ACQUISITION AGREEMENT
This Asset Acquisition Agreement is entered into as of the 15th day of
December, 2002, by and among XRG, INC., a Delaware corporation ("XRG"), X.
XXXXXX COMPANIES, INCORPORATED, a Tennessee corporation ("JBC"), BENTLY
LOGISTICS, INCORPORATED, a Tennessee corporation ("BL"), and XXXXXX XXXXXXXXX
and XXXXXXX XXXXXXX, individuals residing in Monroe County, Tennessee ("The
Shareholders"). XRG, JBC, BL and The Shareholders are referred to herein
individually as "Party" and collectively as "Parties." This Agreement
contemplates a transaction in which XRG will acquire certain assets of JBC
and/or BL in consideration of JBC, BL and/or The Shareholders receiving cash
payments from XRG.
Now, therefore, in consideration of the respective representations,
promises, warranties and covenants of the Parties set forth herein, the Parties,
intending to be legally bound, agree as follows.
1. Definitions.
"Closing" and "Closing Date" have the respective meanings set forth in
Section 2(g) below.
"Disclosure Schedule" has the meaning set forth in Section 3 below.
"Effective Date" means the date first indicated above.
"Environmental, Health, and Safety Requirements" shall mean all federal,
state, local and foreign statutes, regulations, ordinances and other provisions
having the force or effect of law, all judicial and administrative orders and
determinations, all contractual obligations and all common law concerning public
health and safety, worker health and safety, and pollution or protection of the
environment, including without limitation all those relating to the presence,
use, production, generation, handling, transportation, treatment, storage,
disposal, distribution, labeling, testing, processing, discharge, release,
threatened release, control, or cleanup of any hazardous materials, substances
or wastes, chemical substances or mixtures, pesticides, pollutants,
contaminants, toxic chemicals, petroleum products or byproducts, asbestos,
polychlorinated biphenyls, noise or radiation, each as amended and as now or
hereafter in effect.
"Intellectual Property" means (a) all trademarks, service marks, trade
dress, logos, trade names, and company names, together with all translations,
adaptations, derivations, and combinations thereof and including all goodwill
associated therewith, and all applications, registrations, and renewals in
connection therewith, (b) all copyrightable works, all copyrights, and all
applications, registrations, and renewals in connection therewith, (c) all trade
secrets and confidential business information (including ideas, research and
development, know-how, customer and supplier lists, pricing and cost
information, and business and marketing plans and proposals), (d) all other
proprietary rights, and (e) all copies and tangible embodiments thereof (in
whatever form or medium).
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"Liability" or "Liabilities" or "liability" or "liabilities" means any
liability (whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), including any liability for
taxes.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Person" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization,
or a governmental entity (or any department, agency, or political subdivision
thereof).
""Pre-Closing Transaction" means a financial event that will occur within
30 days of the effective date of this agreement and prior to the date of
closing.
"Post-Closings Transaction" means a financial event that will occur on or
after the date of closing.
"Purchased Assets" means all right, title, and interest in and to (a) the
furniture, fixtures, equipment and other items listed in Exhibit A; (b) all JBC
and XX xxxxxxx contacts and owner-operator contacts and accounts, and any
written agreements and contracts that are listed in Exhibit B and all rights
thereunder; (c) all claims, deposits, prepayments, refunds, causes of action,
rights of recovery, rights of set off, and rights of recoupment (including any
such item relating to the payment of taxes) associated with the Purchased
Assets; (d) all of JBC's and BL's operating authorities, franchises, approvals,
permits, licenses, leases, registrations, certificates, variances, and similar
rights obtained from governments and governmental agencies; (e) all of the
customer and supplier lists, creative materials, advertising, promotional
materials, studies, reports, business plans and marketing plans of JBC and BL;
(f) all of JBC's and BL's Intellectual Property; and (g) all goodwill associated
with the foregoing; provided, however, that the Purchased Assets shall not
include (i) the corporate charter, taxpayer and other identification numbers,
seals, minute books, stock transfer books, blank stock certificates, and other
documents relating to the organization, maintenance, and existence of JBC or BL
as a corporation, (ii) any of the rights of JBC or BL under this Agreement (or
under any side agreement between JBC or BL on the one hand and XRG on the other
hand entered into on or after the date of this Agreement), and (iii) JBC's or
BL's cash and accounts receivable, transportation equipment, or any liabilities.
"Real Estate" means the real property identified in Exhibit E.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge
or other security interest.
2. Basic Transaction.
(a) Purchase. Subject to the terms and conditions of this Agreement, XRG
shall purchase from JBC and/or BL, and JBC and BL shall sell, transfer, convey,
and deliver to XRG, all of the Purchased Assets and the Real Estate at the
Closing for the consideration specified below in this Section 2.
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(b) Purchase Consideration. As full consideration for the purchase of the
Purchased Assets, XRG shall pay to BL, at Closing, a sum equal to the total of
(i) the unpaid balance as of December 15, 2002, on the outstanding loan(s)
covering the trailers that are included in the Purchased Assets, and (ii) the
unpaid balance as of the Closing Date on the outstanding loan(s) covering the
tractors that are included in the Purchased Assets. As full consideration for
the purchase of the Real Estate, XRG shall pay to BL the sum of $450,000 at
Closing.
(c) Non-Assumption of Liabilities. XRG will not assume any Liabilities of
JBC, BL, or The Shareholders.
(d) Consideration to The Shareholders.
Pre-Closing Transactions:
XRG through its assigns will purchase 182 of the trailers now
used by JBC of a price sufficient to satisfy the existing debt.
An inventory of the 182 trailers is attached as Exhibit B.
XRG through its assigns will purchase the Real Estate including
27 Acres MOL and leaseback the buildings (containing
approximately 00,000 xxxxxx xxxx xx xxxx) and 7 acres of land as
a truck facility.
JBC will lease the 182 trailers listed in Exhibit B on terms
contained in Exhibit C. Xxx Xxxxxxxxx will have no personal
liability resulting from the proposed leaseback.
JBC will lease the buildings (containing approximately 00,000
xxxxxx xxxx xx xxxx) and 7 acres of land as a truck facility. The
written lease agreement will be at a rate of $7,500 per month,
subject to annual CPI increases, for an initial term of 15 years
(with no personal liability for Xxx Xxxxxxxxx).
XRG shall pay a $50,000 one time incentive payment to Xxxxxx
Xxxxxxxxx.
Post-Closing Transactions:
XRG shall pay $50,000 per month to Xxxxxx Xxxxxxxxx commencing on
the 10th day of the first full calendar month following the
Closing Date and continuing on the 10th day of each calendar
month thereafter until the total Business Value (as defined in
subsection 2(e) below) has been paid to him.
XRG will assume the responsibility of compensating the broker of
record, Xxxxxx Xxxxxxxx, for all of his efforts on behalf of JBC,
BL and The Shareholders at Closing.
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JBC will pay incentive management fees to JBC managers on a
quarterly basis equal, in the aggregate, to the margin between
the actual cost of business operations and 85% of gross revenue
for such quarter
(e) Operation of Business Prior to Closing. Between the Effective Date and
the Closing Date, XRG and JBC will jointly manage the business of JBC, including
the following:
(i) XRG will receive 5% of the gross receipts of JBC between the
Effective Date and the Closing Date;
(ii) JBC and XRG will agree on the staffing at JBC's Sweetwater
location;
(iii) all transactions will be originated and logged through
XRG's electronic system. Payments for JBC's debt and lease
obligations, employee wages, operating expenses, settlements and
taxes will be disbursed through XRG's electronic system; and
(iv) XRG and JBC will work to optimize the utility of equipment
assets and expand the customer base in order to increase the
value of the business.
The value of JBC's business ("Business Value") will, for purposes of this
Agreement, be the greater of (A) $1,500,000 or (B) the remaining balance of the
TRAC leases as of April 1, 2003 plus four (4) times the amount which is equal to
150% of JBC's EBITDA for the first quarter of 2003.
(f) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of XRG, 0000 X.
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 on such date as agreed to by the
Parties following the satisfaction or waiver of all pre-closing conditions to
the obligations of the Parties to consummate the transactions contemplated
hereby ("Closing Date").
(g) Deliveries at the Closing. At the Closing (i) JBC and BL will deliver
to XRG the various certificates, instruments, and documents referred to in
Section 6(a) below; (ii) XRG will deliver to JBC and BL the various
certificates, instruments, and documents referred to in Section 6(b) below;
(iii) JBC and BL will execute and deliver to XRG a Xxxx of Sale in the form
attached hereto as Exhibit C, an Assignment of Contracts in the form attached
hereto as Exhibit D and such other instruments of sale, transfer, conveyance,
and assignment as XRG and its counsel reasonably may request; (iv) XRG will
execute and deliver to JBC such instruments of assumption as JBC and its counsel
reasonably may request; and (v) JBC and BL will deliver to XRG keys to all locks
on the business premises or for any items of the Purchased Assets requiring keys
and the codes and passwords to all security and password systems on the business
premises or for any items of the Purchased Assets.
3. Representations and Warranties of JBC, BL and The Shareholders. JBC, BL
and The Shareholders, jointly and severally, represent and warrant to XRG that
the statements contained in this Section 3 are correct and complete as of the
date of this Agreement and will be correct and complete as of the Closing Date
except as set forth in the disclosure schedule accompanying this Agreement (the
"Disclosure Schedule"). The Disclosure Schedule will be arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained in this Section
3.
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(a) Organization of JBC. JBC and BL are corporations duly organized,
validly existing, and in good standing under the laws of the State of Tennessee.
(b) Authorization of Transaction. JBC and BL each have full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of JBC and BL, and JBC's and
BL's stockholder(s), have duly authorized the execution, delivery, and
performance of this Agreement by JBC and BL. This Agreement constitutes the
valid and legally binding obligation of JBC, BL, and The Shareholders,
enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which JBC, BL or The Shareholders are subject or any provision of the
charter or bylaws of JBC or BL or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which JBC, BL or The Shareholders are a party or by which it or they are
bound or to which any of its or their assets are subject (or result in the
imposition of any Security Interest upon any of its or their assets). JBC, BL
and The Shareholders do not need to give notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions contemplated by
this Agreement.
(d) Brokers' Fees. JBC, BL and The Shareholders have no liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which XRG could
become liable or obligated.
(e) Title to Assets. JBC or BL, as applicable, has good and marketable
title to the Purchased Assets and the Real Estate, free and clear of any
Security Interests or restrictions on transfer.
(f) Legal Compliance. JBC and BL have complied with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of federal, state, local, and foreign
governments (and all agencies thereof), and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has been
filed or commenced against JBC or BL alleging any failure so to comply.
(g) Environment, Health, and Safety.
(i) JBC and BL and their predecessors have complied and are in
compliance with, and the Real Estate is in compliance with, all
Environmental, Health, and Safety Requirements.
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(ii) Without limiting the generality of the foregoing, JBC and BL have
obtained and complied with, and are in compliance with, all permits,
licenses and other authorizations that are required pursuant to
Environmental, Health, and Safety Requirements for the occupation of its
facilities and the operation of its business.
(iii) Neither JBC or BL, nor their predecessors, has received any
written or oral notice, report or other information regarding any actual or
alleged violation of Environmental, Health, and Safety Requirements, or any
liabilities or potential liabilities (whether accrued, absolute,
contingent, unliquidated or otherwise), including any investigatory,
remedial or corrective obligations, relating to any of them or its
facilities arising under Environmental, Health, and Safety Requirements.
(h) Disclosure. The representations and warranties contained in this
Section 3 do not contain any untrue statement of a fact or omit to state any
material fact necessary in order to make the statements and information
contained in this Section 3 not misleading.
4. Representations and Warranties of XRG. XRG represents and warrants to
JBC and BL that the statements contained in this Section 4 are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date.
(a) Organization of XRG. XRG is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware.
(b) Authorization of Transaction. XRG has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of XRG,
enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which XRG is subject or any provision of its
charter or bylaws or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
XRG is a party or by which it is bound or to which any of its assets is subject.
XRG does not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement.
(d) Brokers Fees. XRG has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which JBC or BL could become liable or
obligated.
5. Pre-Closing Covenants. In addition to the items set forth in Section 2
above, the Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing.
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(a) General. Each of the Parties will use its reasonable best efforts to
take all action and to do all things necessary in order to consummate and make
effective the transactions contemplated by this Agreement.
(b) Operation of Business. JBC and BL will not engage in any practice, take
any action, or enter into any transaction outside the Ordinary Course of
Business.
(c) Preservation of Business. JBC and BL will each maintain and continue to
promote its business, its business operations, and its business relationships,
and will maintain its property, including its present operations, physical
facilities, working conditions, and relationships with its suppliers, customers,
independent contractors and employees.
(d) Full Access, Cooperation and Authorization. JBC and BL will permit
representatives of XRG to have full access at all reasonable times, and in a
manner so as not to interfere with the normal business operations of JBC or BL,
to all premises, properties, personnel, books, records (including tax records),
contracts, and documents of or pertaining to JBC and BL. JBC and BL and their
officers and employees will cooperate with XRG and facilitate XRG's due
diligence investigation of JBC and BL. JBC's and BL's execution of this
Agreement constitutes authorization to JBC's and BL's accountants, attorneys,
bankers, lenders and other professional advisors and consultants to meet with
representatives of XRG and disclose to XRG any and all information in their
possession regarding JBC or BL.
(e) Notice of Developments. Each Party will give prompt written notice to
the other Party of any material adverse development causing a breach of any of
its own representations and warranties in Section 3 and Section 4 above. No
disclosure by any Party pursuant to this Section 5(e), however, shall be deemed
to amend or supplement the Disclosure Schedule or to prevent or cure any
misrepresentation, breach of warranty, or breach of covenant.
(f) Exclusivity. JBC and BL will revoke any current listing of its business
for sale. JBC and BL will not (i) solicit, initiate, or encourage the submission
of any proposal or offer from any Person relating to the acquisition of any of
the stock or assets of JBC or BL (including any acquisition structured as a
merger, consolidation, or share exchange) or (ii) participate in any discussions
or negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
Person to do or seek the foregoing. JBC and BL will notify XRG immediately if
any Person makes any proposal, offer, inquiry, or contact with respect to the
foregoing.
6. Conditions to Obligation to Close.
(a) Conditions to Obligation of XRG. The obligation of XRG to consummate
the transactions to be performed by it in connection with the Closing is subject
to satisfaction of the following conditions at or prior to Closing:
(i) the representations and warranties set forth in Section 3 above
and Section 8 below shall be true and correct in all material respects at
and as of the Closing Date;
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(ii) JBC and BL shall have performed and complied with all of their
covenants hereunder in all material respects through the Closing;
(iii) JBC and BL shall have procured any required third party
consents;
(iv) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would
(A) prevent consummation of any of the transactions contemplated by this
Agreement, (B) cause any of the transactions contemplated by this Agreement
to be rescinded following consummation, (C) affect adversely the right of
XRG to own the Purchased Assets;
(v) XRG shall have obtained on terms and conditions reasonably
satisfactory to it all of the financing it needs in order to consummate the
transactions contemplated hereby;
(vi) all actions to be taken by JBC and BL in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form
and substance to XRG; and
(vii) all of the following shall have been accomplished to the
reasonable satisfaction of XRG:
(A) execution by the Parties of lease agreements covering the
Real Estate and the trailers;
(B) delivery of executed title certificates to any titled assets
to be acquired by XRG, including a warranty deed for the Real Estate;
(C) completion to XRG's satisfaction of its due diligence review
and inspection of the Real Estate;
(D) execution of a non-competition agreement between XRG and The
Shareholders; and
(E) execution of employment agreements by The Shareholders, as
applicable.
XRG may waive any condition specified in this Section 6(a) if it executes a
writing so stating at or prior to the Closing.
(b) Conditions to Obligation of JBC and BL. The obligation of JBC and BL to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
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(i) the representations and warranties set forth in Section 4 above shall
be true and correct in all material respects at and as of the Closing Date;
(ii) XRG shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or threatened before
any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement or (B)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation (and no such injunction, judgment, order, decree, ruling,
or charge shall be in effect); and
(iv) all actions to be taken by XRG in connection with consummation of the
transactions contemplated hereby and all certificates, opinions, instruments,
and other documents required to effect the transactions contemplated hereby will
be reasonably satisfactory in form and substance to JBC and BL.
JBC and BL may waive any condition specified in this Section 6(b) if it
executes a writing so stating at or prior to the Closing.
7. Termination.
(a) Termination of Agreement. This Agreement may be terminated as provided
below:
(i) XRG, BL and JBC may terminate this Agreement by mutual written
consent at any time prior to the Closing;
(ii) XRG may terminate this Agreement by giving written notice to JBC
and BL if XRG is not reasonably satisfied with the results of its
continuing due diligence review regarding JBC or BL; or
(iii) XRG may terminate this Agreement by giving written notice to JBC
and BL at any time prior to the Closing in the event JBC, BL or The
Shareholders have breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, XRG has
notified JBC, BL or The Shareholders, as applicable, of the breach, and the
breach has continued without cure for a period of thirty (30) days after
the notice of breach.
(b) Effect of Termination. If any Party terminates this Agreement pursuant
to Section 7(a) above, all rights and obligations of the Parties hereunder shall
terminate without any liability of any Party to any other Party (except for any
liability of any Party then in breach). If XRG terminates this Agreement
pursuant to Section 7(a)(iii) above, JBC, BL and The Shareholders, jointly and
severally, shall be liable for XRG's costs and expenses related to the
transaction hereunder.
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8. Real Estate Terms and Conditions
(a) Title and Lien Documents. Within thirty (30) days following the
Effective Date, JBC, at its sole cost and expense, shall deliver or cause to be
delivered to XRG the following:
(i) a commitment for title insurance ("Title Commitment") issued by a
title company acceptable to XRG ("Title Company") setting forth the status
of the title of the Real Estate and showing all liens, security interests,
claims, encumbrances, easements, rights of way, encroachments,
reservations, restrictions, and any other matters affecting the Real Estate
("Encumbrances"); and
(ii) true, complete, and legible copies of all documents referred to
in the Title Commitment.
(b) Delivery of Survey. Within thirty (30) days following the Effective
Date, JBC, at its sole cost and expense, shall deliver or cause to be delivered
to XRG a survey ("Survey") of the Real Estate which shall: (i) reflect the
actual dimensions of, and area within, the Real Estate, the location of any
easements, setback lines, encroachments, or overlaps thereon or thereover, and
the outside boundary lines of all improvements; (ii) identify by recording
reference all easements, setback lines, and other matters referred to on the
Title Commitment; (iii) reflect that there is access to and from the Real Estate
from a publicly dedicated street or road; (iv) reflect any area within the Real
Estate that has been designated by any federal, state, or local governmental
agency or body as being subject to special, or increased, flooding hazards; and
(v) include a surveyor's certification, reasonably acceptable to XRG and
sufficient to cause the Title Company to delete any survey exception on the
owner's title policy. The surveyor shall compile a metes and bounds description
of the Real Estate from the information contained within the Survey and this
description shall be used in the documents executed at Closing and such field
notes shall be incorporated herein by this reference upon their completion and
approval by XRG.
(c) Notice of Objections. Within thirty (30) days after the receipt of all
of the items referred to in subsections (a) and (b) above, XRG shall give JBC
written notice ("Objection Notice") of all Encumbrances reflected on the Survey
that constitute, in XRG's sole opinion, objections to title ("Objectionable
Encumbrances"). If XRG's Objection Notice is not timely delivered, then all of
the items reflected on the Title Commitment and Survey shall be considered to be
Permitted Encumbrances (as hereinafter defined).
(d) JBC to Obtain Releases. JBC covenants and agrees, at its sole cost and
expense, to obtain releases, at or prior to Closing, for any and all Security
Interests affecting the Real Estate as of the date of Closing. In addition, JBC
covenants and agrees to use its best efforts, at its sole cost and expense, to
cure or remove any other Objectionable Encumbrances. Within ten (10) days after
the receipt of XRG's Objection Notice, JBC shall give XRG written notice ("JBC's
Title Notice") specifying the Objectionable Encumbrances that have been removed
or cured, with evidence acceptable to XRG and the Title Company of such removal
or cure.
(e) Failure to Deliver Title Notice. If JBC fails to deliver JBC's Title
Notice or if JBC is unable to cure or remove the Objectionable Encumbrances to
the satisfaction of XRG within ten (10) days after XRG's Objection Notice was
delivered, XRG shall have the right prior to Closing to terminate this Agreement
by giving JBC, BL and The Shareholders written notice thereof. In the event XRG
elects not to terminate this Agreement and to proceed with the Closing, then all
Objectionable Encumbrances that have not been cured or removed shall be deemed
waived. All items reflected on the Survey to which no objection is made and all
Objectionable Encumbrances which are subsequently waived are referred to as the
"Permitted Encumbrances."
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(f) Property Inspection. XRG may, at its option and expense within thirty
(30) days following the Effective Date ("Inspection Period"), conduct
inspections, tests and investigations of the Real Estate as XRG deems necessary
to determine suitability for XRG's business. JBC shall grant reasonable access
to the Real Estate to XRG, its agents, contractors and assigns for the purpose
of conducting the inspections. XRG may terminate this Agreement by written
notice to JBC prior to expiration of the Inspection Period if the inspections
reveal, in XRG's sole judgment, any conditions that are reasonably
unsatisfactory to XRG, unless JBC elects to repair such conditions to XRG's
satisfaction.
(g) Warranties Regarding Real Estate. To induce XRG to enter into this
Agreement, JBC makes the following warranties and representations, all of which
shall be true and correct as of the date of Closing and shall survive the
Closing.
(i) JBC now has and will have at Closing good and indefeasible title
in fee simple to the Real Estate and no party, except as herein set forth,
has or shall have any right in, or to acquire, the Real Estate;
(ii) at the Closing, the Real Estate shall be free and clear of all
encumbrances except Permitted Encumbrances;
(iii) there are no actions, suits, claims, assessments, or proceedings
pending or, to the knowledge of JBC, threatened that could materially
adversely affect the ownership, operation, or maintenance of the Real
Estate or JBC's ability to perform hereunder;
(iv) JBC has full right, power, and authority to execute, deliver, and
perform this Agreement without obtaining any further consents or approvals
from, or the taking of any other actions with respect to, any third
parties;
(v) no uncured breach or default, whether declared or not, including,
without limitation, nonpayment of any sum or nonperformance of any
obligation, exists under, or with regard to, any obligation of JBC that is
secured by a lien on the Real Estate;
(vi) the location, construction, occupancy, operation, and use of the
Real Estate does not violate any applicable law, statute, ordinance, rule,
regulation, order, or determination of any governmental authority, or any
restrictive covenant or deed restriction (recorded or otherwise) affecting
the Real Estate, including, without limitation, all applicable zoning
ordinances and building codes, flood disaster laws, and Environmental,
Health, and Safety Requirements;
(vii) JBC has not obtained, and is not required to obtain, and JBC has
no knowledge of any reason XRG will be required to obtain, any permits,
licenses, or similar authorizations to construct, occupy, operate, or use
any buildings, improvements, fixtures, and equipment forming a part of the
Real Estate by reason of any Environmental, Health, and Safety
Requirements;
(viii) all leases on the Real Estate, if any, are now and at the
Closing will be in full force and effect, to the best of JBC's knowledge,
JBC is not in default in its obligations as landlord, no tenant has any
right to cancel or terminate its lease as a result of this transaction or
by reason of any existing facts known to Seller, no tenant has any right to
extend or renew its lease except as indicated in the leases, no tenant is
entitled to any concession, rebate, or refund, none of the leases have been
assigned, pledged, or encumbered except to the holder of any mortgage on
the Real Estate, and no claims or litigation, actual or threatened, exist
with regard to any of the leases;
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(ix) the unpaid balance of any mortgage, if any, is as set forth on
Exhibit _____, the note and the mortgage are not now, nor will at the
Closing be, in default, and true copies of such note and mortgage have been
delivered by XRG;
(x) there are, and will be, no special taxes or assessments for any
improvements made or installed on the Real Estate prior to the Closing and
all storm and sanitary sewers, the paving of roads and streets, and all
curbs and gutters have been installed and paid for;
(xi) the Real Estate is serviced by municipal water and either the
municipal sewer system or the septic tanks and leaching fields, if any, are
wholly contained within the boundaries of the Real Estate;
(xii) all utility lines (including sanitary and storm sewers) enter
the Real Estate through public streets or through dedicated rights of way
or equivalent servitudes;
(xiii) JBC has no knowledge of any zoning or building violations or
any action, suit, or proceeding pending or threatened against or affecting
the Real Estate or any portion thereof in any court or before or by any
federal, state, county, or municipal department, commission, board, or
agency or other governmental instrumentality;
(xiv) all occupancy and use permits, licenses, and certificates
necessary for the use of the Real Estate have been duly issued by the
appropriate authorities;
(xv) JBC agrees to indemnify and hold XRG harmless with respect to any
mechanic's and materialmen's liens against the Real Estate arising out of
any work performed or materials furnished by or on JBC's behalf or request;
(xvi) at the time of the Closing, there will be no collective
bargaining or union contracts affecting the Real Estate;
(xvii) there is no condemnation threatened or pending against the Real
Estate or any part thereof;
(xviii) there are no material defects with regard to any of the
structural components of the buildings on the Real Estate, the roof and
exterior walls are free of leaks, and the electrical, mechanical, plumbing,
and HVAC systems are in good working order;
(xix) JBC has not received any notices from any insurance company of
any defects or inadequacies in the Real Estate or any part thereof which
would materially and adversely affect the insurability of the Real Estate
or the premiums for the insurance thereon, and no notice has been given by
any insurance company which has issued a policy with respect to any portion
of the Real Estate requesting the performance of any repairs, alterations,
or other work which has not been complied with;
(xx) there are no parties in possession of any portion of the Real
Estate, whether as lessees, tenants at sufferance, trespassers or
otherwise, except for tenants under written leases that have been disclosed
to XRG;
(xxi) the improvements and structures on the Real Estate are not
within any area determined to be flood-prone under the Federal Flood
Protection Act of 1973;
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(xxii) the Real Estate and JBC are not currently in violation of or
subject to (i) any existing, pending, or threatened investigation or
inquiry by any governmental authority arising from, related to, or in
connection with one or more actual or alleged violation(s) of the Americans
with Disabilities Act (the "ADA"), or (ii) any remedial obligations under
or imposed by the ADA; and
(xxiii) JBC shall immediately notify XRG of any material change with
respect to the Real Estate or any information heretofore or hereafter
furnished to XRG with respect to the Real Estate.
(h) Warranty Deed. At the Closing, JBC shall deliver to XRG a general
warranty deed, with the standard covenants of title, conveying the Real Estate
to XRG.
(i) Title Insurance Policy. JBC shall deliver to XRG, at Closing, a form of
owner's policy of title insurance ("Title Policy") issued by the Title Company
in the full amount of the purchase price of the Real Estate insuring XRG's
indefeasible fee simple title to the Real Estate, subject only to the Permitted
Encumbrances and the printed exceptions contained in the standard form of an
owner's policy of title insurance.
(j) XRG's Payment Obligations. At Closing, XRG shall pay for all charges
for the recordation of the instruments conveying title to the Real Estate.
(k) JBC's Payment Obligations. At Closing, JBC shall pay for: (i) the
premium for the Title Policy; (ii) all charges for tax certificates; (iii) all
charges for the preparation and recording of any instruments required to clear
JBC's title for conveyance in accordance with the provisions of this Agreement;
and (iv) the cost of the Survey (if not previously paid).
(l) Adjustments at Closing. Ad valorem taxes and all other taxes and
assessments affecting the Real Estate for 2003 shall be prorated between JBC and
XRG as of the Closing Date and XRG shall assume the payment thereof after the
Closing Date. If the actual amounts to be prorated are not known as of the
Closing Date, the prorations shall be made on the basis of the best evidence
then available, and thereafter when actual figures are received, a cash
settlement will be made between JBC and XRG.
(m) Operation of the Real Estate. During the period between the Effective
Date and the Closing, JBC shall:
(i) keep the Real Estate in good repair and condition, including
making necessary repairs and replacements;
(ii) comply with all state and municipal laws, ordinances,
regulations, and orders relating to the Real Estate;
(iii) comply with all the terms, conditions, and provision of all
leases, liens, mortgages, agreements, insurance policies, and other
contractual arrangements relating to the Real Estate, make all payments due
thereunder, and suffer no default therein;
(iv) without written approval of XRG, neither negotiate nor enter into
any new contract or modify any existing contract affecting the use or
operation of the Real Estate;
(v) operate, manage, and maintain the Real Estate in the usual and
customary manner;
(vi) promptly notify XRG in writing if any material change occurs in
the occupancy or conditions affecting the Real Estate;
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(vii) not, without XRG's prior written consent, enter into, amend, or
terminate any lease, or institute any proceeding at law or in equity to
enforce any lease, covering the Real Estate; and
(viii) provide XRG and its representatives, employees, and agents full
and complete access, during normal business hours, to the Real Estate.
(n) Casualty Loss. As used in this section, the term "Casualty Loss" shall
mean any destruction by fire, storm, or other casualty or any taking in
condemnation or under the right of eminent domain of the Real Estate or portion
thereof, in each case prior to Closing. JBC shall promptly give XRG written
notice ("Casualty Notice") of any Casualty Loss of which JBC becomes aware. XRG
shall have the option, which must be exercised within ten (10) days after its
receipt of the Casualty Notice, to terminate this Agreement or to proceed with
the Closing. If XRG elects to proceed with Closing, it shall acquire the Real
Estate in accordance with the terms hereof and JBC shall transfer to XRG all
unpaid insurance proceeds, claims, awards, and other payments arising out of
such Casualty Loss and pay to XRG all sums paid to JBC as insurance proceeds,
awards, or other payments arising out of such Casualty Loss. JBC shall not
voluntarily compromise, settle, or adjust any amounts payable by reason of any
Casualty Loss without first obtaining the written consent of XRG.
9. Miscellaneous.
(a) Survival of Representations and Warranties. All of the representations
and warranties of the Parties contained in this Agreement shall survive the
Closing hereunder.
(b) Press Releases and Public Announcements. No Party shall issue any press
release or make any public announcement relating to the subject matter of this
Agreement prior to the Closing without the prior written approval of the other
Party.
(c) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, letters of intent, or representations by or
between the Parties, written or oral, to the extent they relate in any way to
the subject matter hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party or Parties; provided, however, that XRG may (i) assign any or
all of its rights and interests hereunder to one or more of its affiliates and
(ii) designate one or more of its affiliates to perform its obligations
hereunder (in any or all of which cases XRG nonetheless shall remain responsible
for the performance of all of its obligations hereunder).
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(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then three
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to JBC or BL:
X. Xxxxxx Companies, Inc.
X.X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
If to The Shareholders:
c/o X. Xxxxxx Companies, Inc.
X.X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
If to XRG:
XRG, Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxxx
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Florida without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Florida or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Florida.
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(j) Amendments and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the Parties. No
waiver by any Party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(1) Expenses. Each of XRG, JBC, BL and The Shareholders will bear its or
his own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement or the transactions contemplated hereby or the
enforcement thereof.
(m) Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise.
Nothing in the Disclosure Schedule shall be deemed adequate to disclose an
exception to a representation or warranty made herein unless the Disclosure
Schedule identifies the exception with reasonable particularity and describes
the relevant facts in reasonable detail. Without limiting the generality of the
foregoing, the mere listing (or inclusion of a copy) of a document or other item
shall not be deemed adequate to disclose an exception to a representation or
warranty made herein (unless the representation or warranty has to do with the
existence of the document or other item itself). The Parties intend that each
representation, warranty, and covenant contained herein shall have independent
significance.
(n) Incorporation of Exhibits. The Exhibits identified in this Agreement
are incorporated herein by reference and made a part hereof.
(o) Specific Performance. Each of the Parties acknowledges and agrees that
the other Party would be damaged irreparably in the event any of the provisions
of this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that the other
Party shall be entitled to an injunction to prevent any breach of the provisions
of this Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the State of Florida,
in addition to any other remedy to which it may be entitled, at law or in
equity.
(p) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of the courts of the State of Florida in any action or proceeding
arising out of or relating to this Agreement and agrees that all claims in
respect of the action or proceeding may be heard and determined in any such
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court. Each party also agrees not to bring any action or proceeding arising out
of or relating to this Agreement in any other court. Each of the Parties waives
any defense of inconvenient forum to the maintenance of any action or proceeding
so brought and waives any bond, surety, or other security that might be required
of any other Party with respect thereto. Any Party may make service on the other
Party by sending or delivering a copy of the process to the Party to be served
at the address and in the manner provided for the giving of notices in Section
9(h) above. Nothing in this Section 9(p), however, shall affect the right of any
Party to serve legal process in any other manner permitted by law or in equity.
Each Party agrees that a final judgment in any action or proceeding so brought
shall be conclusive and may be enforced by suit on the judgment or in any other
manner provided by law or in equity
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
XRG, INC.
By:
Title:
X. XXXXXX COMPANIES,
INCORPORATED
By:
Title:
BENTLY LOGISTICS, INCORPORATED
By:
Title:
The Shareholders:
Signature
Printed Name
Signature
Printed Name
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Attachments:
Exhibit A: Furniture, Fixtures and Equipment
Exhibit B: Acquired Contracts and Agreements
Exhibit C: Xxxx of Sale
Exhibit D: Assignment of Contracts
Exhibit E: Description of Real Estate
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