EXHIBIT 10.2
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (this "Agreement"), dated as of September
8, 2005 ("Effective Date"), is entered into by and among Chartwell
International, Inc., a Nevada corporation (the "Company"), Rail Waste Holdings,
LLC, a New York limited liability company ("RWH") and Xxxxx X. Xxxxx, an
individual (the "Investor").
RECITALS
WHEREAS, the Company is willing to acquire from RWH, and RWH is willing
to sell, assign and transfer to the Company, on the terms and subject to the
conditions set forth herein, a secured promissory note issued by Xxxxxxx
Enterprises, Inc., an Ohio corporation ("Xxxxxxx") to Investor in the principal
amount of $600,187.58 dated as of January 10, 2005 and attached hereto as
Exhibit A (the "Xxxxxxx Note").
WHEREAS, the Company is acquiring the Xxxxxxx Note in connection with
the execution of that certain Agreement and Plan of Merger ("Merger Agreement")
by and amongst the Company, E-Rail Acquisition Sub, a Nevada corporation and
wholly-owned subsidiary of the Company ("Merger Sub"), and E-Rail Logistics,
Inc. a New York corporation and wholly-owned subsidiary of RWH ("E-Rail"), dated
as of even date herewith, whereupon Merger Sub shall be merged with and into
E-Rail, and E-Rail shall survive as a wholly-owned subsidiary of the Company
(the "Merger").
WHEREAS, Investor is a member of RWH and RWH previously agreed to
allocate up to $550,000 of any proceeds received as a result of the payoff of
the Xxxxxxx Note to Investor in consideration for certain investments by
Investor in RWH.
NOW, THEREFORE, in consideration of the foregoing, and the
representations, warranties, covenants and conditions set forth below, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Ownership. RWH and Investor represent and warrant that they own all
right, title and interest in (i) the Xxxxxxx Note; and (ii) a certain open end
mortgage on real property owned by Xxxxxxx, granted to RWH by Xxxxxxx for
$1,000,000 filed in the Xxxxx County Recorder's office on January 10, 2005 as
Instrument No. 200501100001743 securing the Xxxxxxx Note attached hereto as
Exhibit B (the "Xxxxxxx Xxxx").
2. Purchase and Assignment. Pursuant to Section 10 of the Xxxxxxx Note
and as provided for under the Ohio Revised Code, as applicable, Company desires
to, and hereby acquires and assumes, and RWH and Investor desire to and hereby,
sell, transfer, assign and convey, all right, title, obligations and interest
in, to and under the Xxxxxxx Note and Xxxxxxx Xxxx. On the Effective Date, the
Company shall pay $275,000 in cash and conditionally issue 300,000 shares of its
Restricted Common Stock (the "Shares") at a price equal to the Company's most
recent sale of capital stock to private investors, or $1.50 per share, to the
Investor in consideration for the Xxxxxxx Note and Xxxxxxx Xxxx. Company shall
have no obligation whatsoever to file a registration statement covering the
Shares under the Securities Act of 1933, as amended (the "Act"). RWH hereby
releases, indemnifies and holds harmless the Company, its subsidiaries,
affiliates, employees, directors, agents and consultants from any claims,
liabilities, costs, causes of action, damages and expenses brought as a result
of the issuance of the Shares to Investor as provided for herein.
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3. Investor Representations and Obligations. Investor acknowledges and
agrees to the terms and conditions set forth on Exhibit C and Annex I to such
exhibit, attached hereto and incorporated herein by reference as if fully set
forth herein. RWH and Investor shall provide the Company with any assistance
requested by the Company to perfect Company's interest under the Xxxxxxx Xxxx,
and take all further actions, including dismissing any claims or legal
proceedings, drafting and filing additional documents as necessary to ensure
removal of all its liens, encumbrances, security interest, claims and any
restrictions whatsoever against the real property subject to the Xxxxxxx Xxxx.
4. Escrow. Upon issuance of the Shares, the Shares and certificate
representing said shares shall be placed in an escrow account with the law firm
of Xxxxxx Eng & Xxxxxxxx, a Law Corporation in accordance with an escrow
agreement in substantially the form as Exhibit D attached hereto, by and amongst
Xxxxxx Eng & Xxxxxxxx, Company and Investor. The term of the escrow shall be
from the Effective Date until January 1, 2006. The Shares shall be released
upon: (i) vesting of the Shares in accordance with Section 6; (ii) redemption by
the Company pursuant to Section 5; or (iii) end of the escrow term.
5. Redemption. Company may redeem the Shares for the aggregate sum of
$275,000 on the earlier of the: (i) Xxxxxxx Note, including all interest and
costs thereon, including attorneys fees, being paid-off in full; (ii) sale of
the real property subject to the Xxxxxxx Xxxx in a foreclosure or public auction
as ordered by a court of competent jurisdiction to a party other than Company or
its affiliates; (iii) real property subject to the Xxxxxxx Xxxx being sold
directly to Company; or (iv) end of the escrow term.
6. Proxy. Investor hereby irrevocably appoints the Company's executive
management team as proxies, with full power to appoint substitutes, and hereby
authorizes them to represent and to vote all the Shares on any matters requiring
a vote of the shareholders of the Company, except if prohibited by law. Upon
release of the Shares as provided for in Section 4 hereto, such irrevocable
proxy shall terminate.
7. Termination. This Agreement shall terminate six (6) months from the
Effective Date. The provisions of Section 3, 7, 8 and 9(a) will survive any such
termination.
8. Confidentiality. RWH and Investor, their affiliates and any
representative of either party will agree, to hold in confidence and trust and
not use or disclose any confidential information provided to or learned by it in
connection with its rights under this Agreement; provided, however, that,
notwithstanding anything to the contrary herein, either party may use or
disclose any confidential information to its directors, officers or employees
that have a need to know such information.
9. Miscellaneous.
a. Notices. All notices required or permitted hereunder shall be in writing
and shall be deemed effectively given: (a) upon personal delivery to the party
to be notified; (b) when sent by confirmed facsimile if sent during normal
business hours of the recipient, if not, then on the next business day; (c) five
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid; or (d) two days after deposit with a nationally
recognized overnight courier, specifying two day delivery, with written
verification of receipt. All communications shall be sent to the parties at the
following addresses or facsimile numbers specified below (or at such other
address or facsimile number for a party as shall be designated by ten days
advance written notice to the other parties hereto):
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If to the Company:
Chartwell International, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx Xxxxxxx
Ph:(000) 000-0000
Fax:(000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxx, Eng & Xxxxxxxx
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Ph: (000) 000-0000
Fax: (000) 000-0000
If to RWH:
Rail Waste Holdings, LLC
000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, X.X. 00000
If to Investor:
Xxxxx X.Xxxxx
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Ph:------------------
Fax:-----------------
b. Amendment. To the extent permitted by law, this Agreement may be amended
by a subsequent writing signed by each of the parties hereto.
c. Waiver. The waiver of one breach or default or any delay in exercising
any rights will not constitute a waiver of any subsequent breach or default. No
term of this Agreement shall be considered waived and no breach excused by
either party unless made in writing. No consent, waiver, or excuse by either
party, express or implied, unless in writing, shall constitute a subsequent
consent, waiver or excuse.
d. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or
delay on the part of any party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other rights. Except as otherwise provided hereunder, all
rights and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
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e. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
f. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible, in a mutually acceptable manner, to the end that
transactions contemplated hereby are fulfilled to the extent possible.
g. Entire Agreement. This Agreement (including the exhibits and annex
attached hereto and thereto referenced herein) constitutes the entire agreement
and supersedes all prior agreements and undertakings both oral and written,
among the parties, or any of them, with respect to the subject matter hereof
and, except as otherwise expressly provided herein.
h. Assignment. No party may assign this Agreement or assign its respective
rights or delegate their duties (by operation of law or otherwise), without the
prior written consent of the other party. This Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
i. Parties In Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, including, without limitation, by way of subrogation.
j. Governing Law. This Agreement will be governed by, and construed and
enforced in accordance with the laws of the State of Nevada as applied to
contracts that are executed and performed in Nevada, without regard to the
principles of conflicts of law thereof. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in Kanawha
County, West Virginia, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
k. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. This Agreement shall
become effective when counterparts have been signed by each of the parties and
delivered by facsimile or other means to the other party. Any party who delivers
a signature page via facsimile agrees to later deliver an original counterpart
to all other parties.
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l. Attorneys Fees. If any action or proceeding relating to this Agreement,
or the enforcement of any provision of this Agreement is brought by a party
hereto against any party hereto, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
m. Tax Advice. The Investor acknowledges that the Investor has not relied
and will not rely upon the Company or the Company's counsel with respect to any
tax consequences related to the ownership, purchase, or disposition of the
Shares. The Investor assumes full responsibility for all such consequences and
for the preparation and filing of all tax returns and elections which may or
must be filed in connection with such Shares.
n. Representation. The parties to this Agreement, and each of them,
acknowledge, agree, and represent that it: (a) has been represented in
connection with the negotiation and preparation of this Agreement by counsel of
that party's choosing; (b) has read the Agreement and has had it fully explained
by its counsel; (c) it is fully aware of the contents and legal affect of this
Agreement; (d) has authority to enter into and sign the Agreement; and (e)
enters into and signs the same by its own free will.
o. Drafting. The parties to this Agreement acknowledge that each of them
have participated in the drafting and negotiation of this Agreement. For
purposes of interpreting this Agreement, each provision, paragraph, sentence and
word herein shall be deemed to have been jointly drafted by both parties. The
parties intend for this Agreement to be construed and interpreted neutrally in
accordance with the plain meaning of the language contained herein, and not
presumptively construed against any actual or purported drafter of any specific
language contained herein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date and year first written above.
CHARTWELL INTERNATIONAL, INC.
By:--------------------------
Name:------------------------
Title:-----------------------
RAIL WASTE HOLDINGS, LLC
By:--------------------------
Name:------------------------
Title:-----------------------
XXXXX X. XXXXX
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