for any closure and/or post-closure costs relating to the
landfill site which is the subject of the said landfill operating and management
agreement.
2.8 Assets
The Purchaser acknowledges that the Vendor has not directly managed or
operated the Business in several instances, having very recently acquired such
parts of
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the Business, and has been required by the Director to manage and operate some
parts of the Business through an intermediary in other instances. It is the
intention of the parties that the Assets, taken as a whole and as of the Closing
date, be representative in terms of age, quality and condition, of the assets of
the Vendor's business within the communities comprising the Business. In the
event the Assets are not so representative then the parties shall agree to
substitute assets of the Vendor's business in order to achieve the
aforementioned intention.
Subject to the foregoing, the Purchaser hereby agrees that it is buying
and assuming the Purchased Assets on an "as-is, where-is" basis. The Vendor does
not make any representations or warranties whatsoever to the Purchaser as to the
state of repair, condition, quality, durability or suitability of the Purchased
Assets for the Purchaser's purposes. THE PURCHASER HEREBY WAIVES, RELEASES AND
FOREVER DISCHARGES THE VENDOR FROM ANY AND ALL REPRESENTATIONS, WARRANTIES AND
CONDITIONS OF MERCHANTABLE QUALIFY OR FITNESS FOR PURPOSE, WHETHER EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE PURCHASED ASSETS. The
limitations on the liability of the Vendor set out in this Section 2.8 shall
survive the Closing and continue in full force and effect thereafter.
2.9 Purchaser's Undertakings
The Purchaser shall replace the bid and performance bonds and letters of
credit which the Vendor has given to the customers of the Business, or provide
back-up letters of credit satisfactory to the Vendor acting reasonably in
respect of such bonds or letters of credit, in favor of the Vendor at or as soon
as practicable after Closing, but in any event within 180 days of Closing. The
Purchaser shall defend, indemnify and save the Vendor harmless from and against
any and all costs, claims or damages incurred by Vendor pertaining to any claims
or draws made against any such bid or performance bonds or letters of credit
with respect to any such bonds or letters of credit not so replaced or backed-up
by letters of credit as of Closing.
As soon as reasonably possible following the Closing, and in any event not
later than 180 days after the Closing date, the Purchaser shall remove the
Vendor's name and logos from the Purchased Assets, as well as the names and
logos of any predecessor companies to the Vendor. The Vendor does not grant the
Purchaser any rights in and to the name of the Vendor or any trademarks of the
Vendor with respect to the ownership or use by the Purchaser of the Purchased
Assets.
2.10 Transitional License and Assistance
The Vendor hereby grants the Purchaser the right and non-exclusive license
to use and share part of the Vendor's facilities relating to the conduct of the
Business in the communities of Barrie, Ottawa and Sarnia in the Province of
Ontario, Calgary and Edmonton in the Province of Alberta, and Vancouver, British
Columbia for the period from the date hereof up to and including December 31,
1997 for the purposes of
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(b) all liabilities, for taxes, duties, levies, assessments and other charges,
including penalties, interest and fines with respect thereto, payable by
the Vendor to any federal, provincial, municipal or other government
agency, including without limitation any taxes in respect of or measured
by the sale, consumption or performance by the Vendor of any service prior
to the Closing date or any tax payable in respect of remuneration payable
to all persons employed by the Business prior to the Closing date;
(c) all liabilities and obligations with respect to the employees of the
Business listed in Schedules 1.1 to 1.9, including any obligations
relating to salary, bonuses, vacation pay, benefits, pensions, collective
agreements and termination of any such employee against the Vendor or the
Purchaser in respect of such employment to the extent relating to the
period prior to the Closing date;
(d) all liabilities for claims of third parties in respect of events occurring
at any time prior to the Closing date, including without limitation any
claim in respect of the breach of any applicable environmental laws,
regulations, ordinances, by-laws and codes in respect of the Real Property
or the operation of the Business;
(e) all costs and expenses reasonably and properly incurred by the Purchaser
in respect of the remediation of the Real Property or the Ryley Regional
Landfill Site where such remediation related to conditions, events or
circumstances existing prior to the Closing date (whether known or
unknown) and not caused by any act or omission of the Purchaser.
Notwithstanding any other provision of this Agreement, the Purchaser shall
have a right to satisfy any amount from time to time owing by it to the Vendor
for the balance of the purchase price, by way of set-off against any amount
owing by the Vendor to the Purchaser, as a result of the Vendor's obligation to
indemnify pursuant to this Section 2.13.
2.14 Purchaser's Covenant.
The Vendor will not be liable for, and the Purchaser will indemnify the
Vendor from and against, all obligations, commitments and liabilities of the
Purchaser (whether absolute, accrued or contingent) related to, arising from,
asserted against or associated with events, circumstances, conditions or
occurrences (whether known or unknown) to the extent occurring after the Closing
date. Without limiting the generality of the foregoing, the Vendor shall have no
liability for and shall be indemnified by the Purchaser for each of the
following:
(a) all liabilities, claims, proceedings, demands or litigation and
obligations or debts in respect of or relating to the operation of the
Business after the Closing date;
(b) all liabilities, for taxes, duties, levies, assessments and other charges,
including penalties, interest and fines with respect thereto, payable by
the Purchaser to any federal, provincial, municipal or other government
agency, including without limitation any taxes in respect of or measured
by the sale, consumption or performance by the Purchaser of any service
after the Closing date or any tax
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payable in respect of remuneration payable to all persons employed by the
Business after the Closing date;
(c) all liabilities and obligations with respect to the employees of the
Business listed in Schedules 1.1 to 1.9, including any obligations
relating to salary, bonuses, vacation pay, benefits, pensions, collective
agreements and termination of any such employee against the Vendor or the
Purchaser in respect of such employment to the extent relating to the
period after the Closing date;
(d) all liabilities for claims of third parties in respect of events occurring
at any time after the Closing date, including without limitation any claim
in respect of the breach of any applicable environmental laws,
regulations, ordinances, by-laws and codes in respect of the Real
Property.
(e) all costs and expenses reasonably and properly incurred by the Vendor in
respect of the remediation of the Real Property or the Ryley Regional
Landfill Site where such remediation related to conditions, events or
circumstances arising after the Closing date (whether known or unknown)
and not caused by any act or omission of the Vendor.
ARTICLE THREE
3.1 Representations and Warranties of Vendor
The Vendor represents and warrants to the Purchaser as follows:
(a) Organization
The Vendor is a corporation which has been duly incorporated and organized
and is validly subsisting and in good standing under the laws of its
jurisdiction, and has the corporate power and authority and possesses all
authorizations necessary to own or lease the Purchased Assets and to sell,
transfer and assign the Purchased Assets to the Purchaser.
(b) Authority
The Vendor has the legal capacity to enter into and carry out it
obligations under this Agreement. Neither the execution of this Agreement,
nor the completion of the sale set out in this Agreement violates,
conflicts with or results in, or will violate, conflict with or result in,
a breach by the Vendor of the respective terms, conditions or provisions,
as applicable, of its articles or other constating document or by-laws or
of any deed of trust, loan agreement, to which it is a party or by which
it is bound. All necessary corporate action on the part of the Vendor has
been taken to authorize and approve the execution and delivery of this
Agreement and the performance by the Vendor of its obligations hereunder.
This Agreement has been duly executed and delivered by, and constitutes a
valid and binding obligation of the Vendor.
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(c) Title
The Vendor does now and shall at Closing, own, possess and have a good and
marketable title to the Purchased Assets free and clear of any charges or
other encumbrances whatsoever and has full right to assign and sell the
Purchased Assets to Purchaser free and clear of all claims.
(d) Proceedings
There are no actions, suits or proceedings, pending or threatened, before
any court which, if successful, would adversely affect the title to the
Purchased Assets, or the Vendor's right to sell the same to the Purchaser
free and clear of all encumbrances.
(e) Executions
There are no judgments or executions outstanding against the Vendor which
affect the Purchased Assets.
(f) Compliance
The Vendor is not now and at Closing will not be in default in any
material respect under the terms of any of the Customer Contracts or
Permits, nor to the best of the knowledge of the Vendor is any default
threatened or pending under any such Customer Contracts or Permits.
(g) Real Property
The Seller shall convey the owned Real Property to Purchaser at Closing by
deed/transfer of land made in favor of the Purchaser, free and clear of
any liens and encumbrances, except for recorded easements and other
property rights of record on title (but not including any liens or
mortgages), none of which interfere with the continued operation of the
Business as presently conducted.
(h) Lease Property
The Sarnia lease set out in Schedule 1.7 and the Strathcona lease set out
in Schedule 1.8 are both in good standing, no amounts payable by the
lessee thereunder are outstanding and the lessee thereunder is not in
default nor at Closing will be in default, in any material respect, of any
of the provisions of the said lease agreements.
(i) Non-Resident
The Vendor is not a non-resident within the meaning of the Income Tax Act
of Canada.
(j) Labor Relations
To the best of Vendor's knowledge there is no strike, walkout or other
labor disturbance threatened or pending with respect to any of the
employees or collective agreements set out in Schedules 1.1 to 1.9.
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3.2 Representations and Warranties of Purchaser
Purchaser represents and warrants to Vendor as follows:
(a) Organization
Purchaser is a corporation duly incorporated and validly existing under
the laws of the Province of Ontario.
(b) Authority
Neither the execution and delivery of this Agreement, nor the consummation
of the transactions contemplated herein violates, conflicts with or
results in, or will violate, conflict with or result in, a breach by
Purchaser of the terms, conditions or provisions, as applicable, of
Purchaser's articles or by-laws or of any deed of trust, debt instrument
or loan agreement, or any other agreement affecting its assets or
operations generally or its undertaking, to which it is a party of by
which it is bound.
(c) Corporate Action
All necessary corporate action on the part of the Purchaser has been taken
to authorize and approve the execution and delivery of this Agreement and
the performance by the Purchaser of its obligations hereunder. This
Agreement has been duly executed and delivered by, and constitutes a valid
and binding obligation of the Purchaser.
3.3 Representations True at Closing
The representations, warranties and covenants contained in Sections 3.1
and 3.2 hereof and in any certificate or document delivered in connection with
the transaction contemplated herein shall be true at and as of the time of
Closing as though such representations, warranties and covenants were made at
and as of the time of Closing.
3.4 Survival of Representations and Warranties
All representations and warranties set out in this Agreement, whether made
by the Vendor or the Purchaser, shall survive the Closing and remain in force
and effect for a period of one year following the Closing date, after which
period all such representions and warranties shall terminate and be void, and no
longer be actionable by the parties, except that any representations or
warranties concerning:
(a) environmental matters or claims shall survive for a period of 18 months
following the Closing date;
(b) employee matters or claims shall survive for a period of 3 years following
the Closing date; and
(c) taxes shall survive for the applicable statutory period;
(d) EBITDA in Section 2.4 shall survive until resolved pursuant to Section
2.4;
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after which applicable periods such representations and warranties shall
terminate and be void, and no longer actionable by the parties.
ARTICLE FOUR
4.1 Conditions Precedent for Purchaser
The obligation of the Purchaser to complete the transaction set out in
this Agreement is subject to the fulfillment of each of the following
conditions:
(a) No Material Breach
There shall have been no material breach by the Vendor in the performance
of any of its covenants herein, and each of the representations and
warranties of the Vendor contained or referred to in this Agreement shall
be true and correct in all material respects at Closing.
(b) Covenants and Conditions Performed
Except as otherwise provided herein, all covenants and conditions of or to
be performed or satisfied by the Vendor at or before Closing, shall have
been performed or satisfied in all material respects.
(c) Permits
The Purchaser shall assign its interest in the Permits to the Vendor at
Closing by the delivery of an assignment agreement.
(d) Corporate Proceedings
The Vendor shall have taken or caused to be taken all necessary or
desirable actions, steps and corporate proceedings to approve and
authorize the transfer of the Purchased Assets to Purchaser.
(e) Documents
The Vendor shall have delivered to the Purchaser a xxxx of sale,
assignment agreements and deeds/transfer of land in order to effectively
transfer and assign the Purchased Assets to the Purchaser with a good and
marketable title free and clear of all liens and security interests.
4.2 Purchaser's Right of Waiver
In case any of the foregoing conditions shall not have been performed
prior to Closing, the Purchaser may terminate this Agreement by notice in
writing to the Vendor, in which event the Purchaser shall be under no obligation
to any other party under this Agreement; provided, however, that aforesaid
conditions are for the benefit of the Purchaser only and accordingly the
Purchaser shall be entitled to waive compliance with any of such conditions in
whole or in part if it sees fit to do so.
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4.3 Conditions Precedent for Vendor
The obligation of the Vendor to complete the transaction set out in this
Agreement is subject to the fulfillment of each of the following conditions:
(a) There shall have been no material breach by the Purchaser in the
performance of any of its covenants herein, and each of the
representations and warranties of the Purchaser contained or referred to
in this Agreement shall be true and correct in all material respects at
Closing.
(b) Purchaser shall have delivered to Vendor all of the payments, instruments
and other documents and items required to be delivered to Vendor,
including the payment set out in Section 2.2 and the performance bonds in
Section 2.9.
4.4 Vendor's Right of Waiver
In case any of the foregoing conditions shall not have been performed
prior to Closing, the Vendor may terminate this Agreement by notice in writing
to the Purchaser, in which event the Vendor shall be under no obligation to any
other party under this Agreement; provided, however, that the aforesaid
conditions are for the benefit of the Vendor only and accordingly the Vendor
shall be entitled to waive compliance with any such condition in whole or in
part if it sees fit to do so.
ARTICLE FIVE
5.1 Indemnification by Vendor
Subject to the provisions of this Agreement, the Vendor shall indemnify
and hold harmless the Purchaser from and against all claims, damages, losses,
liabilities, costs and expenses (including, without limitation, settlement costs
and any legal fees, court costs, accounting or other investigating or defending
expenses for any actions or threatened actions) in connection with: (i) any
misrepresentation or breach of any representation or warranty made by the Vendor
in this Agreement; or (ii) any breach of any covenant, agreement or obligation
of the Vendor contained in this Agreement.
Notwithstanding any other provision of this Agreement, the Purchaser shall
have a right to satisfy any amount from time to time owing by it to the Vendor
for the balance of the purchase price, by way of set-off against any amount
owing by the Vendor to the Purchaser, as a result of the Vendor's obligation to
indemnify pursuant to this Section 5.1.
5.2 Indemnification by Purchaser
The Purchaser shall indemnify and hold harmless the Vendor from and
against all claims, damages, losses, liabilities, costs and expenses (including,
without limitation, settlement costs and any legal, court costs, accounting or
other expenses for investigating or defending any actions or threatened actions)
in connection with: (i) any misrepresentation
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or breach of any representation or warranty made by the Purchaser in this
Agreement; or (ii) any breach of any covenant, agreement or obligation of the
Purchaser contained in this Agreement.
5.3 Limitation on Liability
Notwithstanding any other provision of this Agreement, it is understood
and agreed by the parties that the obligation of the Vendor, taken in the
aggregate, to indemnify the Purchaser shall in no event commence unless and
until the Purchaser has incurred indemnifiable claims in the aggregate in excess
of two hundred and fifty-thousand dollars ($250,000.00), in which case the
indemnity obligations of the Vendor shall apply to any indemnifiable claims in
excess of such amount and the Purchaser hereby waives and forever releases the
Vendor from any and all claims for damages or indemnification which taken in the
aggregate are less than two hundred and fifty-thousand dollars ($250,000.00).
ARTICLE SIX
6.1 Non-Competition
Neither the Vendor nor any affiliated company of the Vendor shall, for a
period of 12 months following the Closing date (whether on its own account or as
a stockholder, partner, joint venturer, advisor, consultant and/or agent of any
person, corporation or other entity) solicit, provide or enter into any
arrangement or agreement (whether written, oral, formal or informal) for the
provision of solid or special waste collection, removal, or transportation for
disposal or recycling services to any customer identified in the Customer
Contracts assigned by Vendor to the Purchaser pursuant to this Agreement, or use
any customer information pertaining to the Customer Contracts for any such
purpose, provided always that the foregoing prohibitions shall not apply to the
extent that any such Customer Contracts are subject to tender.
6.2 Announcements
No public announcement or press release concerning the transaction set out
in this Agreement shall be made at any time by the Vendor or the Purchaser, as
the case may be, without the prior consent of the other party.
6.3 Fees
The Vendor and the Purchaser represent and warrant to each other that it
has not engaged any broker or finder to act with respect to the purchase and
sale set out in this Agreement, and each agrees to indemnify the other against
any claim by any person for brokerage, commission or finder's or similar fees
based upon the alleged act of such party.
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6.4 Applicable Law
This Agreement and the rights, obligations and relations of the parties
shall be governed by and construed in accordance with the laws in force in the
Province of Ontario and the rights and obligations of the parties shall be
interpreted accordingly. Exclusive jurisdiction in any action, suit or
proceeding related to any dispute arising under this Agreement and the other
agreements relating to this Agreement (for purposes of this Section, a
"Dispute") shall be in any appropriate court in the Province of Ontario.
The Vendor and Purchaser waive any right to trial by jury or to have a
jury participate in resolving any Dispute, whether relating to contract, tort or
otherwise. The Vendor and Purchaser do not waive venue in any action, suit or
proceeding related to a Dispute brought before any court in the Province of
Ontario.
6.5 Entire Agreement
This Agreement contains the entire agreement of the parties hereto and
supersedes all prior agreements and understandings, oral or written, between the
parties hereto or their respective representatives with respect to the matters
herein and shall not be modified or amended except by written agreement signed
by the parties to be bound thereby.
6.6 Time
Time shall be of the essence of this Agreement
6.7 Notices
All notices, requests, demands or other communications required to be
given or made hereunder shall be in writing and shall be deemed to be well and
sufficiently given if hand delivered or sent by prepaid courier or by means of
printed telephonic facsimile communication, if to the Vendor, addressed to:
Canadian Waste Services Inc.
0000 Xxxxx Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx
X0X 0X0
Fax: (000) 000-0000
and if to the Purchaser, addressed to:
1233666 Ontario Inc.
Xxxx 000, 0000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
Fax: (000) 000-0000
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Such notice shall be deemed to have been given on the date of delivery or
transmission. Any party may change its address for notice by written
communication, mailed or delivered as aforesaid.
6.8 Successors and Assigns
This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
6.9 Confidentiality
In the event that the purchase and sale herein provided for is not
consummated, the Purchaser agrees that it will not, directly or indirectly, use
for its own purposes any information, trade secrets or confidential data
relating to the Vendor, or the Business (including the customers of the
Business) discovered or acquired by the Purchaser, its representatives or
auditors, or any of them, as a result of the Vendor making available to the
Purchaser or its representatives any information relating to the Vendor, the
Purchased Assets, and the Purchaser agrees that it will not disclose, divulge or
communicate orally, in writing or otherwise, any such information, trade secrets
or confidential data so discovered or acquired to any other person, firm or
corporation.
IN WITNESS WHEREOF the parties have signed this Agreement by their duly
authorized officers.
SIGNED AND DELIVERED:
(Canadian Waste Services Inc.
(By:
(
(/s/ [ILLEGIBLE]
(--------------------------------------
(Canadian Waste Services of Ontario Ltd.
(By:
(
(/s/ [ILLEGIBLE]
(--------------------------------------
signatures continued .......
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(CWS Canadian Waste Services Ltd.
(By:
(
(/s/ [ILLEGIBLE]
(--------------------------------------
(CWS Canadian Waste Services (Canada) Ltd.
(By:
(
(/s/ [ILLEGIBLE]
(--------------------------------------
(1236886 Ontario Inc.
(By:
(
(/s/ [ILLEGIBLE]
(--------------------------------------
(1233666 Ontario Inc.
(By:
(
(/s/ [ILLEGIBLE]
(--------------------------------------
