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EXHIBIT 10.22
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") dated as of
May 14, 1998 among General Rental, Inc., a Delaware corporation ("Seller") and
NationsRent, Inc., a Delaware corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller presently conducts the business of rental and
sale of various machinery, equipment, tools, supplies and other tangible
personal property through its Texas and Emerald Coast Districts at the locations
described on the Schedule entitled "Real Estate and Leases" (the "Business");
and
WHEREAS, Seller desires to sell substantially all of its
assets, properties, rights and interests relating to the Business to Buyer; and
WHEREAS, Buyer desires to purchase and acquire from Seller,
upon the terms and subject to the conditions hereinafter set forth,
substantially all of such assets, properties, rights and interests of Seller
relating primarily to the Business, in consideration of certain payments by
Buyer and the assumption by Buyer of certain liabilities and obligations of
Seller specifically disclosed in this Agreement;
NOW, THEREFORE, in consideration of the promises and the
mutual covenants hereinafter contained and other good and valuable consideration
had and received, Buyer and Seller, on the basis of, and in reliance upon, the
representations, warranties, covenants, obligations and agreements set forth in
this Agreement, and upon the terms and subject to the conditions contained
herein, hereby agree as follows:
ARTICLE I: PURCHASE AND SALE OF ASSETS
1.1 Sale and Transfer of Assets. At the Closing (as hereinafter
defined) and effective as of the Closing Date (as hereinafter defined), Buyer
shall purchase and acquire from Seller, and Seller shall sell, transfer, convey,
assign and deliver to Buyer all of the assets, properties, rights and interests
owned, used, occupied or held by or for the benefit of Seller primarily in the
operation of the Business (other than the Retained Assets, as hereinafter
defined) wherever situated, as the same shall exist as of the Closing Date
including, without limitation, the following:
(a) Prepaids. All prepaid expenses, advance payments,
deposits, surety accounts and other similar assets, including, without
limitation, prepaid deposits with suppliers and utilities from which
Buyer will receive the benefit following the Closing (collectively, the
"Prepaids") to the extent included in the calculation of Gross Working
Capital pursuant to Section 3.3 hereof;
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(b) Inventory. All inventories of products,
work-in-process, finished goods, raw materials, supplies and parts, new
equipment and resale merchandise held in connection with the Business
(collectively, "Inventory" or "Inventories"), including, without
limitation, all Inventories located at the facilities listed on the
Schedule entitled "Real Estate and Leases";
(c) Rental Equipment. All machinery, equipment, tools,
supplies, and other tangible personal property used or held for use by
Seller or its customers in connection with the Business (collectively,
"Rental Equipment");
(d) Accounts Receivable. All accounts receivable
(including royalties receivable and earned but unbilled revenues), any
payments received with respect thereto after the Closing Date, unpaid
interest accrued on any such accounts receivable and any security or
collateral relating thereto, all as such relate to the Business
(collectively, "Accounts Receivable");
(e) Fixed Assets. All tangible personal property, plant
and equipment, including, without limitation, buildings, structures,
fixtures, machinery and equipment, dies, jigs, molds, patterns, tools,
tooling, production fixtures, maintenance machinery and equipment,
office furniture and office equipment, other furnishings, trucks,
automobiles and other vehicles and transportation equipment, leasehold
improvements and construction-in-process, to the extent such property
is used by Seller primarily in connection with the Business and all
tangible personal property set forth on the Schedule entitled "Fixed
Assets" attached hereto (collectively, the "Fixed Assets");
(f) Fee Property. All Rights and interests identified
under the heading "Fee Property" on the Schedule entitled "Real Estate
and Leases" attached hereto, which consist of: (i) the land more
particularly described under such heading, which descriptions are
incorporated herein by reference, (ii) all buildings, structures, and
leasehold improvements located thereon and all appurtenances relating
thereto, and (iii) all fixtures, machinery, apparatus or equipment
affixed to said premises, including, without limitation, all of the
electrical, heating, plumbing, air conditioning, air compression and
all other systems located on said premises, and all other structures,
fences and improvements (collectively, the "Fee Property");
(g) Leased Property. All rights and interests under the
lease agreements (the "Lease Agreements") more particularly described
as "Assumed Leases" under the heading "Leased Property" on the Schedule
entitled "Real Estate and Leases" attached hereto, which descriptions
are incorporated herein by reference (the premises subject to the Lease
Agreements being hereinafter collectively referred to as the "Leased
Property");
(h) Intellectual Property Rights. All inventions,
discoveries, trademarks, patents, trade names, copyrights, know-how,
intellectual property, software, shop rights, licenses, developments,
research data, designs, technology, discoveries, trade secrets, test
procedures, processes, research data, formulas and other confidential
information, intellectual and similar intangible property rights,
whether or not patentable (or otherwise subject to legally enforceable
restrictions or protections against unauthorized third party usage),
and any and
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all applications for, and extensions, divisions and reissuances of, any
of the foregoing, and rights therein used primarily in the Business,
including, without limitation, a license to use (i) the name "General
Rental," and "Rental One" and all related trade names and trademarks,
and (ii) the intellectual and intangible property rights described on
the Schedule entitled "Intellectual Property" attached hereto;
(i) Business Records. All books and records relating
primarily to the Business, including, without limitation, all files,
invoices, forms, accounts, correspondence, production records,
technical, accounting, manufacturing and procedural manuals, employment
records, studies, reports or summaries relating to any Environmental
Requirements (as hereinafter defined), and other books and records
relating primarily to the operation of any of the Acquired Assets (as
hereinafter defined) or other assets or properties, and any
confidential information relating primarily to the Business which has
been reduced to writing or other tangible medium (collectively, the
"Business Records");
(j) Rights Under Confidentiality Agreements and
Warranties. All rights, claims and benefits of Seller in, to or under
any (i) (A) employee confidentiality agreements entered into by Seller,
(B) confidentiality or secrecy agreements entered into by Seller with
third parties that relate to the use or disclosure of information (the
"Confidentiality Agreement Rights") and (C) non-competition agreements
entered into by Seller with companies and persons affiliated with
companies acquired by Seller or its predecessors relating to the
Business; and (ii) express or implied warranties from the suppliers of
goods or services (including any coverage rights under product
liability or other insurance maintained by any of such suppliers for
the benefit of the Seller) all as such relate to the Business;
(k) Customer List. The list or lists maintained by
Seller, if any, or other records maintained by Seller, if any, of all
of the Persons to whom or to which Seller has rented, sold or otherwise
furnished Rental Equipment, directly or indirectly, through the
Business at the locations described on the Schedule entitled "Real
Estate and Leases" at any time during the thirty-six (36) month period
ending on the Closing Date (individually, a "Customer" and
collectively, the "Customers," such terms to include any assignee or
successor of any such Person, whether by consolidation, merger, sale of
assets or otherwise), including to the extent maintained by Seller
related information as to the unit and dollar volume of such sales, the
type of Rental Equipment so rented, sold or furnished, the method of
distribution and other relevant marketing and Rental Equipment
information for each Customer (the "Customer List");
(l) Catalogs and Advertising Materials. All promotional
and advertising materials, including, without limitation, all catalogs,
brochures, plans, supplier lists, manuals, handbooks, equipment and
parts lists, dealer and distributor lists, and labels and packaging
materials held for use in connection with the Business;
(m) Purchase Orders. All unfilled purchase and sale
orders (including releases of quantities pursuant thereto) relating to
the Business including, without limitation, those purchase orders
involving more than $25,000 for the purchase of goods and services and
listed on the Schedule attached hereto entitled "Purchase Orders";
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(n) Contracts. Subject to Section 1.2(b) and 1.3, all
rights, benefits and interests of Seller in and to all licenses,
leases, contracts, agreements, commitments and undertakings relating to
the Business, including, without limitation, all rights of Seller to
indemnities under agreements through which Seller purchased all or any
part of the assets used in the Business (the "Indemnity Assignments");
provided, however, that the Indemnity Assignments may provide that
Seller may retain rights to pursue the grantor of the indemnity
exclusively (i) for matters with respect to which Buyer has not
suffered any loss or damage and (ii) for amounts paid to Buyer by
Seller provided that Buyer has not incurred, in the aggregate, the
maximum amount of Liabilities with respect to which Buyer is entitled
to indemnification pursuant to Section 11.5(a) hereof and in all other
situations, Buyer and Seller may pursue the grantor of the indemnity in
proportion to the loss suffered by each;
(o) Permits. All licenses, permits, approvals, variances,
waivers or consents (collectively, the "Permits"), to the extent
transferable, issued by any foreign, United States, state or local
governmental entity or municipality or subdivision thereof or any
authority, department, commission, board, bureau, agency, court or
instrumentality (collectively, "Governmental Authorities") and used in
or necessary to the operation of the Business;
(p) Insurance. All claims of Seller in, to or under all
insurance policies maintained by Seller for losses incurred with
respect to the Acquired Assets after the date hereof and losses with
respect to the Business for which the liability relating thereto is an
Assumed Liability;
(q) Goodwill. The goodwill of Seller relating to the
Business; and
(r) Miscellaneous. Except for the Retained Assets (as
hereinafter defined), all other assets, properties, rights and
interests of Seller otherwise employed primarily in or related
primarily to the operation of the Business, of every kind, nature and
description, whether tangible or intangible, real, personal or mixed,
and wherever situated, including, without limitation, those assets,
properties, rights and interests set forth on the Balance Sheet (as
hereinafter defined), all of which are to be sold, transferred,
conveyed, assigned and delivered to Buyer at the Closing pursuant to
this Agreement.
All of the assets, properties, rights and interests owned, used, occupied or
held by or for the benefit of the Seller primarily for use in the operation of
the Business, which are to be sold, transferred, conveyed, assigned and
delivered by Seller to Buyer at the Closing as contemplated herein, including
without limitation, those described in clauses (a) through (r) above, but
excluding the Retained Assets, are referred to herein collectively as the
"Acquired Assets."
1.2 Retained Assets. Anything in Section 1.1 to the contrary
notwithstanding, the following assets (collectively, the "Retained Assets")
shall be retained by Seller, and Buyer shall in no way be construed to have
purchased or acquired (or to be obligated to purchase or to acquire) any
interest whatsoever in any of the following:
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(a) Designated Assets. Any of the assets, properties,
rights and/or interests, owned, used, occupied or held by or for the
benefit of Seller listed on the Schedule entitled "Designated Assets"
attached hereto (collectively, the "Designated Assets");
(b) Non-Assigned Contracts. All of the rights and
interests, and all of the liabilities and obligations, of Seller in,
under or pursuant to any license, lease, contract, agreement,
commitment or undertaking listed on the Schedule entitled "Non-Assigned
Contracts" attached hereto (collectively, the "Non-Assigned
Contracts");
(c) Non-Assigned Leases. All of the rights and interests
under the lease agreements more particularly described as "Non Assumed
Leases" under the heading "Leased Property" on the Schedule entitled
"Real Estate and Leases."
(d) Employee Plan Assets. The rights of Seller under, and
any funds and property held in trust or any other funding vehicle
pursuant to, any "employee benefit plan" (within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) or any other bonus, stock option, stock appreciation, stock
purchase, severance, termination, lay-off, leave of absence,
disability, workers compensation, pension, profit sharing, retirement,
vacation or holiday pay, insurance, deferred compensation or other
employee or welfare benefit plan, agreement or arrangement of Seller
applicable to Seller's past, present or future employees (collectively,
"Employee Plans");
(e) Corporate Records. Seller's minute books, stock
books, stock ledger and corporate seal; and
(f) Cash and Cash Equivalents. All cash, cash equivalents
and marketable securities of the Business, including cash on hand
maintained at the facilities of Seller described on the Schedule
entitled "Real Estate and Leases," and cash, cash-equivalents and
marketable securities in lock boxes or on deposit with or held by any
financial institution in connection with the Business other than cash
or cash equivalents which represent payment for Accounts Receivable
purchased by Buyer.
1.3 Assignability and Consents.
(a) Required Consents. The Schedule entitled "Assignments
and Consents" sets forth a list of all Acquired Assets, including
Contracts, Permits and Lease Agreements (but excluding leases of office
equipment involving future payments of less than Twenty-Five Thousand
Dollars ($25,000) in the aggregate and other agreements which have less
than one year remaining in their terms and involve future payments of
less than Twenty-Five Thousand Dollars ($25,000) in the aggregate),
which are non-assignable or non-transferable or cannot be subleased to
Buyer without the consent of some other individual, partnership,
corporation, association, joint stock company, trust, joint venture,
limited liability company or Governmental Authority (collectively,
"Person"). Seller has commenced and shall continue to take, or cause to
be taken by others, all commercially reasonable actions required to
obtain or satisfy, at the earliest practicable date, all consents,
novations, approvals, authorizations, requirements (including filing
and registration requirements), waivers and
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agreements ("Consents") from any Persons necessary to authorize,
approve or permit the full and complete sale, conveyance, assignment,
sublease or transfer of the Acquired Assets, and to consummate and make
effective the transactions contemplated by this Agreement and to
continue such commercially reasonable efforts as may be required after
the Closing Date to facilitate the full and expeditious transfer of
legal title, or the sublease, as the case may be, of the Acquired
Assets.
(b) Nonassignable Items. Anything in this agreement to
the contrary notwithstanding, this Agreement shall not constitute an
Agreement to sell, convey, assign, sublease or transfer any Acquired
Assets, including Contracts, Permits and Lease Agreements (other than
leases of office equipment involving future payments of less than
Twenty-Five Thousand Dollars ($25,000) in the aggregate and other
agreements which have less than one year remaining in their terms and
involve future payments of less than Twenty-Five Thousand Dollars
($25,000)), if an attempted sale, conveyance, assignment, sublease or
transfer thereof, without the Consent of another party thereto or a
Governmental Authority would constitute a breach of, or in any way
affect the rights of Seller or Buyer with respect to such Acquired
Asset ("Nonassignable Items"). Seller shall use its commercially
reasonable efforts and Buyer shall cooperate in all reasonable respects
with Seller to obtain and satisfy all Consents and to resolve all
impracticalities of sale, conveyance, assignment, sublease or transfer
necessary to convey to Buyer all Nonassignable Items. If any such
Consents are not obtained and satisfied or if an attempted sale,
conveyance, assignment, sublease or transfer would be ineffective,
Seller and its appropriate Affiliates shall at the Closing enter into
such arrangements (including related written agreements) as Buyer may
reasonably request in order to fairly compensate Buyer for the loss of,
or to provide to Buyer the benefit of, any such Nonassignable Items (it
being acknowledged that such arrangement may include obligations
imposed on Seller and such Affiliates promptly to pay to Buyer when
received all monies and other items of value received by Seller and
such Affiliates under any such Nonassignable Item).
1.4 Formation of Subsidiary and Assignment of Rights. Prior to the
Closing, Buyer may assign all or any part of its rights and obligations under
this Agreement to one or more, direct or indirect, wholly-owned Subsidiary or
Subsidiaries and cause such Subsidiary to perform the obligations of Buyer under
this Agreement, including, without limitation, rights and obligations of Buyer
to acquire the Acquired Assets pursuant to this Article I; provided, however,
that no such assignment shall otherwise vary or diminish any of Buyer's or
Seller's rights or obligations under this Agreement or shall cause a delay in
the Closing.
ARTICLE II: LIABILITIES
2.1 Assumption of Liabilities. On the terms and subject to the
conditions set forth in this Agreement, Buyer shall assume, at the Closing and
effective as of the Closing Date, and shall thereafter pay, perform and
discharge as and when due the following, and only the following, liabilities and
obligations of Seller incurred in or arising from the operation of the Business
(collectively, the "Assumed Liabilities"):
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(a) Contracts. All liabilities and obligations of Seller
arising under the terms of the Contracts and listed on the Schedule
attached hereto and entitled "Assumed Contracts" other than contracts
that constitute Non-Assigned Contracts (the "Assumed Contracts") but
only to the extent such liabilities and obligations arise or accrue in
the ordinary and normal course and consistent with the representations,
warranties, covenants, obligations and agreements set forth in this
Agreement; provided, however, that, other than as listed under the
heading "Extraordinary Items" on the Schedule entitled "Assumed
Contracts", Buyer shall not assume or be responsible for any such
liabilities or obligations which arise from breaches thereof or
defaults thereunder by Seller, all of which liabilities and obligations
shall constitute Retained Liabilities (as hereinafter defined);
(b) Assumed Leases. All liabilities and obligations of
Seller arising under the terms of the "Assumed Leases" listed under the
heading "Leased Property" on the Schedule entitled "Real Estate and
Leases," but only to the extent such liabilities and obligations arise
or accrue in the ordinary and normal course and consistent with the
representations, warranties, covenants, obligations and agreements set
forth in this Agreement; provided, however, that, other than as listed
under the heading "Extraordinary Items" on the Schedule entitled "Real
Estate and Leases", Buyer shall not assume or be responsible for any
such liabilities or obligations which arise from breaches thereof or
defaults thereunder by Seller all of which liabilities or obligations
shall constitute Retained Liabilities; and
(c) Miscellaneous Liabilities. All liabilities identified
on the Schedule attached hereto entitled "Miscellaneous Liabilities,"
which includes accrued expenses of the Business that would be current
liabilities under GAAP that are not due and payable until after the
Closing Date.
2.2 Retained Liabilities. Except as provided in Section 2.1,
Seller shall retain, and Buyer shall not assume, or be responsible or liable
with respect to, any liabilities or obligations of, Seller, or otherwise
relating to the Business or any present or former owner or operator thereof,
whether or not of, associated with, or arising from, any of the Acquired Assets,
and whether fixed, contingent or otherwise, known or unknown (collectively
referred to hereinafter as the "Retained Liabilities"), including, without
limitation, the following:
(a) Pre-Closing. All liabilities, obligations and accrued
expenses relating to, based in whole or in part on events or conditions
occurring or existing in connection with, or arising out of, the
Business as operated prior to the Closing Date, or the ownership,
possession, use, operation or sale or other disposition prior to the
Closing Date of the Acquired Assets (or any other assets, properties,
rights or interests associated, at any time prior to the Closing Date,
with the Business) which are not Assumed Liabilities;
(b) Liabilities Relating to the Sale of Acquired Assets.
Subject to Section 9.6 hereof, all liabilities and obligations of
Seller or any of its Affiliates, or their respective directors,
officers, stockholders or agents, arising out of, or relating to, this
Agreement or the transactions contemplated hereby, whether incurred
prior to, at, or subsequent to the Closing Date, including, without
limitation, all finder's or broker's fees and expenses, and any and all
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fees and expenses of any attorneys, accountants or other professionals
retained by or on behalf of Seller or any of its Affiliates;
(c) Employee-Related Liabilities. Except as identified on
the Schedule entitled "Miscellaneous Liabilities", all liabilities and
obligations to any person at any time employed by Seller or its
Affiliates or their respective predecessors-in-interest in the Business
or otherwise, at any time or to any such person's spouses, children,
other dependents or beneficiaries, with respect to incidents, events,
exposures or circumstances occurring at any time during the period or
periods of any such persons' employment by Seller or its Affiliates or
their respective predecessors-in-interest, whenever such claims mature
or are asserted, including, without limitation, all liabilities and
obligations arising (i) under any Employee Plans, (ii) under any
employment, wage and hour restriction, equal opportunity,
discrimination, plant closing or immigration and naturalization laws,
(iii) under any collective bargaining laws, agreements or arrangements,
or (iv) in connection with any workers' compensation or any other
employee health, accident, disability or safety claims;
(d) Litigation. All liabilities and obligations relating
to any litigation, action, suit, claim, investigation or proceeding
pending on the date hereof, or constituted hereafter, based in whole or
in part on events or conditions occurring or existing in connection
with, or arising out of, or otherwise relating to, the Business as
operated by Seller or any of its Affiliates (or any of their respective
predecessors-in-interest), or the ownership, possession, use,
operation, sale or other disposition prior to the Closing Date of any
Rental Equipment or any of the Acquired Assets (or any other assets,
properties, rights or interests associated, at any time prior to the
Closing Date, with the Business);
(e) Product, Environmental and Safety Liability. All
liabilities and obligations relating to the Business or the Acquired
Assets (or any other assets, properties, rights or interests
associated, at any time prior to the Closing Date, with the Business or
the Acquired Assets), based in whole or in part on events or conditions
occurring or existing prior to the Closing Date and connected with,
arising out of or relating to (i) any dispute for services rendered or
goods manufactured, including, without limitation, product warranty
claims and product liability claims, and claims for refunds, returns,
personal injury and property damage, but only to the extent such
disputes did not arise in the ordinary and normal course of business
and the individual dispute is greater than $5,000, (ii) Hazardous
Materials, Environmental Requirements or Environmental Damages (all as
hereinafter defined), (iii) claims relating to employee health and
safety, including claims for injury, sickness, disease or death of any
Person, or (iv) compliance with any Laws relating to any of the
foregoing;
(f) Taxes. Except as identified on the Schedule entitled
"Miscellaneous Liabilities," all liabilities and obligations of Seller
or any of its Affiliates (or any of their respective
predecessors-in-interest) for any Taxes (as hereinafter defined) due or
becoming due by reason of (i) the conduct of the Business, or (ii) the
ownership, possession, use, operation, purchase, acquisition, sale or
disposition, of any Products or any of the Acquired Assets, including,
without limitation, Taxes attributable to the sale of inventory and
employee withholding tax obligations; (ii) Taxes imposed on, or
accruing as a result of the purchase and sale of the Acquired Assets;
and (iii) Taxes attributable to, or resulting from,
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recapture of depreciation, other tax benefit items, or otherwise
arising from the transactions contemplated by this Agreement;
(g) Breach of Agreement. All liabilities and obligations,
known or unknown, fixed, contingent or otherwise, the existence of
which is a breach of, or inconsistent with, any representation,
warranty, covenant, obligation or agreement of Seller set forth in this
Agreement or in any of the other documents or agreements contemplated
hereby;
(h) Liabilities Relating to Retained Assets. All
liabilities and obligations relating to, based in whole or in part on
events or conditions occurring or existing in connection with, or
arising out of, any and all assets, properties, rights and interests
which are not being acquired by Buyer hereunder, including, without
limitation, the Retained Assets;
(i) Post-Closing Date. All liabilities and obligations
incurred by Seller or its Affiliates or their respective directors,
officers, stockholders, agents or employees after the Closing Date; and
(j) Balance Sheet and Other. All liabilities and
obligations of Seller other than such liabilities and obligations
expressly identified as Assumed Liabilities.
ARTICLE III: PURCHASE PRICE
3.1 Payment. In full consideration for the transfer of the
Acquired Assets (the "Purchase Price"), Buyer (i) pay to Seller by wire transfer
in immediately available funds to an account designated by Seller an amount
equal to $18,250,000, plus or less an amount equal to the product of .8
multiplied by the difference between (A) $1,000,000 and (B) the Estimated Gross
Working Capital (as defined in Section 3.2) (such product being the "Initial
Working Capital Amount"), and (ii) shall deliver into escrow, pursuant to the
terms and conditions of an Escrow Agreement in the form attached hereto as
Exhibit A (the "Indemnity Escrow Agreement"), an amount equal to $1,750,000.
Upon execution of this Agreement, Buyer has deposited $250,000 in escrow
pursuant to an escrow agreement, dated even date herewith, and attached hereto
as Exhibit B (the "Initial Escrow Agreement"), which amount shall be paid to
Seller as part of the Purchase Price or returned to Buyer pursuant to the
Initial Escrow Agreement.
3.2 Gross Working Capital Adjustment. The Purchase Price shall be
adjusted upon final determination of the Final Working Capital Amount as
hereinafter set forth. Gross Working Capital shall be defined as current assets
of the Business, less the current liabilities of the Business identified on the
Schedule entitled "Miscellaneous Liabilities." For purposes of this Agreement,
current assets shall consist of Accounts Receivable (net of a reserve for
uncollectible accounts equal to $150,000), Inventories (net of the reserve for
obsolete or unsaleable Inventory as reflected in the books and records of the
Seller), and Prepaids. At the Closing, Seller shall prepare a statement setting
forth, in reasonable detail, its estimate of Gross Working Capital as of the
Closing Date ("Estimated Gross Working Capital"). Within sixty (60) days of the
Closing Date, Buyer shall prepare and deliver to the Seller a statement setting
forth its calculation of Gross Working Capital as of the Closing Date. That
statement shall be prepared in a manner consistent with Generally Accepted
Accounting Principles ("GAAP") and consistent with the definitions of the
defined terms contained herein. The
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Seller shall have a period of fifteen (15) days after receipt of that statement
to object to such calculation. In the event any such objection cannot be
amicably resolved, Seller and Buyer shall agree upon an independent national
accounting firm to be hired for the purposes of resolving such dispute, which
resolution shall be the final Gross Working Capital and the difference between
$1,000,000 and the final Gross Working Capital (which, if less than $1,000,000
shall be expressed as a negative number) shall be the "Final Working Capital
Amount." The fees of such independent national accounting firm shall be shared
equally by Seller and Buyer. Upon final determination of the Final Working
Capital Amount, the difference between the Final Working Capital Amount, and the
Initial Working Capital Amount shall be paid within 15 days from such
determination (i) by Buyer to Seller, if the Final Working Capital Amount is
more than the Initial Working Capital Amount and (ii) by Seller to Buyer if the
Final Working Capital Amount is less than the Initial Working Capital Amount.
ARTICLE IV: CLOSING
4.1 General. As used in this Agreement, the "Closing" shall mean
the time at which Seller consummates the sale, assignment, transfer and delivery
of the Acquired Assets to Buyer as provided herein by the execution and delivery
by Seller of the documents and instruments referred to in Section 4.2 and
delivery by Buyer of the documents and payments provided in Sections 3.1(a) and
4.3, and Seller, Buyer and the other Persons referred to herein deliver the
additional documents referred to in Section 4.4. In the absence of a prior
termination of this Agreement by one of the parties in accordance with Article
X, the Closing shall take place at the offices of Xxxxx, Day, Xxxxxx & Xxxxx,
0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, at 10:00 A.M. on the later to occur
of (a) the second day following the day on which the waiting periods under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the "H-S-R Act") shall
have expired, if applicable, or (b) June 2, 1998, or at such other time and
place and on such other day as shall be mutually agreed upon in writing by the
parties hereto (the "Closing Date"), provided that either Seller or Buyer may
unilaterally extend the Closing Date to a date not later than June 30, 1998 in
order to satisfy any conditions to Closing that have not been satisfied by June
4, 1998 and further, provided, that if the Closing has not occurred on or before
June 4, 1998 solely because of Buyer's failure to satisfy a condition set forth
in Section 6.2 (not waived by Seller) hereof that is within Buyer's sole
control, Buyer shall deposit $250,000 into escrow pursuant to Section 1.1(b) of
that certain Escrow Agreement, dated even date herewith. Legal title, equitable
title and risk of loss with respect to the Acquired Assets shall not pass to
Buyer until the Acquired Assets are transferred at the Closing, which transfer,
once it has occurred, shall be deemed effective for tax, accounting and other
computational purposes as of 12:01 A.M. (Eastern Time) on the Closing Date.
4.2 Documents to be Delivered by Seller. At the Closing (or as
otherwise specified), Seller shall deliver to Buyer:
(a) Copies of (i) the resolutions of the Board of
Directors of Seller, authorizing and approving this Agreement and all
other transactions and agreements contemplated hereby, (ii) Seller's
Certificate of Incorporation, and (iii) Seller's Bylaws, all certified
by the corporate Secretary or Assistant Secretary of Seller to be true,
correct, complete and in full force and effect and unmodified as of the
Closing Date;
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(b) A xxxx of sale, bills of sale or other conveyancing
documents transferring the Acquired Assets to Buyer, free and clear of
any and all liens, equities, claims, prior assignments, mortgages,
charges, security interests, pledges, conditional sales contracts,
collateral security arrangements and other title retention
arrangements, restrictions (including, in the case of real property,
rights of way, use restrictions, and other variances, reservations or
limitations of any nature) or encumbrances whatsoever (collectively,
"Liens"), but subject to the Permitted Liens;
(c) An opinion, dated as of the Closing Date, of Xxxxxxxx
& Xxxxx, counsel to Seller, addressed to Buyer, in form and substance
satisfactory to Buyer;
(d) Copies of all Consents to the transfer, assignment or
sublease to Buyer of each Acquired Asset, including Contracts, Permits
and Lease Agreements, that requires such Consent.
(e) Instruments of assignment to Buyer of all trademarks,
trade names, service marks and patents (and all applications for, and
extensions and reissuances of, any of the foregoing and rights therein)
identified on the Schedule entitled "Intellectual Property";
(f) The certificate required by Section 6.1(g);
(g) Long-form good standing and tax certificates for
Seller from the Secretary of State of Delaware and from the appropriate
state and tax authorities in each jurisdiction in which Seller is
qualified to do business as a foreign corporation, with respect to the
ownership, possession, use or operation of any of the Acquired Assets,
dated not more than ten days prior to the Closing;
(h) If required by applicable law or regulation, evidence
of the due filing by Seller's ultimate parent, with the Federal Trade
Commission ("FTC") and the Antitrust Division of the United States
Department of Justice ("DOJ") pursuant to the H-S-R Act and the
expiration of the waiting period thereunder;
(i) An Incumbency Certificate of the officers of Seller;
(j) (i) A deed or deeds of general warranty (the "Deed")
in recordable form conveying the Fee Property to Buyer, free and clear
of all Liens whatsoever except for Permitted Liens (as hereinafter
defined);
(ii) Good and valid title insurance policies or,
in final form, irrevocable title insurance commitments
issuable by Lawyer's Title Insurance Corporation (the "Title
Insurance Policies"), dated as of the Closing Date, insuring
Buyer's title as fee owner in each parcel of real property
included in the Fee Property to be conveyed to Buyer pursuant
hereto, access rights to such property and specific survey
facts, if any, free and clear of all Liens and other
exceptions (including mechanics' liens) other than Permitted
Liens;
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(k) Releases, including, without limitation, termination
statements under the Uniform Commercial Code ("UCC") of any financing
statements filed against any Acquired Assets, evidencing discharge,
removal and termination of all Liens to which the Acquired Assets are
subject which releases shall be effective at or prior to the Closing;
(l) The Indemnity Escrow Agreement, duly executed on
behalf of Seller, and in substantially the form attached hereto as
Exhibit A.
(m) Such other deeds, bills of sale, endorsements,
assignments, affidavits, and other good and sufficient instruments of
sale, assignment, conveyance and transfer (including, without
limitation, such affidavits, releases and other instruments necessary
for the issuance of the Title Insurance Policies) in form and substance
satisfactory to Buyer and its counsel, as are required to effectively
vest in Buyer good and marketable title in and to all of the Acquired
Assets, free and clear of any and all Liens except Permitted Liens;
(n) The statement of Estimated Gross Working Capital
(delivered not less than 24 hours prior to Closing);
(o) A license agreement, in form and substance
satisfactory to Buyer and Seller for the use of the names "General
Rental" and "Rental One" and all related tradenames and trademarks (the
"License Agreement");
(p) An agreement, in form and substance satisfactory to
Buyer and Seller for transitional services to be rendered by Seller to
Buyer with respect to the Business (the "Transitional Services
Agreement"); and
(q) The Release (as hereinafter defined).
4.3 Documents to be Delivered by Buyer. At the Closing, Buyer
shall deliver to Seller:
(a) A copy of (i) the resolutions of the Board of
Directors of Buyer authorizing and approving this Agreement and all
other transactions and agreements contemplated hereby, (ii) Buyer's
Certificate of Incorporation, and (iii) Buyer's Bylaws, all certified
by the Secretary or an Assistant Secretary of Buyer to be true,
correct, complete and in full force and effect and unmodified as of the
Closing Date;
(b) The certificate required by Section 6.2(g);
(c) The Indemnity Escrow Agreement;
(d) If applicable, evidence of the due filing by Buyer,
with the FTC and the DOJ pursuant to the H-S-R Act and the expiration
of the waiting period thereunder;
(e) An opinion, dated the Closing Date, of Xxxxx, Day,
Xxxxxx & Xxxxx, counsel to Buyer, addressed to Seller, in form and
substance satisfactory to Seller;
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(f) Long-form good standing and tax certificates for
Buyer from the Secretary of State of Delaware, dated not more than ten
days prior to the Closing;
(g) An Incumbency Certificate of the officers of Buyer;
(h) An Instrument of Assumption of the Assumed
Liabilities, in form and substance satisfactory to Seller;
(i) The License Agreement; and
(j) The Transitional Services Agreement.
4.4 Other Documents to be Delivered. At the Closing, Buyer shall
execute and deliver Non-Competition Agreements with Seller, GRI, L.P., Xxxxxx X.
Xxxx, Xxxxxx XxXxxxxxx and the DFW Capital Partners, L.P. in substantially the
form attached as Exhibit C hereto.
ARTICLE V: REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of Seller. Subject only to
those exceptions and qualifications listed and described (including an
identification by section reference to the representations and warranties to
which such exceptions and qualifications relate) on the Disclosure Schedule
attached to this Agreement hereby represent and warrant to Buyer that:
(a) Organization and Standing; Power and Authority.
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has full
corporate power and authority to operate the Business, to own or lease
the Acquired Assets, to carry on the Business as now being conducted,
and to enter into and perform this Agreement and the transactions and
other agreements and instruments contemplated by this Agreement. Except
as disclosed on the Schedule entitled "Affiliate Companies," Seller has
no Subsidiary corporations, owns no interest, direct or indirect, in
any other business enterprise, firm or corporation, and is the only
business enterprise, firm or corporation through which the Business (or
any business competing with or similar to the Business) is conducted,
or which owns, leases or uses assets related to the Business. Seller is
duly qualified or licensed to do business as a foreign corporation and
is in good standing in each jurisdiction in which the ownership or
lease of the Acquired Assets or the operation of the Business requires
such qualification. This Agreement and all other agreements and
instruments executed and delivered or to be executed and delivered by
Seller in connection herewith (collectively, the "Transaction
Documents") have been, or upon execution thereof will be, duly executed
and delivered by Seller. This Agreement and the transactions and other
agreements and instruments contemplated hereby have been duly approved
by all necessary corporate action of Seller, and constitute the valid
and binding obligations of Seller, enforceable in accordance with their
respective terms.
(b) Certificate of Incorporation and Bylaws. The copies
of the Certificate of Incorporation of Seller, certified by the
Secretary of State of Delaware, and the Bylaws of
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Seller, included in the Schedule entitled "Certificate of Incorporation
and Bylaws of Seller" attached to this Agreement are true, correct and
complete.
(c) Conflicts; Defaults.
(i) Neither the execution and delivery of this
Agreement and the other agreements and instruments executed or
to be executed in connection herewith by Seller or
Stockholders, nor the performance by Seller or Stockholders of
the transactions contemplated hereby or thereby, will (A)
violate, conflict with, or constitute a default under, any of
the terms of Seller's Certificate of Incorporation, or
Seller's Bylaws, or any provisions of, or result in the
acceleration of any obligation under, any contract, sales
commitment, license, purchase order, security agreement,
mortgage, note, deed, lien, lease, agreement or instrument,
including, without limitation, the Contracts, or any order,
judgment or decree, relating to the Business or the Acquired
Assets, or by which Seller or the Acquired Assets are bound,
(B) result in the creation or imposition of any Liens or
claims in favor of any third Person or entity upon any of the
Acquired Assets, (C) violate any law, statute, judgment,
decree, order, rule or regulation of any Governmental
Authority, (D) constitute an event which, after notice or
lapse or time or both, would result in such violation,
conflict, default, acceleration, or creation or imposition of
Liens or claims, or (E) constitute an event which, after
notice of lapse of time or otherwise would create, or cause to
be exercisable or enforceable, any option, agreement or right
of any kind to purchase any of the Acquired Assets. No
consent, novation, approval, filing or authorization will be
required to be obtained or satisfied for the continued
performance by Buyer following the Closing of any contract,
agreement, commitment or undertaking included in the Acquired
Assets.
(ii) Seller is not in violation of or in default
under its Certificate of Incorporation or Bylaws.
(iii) Seller is not in violation of or in default
of any contract, sales commitment, license, purchase order,
security agreement, mortgage, note, deed, lien, lease,
agreement or instrument, including without limitation, the
Contracts, or any of Seller's monetary obligations or debts
relating to the Business, and there exists no condition or
event which, after notice or lapse of time or both, would
result in any such violation or default.
(iv) Seller is not in violation of or in default
of any order, judgment or decree, relating to the Business or
the Acquired Assets, or by which Seller or the Acquired Assets
is bound.
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(d) Acquired Assets; Title to the Acquired Assets.
(i) The Schedule entitled "Fixed Assets"
includes a true and correct list of all fixed assets of the
Business as of December 31, 1997 (the "Balance Sheet Date"),
including a listing of the book value of each item of Rental
Equipment as reflected in the books and records of Seller as
of the Balance Sheet Date. Except for the Retained Assets, the
Acquired Assets are all of the, and the only, assets,
properties, rights and interests used by Seller solely in
connection with the Business. The Acquired Assets to be
conveyed to Buyer under this Agreement constitute all of the
assets, properties, rights and interests necessary to conduct
the Business in substantially the same manner as conducted by
Seller prior to the date of this Agreement. All of the
Acquired Assets used in connection with the operation of
Seller's business (including, without limitation, the assets
reflected on the Fixed Asset Schedule) are in good operating
condition and repair, subject to normal wear and tear
consistent with the age of the properties or assets, and are
adequate and sufficient for the uses to which they are put in
the Business. None of the Acquired Assets have any material
defects or are in need of maintenance or repair, except for
ordinary, routine maintenance and repairs which are not
material in nature or cost.
(ii) Seller has good, marketable and exclusive
title to, and the valid and enforceable power and unqualified
right to use and transfer to Buyer, each of the Acquired
Assets, including, without limitation, all dies, molds or
other tooling or equipment used primarily in the Business,
whether located at the Seller's facilities or at the
facilities of its Customers or suppliers, and the Acquired
Assets are free and clear of all Liens and claims of any kind
or nature whatsoever, except for Permitted Liens (as
hereinafter defined) and Liens set forth on the Schedule
entitled "Liens"). All of the Acquired Assets that are Rental
Equipment and were held under operating leases at the Balance
Sheet Date are included in the Schedule entitled "Fixed
Assets" and will, as of the Closing Date, be transferred free
and clear of all Liens and claims of any kind or nature
whatsoever, except for Permitted Liens, and annual payments
under such operating leases were, as of the Balance Sheet
Date, in excess of $309,000. The consummation of the
transactions contemplated by this Agreement (including,
without limitation, the transfer or assignment of the Acquired
Assets, and all rights and interests therein, to Buyer as
contemplated herein) will not adversely affect such title or
rights, or any terms of the applicable agreements (whether
written or oral) evidencing, creating or granting such title
or rights. Seller has the right under valid and existing
leases to occupy, use or control all properties and assets
leased by it and included in the Acquired Assets. The delivery
to Buyer of the instruments of transfer of ownership
contemplated by this Agreement will vest good, marketable and
exclusive title (as to all Acquired Assets owned by Seller) or
full right to possess and use (as to all Acquired Assets not
owned by Seller) to the Acquired Assets in Buyer, free and
clear of all Liens and claims of any kind or nature
whatsoever, except for (a) current real estate Taxes or
governmental charges or levies which are a Lien but not yet
due and payable, and (b) minor imperfections of title, if any,
none of which are substantial in amount, or materially detract
from the value or impair the use of the property subject
thereto or the operation of the Business and which have arisen
only
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in the ordinary and normal course of business consistent with
past practice (the Liens described in clauses (a) and (b)
being collectively referred to herein as "Permitted Liens").
(e) Real Property.
(i) The Schedule entitled "Real Estate and
Leases" attached hereto contains a true, correct and complete
list of all instruments and agreements creating any interest
or right in real property relating to the Business, or owned,
leased or occupied by Seller, including all easements,
buildings, structures, fixtures and improvements. True,
correct and complete copies of the instruments and agreements
identified in such Schedule have been delivered to Buyer. Each
such instrument and agreement is in full force and effect and
is a legal, binding, and enforceable obligation of the parties
thereto and no event has occurred which constitutes or, with
the giving of notice or passage of time, or both, would
constitute a default or breach thereunder. Seller has the
right to quiet enjoyment of all real property subject to
leaseholds under any such instruments for the full term of
each such lease and any renewal option related thereto. There
has been no disturbance of or challenge to the Seller's quiet
possession under each such lease, and no leasehold or other
interest of Seller in such real property is subject to or
subordinate to any Liens except Permitted Liens. Neither the
whole nor any portion of any real property leased or occupied
by Seller has been condemned, requisitioned or otherwise taken
by any Governmental Authority, and, to the best of Seller's
knowledge, no such condemnation, requisition or taking is
threatened or contemplated.
(ii) All buildings, structures, fixtures and
appurtenances comprising part of the real properties of Seller
are in good condition and have been maintained consistent with
industry practice, normal wear and tear excepted.
(f) Lease. The Assumed Leases have not been modified,
altered, terminated or revoked, and are in full force and effect.
Seller, as the present tenant under the Assumed Leases, is not in
default under, or in breach of, any of the terms of the Assumed Leases,
and there are no existing facts or conditions which could give rise to
any such breach or default, or any claim against Seller, under the
Assumed Leases. To Seller's knowledge, (i) the lessors under the
Assumed Leases are not in default thereunder, or in breach thereof, and
(ii) there are no existing facts or conditions which could give rise to
any such breach or default, or any claim against the lessors under the
Assumed Leases.
(g) Contracts. The Schedule entitled "Contracts" attached
hereto contains a complete list or description of (i) each license,
contract, agreement, commitment and undertaking (whether written or
oral) (A) relating to the Business (1) which involves the purchase of
inventories or the sale of products, and involves aggregate future
payments in excess of $25,000, or which extends for a period of more
than 12 months and cannot be canceled by Seller without further payment
or penalty, or (2) which does not involve the purchase of inventories
or the sale of products, and involves aggregate future payments in
excess of $25,000 or extends for a period of more than 12 months and
cannot be canceled
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by Seller without further payment or penalty, (B) between Seller and
any distributors, manufacturers' agents or selling agents used or
retained in connection with the Business, or pursuant to which Seller
sells or leases Products, in each case described in this subsection (B)
regardless of the size or term or such licenses, contracts, agreements,
commitments and undertakings, (ii) each loan or credit agreement,
security agreement, guaranty, indenture, mortgage, pledge or other
agreement or instrument to which Seller is a party, and which
constitutes, or contemplates, a Lien on the Acquired Assets, (iii) any
conditional sale or other title retention agreement, equipment
obligation, or lease purchase agreement involving (in the aggregate)
amounts in excess of $25,000 relating to the Business, or to which
Seller is a party, (iv) any power of attorney given by Seller to any
Person, firm or corporation or otherwise relating to the Business or
the Acquired Assets, (v) any non-competition, restrictive covenant or
other agreement that restricts Seller or any other entity from
conducting the Business anywhere in the world, (vi) each contract,
agreement, commitment or undertaking presently in effect, whether or
not fully performed, between Seller and any current or former officer,
director, consultant or other employee (or group thereof) retained or
employed primarily in connection with the Business, or any current or
former stockholder (or group of stockholders) of Seller, (vii) any
agreement entered into by Seller with companies or individuals in
connection with transactions pursuant to which Seller acquired all or
any part of the Acquired Assets and which provides Seller with rights
of non-competition and indemnity or similar rights, and (viii) any
other contract, agreement, commitment or undertaking which is material
to the condition (financial or otherwise), results of operations,
properties, assets, liabilities, business or prospects of the Business
(the items described in clauses (i) through (viii) being herein
collectively referred to as the "Contracts"). Seller has performed all
obligations required to be performed by it to date under the Contracts,
and neither Seller nor any other party to any Contract has breached or
improperly terminated any Contract or is in default under any Contract
by which it is bound, and there exists no condition or event which
after notice or lapse of time or both, would constitute any such
breach, termination or default. Seller is not a party to, and the
Business does not involve, any contracts, agreements, commitments or
undertakings which are subject to the Federal Acquisition Regulations,
Chapter 48 of the Code of Federal Regulations and all agency
supplements thereto, the Cost Accounting Standards set forth in Chapter
4 of the Code of Federal Regulations, or the Cost Principles set forth
in Chapter 31 of the Code of Federal Regulations. Each of the Contracts
is in full force and effect, and is a legal, binding and enforceable
obligation of or against the parties thereto. Except as set forth on
the Schedule entitled "Contracts," Seller, in connection with the
Business has no outstanding Contracts, including Contracts with
officers, employees, agents, consultants, advisors, salesmen, sales
representatives, distributors or dealers, that are not cancelable by it
on notice of not longer than 30 days and without liability, penalty or
premium. Seller enjoys good working relationships under all of its
Contracts, including, without limitation, its supply, distribution and
similar contractual arrangements in connection with the normal
operation of the Business, and the consummation of the transactions
contemplated hereby will not materially affect any such Contracts,
relationships or arrangements.
(h) Financial Statements. Seller has heretofore delivered
to Buyer the following financial statements (collectively, together
with the financial statements to be delivered pursuant to Section
7.2(b), the "Financial Statements"):
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(i) the unaudited Statement of Operations of the
Business for the year ended December 31, 1997 and the quarter
ended March 31, 1998, each of which are attached hereto on the
Schedule entitled "Seller's Statement of Operations";
Each of the Financial Statements is true, complete and correct in all
material respects, was prepared from the books and records kept by
Seller for the Business, and fairly presents the results of the
Business's operations for the periods then ended in accordance with
GAAP consistently applied (except for the absence of footnotes and
normally recurring year-end adjustments, which adjustments will not
differ materially from the effects of normally recurring year end
adjustments on the audited financial statements of the Seller for the
1996 fiscal year). Except as set forth in the Schedules delivered
pursuant to this Agreement or the Financial Statements, since the
Balance Sheet Date, there has been no material adverse change in the
condition (financial or otherwise), results of operations, properties,
assets, or business of the Business, nor has there been any event or
condition of any character which has materially and adversely affected,
or which is likely to materially and adversely affect, the condition
(financial or otherwise), results of operations, properties, assets, or
business of the Business. The Schedules entitled "Fixed Assets" and
"Rental Equipment" reflects all properties and assets, real, personal
or mixed, which are currently used in connection with the Business,
except for (A) Inventory or Rental Equipment purchased or sold
consistent with past practice and in the ordinary and normal course of
business since the Balance Sheet Date; provided, however, that the
aggregate reduction in the book value of Rental Equipment since the
Balance Sheet Date (without taking into account depreciation for fiscal
year 1998) shall not exceed $20,000 without the prior written consent
of Buyer, (B) other properties and assets (other than capital assets)
not in excess of $10,000 (in the aggregate) purchased or sold since the
Balance Sheet Date consistent with past practice and in the ordinary
and normal course of business, (C) capital assets purchased since the
Balance Sheet Date in an amount not in excess of $10,000 (in the
aggregate), and (D) purchase commitments disclosed on the Schedule
entitled "Liabilities."
(i) [intentionally omitted].
(j) Accounts Receivable; Collection. Except for Accounts
Receivable with respect to which applicable reserves will be set forth
on the schedule of Estimated Gross Working Capital, all Accounts
Receivable outstanding relating to the Business as of the Balance Sheet
Date and the Closing Date represent sales actually made in the ordinary
and normal course of business. As of the Closing Date all Accounts
Receivable will be current and collectible in full no later than 180
days after the Closing Date, subject to applicable reserves. To the
best of Seller's knowledge, other than as provided for in reserves as
contemplated above, there are no counterclaims or setoffs against (or
any basis therefor), or any other matter or condition likely to
interfere with full and timely collection of, any of such outstanding
Accounts Receivable. The Schedule entitled "Accounts Receivable" sets
forth an aged listing by Customer of the Accounts Receivable that are
outstanding as of a date no earlier than three business days before the
date of this Agreement (and Seller will update this Schedule as of the
Closing Date).
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(k) Inventories. All of the Inventories are of a quality
and quantities usable or salable in the ordinary and normal course of
business, and there are no damaged or obsolete items or items of below
standard quality included therein, except with respect to which
adequate reserves shall be set forth on the Balance Sheet. The value at
which the Inventory is carried on the books and records of the Seller
reflects a moving average cost basis, and reflects writeoffs or
writedowns for damaged or obsolete items, or items of below standard
quality, in accordance with GAAP. The Inventory is not (as of the date
hereof) and will not be (as of the Closing Date) excessive in kind or
amount in light of the ordinary and normal course of conduct and
reasonably anticipated needs of the Business.
(l) Rental Equipment. The Schedule entitled "Rental
Equipment" includes a true and correct list of all equipment rentable
and salable in the ordinary course of business of the Business as of
the Balance Sheet Date, including a listing of the book value of each
item of Rental Equipment as reflected in the books and records of the
Seller. All Rental Equipment is of a quality and quantity usable,
rentable, or salable in the ordinary and normal course of business,
except for obsolete items and items of below-standard quality, all of
which have been written off or written down to net realizable value in
the books and records of the Seller. All such Rental Equipment not
written off has been recorded at net realizable value and has been
depreciated consistent with the economic life of such Rental Equipment.
To the knowledge of Seller, the quantities of each item of such Rental
Equipment are not excessive, but are reasonable in the present
circumstances of the Seller. All such Rental Equipment is in good
operating condition and repair, subject to normal wear and tear, and
has been maintained in accordance with normal industry practice.
(m) Litigation. Except as set forth on the Schedule
entitled "Litigation," Seller is not subject to any order of, or
written agreement or memorandum or understanding with, any Governmental
Authority relating to the Business, and there exists no litigation,
action, suit, claim or proceeding pending, or, to the best of Seller's
knowledge, any litigation, action, suit, investigation, claim or
proceeding threatened against or affecting Seller, the Business or the
Acquired Assets, or any employee associated with the Business or the
Acquired Assets, or which would affect the transactions contemplated by
this Agreement, at law or in equity or before any Governmental
Authority, including, without limitation, claims for product warranty,
product liability, anti-trust, unfair competition, price discrimination
or other liability or obligation relating to Products, whether
manufactured or sold by Seller, any of its Affiliates or any of their
respective predecessors-in-interest in respect of the Business, or
which would adversely affect the transactions contemplated by this
Agreement, and to Seller's knowledge no one has grounds to assert any
such litigation, action, suit, claim or proceeding. Set forth on the
Schedule entitled "Litigation" is a description of (i) all litigation,
actions, suits, investigations, claims and proceedings asserted,
brought or threatened against Seller or its Affiliates or
predecessors-in-interest in respect of the Business during the
three-year period preceding the date hereof (except as otherwise noted
on such Schedule), which involved a claim in excess of $5,000 or which
did not include a dollar amount as a claim together with a description
of the outcome or present status thereof, and (ii) all judgments,
orders, decrees, writs or injunctions entered into by or against Seller
which might affect the Business or the consummation of the transactions
contemplated hereby.
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(n) Customers and Suppliers. Seller is not involved in
any material controversy with any of the material Customers of the
Business. Except for the Customers and suppliers named in the Schedule
entitled "Customers and Suppliers," (i) Seller has not had any Customer
who accounted for more than 2% of Business's sales during the period
from May 1, 1997 to December 31, 1997, or any supplier from whom it
purchased more than 2% of the goods or services purchased in connection
with the Business during the period from May 1, 1997 to December 31,
1997, and (ii) to the Seller's knowledge, the Business has not had any
Customer who accounted for more than 2% of Seller's sales during the
period from January 1, 1996 to April 30, 1997, or any supplier from
whom it purchased more than 2% of the goods or services purchased in
connection with the Business during the period from January 1, 1996 to
April 30, 1997. Seller has not been advised by any Customer or supplier
(representing purchases and sales of $50,000 or more) with respect to
the Business, that such Customer or supplier was or is intending to
terminate its relationship with Seller or would not continue to
purchase supplies or services relating to the Business for future
periods on account of any dissatisfaction with Seller's performance.
All business placed by all employees of Seller with respect to the
Business has been placed in the name of Seller, and all fees on such
Business have been paid to and are the property of Seller.
(o) Regulatory Compliance. Except as set forth on the
Schedule entitled "Litigation," the Business has been conducted, the
Acquired Assets have been maintained and Seller is currently in
substantial compliance with all applicable laws (including, without
limitation, all laws relating to zoning, building codes, civil rights,
occupational health and safety, antitrust, consumer protection,
currency exchange, equal opportunity, pensions, securities and
trading-with-the-enemy), and no material expenditures are or will be
required to comply with any such laws, regulations and orders of
Governmental Authorities. Seller is not in default under, and no event
has occurred which, with the lapse of time or action by a third party,
could result in default under, the terms of any judgment, decree,
order, writ or injunction of any Governmental Authority, whether at law
or in equity.
(p) Brokers, Finders and Agents. Seller is not directly
or indirectly obligated to anyone acting as a broker, finder or in any
other similar capacity in connection with this Agreement or the
transactions contemplated hereby.
(q) Intellectual Property. The Schedule entitled
"Intellectual Property" attached hereto sets forth a complete and
correct list (with an indication of the record owner and identifying
number) of all patents, trademarks, service marks, trade names and
copyrights for which registrations have been obtained (and all
applications for, or extensions or reissuances of, any of the
foregoing) which are or have been used primarily in the conduct of, or
which relate primarily to, the Business or which are owned by Seller.
True, correct and complete copies of such patents, trademarks, service
marks, trade names and copyrights (and all applications for, or
extensions or reissuances of, any of the foregoing) identified on such
Schedule have been delivered to Buyer. To Seller's knowledge, Seller is
the sole owner and has the exclusive right to use, free and clear of
any payment, restriction or encumbrance, all such patents, trademarks,
service marks, trade names and copyrights. To Seller's knowledge, no
patents, trademarks, service marks, trade names and copyrights (or
applications for, or extensions or reissuances of any of the foregoing)
which are or have been used in the conduct
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of, or which relate to, the Business are owned otherwise than by
Seller. There is no claim or demand of any Person pertaining to, or any
proceedings which are pending or, to the best of Seller's knowledge,
threatened, which challenge (i) the exclusive rights of Seller in
respect of any patents, trademarks, service marks, trade names or
copyrights (or applications for, or extensions or reissuances of, any
of the foregoing) which are or have been used in the conduct of, or
which relate to, the Business or which are owned by Seller, or (ii) the
rights of Seller in respect of any processes, formulas, confidential
information, trade secrets, know-how, engineering data, technology or
other intellectual property which are owned by Seller. No patent,
trademark, service xxxx, trade name, copyright, process, formulas,
confidential information, trade secret, know-how, engineering data,
technology or other intellectual property which is owned by Seller is
subject to any outstanding order, ruling, decree, judgment or
stipulation by or with any Governmental Authority or any contract,
agreement, commitment or undertaking with any Person, or infringes or,
to the best of Seller's knowledge, is being infringed by others or is
used by others (whether or not such use constitutes infringement). To
the best of Seller's knowledge, the Business does not involve
employment of any Person in a manner which violates any non-competition
or non-disclosure agreement which such Person entered into in
connection with any former employment. All patents, trademarks, service
marks, trade names or copyrights (or applications for, or extensions or
reissuances of, any of the foregoing) or processes, formulas,
confidential information, trade secrets, know-how, engineering data,
technology or other intellectual property, or rights thereto, owned or
held, directly or indirectly by any officer, director, stockholder,
employee or any Affiliate of Seller and relating primarily to the
Business have been, or prior to the Closing Date will have been, duly
and effectively transferred to Seller. Set forth on the Schedule
entitled "Intellectual Property" is a description all litigation,
actions, suits, investigations, claims and proceedings, asserted,
brought or threatened against the Seller within the five years
preceding the date hereof, together with a description of the outcome
or present status thereof, relating to any patent, trademark, service
xxxx, trade name, copyright, process, formula, confidential
information, trade secret, know-how, engineering data, technology or
other intellectual property. Seller is not engaged in any research or
development activities involving reverse engineering, or in other
development or production of products based upon designs or attributes
of products manufactured or sold by Persons other than Seller.
(r) Permits. The Schedule entitled "Permits" attached
hereto contains a true, correct and complete list of all material
Permits issued to Seller in connection with the Business. Seller has,
and is in full compliance with, all Permits which are necessary or
required for the operation of the Business as it is currently being
operated and its present activities on its properties and facilities,
all of which Permits are in full force and effect. There has been no
change in the facts or circumstances reported or assumed in the
application for or granting of such Permits. Seller's operation of the
Business during the pendency of its applications, if any, for Permits
does not violate any law, regulation or order of any Governmental
Authority.
(s) Employee Relations; Collective Bargaining Agreements.
There are no material controversies, including strikes, disputes,
slowdowns or work stoppages, pending, or to the best of Seller's
knowledge, threatened which involve any employees employed in
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connection with the Business. Seller has complied and is complying with
all laws relating to the employment of labor, including, without
limitation, any provision thereof relating to wages, hours, collective
bargaining, employee health, safety and welfare, and the payment of
social security and similar taxes. Seller has not experienced any
material labor difficulties, including, without limitation, strikes,
slowdowns, or work stoppages, within the five-year period preceding the
date hereof. Seller is not a party to any collective bargaining or
union contract, and to the best of Seller's knowledge, there exists no
current union organizational effort with respect to any of Seller's
employees.
(t) Employees and Employee Plans. The Schedule entitled
"Employee Plans" attached hereto contains a true and complete list of
(a) all employees of the Business, together with a description of their
respective job titles and responsibilities and annual compensation
(including salaries, bonuses, consulting or directors' fees and
incentive or deferred compensation) and (b) all Employee Plans and
employment Contracts of the Business. Neither Seller nor any officers,
directors, stockholders, employees or agents of Seller have taken any
action directly or indirectly to obligate Seller to institute any
Employee Plan applicable to employees of the Business other than those
Employee Plans set forth in such Schedule, or to amend any such
Employee Plan. Each Employee Plan maintained or contributed to,
currently or in the past, by Seller (or by any other corporation or
trade or business the employees of which, together with the employees
of Seller, are required by any of the rules contained in ERISA or the
Internal Revenue Code of 1986, as amended (the "Code") to be treated as
if they were employed by a single employer) that is a group health plan
(as such term is defined in Section 5000(b)(1) of the Code) has been
operated in full compliance with the continuation overage requirements
of Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the
Code.
(u) Environmental and Safety Compliance.
(i) General. Except as disclosed on the Schedule
entitled "Environmental Matters," neither Seller, nor, to the
best of Seller's knowledge, any other previous owner, tenant,
occupant or user of the real property, including Leased
Property, listed on the Schedule entitled "Real Estate and
Leases" (hereinafter collectively referred to as the
"Property") nor any other Person, has engaged in or permitted
any operations or activities upon, or any use or occupancy of
the Property, or any portion thereof, resulting in the
emission, release, discharge, dumping or disposal of any
Hazardous Materials (as hereinafter defined) on, under, in or
about the Property, nor have any Hazardous Materials migrated
from the Property to, upon, about or beneath other properties,
nor have any Hazardous Materials migrated or, to Seller's
knowledge, threatened to migrate from other properties to,
upon, about or beneath the Property.
(ii) Specific Environmental Representations and
Warranties. Except as specified in the Schedule entitled
"Environmental Matters":
(A) There is not, nor has there been,
constructed, placed, deposited, stored, disposed of
or located on the Property any asbestos in any form
which has become friable.
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(B) No underground improvements,
including but not limited to treatment or storage
tanks, sumps, or water, gas or oil xxxxx, are or have
been located on the Property.
(C) There are no polychlorinated
biphenyls (PCBs) or transformers, capacitors,
ballasts, or other equipment which contain dielectric
fluid containing PCBs at levels in excess of fifty
parts per million (50ppm) constructed, placed,
deposited, stored, disposed of or located on the
Property.
(D) The Property and its existing uses
and activities and, to the best of Seller's
knowledge, its prior uses and activities, and the
Business and its operations comply and have at all
times complied in all material respects with all
Environmental Requirements (as hereinafter defined),
and Seller has obtained all Permits necessary under
applicable Environmental Requirements.
(E) Neither Seller nor to the best of
Seller's knowledge, any prior owner or occupant of
the Property, has received any notice or other
communication concerning any alleged violation of
Environmental Requirements, whether or not corrected
to the satisfaction of the appropriate authority, nor
any notice or other communication concerning alleged
liability for Environmental Damages in connection
with the Property, and there exists no judgment,
decree, order, writ or injunction outstanding, nor
any litigation, action, suit, claim (including
citation or directive) or proceeding pending or to
the best of Seller's knowledge any litigation,
action, suit, investigation, claim or proceeding
threatened, relating to the ownership, use,
maintenance or operation of the Property by any
Person, or from the alleged violation of
Environmental Requirements, or from the suspected
presence of quantities of Hazardous Material thereon
or potential migration thereto, nor are there any
existing facts or conditions which could give rise to
any such violation or liabilities.
(iii) Definitions.
(A) For purposes of this Section
5.1(u), the term "Hazardous Material" means any
substance:
(1) the presence of which requires
investigation or remediation under any
Federal, state or local statute, regulation,
ordinance, order, action, policy or common
law; or
(2) which is or has been identified
as a potential "hazardous waste," "hazardous
substance," pollutant or contaminant under
any Federal, applicable state or local
statute, regulation, rule or ordinance or
amendments thereto including, without
limitation, the Comprehensive Environmental
Response, Compensation and
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Liability Act (42 U.S.C. xx.xx. 9601 et
seq.) and/or the Resource Conservation and
Recovery Act (42 U.S.C. xx.xx. 6901 et
seq.); or
(3) which is toxic, explosive,
corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic,
reactive, or otherwise hazardous and has
been identified as regulated by any
Governmental Authority.
(B) For purposes of this Section 5.1(u)
the term "Environmental Requirements" means all
applicable laws, regulations, ordinances, Permits and
similar items of all Governmental Authorities and all
applicable judicial, administrative, and regulatory
judgments, decrees, orders, writs or injunctions
relating to the protection of human health or the
environment, including, without limitation:
(1) All requirements pertaining to
reporting, licensing, permitting,
investigation, and remediation of emissions,
discharges, releases, or threatened releases
of Hazardous Materials;
(2) All requirements pertaining to
the protection of the health and safety of
employees or the public; and
(3) All other limitations,
restrictions, conditions, standards,
prohibitions, obligations, schedules and
timetables contained therein or in any
notice or demand letter issued, entered,
promulgated or approved thereunder.
(C) For purposes of this Section
5.1(u), the term "Environmental Damages" means any
and all Liabilities (as defined in Section 11.1)
which are incurred at any time as a result of the
existence prior to Closing of Hazardous Material
upon, about, beneath the Property or migrating or
threatening to migrate to or from the Property, or
the existence of a violation of Environmental
Requirements pertaining to the Property, regardless
of whether the existence of such Hazardous Material
or the violation of Environmental Requirements arose
prior to the present ownership or operation of the
Property, and including without limitation:
(1) Damages for personal injury, or
injury to property or natural resources
occurring upon or off of the Property,
foreseeable or unforeseeable, including,
without limitation, consequential damages,
the cost of demolition and rebuilding of any
improvements on real property, interest and
penalties; and
(2) Fees incurred for the services
of attorneys, consultants, contractors,
experts, laboratories and all other costs
incurred in connection with the
investigation or remediation of such
Hazardous
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Materials or violation of Environmental
Requirements including, but not limited to,
the preparation of any feasibility studies
or reports or the performance of any
cleanup, remediation, removal, response,
abatement, containment, closure, restoration
or monitoring work required by any
Governmental Authority, or reasonably
necessary to make full economic use of the
Property or any other property in a manner
consistent with its intended use or
otherwise expended in connection with such
conditions, and including without limitation
any attorneys' fees, costs and expenses
incurred in enforcing this Agreement or
collecting any sums due hereunder.
(v) Changes in Circumstances. Except as disclosed in the
Schedule entitled "Changes in Circumstances," since the Balance Sheet
Date Seller has not (i) sold, transferred or otherwise disposed of any
properties or assets related to the Business outside the ordinary and
normal course of business or for less than fair market value; (ii)
mortgaged, pledged or subjected to any Lien, any of the Acquired
Assets; (iii) acquired any property or assets related to the Business
outside the ordinary and normal course of business or for more than
fair market value; (iv) sustained any damage, loss or destruction of or
to the Acquired Assets (whether or not covered by insurance); (v)
entered into any transaction or otherwise conducted the Business other
than in the ordinary and normal course; (vi) granted any salary
increase or bonus or permitted any advance to any officer, director or
employee, instituted or granted any general salary increase to the
employees of Seller in connection with the Business other than normal
annual increases consistent with past practices or entered into any
new, or altered or amended any existing, Employee Plan or any
employment or consulting agreement; (vii) transferred any assets or
employees from the Business to other divisions or districts operated by
Seller; (viii) entered into any licenses or leases in connection with
the Business; (ix) made any loans or gifts in connection with the
Business; (x) modified, amended, canceled or terminated any contracts
or commitments under circumstances which would materially and adversely
affect the condition (financial or otherwise), results of operations,
business, properties, assets, liabilities or prospects of the Business
or result in the loss of any substantial rights of Seller in connection
with the Business under such contracts or commitments; (xi) made
capital expenditures or commitments in excess of an aggregate of
$10,000 for additions to property, plant or equipment, including,
without limitation, Rental Equipment in connection with the Business;
(xii) written down the value of any Inventory or written off as
uncollectible any notes or Accounts Receivable or any portion thereof;
(xiii) canceled any other debts or claims or waived any rights of
substantial value in connection with the Business; (xiv) made any
material change in any method of accounting or accounting practice in
connection with the Business; (xv) paid, accrued or incurred any
management or similar fees to any Related Party (as hereinafter
defined) or made any other payment or incurred any other liability to a
Related Party or paid any amounts to or in respect of, or sold or
transferred any assets of the Business to, any company or other entity,
a substantial portion of the equity ownership interest of which is
owned by Seller or a Related Party individually or as a group; (xvi)
taken or omitted to take any action which would cause to be breached,
or might result in a breach of, any of the representations, warranties,
covenants, obligations and agreements of Seller contained herein if the
same were made anew immediately after such act or omission; (xvii)
suffered any change in the
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condition (financial or otherwise), results of operations, properties,
assets, or business of the Business, except for usual and normal
changes in the ordinary course of business which have not, individually
or in the aggregate, been materially adverse to the Business; or
(xviii) agreed to, or obligated itself to, do anything identified in
(i) through (xviii) above. For purposes of this Agreement, a "Related
Party" is any trust, corporation or any entity in which Seller or any
of its Affiliates has a material interest.
(w) Taxes. Seller has prepared in good faith and duly
filed or caused to be duly filed all Tax returns and reports required
to be filed by it with any Governmental Authority. All Taxes owed to
any Governmental Authority by Seller with respect to the Business or
Acquired Assets for periods covered by such returns and reports, and
all claims, demands, assessments, judgments, costs and expenses
connected therewith, have been paid in full. Seller is not a party to
any action or proceeding, nor to the best of Seller's knowledge, is any
such action of proceeding contemplated or threatened, for the
assessment or collection of any Taxes with respect to the Business or
Acquired Assets, and no deficiency notices or reports have been
received by Seller in respect of any such Tax. For the purposes of this
Agreement, "Tax" or "Taxes" means all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, personal property,
franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property or windfall profits
taxes, customs duties or other taxes, fees, assessments or charges of
any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts imposed by any taxing authority
(domestic or foreign) or Governmental Authority.
(x) Insurance. The Schedule entitled "Insurance" contains
a list of all insurance policies (specifying the location, insured,
insurer, amount of coverage, type of insurance and policy number)
maintained by Seller in connection with the Business. All such policies
are in full force and effect, all premiums with respect thereto
covering all periods up to and including the date of Closing have been
paid, and no notice of cancellation or termination has been received
with respect to any such policy. Such policies (i) are sufficient for
compliance with all requirements of law and of all agreements to which
the Seller is a party and which relate to coverage of the Business;
(ii) are valid, outstanding and enforceable policies; (iii) provide
adequate insurance coverage for the assets and operations of the Seller
in connection with the Business; (iv) will remain in full force and
effect through the Closing Date; and (v) will not in any way be
affected by, or terminate or lapse by reason of, the transactions
contemplated by this Agreement. The Schedule entitled "Insurance"
identifies all risks related to the Business which the Seller, its
Board of Directors or its officers have designated as being self
insured and provides information for the past three years regarding
claims activities under the Seller's property and casualty liability
insurance policies. The Seller has not been refused any insurance with
respect to its assets or operations, nor has its coverage been limited,
by any insurance carrier to which it has applied for any such insurance
or with which it has carried insurance during the last five years.
(y) Approvals. The Schedule entitled "Assignments and
Consents" attached hereto sets forth a list of all Consents, which must
be obtained or satisfied by Seller for the consummation of the
transactions contemplated by this Agreement, including, without
limitation, all Consents, which must be obtained pursuant to Section
1.3(a).
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(z) Absence of Certain Commercial Practices. Neither
Seller nor any officer, director, employee or agent of Seller (or any
Person acting on behalf of any of the foregoing) in connection with the
Business has given or agreed to give (i) any gift or similar benefit of
more than nominal value to any Customer, supplier, Governmental
Authority (including any governmental employee or official) or any
other Person who is or may be in a position to help, hinder or assist
Seller, the Business or the Person giving such gift or benefit in
connection with any actual or proposed transaction relating to the
Business, which gifts or similar benefits would individually or in the
aggregate subject Seller or any officer, director, employee or agent of
Seller to any fine, penalty, cost or expense or to any criminal
sanctions, (ii) receipts from or payments to any governmental officials
or employees, (iii) commercial bribes or kick-backs, (iv) political
contributions, or (v) any receipts or disbursements in connection with
any unlawful boycott. No such gift or benefit is required in connection
with the operation of the Business to avoid any fine, penalty, cost,
expense or material adverse change in the condition (financial or
otherwise), results of operations, properties, assets, liabilities,
business or prospects of the Business.
(aa) Books and Records. The books and records of Seller
maintained in connection with the Business (including, without
limitation, (i) books and records relating to the purchase of materials
and supplies, manufacture or processing of products, sales of products,
dealings with Customers, invoices, Customer Lists, Inventories,
supplier lists, personnel records and taxes, and (ii) computer software
and data in computer readable and human readable form used to maintain
such books and records together with the media on which such software
and data are stored and all documentation relating thereto) accurately
record all transactions relating to the Business in all material
respects, and have been maintained consistent with good business
practice.
(bb) Penalties and Renegotiation of Contracts. Seller has
no liabilities under any contracts relating to the Business providing
for (i) penalties in the event of misfeasance by the Seller in the
performance of its duties thereunder, or (ii) the renegotiation or
redetermination of profits or prices, nor will any of Seller's costs
which are incurred or accruable prior to the Closing under contracts
entered into in connection with the Business between the Seller and any
Governmental Authority or any other Person, firm or corporation or
under subcontracts entered into in connection with the Business between
the Seller and any other Person, firm or corporation be subject to
disallowance.
(cc) Pricing Practices. The prices to be received or paid
by Seller under all outstanding contracts, agreements, commitments and
undertakings with its customers and suppliers and others in connection
with the Business have been determined in accordance with Seller's
established past pricing policies, and there are no outstanding
contracts, agreements, commitments or undertakings relating to the
Business that individually or in the aggregate are expected to result
in any material loss to Seller or the Business.
(dd) Copies of Documents. Seller has delivered to Buyer
true, correct and complete copies of all contracts, agreements and
other documents listed in the Schedules to, or referenced in, this
Agreement, and all modifications and amendments thereto.
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(ee) Insider Interests. Except as set forth in the
Schedule entitled "Insider Interests," no officer, director or employee
of Seller or any Subsidiary has any material interest in any property,
real or personal, tangible or intangible, including without limitation,
inventions, patents, trademarks or trade names, used in or pertaining
to the Business.
(ff) Disclosure. No representation or warranty made by
Seller contained in this Agreement or in any other writing furnished
pursuant hereto contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements and
facts contained herein or therein, in light of the circumstances in
which they were or are made, not false or misleading.
5.2 Representations and Warranties of Buyer. Buyer represents and
warrants to Seller that:
(a) Organization and Standing; Corporate Power and
Authority. Buyer is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has full
corporate power and authority to own or lease its assets, to carry on
its business as now being conducted, and to make and perform this
Agreement, and to perform the transactions contemplated by this
Agreement. Except as disclosed on the Schedule entitled "Buyer's
Affiliated Companies", Buyer has no Subsidiary corporations, owns no
interest, direct or indirect, in any other business, enterprise, firm
or corporation, and is the only business enterprise, firm, or
corporation through which it conducts its business, or which owns,
leases, or uses assets related to its business. Buyer is duly qualified
or licensed to do business as a foreign corporation and is in good
standing in each jurisdiction in which the ownership or lease of its
assets, including the Acquired Assets, or the operation of the Business
requires such qualification. This Agreement and all other agreements
and instruments executed and delivered by Buyer in connection herewith
have been duly executed and delivered by Buyer. This Agreement and the
transactions and other agreements and instruments contemplated by this
Agreement have been duly approved by the Directors of Buyer (approval
of Buyer's stockholders not being required), and constitute the valid
and binding obligations of Buyer, enforceable in accordance with their
respective terms.
(b) Certificate of Incorporation and Bylaws. The copies
of the Certificate of Incorporation of Buyer, certified by the
Secretary of State of Delaware, and the Bylaws of the Buyer included in
the Schedule entitled "Certificate of Incorporation and Bylaws of
Buyer" attached to this Agreement are true, correct and complete.
(c) Conflicts; Defaults. Neither the execution and
delivery of this Agreement and the other agreements and instruments
executed or to be executed in connection herewith by Buyer, nor the
performance by Buyer of the transactions contemplated hereby or
thereby, will (i) violate, conflict with, or constitute a default
under, any of the terms of Buyer's Certificate of Incorporation, or
Buyer's Bylaws, or any provisions of, or result in the acceleration of
any obligation under, any material contract, sales commitment, license,
purchase order, security agreement, mortgage, note, deed, lien, lease,
agreement or instrument, (ii) violate any law, statute, judgment,
decree, order, rule or regulation of any Governmental Authority, or
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(iii) constitute an event which, after notice or lapse of time or both,
would result in such violation, conflict, default, acceleration, or
creation or imposition of liens or claims.
(d) Brokers, Finders and Agents. Buyer is not directly or
indirectly obligated to anyone as a broker, finder or in any other
similar capacity in connection with this Agreement or the transactions
contemplated hereby.
5.3 General. The representations and warranties of the parties
hereto made in this Agreement, subject to the exceptions thereto, shall not be
affected by any information furnished to, or any investigation conducted by, any
of them or their representatives in connection with the subject matter of this
Agreement. The representations and warranties made in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Closing;
provided, however, that any claim for indemnity under Article XI hereof based on
a breach of such representations and warranties shall be made by Buyer within
the time periods provided for claims for indemnification set forth in Section
11.5 hereof.
ARTICLE VI: CONDITIONS TO CLOSING
6.1 Conditions to Buyer's Obligations. The obligation of Buyer to
consummate the transactions provided for by this Agreement is subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions, any of which may be waived by Buyer except for the conditions set
forth in subsection (d) (as to Consents of Governmental Authorities) of this
Section 6.1:
(a) Representations and Warranties. Each of the
representations and warranties of Seller made in Section 5.1 of this
Agreement shall be true and correct in all material respects both on
the date hereof and as of the Closing Date as though made at such time.
(b) Covenants. Seller shall have performed and complied
in all material respects with all covenants and agreements required to
be performed or complied with by it at or prior to the Closing Date.
(c) Material Adverse Change. Since the date hereof,
except as set forth in item (xix) of Schedule 5.1(v) hereto, there
shall have occurred no material adverse change, or discovery of a
condition or occurrence of any event which might result in any such
change, in the condition (financial or otherwise), business, assets,
properties or operations of the Business.
(d) Consents. All Consents of Governmental Authorities
and third parties described in Sections 1.3, 5.1(y) and 9.6 and
necessary to consummate the transactions contemplated hereunder shall
have been obtained and satisfied and the applicable waiting period, if
applicable, under the H-S-R Act shall have expired.
(e) No Proceeding or Litigation. No litigation, action,
suit, investigation, claim or proceeding challenging the legality of,
or seeking to restrain, prohibit or materially
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modify, the transactions provided for in this Agreement shall have been
instituted and not settled or otherwise terminated.
(f) Legal Matters. The form and substance of all papers,
instruments and documents delivered hereunder or incidental hereto
shall, in the reasonable judgment of Buyer, be satisfactory to Buyer,
and if requested by Buyer, in the reasonable judgment of Xxxxx, Day,
Xxxxxx & Xxxxx, counsel to Buyer.
(g) Certificate of Seller. At the Closing, Seller shall
have delivered to Buyer a Certificate signed by Seller's Chairman of
the Board, President, or Vice President and attested to by its
Secretary or an Assistant Secretary, and dated the Closing Date, to the
effect that to the best of the knowledge and belief of such officers
the conditions specified in Sections 6.1(a), (b), (c) and (d) have been
fulfilled.
(h) Certificate; Documents. Seller and the other Persons
shall have delivered the certificates, opinion of counsel and other
documents required by Sections 4.2 and 4.4.
6.2 Conditions to Seller's Obligations. The obligations of Seller
to consummate the transactions provided for by this Agreement are subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions, any of which may be waived by Seller except for the conditions set
forth in subsection (c) of this Section 6.2:
(a) Representations and Warranties. Each of the
representations and warranties of Buyer made in Section 5.2 of this
Agreement shall be true and correct in all material respects both on
the date hereof and as of the Closing Date as though made at such time.
(b) Covenants. Buyer shall have performed and complied in
all material respects with all covenants and agreements required to be
performed or complied with by it at or prior to the Closing Date.
(c) Consents. The applicable waiting period, if
applicable, under the H-S-R Act shall have expired and all consents of
Governmental Authorities shall have been obtained.
(d) No Proceeding or Litigation. No litigation, action,
suit, investigation, claim or proceeding challenging the legality of,
or seeking to restrain, prohibit or materially modify, the transactions
provided for in this Agreement shall have been instituted and not
settled or otherwise terminated.
(e) Legal Matters. The form and substance of all papers,
instruments and documents delivered hereunder or incidental hereto
shall, in the reasonable judgment of Seller, be satisfactory to Seller,
and if requested by Seller, in the reasonable judgment of Xxxxxxxx &
Xxxxx, counsel to Seller.
(f) Certificate of Buyer. At the Closing, Buyer shall
have delivered to Seller a Certificate signed by the President or a
Vice President of Buyer, and attested to by the Secretary or an
Assistant Secretary of Buyer, and dated the Closing Date, to the effect
that
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to the best of the knowledge of such officers the conditions specified
in Section 6.2(a), (b) and (c) have been fulfilled.
(g) Certificates; Documents. Buyer shall have delivered
the certificates and other documents required by Section 4.3.
ARTICLE VII: COVENANTS OF SELLER
7.1 Conduct of Business. During the period from the date hereof
through the Closing Date, Seller shall conduct the Business and operate the
Acquired Assets diligently and in the ordinary and normal course and consistent
with past practice (including, without limitation, using its commercially
reasonable efforts to preserve beneficial relationships between Seller and its
distributors, agents, lessors, suppliers and customers) and continue normal
maintenance, marketing, advertising, distributional and promotional expenditures
in connection with the Business. Seller shall engage in no transactions relating
to the Business, including transactions relating to the purchase or sale of
goods, raw materials, inventories or other operating or production items,
intracorporate or otherwise, with any of its Affiliates from the date hereof
until the Closing other than (i) transactions approved by Buyer in writing; or
(ii) transactions on terms no more favorable to Seller or its Affiliates than
would have been obtainable in arm's-length dealing. Without limiting the
generality of the foregoing and except as otherwise expressly provided in this
Agreement, during the period from the date hereof through the Closing Date,
Seller shall not with respect to the Business:
(a) Obligations for Borrowed Money. (i) create, incur or
assume any debt (including obligations in respect of capital leases) or
any debt for money borrowed (whether long- or short-term) other than in
the normal and ordinary course of business; (ii) assume, guarantee,
endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligation of any other Person; or
(iii) make any loans, advances or capital contributions to any other
Person, other than Trade Payables;
(b) Employee Matters. (i) Increase in any manner the rate
of compensation of any of its employees listed on Schedule 9.1(b); (ii)
make or agree to make any payment pursuant to any Employee Plan,
including, without limitation, any payment of any pension, retirement
allowance, severance or other employee benefit, except as required by
any existing Employee Plan disclosed on the Schedules to this
Agreement, to any such officers or employees, whether past or present;
(iii) enter into or modify any collective bargaining agreement, except
as required by law; (iv) commit itself to any additional Employee Plan,
or employment or consulting agreement with a Person, or to amend any of
such Employee Plans or agreements, except as required by law; or (v)
transfer any employee from the Business to any other district or
division of Seller;
(c) Sale of Assets. Sell, transfer, license or otherwise
dispose of or agree to sell, transfer, license or otherwise dispose of
any Acquired Assets, except Inventory and Rental Equipment in the
ordinary and normal course of business consistent with past practice or
transfer or assign any Acquired Assets from the Business to any other
division or district of Seller;
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(d) Commitments. Enter into any other agreements,
commitments, contracts or undertaking in connection with the Business,
except agreements, commitments, contracts or undertakings made in the
ordinary and normal course of business consistent with past practice
and the representations and warranties of Seller contained in this
Agreement;
(e) Leased Facilities. Terminate, modify or amend the
Assumed Leases;
(f) Encumbrances. Encumber or grant or create a Lien on
any of the Acquired Assets;
(g) Insurance. Cause any of the policies of insurance
referred to in Section 5.1(x) to terminate, lapse or be canceled,
unless equivalent replacement policies, without lapse of coverage,
shall be put in place;
(h) Representations and Warranties. Take any action the
taking of which, or omit to take any action the omission of which,
would cause any of the representations and warranties contained in
Section 5.1 to fail to be true and correct as of the Closing as though
made at and as of the Closing; or
(i) Other. Agree or commit to do any of the foregoing.
7.2 Disclosure Supplements.
(a) From time to time prior to the Closing, Seller shall
promptly supplement or amend the Schedules to this Agreement with
respect to any matter (i) which may arise hereafter and which, if
existing or occurring at or prior to the date hereof, would have been
required to be set forth or described in the Schedules to this
Agreement, or (ii) which makes it necessary to correct any information
in the Schedules to this Agreement or in any representation and
warranty of Seller which has been rendered inaccurate in any material
respect. No supplement or amendment to the Schedules to this Agreement
or any delivery of Schedules after the date hereof, unless expressly
consented in writing by Buyer, shall be deemed to cure any breach of
any representation or warranty made in this Agreement, or modify,
affect or diminish Buyer's right to terminate this Agreement pursuant
to Section 10.1(c); provided, however, that, notwithstanding the
foregoing, if Seller supplements or amends the Schedules to this
Agreement or delivers a Schedule after the date of this Agreement,
which supplement, amendment, or Schedule if not delivered would give
Buyer the right to terminate this Agreement under Section 10.1(c)
hereof (each a "Schedule Amendment"), then, if the transactions
contemplated by this Agreement are consummated, such Schedule
Amendments shall not form the basis of any right of indemnification by
Buyer.
(b) During the period from the date hereof to the
Closing, Seller shall promptly (i) furnish or make available to Buyer
copies of all major operating reports and monthly, quarterly and
year-end financial statements with respect to the Business as soon as
they become available, all certified by Seller's chief financial
officer that such financial statements fairly present the financial
position and results of operations of the Business for the periods
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covered by such statements in accordance with GAAP consistently applied
(subject to normally recurring year-end audit adjustments and without
footnote disclosures), and (ii) notify Buyer of (A) any material change
in the condition (financial or otherwise), business, assets,
properties, or operations of the Business, and (B) the institution or
settlement of any litigation, action, suit, investigation, claim or
proceeding and of any developments therein.
7.3 Closing. Seller shall use commercially reasonable efforts to
cause the conditions set forth in Section 6.1 to be satisfied by the Closing
Date.
7.4 Confidentiality. Seller shall, and shall cause its Affiliates,
officers, employees, representatives, consultants and advisors to, hold in
confidence and not use any confidential information which remains after Closing
in the possession of Seller or its Affiliates. Seller shall not release or
disclose any such information to any Person other than Buyer and its authorized
representatives. Notwithstanding the foregoing, the confidentiality obligations
of this Section shall not apply to information:
(a) which Seller is compelled to disclose by judicial or
administrative process, or, in the opinion of counsel, by other
mandatory requirements of law;
(b) which can be shown to have been generally available
to the public other than as a result of a breach of this Section; or
(c) which can be shown to have been provided to Seller by
a third party who obtained such information other than from Seller or
other than as a result of a breach of this Section.
7.5 Maintenance of Insurance. Seller will (a) maintain all
policies of insurance in effect on the date hereof through and until the
Closing; and (b) after the Closing use its best efforts to maintain any policies
of insurance which cover liabilities associated with the operation of the
Business prior to the Closing; provided, however, that after the Closing, Seller
shall not be required to pay any additional premiums in respect of such policies
or maintain in effect any insurance coverage other than coverage disclosed on
the Schedules hereto.
7.6 Inventories. Prior to the Closing, Seller will maintain levels
of all Inventories, including materials and supplies, at levels consistent with
current practice in the ordinary and normal course of business.
7.7 Maintenance of, and Access to, Records. After the Closing
Date, Seller shall provide Buyer with access (with an opportunity to make
copies), during normal business hours, and upon reasonable notice, to any
records relating to the Business which are retained by it. Seller shall preserve
and maintain any books and records relating to the Business and retained by
Seller for at least three years after the Closing Date.
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7.8 Accounts Receivable.
(a) In the event that Seller or any of its Affiliates
receives any payment relating to any Account Receivable outstanding on
or after the Closing Date, such payment shall be the property of, and
shall be immediately forwarded and remitted to, Buyer. In the event
that Buyer or any Affiliate of Buyer receives any payment relating to
any Account Receivable written off by Seller prior to the Closing Date,
such payment shall be the property of, and shall be immediately
forwarded to, Seller. Seller or Buyer or such Affiliate will promptly
endorse and deliver to Buyer or Seller any cash, checks or other
documents received by Seller or Buyer on account of any such Accounts
Receivable. Seller or such Affiliate shall advise Buyer (promptly
following Seller's becoming aware thereof) of any counterclaims or
set-offs that may arise subsequent to the Closing Date with respect to
any Account Receivable.
(b) After the Closing Date, Buyer shall use reasonable
efforts, consistent with prior ordinary course business practices of
Seller, to collect all Accounts Receivable included in the Acquired
Assets; provided, however, that Buyer shall not be obligated to
continue to do business with any Person if Buyer believes such
continuation will not be in its best interests, and shall not be
obligated to initiate litigation or to turn any of such Accounts
Receivable over to a collection agency or attorney.
(c) Buyer shall deliver a true and correct list of its
Accounts Receivable aging within fifteen (15) business days following
the expiration of the period during which such Accounts Receivable are
deemed "uncollectible" in accordance with this Section, together with
the signed original rental contract, customer collection comment,
invoice inquiry report, and pick up ticket with respect to each Account
Receivable on the list. Accounts Receivable shall be deemed
"uncollectible" if remaining unpaid 180 days after the Closing Date
(the "Uncollectible Date").
(d) In the event that any Account Receivable or any
portion thereof (less applicable reserves for any such Account
Receivable included in the calculation of Gross Working Capital set
forth in Section 3.2 hereof) is not paid by the date as of which it is
deemed uncollectible as herein provided, Buyer shall be entitled to
reimbursement from Seller within 30 days from the Uncollectible Date in
the amount of such unpaid Account Receivable. Upon such reimbursement,
the claim or cause of action against the debtor not making payment
shall be assigned by Buyer to Seller, and Seller may take such measures
to enforce collection of the unpaid items as Seller shall deem
necessary. In connection with the collection of any Accounts
Receivable, remittances by a customer shall be first credited to the
Accounts Receivable bearing the earliest date unless the customer has
specified the particular invoice to which a remittance pertains, in
which case the credit shall be made to the invoice specified. In the
event that collections on all Accounts Receivable exceed the amount of
Accounts Receivable (less applicable reserves for such Accounts
Receivable included in the calculation of Gross Working Capital set
forth in Section 3.2 hereof), such excess shall be reimbursed by Buyer
to Seller within 30 days from The Uncollectible Date.
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7.9 No Shopping. From the date hereof through and until the
earlier of termination of this Agreement pursuant to Article X or Closing,
neither Seller nor any of its Affiliates, employees, officers, agents or
advisors shall, directly or indirectly, (a) solicit, initiate or encourage any
inquiries, proposals or offers from any Person relating to any acquisition (or
sublease as the case may be) of the Acquired Assets or the Business or any
portion thereof, or any securities of, or any merger, consolidation or business
combination with, Seller, or (b) with respect to any effort or attempt by any
other Person to do or seek any of the foregoing, (i) participate in any
discussions or negotiations, (ii) furnish to any other Person any information
with respect to, or afford access to the properties, books or records of or
relating to, Seller, the Acquired Assets or the Business, or (iii) otherwise
cooperate in any way with, or assist or participate in, or facilitate or
encourage any such effort. Seller shall promptly notify Buyer if any such
proposal or offer or any inquiry or contact with any Person with respect thereto
is made.
7.10 Further Assurances; Customer and Supplier Relationships;
Assertion of Claims.
(a) Seller shall use its best efforts to implement the
provisions of this Agreement, and for such purpose Seller, at the
request of Buyer, at or after the Closing, shall, without further
consideration, promptly execute and deliver, or cause to be executed
and delivered, to Buyer such deeds, assignments, bills of sale,
Consents and other instruments in addition to those required by this
Agreement, in form and substance satisfactory to Buyer, and take all
such other actions, as Buyer may reasonably deem necessary or desirable
to implement any provision of this Agreement or to more effectively
transfer, convey and assign to Buyer good and marketable title to, and
to put Buyer in actual possession and operating control of, all of the
Acquired Assets, free and clear of all Liens other than Permitted
Liens.
(b) From and after the Closing, Seller shall use its
reasonable efforts to assist in the transfer to Buyer of the goodwill
and reputation associated with the Business, and of Seller's personnel,
suppliers, manufacturer's representatives and customer relationships.
Seller shall use its reasonable efforts to assure that Seller's current
customers and suppliers with respect to the Business shall continue to
do business with Buyer in accordance with the terms and for the periods
of time set forth in any contract, agreement, commitment or undertaking
(including the Contracts), whether oral or written, and whether
currently in effect or proposed to be entered into by Seller.
(c) Seller covenants and agrees with Buyer that after the
Closing Date, Seller shall give Buyer 30-days' prior written notice of
any intent on the part of Seller or any of its Affiliates to assert any
claim against any former Customer or supplier of Seller or such
Affiliate.
7.11 Release. At or prior to Closing Seller and Stockholders, for
and on behalf of its stockholders and successors and assigns, shall deliver a
release, which will forever discharge Buyer, and its respective successors and
assigns, from any and all claims, actions or causes of action heretofore arising
in any manner under, pursuant to or with respect to Buyer's actions under,
pursuant to or with respect to Buyer's failure to enter into or consummate a
purchase and sale of all or substantially all the assets of Seller at all of the
Seller's business locations (the "Release").
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ARTICLE VIII: COVENANTS OF BUYER
8.1 Maintenance of, and Access to, Records. From and after the
Closing, Buyer shall, whenever reasonably requested by Seller, permit Seller to
have access to such business records turned over to Buyer pursuant to this
Agreement as may be required by Seller in connection with any audit or
investigation by any Governmental Authority, or preparation of tax returns and
other tax matters or any matter relating to insurance coverage or third party
claims or for any other valid business purpose, in each such case to the extent
relating to the operation of the Business by Seller prior to the Closing. Buyer
shall preserve and maintain the records relating to the Business which are part
of the Acquired Assets for at least three years after the Closing Date. If Buyer
intends to discontinue preserving and maintaining these records, Buyer shall, at
Seller's cost and expense, offer to deliver such records to Seller.
8.2 Closing. Buyer shall use its best efforts to cause the
conditions set forth in Section 6.2 to be satisfied by the Closing Date.
ARTICLE IX: CERTAIN ADDITIONAL COVENANTS
9.1 Access to Records and Properties. Prior to the Closing, (a)
Buyer shall be entitled, and Seller shall permit Buyer, to conduct such
investigations as Buyer shall reasonably deem appropriate, and (b) Seller shall
(i) provide Buyer and its agents and representatives, including its independent
accountants, internal auditors and attorneys, full and complete access to all
the facilities, offices and personnel of Seller, and to all of the books and
records of Seller (including work papers of any independent accountant) and (ii)
cause Seller's officers, employees and advisors to furnish Buyer with such
financial and operating data (including the data described in Section 7.2(b))
and other information with respect to the condition (financial or otherwise),
business, assets, properties, operations or prospects of Seller with respect to
the Business as Buyer shall reasonably request. From and after the Closing,
Seller shall, whenever reasonably requested by Buyer, permit Buyer to have
access to such business records of Seller which are not turned over to Buyer
pursuant to this Agreement as may be requested by Buyer in connection with any
audit or investigation by any Governmental Authority, or audit by any
independent public accountant of Buyer, or preparation of tax returns and other
tax matters relating to Seller's operation of the Business prior to Closing or
any matters relating to insurance coverage or third party claims or for any
other valid business purpose and Seller shall cooperate with Buyer as reasonably
requested by Buyer, including, without limitation, the execution of reasonably
customary audit representation letters.
9.2 Expenses; Transfer Taxes. Subject to Section 9.6 hereto, each
party hereto will bear the legal, accounting and other expenses incurred by such
party in connection with the negotiation, preparation and execution of this
Agreement, the Transaction Documents, and the transactions contemplated hereby.
All sales, transfer, recordation and documentary Taxes and fees which may be
payable in connection with the transactions contemplated by this Agreement shall
be borne by the party responsible for such Taxes and fees under applicable law
and customary practice.
9.3 Bulk Transfer Laws. Buyer hereby waives compliance by Seller
with the laws of any jurisdiction relating to bulk transfers which may be
applicable in connection with the transfer of the Acquired Assets to Buyer (the
"Bulk Transfer Laws").
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9.4 Press Releases and Disclosure. The parties agree that neither
Seller, Buyer nor their respective Affiliates shall issue or cause publication
of any press release or other announcement or public communication with respect
to this Agreement or the transactions contemplated hereby or otherwise disclose
this Agreement or the transactions contemplated hereby to any third party (other
than attorneys, advisors and accountants to Seller or Buyer) without the consent
of the other party hereto, which consent shall not be unreasonably withheld;
provided, however, that nothing herein shall prohibit any party from issuing or
causing publication of any press release, announcement or public communication
to the extent that such party deems such action to be required by law or stock
exchange; provided further that such party shall, whenever practicable consult
with the other party concerning the timing and content of such press release,
announcement or communication before the same is issued or published.
9.5 Cooperation in the Defense of Claims.
(i) In the event that a claim is asserted against Buyer,
any of its direct or indirect Subsidiaries or Affiliates, with respect
to events or conditions occurring or existing in connection with, or
arising out of, the operation of the Business prior to the Closing, or
the ownership, possession, use or sale of the Acquired Assets prior to
the Closing, Seller shall reasonably cooperate with Buyer in the
defense of any such claim. If such claim does not give rise to a claim
for indemnity by Buyer against Seller pursuant to Article XI hereof,
Buyer shall hold harmless Seller for its out-of-pocket expenses arising
from Seller's cooperation.
(ii) In the event that a claim is asserted against Seller,
any of its direct or indirect Subsidiaries or Affiliates, with respect
to events or conditions occurring or existing in connection with, or
arising out of, the operation of the Business after the Closing, or the
ownership, possession, use or sale of the Acquired Assets after the
Closing, Buyer shall reasonably cooperate with Seller in the defense of
any such claim. If such claim does not give rise to a claim for
indemnity of Seller against Buyer pursuant to Article XI hereof, Seller
shall hold harmless Buyer for its out-of-pocket expenses arising from
Buyer's cooperation.
9.6 Regulatory Approvals. Seller will, and will cause its
appropriate Affiliates to, and Buyer will, use, in each case, its commercially
reasonable efforts to obtain any authorizations, consents, orders and approvals
of any Governmental Authority necessary for the performance of its respective
obligations pursuant to this Agreement and any of the other transaction
documents, and the consummation of the transactions contemplated hereby and
thereby, and will cooperate fully with each other in all reasonable respects in
promptly seeking to obtain such authorizations, consents, orders and approvals.
Neither Seller nor Buyer will take any action that will have the effect of
delaying, impairing or impeding the receipt of any required regulatory
approvals. Seller and Buyer shall file with the FTC and the DOJ pursuant to the
H-S-R Act, the notification and documentary material required in connection with
the acquisition of the Acquired Assets by Buyer pursuant to this Agreement;
provided, that, if Buyer shall not make its initial filing within two business
days of the execution and delivery of this Agreement, Seller may terminate this
Agreement by written notice to Buyer after such two business days and at any
time prior to Buyer's initial filing and if Seller shall not make its initial
filing within two business days following execution and delivery of this
Agreement, Buyer may terminate this Agreement by written notice to Seller after
such two business
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days and at any time prior to Seller's initial filing. Buyer shall pay all fees
associated with the filing of any such Notification and Report Forms or related
materials and information (other than the fees and expenses of Seller's legal,
financial or other professionals engaged to provide services in respect of such
filing). Buyer and Seller will promptly file any additional information
requested as soon as practicable after receipt of a request for additional
information. Buyer and Seller will use reasonable efforts to obtain early
termination of the applicable waiting period under the H-S-R Act. The parties
hereto will coordinate and cooperate with one another in exchanging such
information and providing such reasonable assistance as may be requested in
connection with such filing. Seller will supply Buyer with copies of all
correspondence, filings or communications (or memoranda setting forth the
substance thereof) between Seller or its representatives, on the one hand, and
the FTC, the DOJ or any other Governmental Authority or members of their
respective staffs, on the other hand, with respect to this Agreement or the
transactions contemplated hereby.
9.7 Employee Matters.
(a) Employee Benefits. Except as identified on the
Schedule entitled "Miscellaneous Liabilities," Seller shall retain all
liabilities and obligations in respect of its past, present and future
employees under the Employee Plans and applicable laws. Without
limiting the generality of the foregoing or of Section 2.2(c), Buyer
shall have no liability or obligation whatsoever under the Employee
Plans, nor shall Buyer have any obligation to provide any employee
benefits to any Persons employed in the Business as of or at any time
prior to the Closing ("Employees"), except as identified on the
Schedule entitled "Miscellaneous Liabilities."
(b) Future Employment. Buyer shall offer employment to
all employees of Seller primarily engaged in the Business and listed on
Schedule 9.7(b) (the "Transferred Employee") as "at will" employees.
The parties acknowledge that as of the Closing Date, the Transferred
Employees shall cease to be employees of Seller and shall become
employees of Buyer. Buyer shall be responsible for all claims, causes
of actions, judgments, damages, penalties and liabilities related to
the Transferred Employees arising from circumstances and occurrences
from and after the Closing Date. Prior to the Closing Date upon
reasonable prior notice to Seller, Buyer may communicate with any of
the Employees currently employed in the Business.
(c) Employee Information.
(i) Subject to applicable legal restrictions,
Buyer and Seller shall provide each other, in a timely manner,
with any information which the other may reasonably request
with respect to any Employee of Seller or, after the Closing,
any Person employed by Buyer in the Business, his employment
with and compensation from Seller or Buyer, or rights or
benefits under any Employee Plan or any personnel policy of
Seller or Buyer relating to the Business.
(ii) Without in any way limiting the generality
of Section 9.7(c)(i), and to the extent they may legally do
so, Seller shall afford Buyer and its representatives such
access to the medical, workers' compensation and other
health-related records
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of the Employees (the "Employee Health Records") as are
maintained by or available to Seller and as Buyer shall, in
its sole discretion, deem reasonably necessary or desirable,
and Buyer shall be permitted, to the extent Seller may legally
give such permission, to make copies of such Employee Health
Records as it may deem reasonably necessary or desirable.
Promptly after the date hereof, Seller shall use its best
efforts to obtain or cause to be obtained any consent of any
Employee, health care provider, workers' compensation
authority or other Person as may be necessary in order to
permit Seller to afford Buyer and its representatives with
access to and permission to copy Employee Health Records as
provided in this Section 9.7(c).
9.8 Environmental Inspection and Assessment; Compliance Actions.
(a) Inspection. Buyer intends to conduct an inspection
and environmental assessment of the Property, which shall include
so-called "Phase I" preliminary environmental audits of the Property
(i.e., walk-through site inspection and a review of Seller's records
regarding previous environmental violations, if any, and inspection of
environmental Permits and verification of compliance with the same) and
in the event that any of the foregoing procedures reveal any actual or
potential environmental conditions existing on, in, under or about the
Property or otherwise associated with the operation of the Business or
with the ownership, possession or use of any of the Acquired Assets
(each an "Environmental Condition"), such other testing as Buyer may
determine to be appropriate, including without limitation, so-called
"Phase II" environmental audits (the "Environmental Tests"). Buyer will
coordinate with Seller on the timing of the physical inspection and, if
deemed appropriate by Buyer, other testing. The parties (or their
representatives) will also agree on the implementation (e.g. timing,
locations, etc.) of the sampling program, provided that the parties'
consent shall not be unreasonably withheld. Buyer agrees to (i)
reasonably restore the Property to pre-test condition, and (ii)
indemnify and hold Seller harmless from all claims resulting from such
inspections and testing conducted by Buyer.
(b) Right to Indemnification. Without limiting any of
Buyer's rights set forth elsewhere in this Agreement, if Buyer has a
right to, but does not terminate this Agreement pursuant to Section
10.1(i), then, in accordance with Article XI, Buyer shall be entitled
to indemnification from Seller for any and all Liabilities and
Environmental Damages related to any Environmental Conditions revealed
by the Environmental Tests.
(c) Post-Closing Testing. During the six (6) month period
following the Closing Date, Buyer shall be entitled to perform such
other testing as Buyer may determine to be appropriate and which was
not completed prior to the Closing (the "Additional Testing"). If the
Additional Testing reveals any actual or potential Environmental
Conditions existing on, in, under or about any Property which is
subleased from Seller, Buyer shall have the option to terminate such
sublease.
(d) Nothing in this Section 9.8 shall limit Buyer's right
to seek indemnity under Article XI.
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9.9 Technical Support. For a period of 120 days following the
Closing Date, upon the request of Buyer, Seller shall, at Seller's sole cost and
expense, provide to Buyer, to the extent and in the manner heretofore provided
by Seller to the Business in connection with the usual course of the Business,
data and transaction processing support pursuant to the Transitional Services
Agreement.
ARTICLE X: TERMINATION
10.1 Termination. This Agreement and the transactions contemplated
hereby may be terminated at any time prior to the Closing upon the occurrence of
any of the following events:
(a) Mutual Consent. By mutual written consent of Seller
and Buyer;
(b) Closing Date. By Seller or Buyer if the Closing shall
not have occurred on or before June 30, 1998 (the "Termination Date");
(c) Seller Misrepresentation or Breach. By Buyer, if
there has been a material breach by Seller of any of its
representations, warranties, covenants, obligations or agreements set
forth in this Agreement or a materially adverse change reflected as a
result of an amendment or supplement to any schedule hereafter
delivered pursuant hereto by Seller;
(d) Buyer Misrepresentation or Breach. By Seller, if
there has been a material breach by Buyer of any of its
representations, warranties, covenants, obligations or agreements set
forth in this Agreement or in any writing delivered pursuant hereto by
Buyer;
(e) Court Order. By Seller or Buyer if consummation of
the transactions contemplated hereby shall violate any non-appealable
final order, decree or judgment of any court or Governmental Authority
having competent jurisdiction;
(f) Material Adverse Change. By Buyer, if since the
Balance Sheet Date there has been a material adverse change, or the
occurrence of a condition or event which might result in a material
adverse change, in the condition (financial or otherwise), business,
assets, properties or operations of the Business;
(g) Buyer's Conditions. By Buyer, if any condition
precedent to Buyer's obligation to effect the Closing as set forth in
Section 6.1 is not satisfied, or shall have become incapable of
fulfillment, and such condition is not waived, if waivable, by Buyer on
or prior to the Termination Date;
(h) Seller's Conditions. By Seller, if any condition
precedent to Seller's obligation to effect the Closing as set forth in
Section 6.2 is not satisfied, or shall have become incapable of
fulfillment, and such condition is not waived, if waivable, by Seller
on or prior to the Termination Date; or
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(i) Environmental Conditions. At Buyer's option exercised
within twenty-one (21) days after the date of this Agreement, if the
Environmental Tests reveal Environmental Conditions on the Properties,
the aggregate cost of remediation of which would exceed $500,000, as
determined in the reasonable and good faith discretion of the Buyer.
10.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 10.1, written notice thereof shall forthwith be given to the
other party and this Agreement shall thereafter become void and have no further
force and effect and all further obligations of Seller and Buyer under this
Agreement shall terminate without further liability of Seller or Buyer, except
that (a) each party will return all documents, workpapers and other material of
any other party relating to the transactions contemplated hereby, whether so
obtained before or after the execution hereof, to the party furnishing the same,
and all confidential information received by any party hereto with respect to
the business of any other party shall be treated in accordance with Section 7.4
and the Confidentiality Agreement (as hereinafter defined); (b) the obligations
of Seller and Buyer under Section 9.2 shall survive such termination; (c) if
this Agreement is terminated by Buyer pursuant to Section 10.1(i), Seller shall,
immediately upon receipt of documentation thereof from Buyer, pay to Buyer an
amount (not to exceed $125,000) equal to (i) the filing fees paid by Buyer in
connection with the H-S-R Act filings made pursuant to Section 4.3(d) and (ii)
the costs and expenses incurred by Buyer in connection with the Environmental
Tests; and (d) such termination shall not constitute a waiver by any party of
any claim it may have for damages caused by reason of, or relieve any party from
liability for, any breach of this Agreement prior to termination under Section
10.1.
ARTICLE XI: INDEMNIFICATION
11.1 Indemnification by Buyer. From and after the Closing, Buyer
shall indemnify, defend and hold Seller, its Affiliates, and their respective
directors, officers, representatives, employees and agents harmless from and
against any and all claims, actions, suits, demands, assessments, judgments,
losses, liabilities, damages, including, without limitation, consequential
damages, costs and expenses (including, without limitation, interest, penalties,
attorneys' fees to the extent permitted by law, and accounting fees and
investigation costs) (collectively, "Liabilities") that may be incurred by
Seller resulting or arising from or related to, or incurred in connection with:
(a) the failure of Buyer to assume, pay, perform and discharge the Assumed
Liabilities, (b) the failure of Buyer to report the purchase of the Acquired
Assets in accordance with the allocations required by Section 3.2, and (c) any
breach of any representation, warranty, covenant, obligation or agreement of
Buyer contained herein or in any other Transaction Document. "Liabilities" shall
be determined on a net after-tax basis and shall be net of and take into account
any insurance proceeds received by the indemnified party; provided, however,
that, if any such insurance proceeds are received by the indemnified party after
the date on which Liabilities are calculated, Liabilities shall be recalculated
and the indemnifying party shall receive the benefit of such recalculation.
11.2 Indemnification by Seller.
(a) General. From and after the Closing, Seller shall
indemnify, defend and hold Buyer, its Affiliates, and their respective
directors, officers, representatives, employees and agents harmless
from and against any and all Liabilities that may be incurred by Buyer
resulting or arising from, related to or incurred in connection with:
(i) the failure of Seller
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to assume, pay, perform and discharge the Retained Liabilities (except
those Retained Liabilities set forth in Section 2.2(e)(ii)), (ii) any
breach of any representation, warranty, covenant, obligation or
agreement of Seller contained herein or in any other Transaction
Document (other than the representation or warranty contained in
Section 5.1(u) hereof), and (iii) any violation of the Bulk Transfer
Laws.
(b) Environmental Indemnification. Seller agrees to
indemnify, defend, reimburse and hold harmless Buyer, its Affiliates
and their respective directors, officers, representatives, employees
and agents from and against any and all Liabilities and Environmental
Damages arising from (i) the presence, use, generation, storage,
treatment, discharge, release or disposal (including off-site disposal)
of Hazardous Materials upon, about, from or beneath the Property or
migrating to or from the Property, or arising in any manner whatsoever
out of the violation of any Environmental Requirements pertaining to
the Property and the activities thereon, in each case to the extent
that such Environmental Damages or violation of any Environmental
Requirements are attributable to, or the result of, any act or omission
by Seller prior to the Closing Date, (ii) the failure of Seller to pay
perform and discharge the Retained Liabilities set forth in Section
2.2(e)(ii), or (iii) a breach of the representation and warranty
contained in Section 5.1(u). This obligation to indemnify shall
include, but not be limited to, the expense of defending all claims,
suits and administrative proceedings (with counsel reasonably approved
by the indemnified parties), even if such claims, suits or proceedings
are groundless, false or fraudulent, and paying and discharging, when
and as the same become due, any and all judgments, penalties or other
sums due against such indemnified Persons; provided, however, that any
clean-up or remediation of any environmental condition shall only be
done pursuant to a plan (the "Plan") that (x) is prepared by a
nationally recognized environmental remediation consulting firm that is
mutually selected by, in the good faith of, Seller and Buyer, and (y)
is mutually acceptable to, in the good faith of, Buyer and Seller, and
(z) at a minimum, complies with all Environmental Requirements and
rectifies the issues identified in the Plan in a commercially
reasonable manner. The procedures described in Section 11.3 shall apply
to any claim solely for monetary damages relating to a matter covered
by this Section.
11.3 Notice of Claim; Right to Participate in and Defend Third
Party Claim.
(a) If any indemnified party receives notice of the
assertion of any claim, the commencement of any suit, action or
proceeding, or the imposition of any penalty or assessment by a third
party in respect of which indemnity may be sought hereunder (a "Third
Party Claim"), and the indemnified party intends to seek indemnity
hereunder, then the indemnified party shall promptly provide the
indemnifying party with prompt written notice of the Third Party Claim,
but in any event not later than 15 calendar days after receipt of such
notice of Third Party Claim. The failure by an indemnified party to
notify an indemnifying party of a Third Party Claim shall not relieve
the indemnifying party of any indemnification responsibility under this
Article XI, unless such failure materially prejudices the ability of
the indemnifying party to defend such Third Party Claim.
(b) The indemnifying party shall have the right to
control the defense, compromise or settlement of the Third Party Claim
with its own counsel (reasonably
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satisfactory to the indemnified party) if the indemnifying party
delivers written notice to the indemnified party within seven days
following the indemnifying party's receipt of notice of the Third Party
Claim from the indemnified party acknowledging its obligations to
indemnify the indemnified party with respect to such Third Party Claim
in accordance with this Article XI, and establishes security in form
and substance reasonably satisfactory to the indemnified party to
secure the indemnifying party's obligations under this Article XI with
respect to such Third Party Claim (it being agreed that an amount held
in escrow in an amount in excess of the Third Party Claims shall be
deemed to be sufficient security); provided, however, that the
indemnifying party shall not enter into any settlement of any Third
Party Claim which would impose or create any obligation or any
financial or other liability on the part of the indemnified party if
such liability or obligation (i) requires more than the payment of a
liquidated sum, or (ii) is not covered by the indemnification provided
to the indemnified party hereunder. In its defense, compromise or
settlement of any Third Party Claim, the indemnifying party shall
timely provide the indemnified party with such information with respect
to such defense, compromise or settlement as the indemnified party
shall request, and shall not assume any position or take any action
that would impose an obligation of any kind on, or restrict the actions
of, the indemnified party. The indemnified party shall be entitled (at
the indemnified party's expense) to participate in the defense by the
indemnifying party of any Third Party Claim with its own counsel.
(c) Any indemnifiable claim hereunder that is not a Third
Party Claim shall be asserted by the indemnified party by promptly
delivering notice thereof to the indemnifying party. If the
indemnifying party does not respond to such notice within 60 days after
its receipt, it shall have no further right to contest the validity of
such claim.
11.4 Time Limitations on Claims for Indemnification. The right of
Buyer to indemnification under Section 11.2(b) or for any breach of any
representation or warranty under Section 11.2(a)(ii) shall apply only to those
claims for indemnification which are given pursuant to this Agreement on or
before two years following the Closing Date.
11.5 Maximum and De Minimis Amounts and Other Matters.
(a) The maximum amount of indemnification which can be
required of Seller under Section 11.2(a)(ii) or 11.2(b) shall not
exceed $5,000,000 for all claims for indemnification which are given
pursuant to this Agreement on or before the first anniversary of the
Closing Date and $2,500,000 for all claims for indemnification which
are given pursuant to this Agreement thereafter.
(b) Seller shall not be required to indemnify, defend or
hold Buyer harmless from and against any Liabilities under Section
11.2(a)(ii) with respect to any breach of any representation or
warranty and Section 11.2(b), unless and until the amount of such
Liabilities equals or exceeds $250,000 (the "Seller Threshold Amount"),
in which event Seller shall be obligated to indemnify Buyer for amounts
in excess of the Seller Threshold Amount.
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(c) Buyer shall not be required to indemnify, defend or
hold Seller harmless under Section 11.1(c), unless and until the amount
of such Liabilities equals or exceeds $250,000 in the aggregate (the
"Buyer Threshold Amount"), in which event Buyer shall be obligated to
indemnify Seller for amounts in excess of the Buyer Threshold Amount.
(d) All claims by Buyer with respect to indemnification
hereunder shall first be satisfied from amounts held pursuant to the
Indemnity Escrow Agreement.
11.6 Dispute Resolution.
(a) In the event that any party to this Agreement has any
claim, right or cause of action against any other party to this
Agreement, which the parties shall be unable to settle by agreement
between themselves, such claim, right or cause of action, to the extent
that the relief sought by such party is for monetary damages or awards,
shall be determined by arbitration in accordance with the provisions of
this Section 11.6.
(b) The party or parties requesting arbitration shall
serve upon the other or others a demand therefor, in writing,
specifying the matter to be submitted to arbitration, and nominating a
competent disinterested person to act as an arbitrator. Within thirty
(30) days after receipt of such written demand and nomination, the
other party or parties shall, in writing, nominate a competent
disinterested person, and the two (2) arbitrators so designated shall,
within thirty (30) days thereafter, select a third arbitrator. The
three (3) arbitrators shall give immediate written notice of such
selection to the parties and shall fix in said notice a time and place
of the meeting of the arbitrators which shall be as soon as
conveniently possible (but in no event later than 15 days after the
appointment of the third arbitrator), at which time and place the
parties to the controversy shall appear and be heard with respect to
the right, claim or cause of action.
(c) In case the notified party or parties shall fail to
make a selection upon notice within the time period specified, the
party asserting such claim shall appoint an arbitrator on behalf of the
notified party. In the event that the first two (2) arbitrators
selected shall fail to agree upon a third arbitrator within thirty (30)
days after their selection, then such arbitrator may, upon application
made by either of the parties to the controversy, be appointed by any
judge of any United States court of record.
(d) Each party shall present such testimony, examinations
and investigations in accordance with such procedures and regulations
as may be determined by the arbitrators and shall also recommend to the
arbitrators a monetary award to be adopted by the arbitrators as the
complete disposition of such claim, right or cause of action. After
hearing the parties in regard to the matter in dispute, the arbitrators
shall adopt as their determination with respect to such claim, right or
cause of action, within sixty (60) days of the completion of the
examination, by majority decision signed in writing (together with a
brief written statement of the reasons for adopting such
recommendation), one of the recommendations submitted by the parties to
the dispute and shall grant no other relief or remedy. The decision of
said arbitrators, absent fraud, duress or manifest error, shall be
final and binding upon the parties to such controversy and may be
enforced in any court of competent jurisdiction.
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(e) The expense and cost of such arbitration shall be
borne by the party or parties whose recommendation was not adopted by
the arbitrators. Each party shall pay the fees and expenses of its own
counsel.
(f) Notwithstanding any other provisions of this Section
11.6, in the event that a party against whom any claim, right or cause
of action is asserted commences, or has commenced against it,
bankruptcy, insolvency or similar proceedings, which remain pending,
the party or parties asserting such claim, right or cause of action
shall have no obligations under this Section 11.6 and may assert such
claim, right or cause of action in the manner and forum it deems
appropriate, subject to applicable laws. No determination or decision
by the arbitrators pursuant to this Section 11.6 shall limit or
restrict the ability of any party hereto to obtain or seek in any
appropriate forum, any relief or remedy that is not a monetary award or
money damages.
ARTICLE XII: MISCELLANEOUS
12.1 Amendments. This Agreement may be amended only by a writing
executed by all of the parties hereto;
12.2 Entire Agreement. This Agreement, the Confidentiality
Agreement dated January 23, 1998, between Seller and Buyer (the "Confidentiality
Agreement"), and the other agreements expressly provided for herein, set forth
the entire understanding of the parties hereto with respect to the subject
matter hereof, and supersede all prior contracts, agreements, arrangements,
communications, discussions, representations and warranties, whether oral or
written, between the parties.
12.3 Governing Law. This Agreement shall in all respects be
governed by and construed in accordance with the laws of the State of Ohio,
without regard to its conflicts of law doctrine.
12.4 Notices. Any notice, request or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given (a) when received if personally delivered, (b) within 5 days after being
sent by registered or certified mail, return receipt requested, postage prepaid,
(c) within 12 hours after being sent by telecopy, with confirmed answerback, or
(d) within 1 business day of being sent by priority delivery by established
overnight courier, to the parties at their respective addresses set forth below.
To Seller: General Rental, Inc.
c/o Xxxxxx X. Xxxx & Company
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
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With a copy to: Xxxxxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
To Buyer: NationsRent, Inc.
000 X. Xxx Xxxx Xxxx.
Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Executive Vice President
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxxxxxxx Xxxxxx
00 X. Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Any party by written notice to the others given in accordance with this Section
12.4 may change the address or the Persons to whom notices or copies thereof
shall be directed.
12.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same instrument.
12.6 Assignment. This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of each party hereto, but, except as
provided in Section 1.4, no rights, obligations or liabilities hereunder shall
be assignable by any party without the prior written consent of the other
parties.
12.7 Waivers. Except as otherwise provided herein, Buyer or Seller
(acting on behalf of itself and its appropriate Affiliates), may waive in
writing compliance by any of the other parties hereto (to the extent such
compliance is for the benefit of the party giving such waiver) with any of the
terms, covenants or conditions contained in this Agreement or in any of the
other Transaction Documents (except such as may be imposed by law). Any waiver
by any party of any violation of, breach of, or default under, any provision of
this Agreement or any of the other Transaction Documents, by any other party
shall not be construed as, or constitute, a continuing waiver of such provision,
or waiver of any other violation of, breach of or default under any other
provision of this Agreement or any of the other Transaction Documents.
12.8 Third Parties. Nothing expressed or implied in this Agreement
is intended, or shall be construed, to confer upon or give any Person or entity
other than Buyer and Seller any rights or remedies under or by reason of this
Agreement.
12.9 Schedules, Addenda and Exhibits. The Schedules, Addenda and
Exhibits attached to this Agreement are incorporated herein and shall be part of
this Agreement for all purposes.
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12.10 Headings. The headings in this Agreement are solely for
convenience of reference and shall not be given any effect in the construction
or interpretation of this Agreement.
12.11 Certain Definitions. For purposes of this Agreement and any of
the Transaction Documents:
(a) the term "Affiliate" shall mean any Person that
directly, or indirectly through one or more Persons, controls, is
controlled by, or is under common control with, the Person specified
or, directly or indirectly, is related to or otherwise associated with
any such Person or entity;
(b) the term "Subsidiary" shall mean, as to any Person,
any corporation, or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board
of directors or other Persons performing similar functions are at the
time directly or indirectly owned by such Person, corporation, or other
such entity;
(c) the phrase, "to the best of the Seller's knowledge"
or "Seller's knowledge" shall be deemed to include all information that
is actually known or, in the exercise of reasonable diligence in the
normal course of their employment and/or assigned duties, should be
known, by each of the following individuals: (i) the following officers
of Seller: Xxxxxx X. Xxxx, Xxxxxx XxXxxxxxx, and all management or
supervisory personnel who are (or, at any time since January 1, 1998,
were) employed or retained by the Seller or any of its Affiliates and
whose principal place of performance of their duties was at 0000 X.X.
00xx Xx., Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx, 00000, whether or not such
individuals were or are also officers, directors of employees of the
Seller or any of its Affiliates, and (ii) all other individuals
employed or retained by the Seller or any of its Affiliates who have
(or should have) exercised by reason of their position,
responsibilities or duties, the principal supervisory, monitoring or
compliance function with respect to any of the particular subject
matters addressed by the representations and warranties set forth in
Article V of this Agreement; and
(d) the term "claim" shall mean a right to payment,
whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured; or right to an
equitable remedy for breach of performance if such breach gives rise to
a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured, or unsecured.
12.12 Remedies Not Exclusive. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any other
remedy and each remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or hereafter existing at law or in equity or by
statute or otherwise. No remedy shall be deemed to be a limitation on the amount
or measure of damages resulting from any breach of this Agreement. The election
of any one or more remedies shall not constitute a waiver of the right to pursue
other available remedies.
12.13 Gender and Number. The masculine, feminine or neuter gender
and the singular or plural number shall each be deemed to include the others
whenever the context so indicates.
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IN WITNESS WHEREOF, the parties have caused their duly
authorized representatives to execute this Agreement as of the date first above
written.
GENERAL RENTAL, INC. NATIONSRENT, INC.
By: /s/ Xxxxxx XxXxxxxxx By: /s/ Xxxxxxxx X. Xxxxx
--------------------------- ----------------------------
Name: Xxxxxx XxXxxxxxx Name: Xxxxxxxx X. Xxxxx
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Title: Vice President Title: Vice President
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