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Exhibit 10.3
SALE OF ASSETS AGREEMENT
THIS SALE OF ASSETS AGREEMENT ("Agreement") made this ______ day of
____________, 2000 by and between STAR SERVICES GROUP, INC., a Florida
corporation, or its assigns, ("Buyer") and PEERLESS DADE, INC., d/b/a Dade
Recycling & Disposal, a Florida corporation, ("Seller" or "Dade Recycling").
W I T N E S S E T H
WHEREAS, Peerless Dade, Inc. ("Dade Recycling") owns and operates a
construction and demolition debris landfill and associated materials recovery
facility ("MRF") located at 00000 XX 00xx Xxxxxx, Xxxxx, Xxxxxxx; and
WHEREAS, Buyer desires to operate the MRF, in accordance with all
existing federal, state and local permits and applicable laws and Seller desires
to contract with Buyer to operate the MRF; and
WHEREAS, the Buyer desires to purchase and Dade Recycling desires to
sell certain equipment and other assets owned by Dade Recycling required to
operate the MRF; and
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
agree as follows:
SECTION 1. ASSETS PURCHASED FROM PEERLESS DADE, INC. Peerless Dade,
Inc. ("Dade Recycling") agrees to sell to Buyer and Buyer agrees to purchase
from Dade Recycling, on the terms and conditions set forth in this Agreement,
the equipment and other assets set forth on Schedule 1 hereto ("Dade Recycling
Assets"). The Dade Recycling Assets specifically include, but are not limited
to, the right to operate the MRF under Dade Recycling's existing permits.
SECTION 2. EXCLUDED DADE RECYCLING ASSETS. Excluded from this sale and
purchase are those items of equipment set forth in Schedule 2 hereto and any
other assets of Peerless Dade, Inc., d/b/a Dade Recycling & Disposal, not
specified in Schedule 1 hereto. The Dade Recycling Assets shall not include any
cash from Dade Recycling's operation of the MRF for business related to services
performed on or before the Closing Date, as defined in Section 5, or any
advances, deposits or prepaid items.
SECTION 3. PURCHASE PRICE. The total purchase price ("Purchase Price")
for the Dade Recycling Assets shall be paid and allocated as follows:
3.1 STOCK CONSIDERATION. The Buyer shall transfer One Hundred
Thousand (100,000) shares of fully paid, registered and nonassessable common
shares of Star Services Group, Inc. publicly trade stock ("Stock Consideration")
to the individual shareholders of Peerless Dade, Inc. or their respective
designees and/or nominees in accordance with their respective ownership
interests and as designated at Closing (as defined in Section 5) by the
President of Dade Recycling. The Stock Consideration shall be delivered within
fifteen (15) business days of the Closing (as defined in Section 5). The parties
agree that Xxxxx Xxxxxxx of Xxxxxx, Xxxxxxx & Company in Montgomery, Alabama
("Xxxxxxx") shall be authorized to act as agent for the shareholders of Peerless
Dade, Inc. for the receipt of the Stock Consideration from the Buyer's transfer
agent. The Stock Consideration shall be delivered to Xxxxxxx in accordance with
written instructions provided to Buyer by the President of Peerless Dade, Inc.
at the Closing. All one hundred thousand (100,000) shares will be freely
tradeable as of January 2, 2002. It is further understood and agreed by the
parties hereto that the sale or transfer of the Stock Consideration by the
individual shareholders of Peerless Dade, Inc. will be restricted only as set
forth above (the "Restricted Stock"). The share certificates received for the
Restricted Stock shall bear a restrictive legend making said shares subject to
the terms and conditions of this Section.
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3.2 CASH CONSIDERATION. As additional consideration, the Buyer
shall pay Dade Recycling the sum of $630,850.50 in forty eight (48) monthly
installments of $16,000.00 each, which includes interest at the rate of ten
percent (10%) per annum ("Cash Consideration"). This obligation shall be
represented by a promissory note in substantially the form set forth in Exhibit
"A" hereto ("Note"), to be made and delivered by the Buyer at Closing (as
defined in Section 5). The Cash Consideration shall be allocated to the purchase
of Dade Recycling's equipment.
3.3 LEASE OF DADE RECYCLING'S MATERIALS RECOVERY FACILITY. As
additional consideration, the Buyer shall lease twenty (20) acres, more or less,
more specifically described in the Lease Agreement attached hereto and
incorporated herein by reference as Exhibit "B", and Dade Recycling's MRF
located on Tract 55 for a period of forty eight (48) months from the date of
Closing in accordance with the terms and conditions of the Lease Agreement,
Exhibit "B".
3.4 DISPOSAL OF BUYER'S MATERIALS.
(a) During the first two (2) years of the lease agreement for
the MRF, Buyer will have the right to deliver to the Landfill working face and
dispose of 300,000 cubic yards of clean concrete ("Concrete") in Dade
Recycling's construction and demolition debris landfill ("Landfill") at no cost.
(b) In addition, during the term of the lease agreement for
the MRF, the Buyer is granted the exclusive right to dispose of 600,000 cubic
yards of recovered screen materials from the MRF (the "MRF RSM"), recovered
screen materials from off-site locations (the "Off-site RSM"), and RSM which has
been processed a second time by passing through a 3/4 inch screen (the "Fines")
in the Landfill. The disposal fee at the Landfill for RSM shall be $4.00 per
cubic yard. The disposal fee at the Landfill for the Fines shall be $1.50 per
cubic yard. Buyer agrees to load the MRF RSM and MRF Fines into Dade Recycling's
trucks and Seller agrees to deliver the MRF RSM and MRF Fines to the Landfill.
Buyer shall deliver or shall have delivered the Off-site RSM and the Off-site
Fines to the Landfill working face.
(c) During the term of the lease, at a minimum, Buyer must
make available, to be loaded by Buyer into Seller's trucks and Seller must
collect, all of Buyer's RSM and Concrete from its operation of the Dade
Recycling MRF. In the event Buyer does not utilize or make available for
collection a pro-rata portion each year of the lease term of the 300,000 (first
two years only) and 600,000 cubic yards of Concrete and RSM disposal airspace,
respectively, then Dade Recycling reserves the right to use or sell the unused
portion of said disposal airspace for that year. Nothing herein shall require
Seller to receive more than 600,000 cubic yards of RSM or more than 300,000
cubic yards of Concrete.
(d) In the event that Seller fails to collect and dispose of
the MRF RSM as required by Section 3.4(c), then Seller shall reimburse Buyer for
any additional and reasonable costs it may incur for the collection, transport
and disposal of said MRF RSM at another facility.
3.5 PROCESSING OF METALS. As additional consideration for this
Agreement and as a material inducement to Seller to enter into this Agreement,
Buyer agrees that NAMCO Metals Management, Inc. ("NAMCO"), an affiliated company
of Seller, shall have an exclusive right of first refusal to purchase all
ferrous metals recovered by Buyer during its operation of the MRF and all
ferrous metals recovered or recycled by Buyer at any of its transfer stations or
materials recovery facilities in Miami-Dade, Broward, Palm Beach or Xxxxxxx
Counties, Florida. NAMCO, an affiliate of Dade Recycling, shall pay Buyer for
the recovered metals at a rate provided in Exhibit C attached hereto.
3.6 ADJUSTMENTS.
(a) The operation of the Dade Recycling MRF (Seller's
Business") and related income and expenses up to the close of business on the
day before the Closing (as defined in Section 5) shall be for the account of
Seller and thereafter for the account of the Buyer. Expenses, including but not
limited to utilities, license fees, personal or real property taxes, wages,
vacation pay, payroll taxes and fringe benefits of employees of the Seller's or
Seller's Business, shall be pro-rated between the Seller and
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Buyer as of the close of business on the Closing Date, the proration to be made,
insofar as reasonably possible, on the Closing Date, with settlement of any
remaining items to be made within sixty (60) days following the Closing.
Notwithstanding the above, Seller agrees that the loan balance outstanding as of
the Closing Date on the loan from Peerless Dade, Inc. to Distribution Management
Services, Inc. shall accrue to the benefit of Buyer and can be collected by
Buyer in accordance with the terms of the Amended Operation Agreement dated
December 22, 1998 with Distribution Management Services, Inc., attached hereto
and incorporated herein as Exhibit "D".
(b) After the Closing Date, Buyer shall use commercially
reasonable efforts to collect the money due the Seller from the Seller's
Business prior to the Closing Date and keep records of its collection efforts
and amounts collected. Seller shall provide Buyer with a list of its
receivables, none of which shall be more than ninety (90) days past due (the
"Seller's Accounts Receivable"). The Buyer shall forward the amounts collected
to the Seller monthly. All monies received by Buyer, from customers utilizing
the MRF, shall first be applied to the Seller's Accounts Receivable. One hundred
and twenty (120) days after the Closing Date, Buyer shall prepare and forward to
Seller a written reconciliation of the Seller's Accounts Receivable showing
amounts collected and amounts uncollected during such 120 day period. After said
120 day period, Seller shall have the right to take such action as it may deem
necessary to collect any remaining Seller's Accounts Receivable and Buyer shall
have no further obligations in connection therewith.
SECTION 4. INSTRUMENTS OF CONVEYANCE AND DUE DILIGENCE.
(a) At the Closing, the Buyer shall deliver all of the
consideration, including the agreed upon shares as set forth in 3.1 and Seller
shall execute and deliver to Buyer all necessary certificates of title, bills of
sale, endorsements, assignments and other good and sufficient instruments and
documents of conveyance and transfer as shall be required to effectuate the
sale, assignment, transfer and delivery of the Dade Recycling Assets from Seller
to Buyer.
(b) Seller shall at the Closing, as defined in Section 5, and
from time to time thereafter at Buyer's request and without further
consideration, execute and deliver to Buyer such instruments of transfer,
conveyance and assignment in addition to those referenced above as Buyer shall
reasonably request to transfer, convey and assign more effectively the Dade
Recycling Assets to Buyer.
(c) At the Closing, Seller shall provide an updated and
complete customer list showing names, addresses, service location and pricing.
4.1 DUE DILIGENCE. The Buyer's obligation to close under this
Agreement is contingent upon Buyer being satisfied with the results of its due
diligence investigation. Buyer shall have until October 5, 2000 to conclude its
due diligence ("Due Diligence Period"). The Due Diligence Period may be extended
by mutual agreement of the parties. After such period, the Buyer shall be deemed
to be satisfied with its due diligence unless written notice is sent to Seller,
within five (5) days after the Due Diligence Period, that Buyer is not satisfied
with its due diligence.
SECTION 5. CLOSING. Closing, subject to the terms and conditions of
this Agreement, the sale, transfer, assignment and delivery of the Assets, the
delivery of the Purchase Price, and the delivery of the other instruments and
certificates required hereunder, shall take place on or before October 16, 2000,
or at such other time and date as shall be mutually agreed upon by the parties
hereto in writing. Such time and date shall be referred to herein as the
"Closing". The date of the Closing is sometimes herein referred to as the
"Closing Date".
SECTION 6. OBLIGATIONS OF BUYER AND SELLER PRIOR TO CLOSING. From the
date of this Agreement until Closing:
(a) Seller shall afford to the representatives of Buyer access, during
normal business hours and upon reasonable notice, to the premises, properties,
books and records of the Seller, permit Buyer to inspect the Dade Recycling
Assets, and furnish Buyer with such additional financial, corporate and
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operating data and other information as to the Dade Recycling Assets as Buyer
may from time to time reasonably request; provided, however, that any furnishing
of information to Buyer shall not affect Buyer's right to rely on Seller's
representations and warranties made herein;
(b) until and unless the Closing has been consummated, Buyer will
cause all information obtained in connection with the negotiation and
performance of this Agreement to be treated as confidential (except such
information as Buyer may be required or find necessary to disclose to any
governmental agency) and will not use, and will not knowingly permit others to
use, any such information in a manner detrimental to Seller;
(c) except as otherwise provided by the prior written consent of
Buyer, Seller shall conduct its business and operations diligently and in the
same manner as has heretofore have been conducted, and use its best efforts to
maintain its assets, facilities and organization, to keep available to Buyer the
services of its officers, employees and agents, and to preserve present
relationships with suppliers, customers and others with which it conducts
business.
(d) The parties to this Agreement shall have obtained, at or prior to
Closing, all consents, if any, required for the consummation of the transactions
contemplated by this Agreement from any party to any contract, agreement,
instrument, lease, license, arrangement or understanding to which any of them is
a party, or to which any of them or any of their respective businesses,
properties or assets are subject.
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER AND SELLER.
7.1 REPRESENTATIONS AND WARRANTIES AND OBLIGATIONS. The
representations and warranties of Buyer and Seller contained in this Agreement
shall be accurate on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of such date.
7.2 COVENANTS. Each and all of the terms, covenants and
conditions of this Agreement to be complied with and performed by Buyer and
Seller on or before the Closing Date shall have been duly complied with and
performed.
7.3 NO ADVERSE CHANGE. No material and adverse change in the
business of the parties and/or the Dade Recycling Assets shall have occurred
since execution of the Agreement. Buyer and Seller shall not have suffered any
loss or damage to any of their respective properties or assets, whether or not
covered by insurance, since which change, loss or damage would materially affect
or impair the ability of Buyer or Seller to conduct their business.
7.4 SIMULTANEOUS CLOSING OF PURCHASES OF COMPANION
TRANSACTIONS. Buyer has entered into contracts to purchase assets from Peerless
Big Apple, Inc. and Peerless Miami Avenue, Inc. which are scheduled to close
simultaneous with this transaction ("Companion Transactions"). Buyer and Seller
acknowledge that the parties' obligation to close the transaction contemplated
by this Agreement, including without limitation the payment of the purchase
price or other consideration to Seller is conditioned upon the parties' ability
to simultaneously close the purchase or the assets of all of the Companion
Transactions, unless expressly waived by the parties in writing.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
warrants, represents and covenants, with respect to the Dade Recycling Assets
which are the subject of this transaction and Agreement, as of the date of the
execution of this Agreement and at the Closing, that:
(a) Seller is a Florida corporation duly organized, validly existing
and in good standing under the laws of all states in which Dade Recycling Assets
which are the subject of this Agreement are located, with full authority to
execute and perform this Agreement, and the performance of this Agreement will
not result in a breach or constitute a default under Articles, Bylaws,
Contracts, and any statute, law, agreement, order or rule of any court or
governmental authority by which Seller is bound;
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(b) Seller has all necessary powers to own the Dade Recycling Assets
and to operate the MRF as now owned by it; and is duly authorized, qualified and
licensed under applicable laws, regulations, ordinances or orders of public
authorities to carry on its business in the places and in the manner as now
conducted;
(c) Except as otherwise provided herein, Seller has complete and
unrestricted power to sell, convey, transfer, assign and deliver to Buyer all of
the Dade Recycling Assets to be sold, conveyed, transferred, assigned and
delivered hereunder, and the instruments executed and delivered to Buyer
hereunder are valid in accordance with their terms and are effective for the
purposes contemplated;
(d) all of the Dade Recycling Assets described in Schedule 1 are free
and clear of all debts, liens, claims, pledges, mortgages, encumbrances and
security interests;
(e) Seller shall not divulge, communicate, use to the detriment of
Buyer or for the benefit of any other person or persons, or misuse in any way,
any confidential or sensitive information or trade secrets of its business,
including, but not limited to, personnel information, know-how, customer lists,
or other financial and operating data in conjunction with the Dade Recycling
Assets being transferred hereunder. Seller further acknowledges and agrees that
any information or data pertinent to this Agreement they it has in its
possession will be transferred to Buyer;
(f) all pending or threatened litigation and any administrative or
judicial proceedings of any nature involving any of the Dade Recycling Assets
are described in Schedule 3. Seller shall be solely responsible for resolving
any pending or threatened enforcement actions and/or any administrative or
judicial proceedings as described or set forth in Schedule 3. The Seller knows
of no other facts or circumstances which may result in any future civil,
administrative or criminal proceedings against the Seller. The assets and/or
insurance coverage of the Seller is adequate in character and amount to pay all
damages, losses, liabilities and expenses relating to or arising from the
litigation and proceedings described in Schedule 3;
(g) except as specifically provided in Schedule 4, the Seller is not in
default under any law, ordinance, or order of any court or federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality wherever located (other than as may be described elsewhere
herein); and there are no claims, actions, suits or proceedings pending or
threatened, against or affecting the Seller or any of the Assets at law or in
equity, or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, wherever
located, or before any arbitrator, arbitration panel or other dispute resolution
panel, which may result in any material adverse change in the financial
condition, results of operations, or Dade Recycling Assets or which will affect
Buyer's ability to operate the MRF or which may question the validity or
propriety of this Agreement or of any action taken or to be taken in accordance
with or in connection with this Agreement; and the Seller has received no notice
of any asserted past or present failure to comply with any law, ordnance,
regulation, permit, order or requirement;
(h) Except as specifically described in Schedule 3 or Schedule 4, the
Seller has operated from its inception, and will continue to operate through
Closing, legally and in compliance with all conditions and requirements of all
applicable zoning laws, federal, state and local statutes, ordinances, rules,
regulations ("Laws"), including environmental Laws, permits, policies,
guidelines, orders, franchises, authorizations and consents;
(i) Except as described in Schedule 3 or Schedule 4, the Seller is not
subject to any judgment, writ, injunction, decree or other judicial order;
(j) The Seller is not aware of any proposed law or regulation,
including land use designation, or any event or condition of any character which
would or could materially and adversely affect the Dade Recycling Assets being
sold hereunder or the operation of the MRF;
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(k) Except as described in Schedule 3 or Schedule 4, Seller has not
received actually or contractually any notification (including requests for
information directed to the Seller) of any past or present failure by the Seller
to comply with any federal, state or local laws, regulations, permits,
franchises or orders applicable to it or the Dade Recycling Assets or the
operation of the MRF;
(l) To the best of Seller's knowledge and belief, it has all permits,
licenses and authorizations ("Permits") in place for operation of the MRF and
all such Permits are transferable. Said permits are identified in the attached
Schedule 5 and complete copies of the Permits are attached to Schedule 5;
(m) Buyer shall incur no liabilities and/or legal obligations
whatsoever regarding the existing Solid Waste Disposal Revenue Bonds issued to
Peerless Dade, Inc. by the Capital Projects Finance Authority as a result of
Buyer entering into this Agreement.
(n) Seller has disclosed all material facts necessary for Buyer to
purchase the Dade Recycling Assets transferred hereunder;
(o) To the best of Seller's knowledge and belief, all representations
and warranties of Seller set forth in this Agreement, and in any written
statements and Schedules prepared in connection with this Agreement, are true
and correct as of the Closing.
(p) To the best of Seller's knowledge and belief, all of the financial
documents provided by Seller to Buyer fairly presents the information as of the
date compiled.
(q) Seller hereby represents and warrants that its financial books and
records are available and it will, at its own cost and expense, provide audited
financial statements. Seller will take any and all necessary actions to provide
such audited financial statements. Seller further represents and warrants that
it knows of no reason why it should not be able to provide such audited
financial statements.
(r) Seller shall not dissolve Peerless Dade, Inc. prior to 270 days
after the Closing. However, Seller may convert the corporation to a Limited
Liability Company.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
warrants, represents and covenants, as of the date of the execution of this
Agreement and at Closing, that:
(a) Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida is now and has been at all times
since its creation, duly authorized, qualified and licensed under all laws,
regulations, ordinances and orders of public authorities to carry on their
business.
(b) Buyer has full legal right, power and authority (corporate and
otherwise) to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. Buyer does not need to give any notice to, or
make any filing with, or obtain the authorization, consent or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
(c) The execution, delivery and performance of this Agreement, the
consummation of any transactions referred to in this Agreement or contemplated
by this Agreement and the fulfillment of the terms hereof and thereof will not:
(i) conflict with, or result in a breach or violation of the Articles of
Incorporation or By-Laws of Buyer; or (ii) conflict with, or result in a breach
under any document, agreement or other instrument to which Buyer is a party.
(d) The officer of Buyer executing this Agreement has the corporate
authority to enter into and bind Buyer to the terms of this Agreement, and Buyer
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement. All corporate action by Buyer necessary to
approve the transaction, including both shareholder and director approvals, have
been taken and a copy of the corporate resolution(s) authorizing this
transaction will be delivered at Closing.
(e) Buyer has made all filings with Securities and Exchange Commission
that it is required to make under the Securities Act of 1933 (the "Act") and the
Securities Exchange Act of 1934 (the "Exchange Act"), as amended collectively,
the "Public Reports"). The Public Reports accurately and
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completely describe, in all material respects, Buyer's financial status,
business operations and prospects as of the date of such filings, and do not
contain any untrue statement of a material fact or omit any material fact(s)
necessary to make the information contained in the filings not misleading.
SECTION 10. HOLD HARMLESS AND INDEMNIFICATION. From and after the
Closing, the Seller will indemnify and hold the Buyer and its assigns,
subsidiaries, divisions, affiliates, officers, directors, agents and employees
harmless from and against any damage, loss, liability or expense (including
attorneys' fees and litigation expenses) incurred as a result of or in
connection with:
(a) the material untruth, violation or breach (collectively referred to
as "breach") of any of the representations, warranties, agreements or
obligations set forth in or made in connection with this Agreement; or
(b) any occurrence, act or omission of the Seller, which occurrence,
act or omission occurred prior to the Closing and for which the Seller is
legally responsible; or
(c) any liabilities not disclosed on any Schedule hereto affecting any
Assets being transferred hereunder.
Seller shall deliver 4,200 shares of the Stock Consideration, which
becomes fully tradeable on January 2, 2002, to G. Xxxxxxx Xxxxxxx, P.A. ("Escrow
Agent") to be held in escrow as security for Seller's indemnification
obligations regarding the material untruth violation or breach of the
representations and warranties set forth in Section 8 of this Agreement
("Escrowed Shares"). Said Escrowed Shares shall be released to the Seller's
individual shareholders or their designee if no claim of indemnification is
asserted by the Buyer under this Section 10 within two hundred seventy (270)
days of the Closing Date. Buyer will notify Escrow Agent in writing no later
than the close of business on the 270th day from the Closing Date of any pending
indemnification claim. In the absence of such notice, the Escrowed Shares may be
released to the shareholders or their designee. The Buyer will give Seller
written notice of each time Buyer becomes aware of any fact or circumstance
which may give rise to an obligation of the Seller to indemnify Buyer under this
Section 10, which notice shall be accompanied by a copy of any claim made which
may result in such obligation to indemnify. All claims for indemnification must
be submitted by Buyer to Seller within Two Hundred Seventy (270) days of the
Closing Date. The Buyer's claim for indemnification ("Indemnification Demand")
shall state: (a) which of Seller's material representations or warranties are
untrue or have been breached; (b) the amount of losses, damages or expenses
which the Buyer has incurred or has suffered or is expected to suffer to which
the Buyer may be entitled to indemnification pursuant to this Section 10. The
Seller may object to the Indemnification Demand by sending Buyer a written
notice stating the objections and grounds for the objections ("Indemnification
Objection"). If no Indemnification Objection is sent within fifteen (15) days
after Seller's receipt of the Buyer's Indemnification Demand, Seller shall be
deemed to have acknowledged the correctness of the claim or claims specified in
the Indemnification Demand and shall pay the full amount claimed in the
Indemnification Demand within thirty (30) days. If for any reason the amount
claimed in the Indemnification Demand is not paid within thirty (30) days, the
Buyer may institute legal proceedings to enforce payment of the indemnification
claim contained in the Indemnification Demand and any other claim for
indemnification that the Buyer may have under this Agreement. Buyer agrees that
it will not make a claim for indemnification under this Section 10 for matters
in the aggregate having a value of less than $5,000.00. The Seller's liability
for any Indemnification Demand is limited to the Escrowed Shares.
SECTION 11. NON-COMPETITION AGREEMENT. As a material inducement to
Buyer to enter into this Agreement, Seller shall cause its Shareholders, Xxxxxxx
X. Xxxxxxx, Xx. ("EOH"), Xxxxx X. Xxxx ("KRK") and Xxxxxxx X. Xxxxx ("RFC")
(collectively "Shareholders") to enter into Non-Competition Agreements, in form,
substance and for consideration acceptable to the Buyer and Shareholders. Said
Non-Competition Agreements shall be executed at the Closing and their terms
shall include, but not be
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limited to, a restriction on EOH for a period of five (5) years and KRK and RFC
for a period of three (3) years from the Closing, prohibiting the Shareholders
from engaging (whether as owner, partner, stockholder, manager, employee,
investor or otherwise) directly or indirectly, on their own behalf or on behalf
of any competitor of Buyer, in the ownership, management or operation of a
construction and demolition debris ("C&D") landfill, C&D transfer station or
materials recovery facility within a one hundred (100) mile radius of any
existing facility owned and operated by Peerless Big Apple, Inc. or Dade
Recycling in Miami-Dade County, Florida. The restrictive covenant shall not
apply to the Dade Recycling Landfill or NAMCO Metal Management, Inc. ("NAMCO")
metals shredding facility, including any use of roll-off containers by NAMCO for
storage of metals. EOH's restrictive covenant (Non-Compete) shall be
incorporated into a two (2) year Consulting Agreement at annual compensation of
$125,000.00.
SECTION 12. DEFAULT BY BUYER. If the Buyer fails to perform any of the
terms, covenants, conditions or obligations of this Agreement or in the event of
any breach or default by Buyer under this Agreement, or any other documents
executed or delivered in connection with the transactions contemplated by this
Agreement, the Seller shall have all rights and remedies that may be available
to Seller at law or in equity. No waiver by Seller of any such breach or
default, whether intentional or not, shall be deemed to extend to any prior or
subsequent breach or affect in any way any rights arising by virtue of any prior
or subsequent breach or default. The Buyer shall not be deemed in breach or
default under this Agreement until written notice of the breach or default has
been given to the Buyer and the Buyer has failed to remedy the breach or default
within ten (10) days of the receipt of said notice from Seller or their
designated representative or counsel.
SECTION 13. SURVIVAL OF REPRESENTATIONS. Except as set forth in Section
9 hereof, the representations, warranties, obligations and agreements of the
parties contained in Sections 3 (and its subsections), 7, 8 and 9 of this
Agreement or in any writing delivered pursuant to provisions of this Agreement
shall survive the Closing and the consummation of these transactions and any
examination on behalf of such parties.
SECTION 14. GENERAL.
(a) This Agreement and the schedules attached hereto embody the entire
agreement of the parties in relation to the subject matter hereof, and all prior
agreements have been merged into this Agreement. There are no understandings or
agreements, verbal or otherwise, in relation thereto, existing or that are
enforceable between the parties except as hereinabove expressly set forth. No
change or modification of this Agreement shall be valid unless the same shall be
in writing, signed by both of the parties hereto, and incorporated by reference
herein;
(b) Nothing in this Agreement, whether expressed or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to it and their respective heirs,
executors, administrators, successors and assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement, nor shall any provision give any
third persons any right of subrogation over, or action against any party to this
Agreement.
(c) The rights and remedies to the parties to this Agreement in the
event of default are cumulative, and the exercise of any right or remedy shall
be without prejudice to the enforcement of any other right authorized by law, in
equity or this Agreement. The pursuit of any remedy provided in this Agreement
shall not constitute a forfeiture or waiver of any amount due for a defaulting
party or the right to maintain an action for any damages accruing for breach.
Forbearance to enforce one or more of the remedies provided by this Agreement,
on an event of default, shall not be deemed or construed to constitute a waiver
of the right to any remedy for that default.
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(d) The subject headings of the Sections of this Agreement are included
for purposes of convenience only, and shall not affect the construction or
interpretation of any of its provisions.
(e) Each party to this Agreement agrees to pay its respective attorney,
accounting or other fees, plus all costs arising out of the negotiation and
preparation of this Agreement.
(f) The validity and interpretation of this Agreement and of each and
every clause, term and part hereof shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to
conflict of laws.
(g) Seller and Buyer represent to each other that no broker or finder
has been employed by any of them in connection with this transaction. Each party
agrees to indemnify the other against all loss, cost, damage or expense arising
out of claims for fees or commission of brokers or finders employed or alleged
to have been employed by such party.
(h) All notices, requests, demands or other communications required or
permitted under this Agreement shall be sent by overnight mail, next day
delivery and fax, to Seller or Owner at their respective addresses appearing on
the signature page hereof and to Buyer at the addresses set forth below, and
notice shall be deemed given as of the date the notice is posted:
Seller: Xxxxx X. Xxxx
President
Peerless Dade, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
with a copy to: G. Xxxxxxx Xxxxxxx, Esq.
c/o Lewis, Longman & Xxxxxx, P.A.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Buyer: Xxxxxxx X. Xxxxxxx
President
Star Services Group, Inc.
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
FAX: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxxx, LLP
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
FAX: (000) 000-0000
(i) If any provision hereof is held or finally determined to be invalid
or unenforceable to any extent for any reason, to the extent that such provision
is valid and enforceable, the arbiters or court of competent jurisdiction, as
the case may be, shall construe and interpret said provision to provide for
maximum validity and enforceability. If any provision of this Agreement is
invalid, illegal or unenforceable, the balance of this Agreement shall remain in
effect.
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(j) In connection with any action or dispute or dispute arising under
this Agreement the prevailing party shall be entitled to an award of its
expenses including reasonable attorney fees and disbursements incurred or paid
before and at trial of any appellate proceedings.
(k) This Agreement shall not be assigned by either party without the
prior written consent of the other party. Notwithstanding the foregoing, it is
agreed that Buyer may assign this Agreement to a subsidiary. However, no such
assignment shall release Buyer from its obligations hereunder without the
specific release thereof by Seller.
(l) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original.
SECTION 15. BENEFIT AND DURATION. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
administrators, executors, successors and assigns. However, any assignment by
Seller must be agreed to in writing by Buyer. This Agreement shall continue in
effect until all the obligations, duties and warranties as specified herein,
shall be fully performed and satisfied.
IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year
first above written.
BUYER:
STAR SERVICES GROUP, INC.
Attest:
BY: /s/ Xxxxxx Xxxxxxx BY: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------- --------------------------------
Corporate Secretary Xxxxxxx X. Xxxxxxx, Its President
SELLER:
PEERLESS MIAMI AVENUE, INC.
Attest:
BY: /s/ G. Xxxxxxx Xxxxxxx BY: /s/ Xxxxx X. Xxxx
-------------------------------- --------------------------------
Corporate Secretary Xxxxx X. Xxxx, Its President
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