EXHIBIT 2.1
AGREEMENT FOR SALE AND PURCHASE
OF BUSINESS ASSETS
EFFECTIVE DATE: January 29TH, 1999
PARTIES: Waste Recovery, Inc.
a Texas corporation
000 X. Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000 ("Seller")
Fax No. (000) 000-0000
RB Recycling, Inc.
an Oregon corporation
000 X. 00xx Xxxxxx
XxXxxxxxxxx, XX 00000 ("Buyer")
Fax No. (000) 000-0000
RECITALS:
A. Seller is engaged in the business of collecting and shredding waste
tires in and around Portland, Oregon for distribution to and further processing
by manufacturers (the "Business").
B. Seller owns and maintains certain vehicles, machinery, tools,
furniture, fixtures, equipment, and supplies; certain leasehold interests,
contract rights, and regulatory permits; and other assets used in connection
with the operation of the Business.
C. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, certain of the assets used, useful, or intended to be used in the
operation of the Business, under the terms and conditions set forth herein.
AGREEMENT:
ARTICLE I
SALE OF BUSINESS
1.1 ASSETS SOLD. Seller agrees to sell to Buyer and Buyer
agrees to purchase from Seller, free from all liabilities, claims, and
encumbrances, the following assets owned by Seller and used in connection with
the operation of the Business (other than as set forth in EXHIBIT 1.2(F))
("Assets"):
Page 1 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
(a) All vehicles, machinery, equipment, tools, supplies,
furniture, fixtures, and other personal property of Seller
used in the Business, including but not limited to the
property identified in EXHIBIT 1.1(B);
(b) Raw materials and inventory of Seller with respect to the
Business;
(c) The customer accounts, contracts, leases, franchises,
arrangements and commitments listed on EXHIBIT 1.1(C) and no
others;
(d) All goodwill (except for Seller's name), manuals, catalogs,
sales literature, files, records, customer lists, and other
intangible personal property of Seller used or useful in
connection with the operation of the Business except that
intangible personal property that is the subject of the
License Agreement defined below.
1.2 ASSETS EXCLUDED. Excluded from this sale and purchase are the
following assets of Seller:
(a) Cash on hand and the cash deposited by Seller with the Oregon
Department of Environmental Quality;
(b) Business checking, savings, and trust accounts;
(c) Accounts receivable;
(d) Advances to employees and prepaid expenses; and
(f) All other tangible assets not identified in Section 1.1,
certain intangible assets of Seller with respect to the
Business that are the subject of the License Agreement to be
entered into by Buyer and Seller (the "License Agreement"),
and assets specifically excluded by reference on EXHIBIT
1.2(f).
1.3 NO LIABILITIES ASSUMED. Buyer shall assume no obligations or
liabilities of Seller, except as expressly set forth herein. All obligations and
liabilities not assumed by Buyer shall remain with and be the obligation of
Seller.
1.4 PURCHASE PRICE. The purchase price of the Assets ("Purchase Price")
shall be the sum of $ 750,000.00.
1.5 ALLOCATION OF PURCHASE PRICE. At or prior to the closing, Seller
and Buyer shall cooperate with one another in the preparation of an IRS Form
8594 or a comparable document reflecting their allocation of the Purchase Price
among the Assets.
Page 2 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
ARTICLE II
PAYMENT OF PURCHASE PRICE
The Purchase Price of $ 750,000 shall be paid in cash on the closing
date.
ARTICLE III
SELLER'S REPRESENTATIONS, WARRANTIES, AND COVENANTS
3.1 REPRESENTATIONS AND WARRANTIES. Seller makes the following
representations and warranties:
(a) Seller is now and on the closing date will be a corporation
duly organized and validly existing under the laws of the
State of Texas. Seller has all requisite corporate power and
authority to own and operate the Assets and to carry on the
Business as now being conducted.
(b) The execution, delivery, and performance of this Agreement
have been duly authorized and approved by the Board of
Directors of Seller, and this Agreement constitutes a valid
and binding agreement of Seller in accordance with its terms.
(c) Seller holds good and marketable title to the Assets, free and
clear of restrictions on or conditions to transfer or
assignment and free and clear of liens, pledges, charges, or
encumbrances except as noted in EXHIBIT 3.1(c). None of the
Assets are subject to the purchase money security interest of
Xxx Xxxxxx of Portland Inc., naming Seller as debtor.
(d) Seller has provided to Buyer front and back copies of the
Certificate of Title for each titled vehicle included among
the Assets.
(e) Seller is not aware of any labor dispute or labor trouble
involving employees of Seller engaged in the operation of the
Business and represents that there has not been any such
dispute or trouble during the three years preceding the
effective date of this Agreement.
(f) Seller has no knowledge of any claim, litigation, proceeding,
investigation, or governmental action pending or threatened
against Seller which might result in any material change in
the Business or Assets.
(g) On the closing date, there will be no material leases,
employment contracts, contracts for services or maintenance,
or other similar contracts relating to or connected with the
Assets except as disclosed on EXHIBIT 3.1(g), as assigned to
Buyer, or as listed on EXHIBIT 1.1(c) and assumed by Buyer.
Page 3 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
(h) Seller has validly obtained all material federal, state, and
local environmental permits necessary to conduct the Business.
(i) The processes used in the Business as presently conducted do
not violate or infringe upon any person's patent, trademark,
copyright, or other claim to or right in intellectual
property.
(j) The execution and delivery of this Agreement by Seller and the
consummation of the transaction contemplated hereunder will
not result in the creation or imposition of any valid lien,
charge, or encumbrance on any of the Assets except as
contemplated by this Agreement and will not require the
authorization, consent, or approval of any third party.
(k) Seller has not employed any broker or finder in connection
with the transaction contemplated by this Agreement or taken
any action that would give rise to a valid claim against any
party for a brokerage commission, finder's fee, or other
similar payment.
(l) None of the representations or warranties of Seller expressly
made herein contain any untrue statement of a material fact,
or omit or misstate a material fact necessary in order to make
the statements contained herein not misleading.
(m) All representations and warranties made by Seller shall
survive the closing date, and survive for a period of eighteen
(18) months thereafter, except for the representation set
forth in Section 3.1(c) which shall survive indefinitely.
3.2 GENERAL COVENANTS OF SELLER.
(a) Between the effective date of this Agreement and the closing
date, Seller will:
(i) Operate the Business in the usual and ordinary course
and in substantial conformity with all applicable
laws, ordinances, regulations, rules, and orders and
use its best efforts to preserve the Business and the
continued operation thereof with Seller's customers,
suppliers, and others having relations with Seller;
(ii) Not assign, sell, lease, or otherwise transfer or
dispose of any of the Assets, whether now owned or
hereafter acquired, except in the normal and ordinary
course of business and in connection with the normal
operation of the Business;
Page 4 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
(iii) Maintain the Assets in their present condition,
reasonable wear and tear and ordinary usage excepted;
(iv) Not distribute cash or other property to its
shareholders;
(v) Not pay a bonus to or increase the compensation of
any employee;
(vi) Provide Buyer and its representatives with reasonable
access during business hours to the Assets and the
records of the Business and furnish such additional
information concerning the Business as Buyer from
time to time may reasonably request;
(vii) Comply with all applicable requirements of the Worker
Adjustment Retraining Notification Act, 29 USC
Section 2101, et seq; and
(viii) Exercise its best efforts to effect to consummate the
transaction contemplated by this Agreement and
satisfy all of Seller's obligations under this
Agreement.
(b) Seller shall execute and deliver to Buyer a supply and
services agreement (the "Services Agreement") in substantially
the form attached hereto as EXHIBIT 3.2(B) pursuant to which
Seller shall provide certain specified services to Buyer after
the closing and Buyer's acquisition of the Assets.
(c) Seller shall execute and deliver to Buyer a license agreement
(the "License Agreement") in substantially the form attached
hereto as EXHIBIT 3.2(C) pursuant to which Seller shall grant
Buyer a non-transferable, royalty-free license to use certain
specified intangible assets of Seller.
3.3 COVENANT TO COOPERATE. The parties shall cooperate with one another
with respect to the collection of Seller's accounts receivable in order to avoid
duplication of effort and preserve valuable customer relationships and shall
cooperate with one another to xxxxxx continuity in the Business and preserve
valuable vendor relationships. Seller shall reasonably cooperate with Buyer in
the preparation of an accounting audit of the facility and preparation of a 1998
income statement post-closing. Buyer shall pay the cost of the audit and
preparation upon Buyer's request of the income statement, but Seller shall
provide its cooperation at no cost to Buyer.
3.4 COVENANT NOT TO COMPETE. For a period of three years following the
closing date, Seller will not, within Oregon, Washington, or Idaho, directly or
indirectly (i) own, as a partner, stockholder, or otherwise, an interest in or
(ii) participate in the management, operation, or control of or (iii) perform
services or act in the capacity of an independent contractor, consultant, or
agent of any enterprise directly or indirectly engaged in the business of
processing and shredding tires and the manufacturing of products therefrom.
Seller will not, for a period of three years following the closing date,
directly or indirectly suggest, request, or encourage any prior suppliers or
customers of Seller to curtail, reduce, or cancel their business done with
Buyer. This covenant shall in no way prohibit Seller from transporting waste
tires in the geographic region described
Page 5 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
herein. Seller agrees that it would be impossible to measure the damage to Buyer
resulting from a breach of any covenant set forth in this Section 3.4 by Seller
and that monetary damages would be an inadequate remedy for any such breach.
Accordingly, Seller agrees that, if Seller breaches such a covenant, Buyer shall
be entitled, in addition to all other remedies it may have at law or in equity,
to an injunction or other appropriate order restraining any such breach, without
showing or proving any actual damage sustained by Buyer. In the event that a
covenant set forth in this Section 3.4 is determined by any court of competent
jurisdiction to be unenforceable by reason of its extending for too great a
period of time or over too great a geographical area or by reason of its being
too extensive in any other respect, it shall be interpreted to extend only over
the maximum period of time for which it may be enforceable and/or over the
maximum geographical area as to which it may be enforceable and/or to the
maximum extent in all other respects as to which it may be enforceable, all as
determined by such court in such action.
3.5 TAX MATTERS COVENANT. Seller will maintain income tax reporting
positions consistent with the IRS Form 8594 or other document described in
Section 1.5.
ARTICLE IV
BUYER'S REPRESENTATIONS, WARRANTIES, AND COVENANTS
4.1 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and
warrants as follows:
(a) Buyer is a corporation duly organized and validly existing
under the laws of the State of Oregon. Buyer has all requisite
corporate power and authority to enter into this Agreement and
perform its obligations hereunder.
(b) The execution, delivery, and performance of this Agreement
have been duly authorized and approved by the Board of
Directors of Buyer and this Agreement constitutes a valid and
binding agreement of Buyer in accordance with its terms.
(c) Buyer has not employed any broker or finder in connection with
the transactions contemplated by this Agreement or taken any
action that would give rise to a valid claim against any party
for a brokerage commission, finder's fee, or other similar
payment.
(d) None of the representations or warranties of Buyer contain any
untrue statement of a material fact or omit or misstate a
material fact necessary in order to make the statements
contained therein not misleading.
(e) All representations and warranties made by Buyer shall survive
the closing date and survive for a period of eighteen (18)
months thereafter.
Page 6 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
4.2 GENERAL COVENANT OF BUYER. Between the effective date of this
Agreement and the closing date, Buyer will use its best efforts to consummate
the transaction contemplated by this Agreement and satisfy all of Buyer's
obligations under this Agreement.
4.3 TAX MATTERS COVENANT. Buyer will maintain income tax reporting
positions consistent with the IRS Form 8594 or other document described in
Section 1.5.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARTIES
5.1 BUYER'S CONDITIONS PRECEDENT. The obligation of Buyer to consummate
the transaction contemplated by this Agreement is subject to the fulfillment,
before or on the closing date, of each of the following conditions, any one or a
portion of which may be waived in writing by Buyer and shall be deemed waived
upon closing of the transaction:
(a) All representations and warranties made in this Agreement by
Seller shall be true as of the closing date as fully as though
such representations and warranties had been made on and as of
the closing date, and Seller shall not have violated or failed
to perform in accordance with any covenant set forth in
Section 3.2.
(b) Buyer shall have been assigned Seller's contract interests or
have entered into new contracts with any customer of Seller
with respect to whom Buyer desires to do business, which
contracts shall, in the sole discretion of Buyer and its legal
counsel, be acceptable in form and substance.
(c) Seller shall have provided to Buyer documents which shall, in
the sole discretion of Buyer and its legal counsel, be
acceptable in form and substance and which evidence the
termination of all UCC financing statements covering any
portion of the Assets and the release of all liens against the
Assets.
(d) Seller shall have provided to Buyer documents and/or
information satisfactory to Buyer and its legal counsel, in
their sole discretion, evidencing that the Assets, and the use
thereof by Buyer in conduct of the Business, and in accordance
with the License Agreement will not infringe upon the patent,
trademark, copyright, or other intellectual property claim or
right of any person including those of Seller.
(e) The parties shall have prepared the IRS Form 8594 or other
document described in Section 1.5.
(f) Buyer shall have been assigned Seller's lease or have entered
into a new lease with Xxxxxxxx International Trucks, Inc.,
which shall, in the sole
Page 7 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
discretion of Buyer and Buyer's legal counsel, be acceptable
in form and substance.
(g) Buyer shall have been assigned Seller's leasehold interests or
have entered into new lease agreements for the Premises
identified in Exhibit 5.1 which shall, in the sole discretion
of Buyer and Buyer's legal counsel, be acceptable in form and
substance.
(h) Buyer shall be able to validly obtain all federal, state, and
local environmental permits necessary to conduct the Business
without interruption and on substantially the same terms and
conditions as such permits granted to Seller.
(i) Buyer shall be able to validly obtain a local storm-water
permit for discharge purposes on substantially the same terms
and conditions such permit was granted to Seller.
5.2 SELLER'S CONDITIONS PRECEDENT. The obligation of Seller to
consummate the transaction contemplated by this Agreement is subject to the
fulfillment, before or on the closing date, of each of the following conditions,
any one or a portion of which may be waived in writing by Seller and shall be
deemed waived upon closing of the transaction:
(a) All representations and warranties made in this Agreement by
Buyer shall be true as of the closing date as fully as though
such representations and warranties had been made on and as of
the closing date, and Buyer shall not have violated or failed
to perform in accordance with the covenant set forth in
Section 4.2.
ARTICLE VI
INDEMNIFICATION AND SURVIVAL
6.1 INDEMNIFICATION BY SELLER. Seller hereby agrees to indemnify and
hold Buyer and its successors and assigns harmless from and against any breach
of Seller's representation and warranties, any and all claims, liabilities, and
obligations of every kind and description, contingent or otherwise, arising out
of or related to Seller's operation of the Business prior to the consummation of
the transaction described in this Agreement other than as described herein or
assumed by Buyer pursuant hereto, and any and all damage or deficiency resulting
from any misrepresentation, breach of warranty or covenant, or nonfulfillment of
any agreement on the part of Seller under this Agreement. This indemnification
expressly includes, without limitation, any and all claims, liabilities, and
obligations arising out of or related to the use and release of hazardous
substances or materials by Seller in connection with the Business. As used
herein, "hazardous substances and materials" means any substance defined as
hazardous or toxic by any federal, state, or local statute, rule, regulation, or
ordinance.
Page 8 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
6.2 INDEMNIFICATION BY BUYER. Buyer agrees to indemnify and hold Seller
harmless from and against any and all claims, liabilities, and obligations of
every kind and description arising out of or related to the operation of the
Assets following the consummation of the transaction described in this Agreement
and any and all damage or deficiency resulting from any misrepresentation,
breach of warranty or covenant, or nonfulfillment of any agreement on the part
of Buyer under this Agreement. This indemnification expressly includes, without
limitation, any and all claims, liabilities, and obligations arising out of or
related to the use and release of hazardous substances or materials by Buyer in
connection with the Business.
ARTICLE VII
CLOSING
7.1 CLOSING DATE. The transaction described in this Agreement shall be
closed at the offices of Pacific Northwest Title of Oregon, 0000 XX Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxx, XX 00000, ("Escrowee") on January 29th, 1999, or
at such other time as the parties may agree in writing. Buyer and Seller shall
each bear one half of the costs of such closing.
7.2 OBLIGATIONS OF SELLER AT CLOSING. At the closing, and
coincidentally with the performance by Buyer of its obligations described in
Section 7.3, Seller shall execute and deliver to Buyer the following:
(a) An Assignment and Xxxx of Sale substantially identical to the
form attached as EXHIBIT 7.2(A);
(b) A Services Agreement substantially identical to the form
attached hereto as EXHIBIT 3.2(B);
(c) A License Agreement substantially identical to the form
attached hereto as EXHIBIT 3.2(C);
(d) Certificates of Title for all vehicles ("Titles") executed by
Seller. However, should Seller be unable to locate all Titles
for delivery into escrow at the closing, Seller shall locate
and deliver such titles to Buyer or Seller shall obtain
replacement titles as soon as possible after closing all at
Seller's sole cost and expense;
(e) UCC-3 Termination Statements executed by the secured parties
for each of the financing statements listed on Exhibit 7.2(e);
and
(f) Such other certificates and documents as may be required by
the provisions of this Agreement.
Page 9 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
7.3 OBLIGATIONS OF BUYER AT CLOSING. At the closing, and coincidentally
with the performance by Seller of its obligations described in Section 7.2,
Buyer shall deliver or, as appropriate, execute and deliver to Seller the
following:
(a) Payment of the Purchase Price described in Article II in
immediately available funds by certified or bank cashier's
check or electronic wire transfer to an account designated by
Seller;
(b) An Assumption Agreement with respect to the leases, contracts,
and agreements arranged by Seller to Buyer substantially
identical to the form attached hereto as EXHIBIT 7.3; and
(c) Such other certificates and documents as may be required by
the provisions of this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 RISK OF LOSS. The risk of loss, damage, or destruction to any of
the Assets shall borne by Seller to the time of the consummation of the
transaction contemplated by this Agreement, and thereafter by Buyer.
8.2 NOTICES. Any notice required by this Agreement shall be sent by
facsimile to the parties at the addresses listed on Page 1 of this Agreement.
Copies of all notices shall be sent by facsimile to the legal counsel of Buyer
and Seller.
8.3 INCORPORATION OF COLLATERAL DOCUMENTS. All exhibits attached to
this Agreement or delivered pursuant to this Agreement shall be deemed a part of
this Agreement and incorporated herein, where applicable, as if fully set forth
herein.
8.4 SEVERABILITY. Any provision of this Agreement that is deemed
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability, without rendering invalid or unenforceable the remaining
provisions of this Agreement.
8.5 WAIVER. No provision of this Agreement shall be waived unless the
waiver is in writing and signed by the waiving party. The failure by any party
to insist upon the strict performance of any provision of this Agreement or to
exercise any right or remedy consequent upon a breach thereof shall not
constitute a waiver of any such breach, of such provision, or of any other
provision. No waiver of any provision of this Agreement shall be deemed a waiver
of any other provision of the Agreement or a waiver of such provision with
respect to any subsequent breach, unless expressly provided in writing.
Page 10 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
8.6 ATTORNEY'S FEES. In the event of any dispute or litigation between
the parties to declare or enforce any provision of this Agreement, the
prevailing party shall be entitled to recover from the losing party, in addition
to any other recovery and costs, reasonable attorney's fees incurred with
respect to such dispute or in such litigation, in both the trial and in all
appellate courts and in any bankruptcy proceeding.
8.7 MERGER. This Agreement embodies the entire agreement of the parties
hereto. There are no promises, terms, conditions, or obligations other than
those contained herein. This Agreement supersedes all prior communications,
representations, and agreements, verbal or written, between the parties hereto
and shall not be amended except in writing subscribed to by the parties hereto.
8.8 ASSIGNMENT. This Agreement may not be assigned or transferred by
any party without the prior written consent of the other party.
8.9 SUCCESSORS. This Agreement shall inure to the benefit of the
successors and assigns of the respective parties hereto.
8.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.11 GOVERNING LAW AND VENUE. This Agreement shall be governed by and
construed according to Oregon law, without regard to conflict of law principles
thereunder. The parties agree that all disputes relating to this Agreement shall
be tried before the courts of Oregon, with venue in Multnomah County, Oregon, to
the exclusion of all other courts that might have jurisdiction except for this
provision.
Dated and agreed to as of the date first set forth above.
SELLER: BUYER:
Waste Recovery, Inc. RB Recycling, Inc.
By: By:
------------------------------ -------------------------------
XXXX XXXXXX
Its: Its: Executive Vice President
------------------------------
EXHIBIT 1.1(B)
ASSETS
Page 11 - AGREEMENT FOR SALE AND PURCHASE OF BUSINESS ASSETS
(VEHICLES, MACHINERY, EQUIPMENT, TOOLS, SUPPLIES, FURNITURE, AND FIXTURES)
QTY DESCRIPTION
LOT TIRE SHREDDER SYSTEM, INCLUDES BELT CONVEYOR FEEDS, GEAR REDUCTION BOX,
FRONT TIRE SHREDDER, DISK SCREENS, CONVEYOR OUTFEEDS, ELECTRICAL POWER
SYSTEM, ALL RELATED MOTORS, DRIVES, ETC., ALSO INCLUDES SPARE ROTORS
AND CUTTER KNIVES.
1 BELT CONVEYOR, APPROX. 36" X 30' TIRE INFEED, W/TIRE SHREDDER SYSTEM
1 BELT CONVEYOR, APPROX. 48" X 40', ELEVATED, WITH DRIVE, W/TIRE SHREDDER
SYSTEM
1 TIRE SHREDDER, CUSTOM, INCLUDES TWIN APPROX. 48" X 36" ROTORS, APPROX.
(275) TOTAL KNIVES, FEED XXXXXX, ALL RELATED PERIPHERAL EQUIPMENT AND
ACCESSORIES, W/TIRE SHREDDER SYSTEM
1 GEAR REDUCTION BOX, XXXXXX, WITH APPROX. 200 H.P. MOTOR, W/TIRE
SHREDDER SYSTEM
1 1 BELT CONVEYOR, APPROX. 36" X 15' WITH DRIVE, W/TIRE SHREDDER SYSTEM
1 1 BELT CONVEYOR, APPROX. 32" X 50', ELEVATED, WITH DRIVE, W/TIRE
SHREDDER SYSTEM
1 DISK SCREEN, APPROX. 4', WITH DRIVE MOTORS, HEAVY DUTY FRAME AND BOX,
ALSO INCLUDES FEED XXXXXX, W/TIRE SHREDDER SYSTEM
1 BELT CONVEYOR, APPROX. 32" X 60', ELEVATED, WITH DRIVE, W/TIRE SHREDDER
SYSTEM
LOT ELECTRICAL POWER SYSTEM, XXXXXXXX XXXXXX X0000 AMP SWITCH GEAR, RELATED
TRANSFORMERS, SWITCHES, BREAKERS, POWER SOURCE, W/TIRE SHREDDER SYSTEM
1 TIRE SPLITTER, NO MFG. PLATE AVAILABLE
QTY DESCRIPTION
LOT PRIMARY GRANULATOR SYSTEM, CONSISTING OF INFEED BELT CONVEYORS, METAL
DETECTOR, GRANULATOR, MOTORS, VIBRATING PAN, MAGNETIC BELT CONVEYOR,
OUTFEED CONVEYORS, ELECTRICAL POWER SYSTEM, ALL RELATED PERIPHERAL
EQUIPMENT AND ACCESSORIES, ALSO INCLUDES SPARE CUTTER KNIVES
1 BELT CONVEYOR, APPROX. 48" X 60' IDLER TROUGH ROLL CONVEYOR, WITH
DRIVE, W/PRIMARY GRANULATOR SYSTEM
1 METAL DETECTOR, PROBABLE TECTRON, APPROX. 36" OPENING, W/PRIMARY
GRANULATOR SYSTEM
1 GRANULATOR, CUSTOM, APPROX. 54" OPENING, INCLUDES (2) KNIFE BLOCKS,
RELATED PERIPHERAL EQUIPMENT AND ACCESSORIES, W/PRIMARY GRANULATOR
SYSTEM
2 MOTORS, TECO, 400 H.P., W/PRIMARY GRANULATOR SYSTEM
1 VIBRATING PAN, APPROX. 5' X 7', W/PRIMARY GRANULATOR SYSTEM
1 MAGNETIC BELT CONVEYOR, APPROX. 4' X 6', MOTORIZED, W/PRIMARY
GRANULATOR SYSTEM
1 BELT CONVEYOR, APPROX. 30" X 100'; ELEVATED IDLER TROUGH ROLL, WITH
DRIVE, W/PRIMARY GRANULATOR SYSTEM
1 MAGNETIC BELT CONVEYOR, APPROX. 30" X 8', MOTORIZED, W/PRIMARY
GRANULATOR SYSTEM
1 BELT CONVEYOR, APPROX. 24" X 25', ELEVATED IDLER TROUGH ROLL, WITH
DRIVE, W/PRIMARY GRANULATOR SYSTEM
LOT ELECTRICAL POWER SYSTEM, INCLUDES SWITCHGEAR, ASSTD. TRANSFORMERS,
SWITCHES, BREAKERS, ETC., W/PRIMARY GRANULATOR SYSTEM
QTY DESCRIPTION
LOT WIRE GRANULATOR SYSTEM, CONSISTING OF BELT CONVEYORS, METAL DETECTOR,
GRANULATOR, MAGNETIC BELT CONVEYOR, VIBRATING PANS, ELECTRICAL POWER
SYSTEM, ETC., INCLUDES ALL RELATED PERIPHERAL EQUIPMENT AND
ACCESSORIES, ALSO INCLUDES SPARE CUTTER KNIVES
1 BELT CONVEYOR, APPROX., 22" X 35', ELEVATED IDLER TROUGH ROLL, WITH
DRIVE, W/WIRE GRANULATOR SYSTEM
1 BELT CONVEYOR, APPROX. 24" X 40', ELEVATED IDLER TROUGH ROLL WITH
DRIVE, W/WIRE GRANULATOR SYSTEM
1 METAL DETECTOR, PROBABLE TECTRON, APPROX. 28" OPENING, W/WIRE
GRANULATOR SYSTEM
1 GRANULATOR, APPROX. 54" OPENING, CUSTOM, INCLUDES (2) KNIFE BLOCKS,
RELATED PERIPHERAL EQUIPMENT AND ACCESSORIES, W/WIRE GRANULATOR SYSTEM
1 MOTOR, PROBABLE TECO, 450 H.P., W/WIRE GRANULATOR SYSTEM
1 MAGNETIC BELT CONVEYOR, APPROX. 6' X 8', MOTORIZED, W/WIRE GRANULATOR
SYSTEM
2 VIBRATING PANS, APPROX. 5' X 7', W/WIRE GRANULATOR SYSTEM
1 BELT CONVEYOR, APPROX. 24" X 50', ELEVATOR IDLER TROUGH ROLL, WITH
DRIVE, W/WIRE GRANULATOR SYSTEM
1 BELT CONVEYOR, APPROX., 24" X 35' ELEVATED IDELER TROUGH ROLL, WITH
DRIVE, W/WIRE GRANULATOR SYSTEM
1 BELT CONVEYOR, APPROX. 24" X 100' ELEVATED IDLER TROUGH ROLL,
MOTORIZED, OUTFEED, W/WIRE GRANULATOR SYSTEM
LOT ELECTRICAL POWER SYSTEM, SQUARE D, MODEL 6 CONTROL CENTER, TWIN
SECTIONS, (9) TOTAL SWITCHES, 600 AMP HORIZONTAL/300 VERTICAL, WITH
TRANSFORMERS, SWITCHES, BREAKERS, ETC., W/WIRE GRANULATOR SYSTEM
QTY DESCRIPTION
LOT COMPUTER HARDWARE, INCLUDES NOTEBOOK COMPUTER, (2) AST MODEL 622
ADVANTAGE DESKTOP COMPUTERS, (0) 000 XXXXXXXX SYSTEMS, (0) 000 XXXXXXXX
SYSTEMS, HEWLETT PACKARD DESKJET 600C PRINTER, HEWLETT PACKARD DESKJET
520 PRINTER, HEWLETT PACKARD LASERJET 5P PRINTER, ESPON ACTION LASER
1500 PRINTER, PANASONIC MODEL KX-P1624 PRINTER, ETC.
LOT OFFICE MACHINES & EQUIPMENT, INCLUDES (6) CALCULATORS, CANON MODEL
NP3050 COPIER, TELEPHONE SYSTEM SURVEILLANCE SYSTEM WITH CAMERA AND
TOSHIBA TIMELAPSES RECORDER, SYMPHONIC TV/VCR, REFRIGERATOR, MICROWAVE
OVEN, (2) IBM TYPEWRITERS, (2) HEWLETT PACKARD OFFICE JET FAX MACHINES,
HAND HELD RADIOS, ETC., LOCATED THROUGHOUT
LOT OFFICE FURNITURE, CONSISTING OF BOOKCASE, CABINET, (23) ASSTD. CHAIRS,
(14) ASSTD. DESKS, (20) ASSTD. FILE CABINETS, (7) ASSTD. TABLES, ETC.,
LOCATED THROUGHOUT BORTHWICK XXXXXXX
0 XXXXXX, XXXXXX, XXXXXXXXXXX 000, X/X XX000000, XXXXX-XX WIRE FEED 1
WELDER, MILLER, MODEL SRH-303, S/N HJ117271, WITH MODEL S-32S WIRE FEED
1 AIR COMPRESSOR, CHAMPION, HORIZONTAL TANK, SINGLE STAGE WITH KOHLER
MODEL K241S SINGLE CYLINDER GAS ENGINE
1 DRILL PRESS, FOREMOST, MODEL MADP075AMA, S/N 96237
1 OXY/ACY TORCH OUTFIT, WITH HEAVY DUTY CART, GAUGES, TIPS, HOSE, TORCH
1 CUTOFF SAW, APPEARS CUSTOM, APPROX. 12" BLADE, APPROX. 3 H.P. MOTOR,
HEAVY DUTY FRAME
1 HACK SAW, RACINE, LIGHT DUTY
1 TIRE SPLITTER, HEAVY DUTY FRAME, WITH PRECISION EQUIPMENT CYLINDER, 15
H.P. HYDRAULIC UNIT
QTY DESCRIPTION
1 TRUCK LOADING UNIT, INCLUDES APPROX. 12" X 10' AUGER SCREW CONVEYOR,
DUMP XXXXXX, APPROX. 1 H.P. DRIVE MOTOR, FRAME MOUNTED, PORTABLE, ALSO
INCLUDES APPROX. 12" X 40' ELEVATED MOTORIZED BELT CONVEYOR
1 WELDER, MILLER, MODEL SRH-404, S/N HH051803
1 AIR COMPRESSOR, QUINCY, MODEL 350, S/N 418761, HORIZONTAL TANK, HEAVY
DUTY SINGLE STAGE, 10 H.P., WITH AIR RECEIVING TANK [c+]
1 HOIST, 1 TON, WITH TROLLEY
1 WELDER, MILLER, COMPO 600, S/N R370887, WITH XXXXXX MODEL S32S WIRE
FEED, LEADS, HEAVY DUTY, LOCATED AT FABRICATION XXXXXXXX
0 XXXXXX, XXXXXX, XXXXXXXXXXX 000, S/N JET45169, LOCATED AT FABRICATION
BUILDING
1 AIR COMPRESSOR, XXXXXXXXX XXXX, TYPE 30, MODEL 5X3X3-1/2, MODEL 253D5,
S/N 241295, 2-STAGE, XXXXXXXXXX XXXX, 0 X.X.
0 XXX/XXX XXXXX OUTFIT, WITH CART, GAUGES, TIPS, HOSE, TORCH
1 DRILL PRESS, XXXXXX, 20", BELT DRIVE, OLDER STYLE
LOT POWER AND HAND TOOLS, LOCATED THROUGHOUT FABRICATION BUILDING,
CONSISTING OF DOUBLE END GRINDERS, RIGHT ANGLE GRINDERS, DRILLS, SAWS,
ETC.
LOT MAINTENANCE SHOP EQUIPMENT, CONSISTING OF BATTERY CHARGER, BLOWER,
BOTTLE XXXX, CHAIN HOIST, DOLLY, DRUM PUMPS, FILTER PUMP, FLOOR XXXX,
FUEL TANK, HEATERS, XXXX STANDS, LADDERS, PIPE STANDS, LOCKER SECTIONS,
PALLET RACKS, PARTS CABINETS, PUMP, RACK SECTIONS, RETRACTABLE REELS,
VISES, WHEELBARROWS, WORKBENCHES, ASSTD. POWER AND HAND TOOLS, ETC.,
LOCATED THROUGHOUT, INCLUDES THOSE ASSETS NOT PREVIOUSLY LISTED
3 DOLLIES, ASSORTED
QTY DESCRIPTION
1 WHEEL LOADER, CASE, MODEL 721B, S/N JAK0023011, ENCLOSED CAB, 20.5-25
TIRES, DIESEL ENGINE, APPROX. 2-1/2 CU.YD. FRONT LOADER BUCKET, [C]
1 FLATBED TRUCK, FORD, MODEL F350, FX2, S/N NOT AVAILABLE, STANDARD
TRANSMISSION, PROBABLY EARLY 90s VINTAGE
1 FORKLIFT, XXXXX, MODEL GPS30MC, S/N GP138MC-0033-9110, 4,450 LB.
CAPACITY, 188" LIFT HEIGHT, TRIPLE MAST, CUSHION TIRES, LPG GAS
1 TRUCK TRACTOR, KENWORTH, S/N NOT READABLE, CABOVER, SINGLE AXLE,
PROBABLE EARLY 1980s VINTAGE, LIST SHOWS S/N ENDS IN 3040
1 WHEEL LOADER, XXXX XXXXX 000, X/X XXXX XX 00000 23.5-25 TIRES, APPROX.
2-1/2 CU. YD. FRONT LOADER BUCKET, ENCLOSED CAB, DIESEL ENGINE, [C]
1 WHEEL LOADER, XXXX DEERE, MODEL 544C, S/N NOT AVAILABLE, ENCLOSED CAB,
DIESEL ENGINE, 17.5-25 TIRES, TIRES FAIR, APPROX. 1-1/2 CU. YD. FRONT
LOADER HYDRAULIC BUCKET/CLAMP ATTACHMENT, [C]
1 LIFE TRUCK, WHITE GMC, NO S/N AVAILABLE, TANDEM AXLE, APPROX. LATE
70s-EARLY 80s VINTAGE, INCLUDES XXXXXXXX HOIST/LIF WITH 5TH WHEEL, S/N
86-DC-0156
1 HYDRAULIC EXCAVATOR, XXXX XXXXX, XXXXX 000X-XX, S/N DW690DL520328,
APPROX. 30" X 10' CRAWLERS, UNDERCARRIAGE FAIR, ENCLOSED CAB, APPROX.
10' STICK, WITH GEITH EXCAVATOR BUCKET WITH HANDLING ATTACHMENT, [C]
1 TRUCK TRACTOR, 1978, FORD, S/N ENDS WITH 8036, #609
1 TRUCK TRACTOR, 1984, FORD, S/N ENDS WITH 4045, FLATBED DUMP, #77
1 HOIST TRUCK, 1974 XXXX, S/N ENDS WITH 5780, #548
1 TRUCK TRACTOR, 1954, GMC, S/N ENDS WITH 2954, #841 PLUS 3 DROP BOXES
1 TRUCK TRACTOR, 1989, WHITE, S/N ENDS WITH 6231, #58066
QTY DESCRIPTION
1 1968 TRAILMOBILE TRAILER, 96", 40', 004, 3611
2 1979 GMC DROP BOX TRICK, 007, 4826
7 0000 XXXXXXXXXXX XXXXXXX, 00", XX, 12, 372
8 1974 TRAILMOBILE TRAILER, 96" OT, 13, 338
10 0000 XXXXXXXXXXX XXXXXXX, 00", XX, 26, 2470
12 0000 XXXXXXXXXXX XXXXXXX, 00", XX, 30, 2491
13 0000 XXXXXXX (XXXX XXXXX) XXXXXXX, 00", 40', 31, 3887
14 0000 XXXXX XXXXXXX, 00", XX, 36, 5138
1 MONON TRAILER, 96" OT, 36, 5138
1 PINESXPOST TRAILER, 96" OT, 40, 6722
1 PINESXPOST TRAILER, 96" OT, 41, 6841
1 PINESXPOST TRAILER, 96" OT, 42, 6802
0 XXXXX XXXXXXX, 00", XX, 44, 4094
0 XXXXX XXXXXXX, 00", XX, 46, 4090
0 XXXXX XXXXXXX, 00" XX, 47, 4324
0 XXXXX XXXXXXX, 00", XX, 50, 4637
0 XXXX XXXXXXX, 00", XX, 42, 4175
0 XXXXX XXXXXXX, 000", XX, 54, 4122
0 XXXXX XXXXXXX, 000", XX, 58, 4050
1 PINES TRAILER, 102", 63, 1229
0 XXXXX XXXXXXX, 000", XX, 65, 4121
0 XXXXX XXXXXXX, 000", XX, 71, 3981
0 XXXXX XXXXXXX, 00", XX, 74, 6355
0 XXXXX XXXXXXX, 00", XX, 75, 6356
QTY DESCRIPTION
1 1984 ORWST BOX TRAILER, 77, 4748
1 0000 XXXXX XXXXXXX, 00", XX, 78, 6465
1 0000 XXXXX XXXXXXX, 00", XX, 81, 6294
1 0000 XXXXX XXXXXXX, 00", XX, 82, 6408
1 0000 XXXXX XXXXXXX, 000", XX, 83, 4191
1 0000 XXXXX XXXXXXX, 000", XX, 84, 4057
1 0000 XXXXX XXXXXXX, 000", XX, 85, 4031
1 0000 XXXXX XXXXXXX, 000", XX, 86, 4024
1 0000 XXXXX XXXXXXX, 000", XX, 87, 4196
1 0000 XXXXX XXXXXXX, 000", XX, 88, 4211
1 0000 XXXXX XXXXXXX, 000", XX, 93, 4093
1 0000 XXXXX XXXXXXX, 000", XX, 95, 4146
1 0000 XXXXX XXXXXXX, 000", XX, 96, 4193
1 0000 XXXXX XXXXXXX, 000", XX, 106, 6275
1 0000 XXXXX XXXXXXX, 000", XX, 107, 6431
1 0000 XXXXX XXXXXXX, 000", XX, 108, 6326
1 0000 XXXXX XXXXXXX, 00", XX, 111, 6400
0 XXXXXXXXXXX XXXXXXX, 00", XX, 118, 5146
0 XXXXX XXXXXXX, 000", XX, 126, 6815
0 XXXXX XXXXXXX, 00", XX, 139, 7607
0 XXXXX XXXXXXX, 00", XX, 142, 9761
0 XXXXX XXXXXXX, 000", XX, 156, 2424
0 XXXXX XXXXXXX, 000", XX, 160, 2409
0 XXXXX XXXXXXX, 000", XX, 161, 2413
QTY DESCRIPTION
0 XXXXX XXXXXXX, 000", XX, 164, 2395
0 XXXXX XXXXXXX, 000" XX, 169, 2423
0 XXXXXXXX XXXXXXX XXXXXXX, 00", 40' 201, 8436
1 FREUHAUF WALKING TRAILER, 96" 40', 202, 8419
0 XXXXXXXX XXXXXXX XXXXXXX, 00", 40', 203, 8417
1 1989 VOLVO WHITE TRUCK TRACTOR
EXHIBIT 1.1(c)
ASSETS
(ACCOUNTS, CONTRACTS, LEASES, FRANCHISES, AND COMMITMENTS)
Xxxxxxxx International Truck Lease
EXHIBIT 1.2(f)
ASSETS EXCLUDED
NONE
EXHIBIT 3.1(c)
EXCEPTIONS
NONE
EXHIBIT 3.1(g)
EXCEPTED LEASES AND CONTRACTS
NONE
EXHIBIT 3.2(b)
SUPPLY AND SERVICES AGREEMENT
THIS SUPPLY AND SERVICES AGREEMENT (the "Agreement") is made and
entered into as of the 29th day of January, 1999, by and between Waste Recovery,
Inc., a Texas corporation ("WRI"), and RB Recycling, Inc., an Oregon corporation
("RB").
W I T N E S S E T H:
WHEREAS, pursuant to the Agreement for Sale and Purchase of Assets
dated as of even date herewith (the "Purchase Agreement"), by and between WRI
and RB, WRI has agreed to sell, and RB has agreed to purchase, certain specified
assets of WRI located in and around Portland, Oregon (the "Acquisition"); and
WHEREAS, RB desires to have available certain services from WRI, and
WRI desires to make such services available to RB; and
WHEREAS, RB desires to assure that it will continue to have a source of
scrap tire after the closing date of the Purchase Agreement and WRI desires to
sell scrap tire to RB; and
WHEREAS, the Purchase Agreement provides, as a condition to the closing
thereunder, that WRI and RB shall execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and in consideration
of the mutual covenants hereinafter contained, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
1. PURCHASE AND SALE OF SCRAP TIRE. Subject to the terms and conditions
of this Agreement, RB agrees to purchase from WRI on terms and conditions
acceptable to it and WRI, and WRI agrees to sell to RB on terms and conditions
acceptable to it and RB, such scrap tire as WRI shall bring to RB's facilities
from time to time during the term of this Agreement.
2. PROVISION OF SERVICES.
(a) WRI shall provide the following services to RB, as and to
the extent requested by RB:
(i) Provide RB with the time and attention of
management or other qualified personnel of WRI for the
provision of technical and consulting advice and
recommendations as shall be necessary to assist RB in the
development and implementation of its business strategies.
(ii) Provide RB, to the extent available or in the
possession of WRI, such parts and equipment that RB shall
determine is necessary or advisable to operate the assets
acquired by RB in the Acquisition.
(b) For WRI's performance of the services and delivery of the
materials described in this SECTION 2, RB shall pay WRI a fee equal to
the sum of the cost of the materials and salaries of WRI in providing
such services and materials plus twenty percent (20%). The Seller's
reasonable cooperation and services in the preparation of an accounting
audit of the facility and a 1998 income statement, as contemplated by
paragraph 3.3 of the Purchase Agreement, shall be without such
compensation.
3. PAYMENT AND OTHER TERMS. Upon receipt of WRI's invoice for scrap
tire purchased from it by RB pursuant to SECTION 1 or for the provision of
services and materials by WRI pursuant to SECTION 2, RB shall make payment to
WRI net thirty (30) days after the date of delivery of such invoice to RB. All
terms and conditions of sales hereunder not specified in this Agreement shall be
same as specified in the form of purchase order governing the purchase and sale.
4. TERM OF AGREEMENT. The term of this Agreement shall be for a period
of three (3) years, commencing on the date hereof. Thereafter, this Agreement
shall be automatically renewed from year to year unless either party gives the
other party not less than thirty (30) days written notice of its desire to
terminate this Agreement.
5. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which together shall constitute one and the same instrument.
6. NOTICES. Any notice, request, instruction, document or other
communication to be given hereunder by any party hereto to any other party
hereto shall be in writing and validly given if (i) delivered personally, (ii)
sent by telecopy, (iii) delivered by reputable overnight express, or (iv) sent
by registered or certified mail, postage prepaid, as follows:
If to WRI:
Waste Recovery, Inc.
000 X. Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attention: President
If to RB:
RB Recycling, Inc.
000 Xxxx 00xx Xxxxxx
XxXxxxxxxxx, Xxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: President
or at such other address for a party as shall be specified by like notice. Any
notice which is delivered personally, or sent by telecopy or overnight express
in the manner provided herein shall be deemed to have been duly given to the
party to whom it is directed upon actual receipt by such party. Any notice which
is addressed and mailed in the manner herein provided shall be conclusively
presumed to have been given to the party to whom it is addressed at the close of
business, local time of the recipient, on the third day after the day it is so
placed in the mail.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
between the parties hereto with respect to the subject matter hereof, and no
party shall be liable or bound to the other in any manner by any representations
or warranties not set forth herein.
8. GOVERNING LAW AND VENUE. This Agreement shall be governed by and
construed according to Oregon law, without regard to conflict of law principles
thereunder. The parties agree that all disputes relating to this Agreement shall
be tried before the courts of Oregon, with venue in Multnomah County, Oregon, to
the exclusion of all other courts that might have jurisdiction except for this
provision.
9. CAPTIONS. The captions of the various sections of this Agreement are
for convenience of reference only and shall not affect the interpretation of the
provisions hereof.
10. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
either party except with the prior written consent of the other party hereto.
This Agreement, and all of the terms, covenants and conditions hereof, shall be
binding upon, and inure to the benefit of and be enforceable by, the parties
hereto and their successors and permitted assigns.
11. FURTHER ASSURANCES. The parties agree to execute and deliver all
such other instruments and documents, and to take such further action, as shall
be necessary to carry out the provisions and purposes of this Agreement.
12. MODIFICATION AND WAIVER. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party which is entitled to
the benefits thereof, and this Agreement may be modified or amended by a written
instrument executed by all parties hereto. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing by both
parties. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not similar)
nor shall such waiver constitute a continuing waiver.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
WASTE RECOVERY, INC.
By:
--------------------------------------
Printed Name:
----------------------------
Title:
-----------------------------------
RB RECYCLING, INC.
By:
--------------------------------------
Printed Name: Xxxx Xxxxxx
-----------
Title: Executive Vice President
------------------------
EXHIBIT 3.2(C)
LICENSE AGREEMENT
This Agreement is made the 29th day of January, 1999, between Waste
Recovery, Inc. (hereinafter, "WRI"), a Texas corporation located and doing
business at 000 Xxxxx Xxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx 00000, and RB Recycling,
Inc. (hereinafter "RB"), an Oregon corporation doing business at 000 X. 00xx
Xxxxxx, XxXxxxxxxxx, Xxxxxx 00000.
WHEREAS, pursuant to that certain Agreement for Sale and Purchase of
Business Assets between WRI and RB dated of even date herewith (the "Purchase
Agreement"), WRI has agreed to sell and RB has agreed to acquire certain
equipment that incorporates certain intellectual property of WRI, as more fully
defined under this Agreement; and
WHEREAS, RB desires to obtain from WRI, and WRI desires to grant to RB,
a perpetual, royalty-free, fully-paid up and non-exclusive license to utilize
the intellectual property of WRI to maintain, repair and enhance the equipment
acquired by RB from WRI pursuant to the Purchase Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed:
DEFINITIONS.
1.1 "Equipment" means the equipment which RB acquired pursuant to
the Purchase Agreement and which incorporates the Intellectual
Property.
1.2 "Intellectual Property" means the patents and patent
applications set forth in Exhibit A attached hereto, including
any technical or user documentation relating to the Equipment.
1.3 "Terminating Event" means each and any of the events described
in Paragraph 5 of this Agreement.
1.4 "WRI Confidential Information" means the confidential,
proprietary and trade secret information of WRI, as more fully
described in Paragraph 3 of this Agreement.
LICENSE.
2.1 Subject to the terms and provisions hereof, WRI hereby grants
to RB, under all of WRI's rights in and to the Intellectual
Property, a perpetual, royalty-free, fully
paid-up, and non-exclusive license to use the Intellectual
Property in connection with RB's use of the Equipment acquired
by it from WRI pursuant to the Purchase Agreement. RB may
assign or sublicense the rights granted under this paragraph
upon the sale or transfer of the Equipment to a third party.
2.2 Subject to the terms and provisions hereof, WRI grants to RB,
under all of WRI's rights in and to the Intellectual Property,
a perpetual, royalty-free, fully paid-up, and non-exclusive
license to use, make or have made, copy or have copied, and
create derivative works and modifications of the Intellectual
Property for the purpose of maintaining, repairing and
enhancing the Equipment. RB may not assign or sublicense the
rights granted under this paragraph to any third party, except
that RB may engage third party contractors to assist RB in
maintaining, repairing and enhancing the Equipment pursuant to
the license granted herein.
CONFIDENTIALITY.
3.1 During the term of this Agreement, WRI may disclose to RB
certain confidential, proprietary and trade secret information
relating to the Equipment or Intellectual Property ("WRI
Confidential Information"). To be considered WRI Confidential
Information: (i) tangible disclosures must be marked with a
"confidential", "proprietary" or similar legend, and (ii)
non-tangible disclosures must be identified as confidential
prior to disclosure and reduced to writing, marked as provided
above, and delivered to RB within thirty (30) days of the
original disclosure.
3.2 RB will not disclose the WRI Confidential Information to any
third party without WRI's written consent, except to RB's
parent company and third party contractors who have a need to
know and who agree to abide by the applicable provisions of
this Agreement.
3.3 WRI Confidential Information does not include any information
which is: (i) rightfully in the public domain or otherwise
known to the public other than by breach of a duty to WRI,
(ii) rightfully received by RB from a third party without any
obligation of confidentiality, (iii) rightfully known to RB
without any limitation on use or disclosure prior to its
receipt from WRI, (iv) shown by RB to have been independently
developed by employees or contractors of RB, or (v) generally
made available to third parties by WRI without restriction on
disclosure.
TERM AND TERMINATION. This Agreement shall be effective on the date the
Agreement is fully executed and shall continue in perpetuity unless a
Terminating Event occurs as described in Paragraph 5. Termination of
this Agreement shall be without prejudice to any remedy of the parties
for any antecedent breach of this Agreement.
TERMINATING EVENT.
5.1 This Agreement shall terminate upon breach of a material
obligation herein by either party.
5.2 WRI may terminate this Agreement immediately upon providing
written notice to RB upon any unauthorized disclosure by RB of
WRI Confidential Information.
OWNERSHIP. WRI shall retain all right, title and interest, including all
intellectual property rights, in and to the Intellectual Property and
WRI Confidential Information. RB shall own all right, title and
interest, including all intellectual property rights, in and to any
derivative works, modifications or enhancements it makes to the
Intellectual Property, subject to WRI's ownership and rights in the
underlying Intellectual Property.
REPRESENTATIONS, WARRANTIES AND COVENANTS.
7.1 WRI hereby represents and warrants that: (i) it has the full
right, power and authority to enter into this Agreement, to
perform all of its duties hereunder, and to consummate all of
the transactions contemplated herein; (ii) it owns title in
and to the Intellectual Property; and (iii) it has not
received any written notice of any third party use of the
Intellectual Property or that the Intellectual Property
infringes upon the intellectual property rights (including any
patent, copyright, trade secret or other intellectual property
rights) of any third party.
7.2 RB warrants that: (i) it has the full right, power and
authority to enter into this Agreement, to perform all its
obligations hereunder, and to consummate all of the
transactions contemplated herein, and (ii) it will not move
the Equipment to any location outside the States of Oregon,
Washington or Idaho without the prior written consent of WRI,
which consent shall not be unreasonably withheld.
NOTICE. All notices, requests, or consents required hereunder shall be in
writing and shall be deemed to have been properly given or sent (i) on
the day of delivery if such notice, request, or consent is personally
delivered and acknowledged, or is sent by certified or registered mail,
return receipt requested, or (ii) one (1) business day after the same
was sent, if sent by reputable overnight courier delivery, as follows:
If to WRI: Waste Recovery, Inc.
000 Xxxxx Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Attn: President
If to RB: RB Recycling, Inc.
000 X. 00xx Xxxxxx
XxXxxxxxxxx, Xxxxxx 00000
Attn: President
Anyone entitled to notice hereunder may change the address to which
notices or other communications are to be sent to it by notice given in
the manner contemplated herein.
RIGHT OF FIRST REFUSAL. In the event that RB reaches an agreement with any third
party with respect to the sale or other transfer or disposition of the
Equipment, RB shall provide written notice to WRI disclosing the terms
and conditions of such proposed transaction, which shall constitute an
offer to sell to WRI upon the terms and conditions set forth in the
notice, and WRI shall have a period of fourteen (14) days within which
to accept such offer and purchase the Equipment. In the event that WRI
declines to purchase the Equipment or fails to respond to RB's notice
within such fourteen (14) day period, RB may sell the Equipment upon
terms and conditions of sale that do not differ materially from those
set forth in the written notice to WRI. In the event the terms or
conditions of sale change materially from those set forth in the
written notice, or RB does not sell the Equipment, RB shall follow the
procedures set forth in this Section 9 with respect to future
transactions to permit WRI a continuing right to acquire the Equipment.
INDEMNITY.
10.1 WRI shall indemnify, defend and hold RB harmless from and
against any loss, cost, liability, and expense (including
reasonable attorneys' fees) arising out of any claim or action
brought against RB alleging that the Equipment or Intellectual
Property infringes any patent, copyright, trade secret or
other intellectual property right of any third party. WRI
further agrees to indemnify, defend and hold RB harmless from
and against any action, claim, loss, cost, liability and
expense (including reasonable attorneys' fees) incurred or
suffered by RB arising out of WRI's breach of any of its
representations, warranties or commitments under Section 7.1
of this Agreement.
10.2 RB shall indemnify, defend and hold WRI harmless from and
against any action, claim, loss, cost, liability and expense
(including reasonable attorneys' fees) incurred or suffered by
WRI arising out of RB's breach of any of its representations,
warranties or commitments under Section 7.2 of this Agreement.
ASSIGNMENT. Except as otherwise provided herein, RB may not assign this
Agreement without the written consent of WRI, which consent shall not
be unreasonably withheld. WRI may assign its rights under this
Agreement to a party acquiring WRI's rights in and to the Intellectual
Property.
GOVERNING LAW AND VENUE. This Agreement shall be governed by and construed
according to Oregon law, without regard to conflict of law principles
thereunder. The parties agree that all disputes relating to this
Agreement shall be tried before the courts of Oregon, with venue in
Multnomah County, Oregon, to the exclusion of all other courts that
might have jurisdiction except for this provision.
PARAGRAPH HEADINGS. The paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
MODIFICATION. This Agreement may not be modified, altered or terminated except
by an instrument in writing signed by authorized representatives of
both parties.
ENTIRE AGREEMENT. The parties agree that all agreements and understandings
between them are embodied, expressed, and merged herein; and that this
Agreement states the entire agreement of the parties and supersedes all
prior and contemporaneous negotiations and agreements, oral or written,
relating to the subject matter of this Agreement. All prior and
contemporaneous negotiations and agreements relating to the subject
matter of this Agreement are deemed incorporated into this Agreement or
are deemed to have been abandoned if not so incorporated herein.
AGREEMENT BINDING. This Agreement and all of its terms shall be binding upon,
and shall inure to the benefit of, the parties and their respective
successors and permitted assigns.
SEVERABILITY. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
MULTIPLE COUNTERPARTS. This Agreement may be executed by the parties hereto in
multiple counterparts and each counterpart, when so executed, shall be
deemed an original, but all of which shall be considered as one
agreement.
FURTHER ASSURANCES. The parties hereto agree to execute all additional documents
and take all other action required to effectuate the purposes of this
Agreement.
NO JOINT VENTURE. Nothing contained in this Agreement shall be construed to
place the parties to this Agreement in the relationship of partners or
joint venturers, and neither party hereto shall have any power to
obligate or bind the other party hereto in any manner whatsoever,
except as otherwise provided for herein.
WAIVER. The failure of either party hereto to enforce, or the delay by either
party in enforcing, any of its rights hereunder shall not be deemed a
continuing waiver or a modification thereof and either party may,
within the time provided by applicable law, commence appropriate legal
proceedings to enforce any and all of such rights.
REMEDIES. All rights and remedies provided for herein shall be cumulative and in
addition to any other rights or remedies such parties may have at law
or in equity. Either party hereto may employ any of the remedies
available to it with respect to any of its rights hereunder without
prejudice to the use by it in the future of any other remedy with
respect to any of such rights.
IN WITNESS WHEREOF, the parties have caused this License Agreement to
be executed by their duly authorized representatives on the date first written
above.
WASTE RECOVERY, INC.
By:
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Printed Name:
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Title:
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RB RECYCLING, INC.
By:
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Printed Name:
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Title:
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EXHIBIT "A"
INTELLECTUAL PROPERTY
Patent No. 4,374,573
Patent No. 4,560,112
Patent No. 4,714,201
EXHIBIT 5.1
LEASES
LESSOR PREMISES
------ --------
1. EEEK, Limited Partnership Xxxx 0 xxxxxxx 00, Xxxxx 0, XXXXXXX, xx the
City of Portland, County of Multnomah, State
of Oregon.
2. Xxxxxx Xxxxx Lots 11 through 18 and Lots 27 through 00,
Xxxxx 0, Xxxxxxx Xxxxxxxx, Xxxxxxxx,
Xxxxxxxxx Xxxxxx, Xxxxxx. Lots 11 through
18, commonly known as 000 X. Xxxxxx and also
known as 0000 X. Xxxxxxxxx, Xxxxxxxx,
Xxxxxx, and Lots 27 through 36 being located
on X. Xxxx Street, Portland, Multnomah
County, Oregon (all of said described
property being contiguous and being 45,000
square feet (+/-)).
3. Xxxxxx Xxxxxxx Lots 19 through 00, Xxxxx 0, Xxxxxxx
Xxxxxxxx, Xxxxxxxx, Xxxxxxxxx Xxxxxx,
Xxxxxx, commonly known as 0000 X. Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx.
EXHIBIT 7.2(A)
ASSIGNMENT AND XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that, effective January _____, 1999,
Waste Recovery, Inc., a Texas corporation, ("Transferor") hereby sells,
transfers, assigns, and conveys to RB Recycling, Inc., an Oregon corporation
("Transferee"), and its successors and assigns, all of the right, title, and
interest of Transferor in and to the following assets owned by Transferor and
used by it in connection with the collection and shredding of waste tires in and
around Portland, Oregon for distribution to and further processing by
manufacturers, ("Business"):
(a) All vehicles, machinery, equipment, tools, supplies,
furniture, fixtures, and other personal property of Seller
used or useful in the Business, including but not limited to
the property identified in EXHIBIT 1.1(B);
(b) Raw materials and inventory;
(c) All goodwill (except for Seller's name), manuals, catalogs,
sales literature, files, records, customer lists, and other
intangible personal property of Seller used or useful in
connection with the operation of the Business.
Transferor hereby covenants and agrees that it will, from time to time,
if requested by Transferee, do, execute, acknowledge, and deliver to Transferee
such and all further acts, transfers, assignments, deeds, powers and assurances
of title, and additional documents and instruments as may be proper and
necessary for better assuring, conveying, transferring, and assigning all of the
property hereby conveyed, transferred, and assigned and to vest in Transferee
the entire right, title, and interest of Transferor in and to all of said
property, and Transferor will warrant and defend the same to Transferee, and its
successors and assigns, forever against all claims or demand whatsoever.
DATED AND AGREED as of the date first set forth above.
TRANSFEROR: TRANSFEREE:
Waste Recovery, Inc. RB Recycling, Inc.
By: By:
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XXXX XXXXXX
Its: Its: Executive Vice President
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Date: Date:
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EXHIBIT 7.2(E)
UCC-3 TERMINATION STATEMENTS
ORIGINAL FINANCING STATEMENT NO. SECURED PARTY
-------------------------------- -------------
1. 239159 Nationsbank of Georgia National
Association
2. 286476 Textron Financial Corporation
3. 290273 Textron Financial Corporation
4. 303590 Textron Financial Corporation
5. 306440 Safeco Credit Co, Inc.
6. 445839 Fidelity Funding, Inc.
EXHIBIT 7.3
ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT is made this 29th day of January, 1999, by RB
RECYCLING, INC. ("Buyer") from WASTE RECOVERY, INC. ("Seller").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Agreement for Purchase and Sale of
Assets dated as of January 28th, 1999, by and between Buyer and Seller (the
"Asset Purchase Agreement"), Seller is to convey to Buyer and Buyer is to accept
and assume the Assets (other than the excluded assets as defined in Section 1.2
of the Asset Purchase Agreement) and certain liabilities as described in such
Asset Purchase Agreement (the "Liabilities");
NOW, THEREFORE, for and in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer hereby agrees as follows:
1. ACCEPTANCE AND ASSUMPTION. Buyer hereby accepts the foregoing
assignment and transfer of the Assets, and Buyer hereby assumes and agrees to
pay, perform and discharge in due course the Liabilities as set forth in the
Asset Purchase Agreement.
2. FURTHER ASSURANCES. Buyer, at any time and from time to time, upon
the reasonable request of Seller, shall do, execute, acknowledge and deliver all
such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be required to convey and transfer to Buyer the
Liabilities to be assumed hereunder.
3. HEADINGS. Headings are for convenience of reference only and shall
not in any manner affect the meaning or interpretation of this Assumption
Agreement.
4. ASSET PURCHASE AGREEMENT. This Assumption Agreement is entered into
pursuant to the Asset Purchase Agreement and is subject to the terms and
conditions thereof. Undefined capitalized terms will have the same meaning as
those terms have in the Asset Purchase Agreement.
5. GOVERNING LAW AND VENUE. This Agreement shall be governed by and
construed according to Oregon law, without regard to conflict of law principles
thereunder. The parties agree that all disputes relating to this Agreement shall
be tried before the courts of Oregon, with venue in Multnomah County, Oregon, to
the exclusion of all other courts that might have jurisdiction except for this
provision.
IN WITNESS WHEREOF, Buyer has caused this Assumption Agreement to be
executed in its corporate name by its duly authorized officer, on the day and
year first above written.
BUYER:
RB RECYCLING, INC.
By:
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Xxxx Xxxxxx, Executive Vice-president
STATE OF OREGON )
)
COUNTY OF MULTNOMAH )
This instrument was acknowledged before me this _____ day of January,
1999, by Xxxx Xxxxxx, Executive Vice-President of RB RECYCLING, INC., an Oregon
corporation, on behalf of said corporation.
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Notary Public for the State of Oregon
My Commission Expires:
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Printed Name of Notary
