EXHIBIT 10.05
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ASSET PURCHASE AGREEMENT
BETWEEN
XXXXXXX ENERGY SYSTEMS OF AMERICA, INC.
AS BUYER
AND
XXXXXX X. XXXXX
AND
XXXXX'X FILTER SERVICE, INC.
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RELATED TO SUBSTANTIALY ALL OF THE
ASSETS OF THE BUSINESS CONDUCTED AS
XXXXX'X FILTER SERVICE, INC.
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MAY 29, 2002
This Asset Sale and Purchase Agreement ("Agreement") is made this 29th
day of May, 2002, by and between XxXxxxx Energy Systems of America, Inc.
("Purchaser" or "Buyer") and Xxxxxx X. Xxxxx and Xxxxx'x Filter Service Inc.
(Collectively referred to as the "Seller").
INTRODUCTION
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Seller desires to sell and Purchaser desires to purchase certain assets
of Seller on the terms and conditions set forth in this Agreement. In
consideration of the mutual promises of the parties; in reliance on the
representations, warranties, covenants and conditions contained in this
Agreement; and for other good and valuable consideration, the parties agree as
follows:
1. Purchase and Sale. Seller agrees to sell, convey, transfer,
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assign and deliver to Purchaser, and Purchaser agrees to purchase from Seller,
all of the following assets (the "Business Assets") of Seller:
(a) "Tools, Trade Fixtures and Vehicles" consisting of tools
of the trade, trade fixtures and vehicles being further
identified by the inventory set forth as Exhibit A and
incorporated herein by this reference as if fully set
forth at length.
(b) "Office Furniture, Fixtures and Leasehold Improvement"
consisting of all office furniture, fixtures and leasehold
improvements located at Seller's offices and being further
identified by the inventory set forth as Exhibit A and
incorporated herein by this reference as if fully set
forth at length.
(c) "Computer Equipment" consisting of all computer and
periphal equipment located at Seller's offices and being
further identified by the inventory set forth as Exhibit A
and incorporated herein by this reference as if fully set
forth at length.
(d) "Phone System" consisting of all phone numbers utilized by
the business as well as all phones at Seller's offices and
being further identified by the inventory set forth as
Exhibit A and incorporated herein by this reference as if
fully set forth at length.
(e) "Assigned Contracts" all contracts currently held in the
name of Seller, references to which are attached hereto as
Exhibit B and incorporated herein by this reference as if
fully set forth at length.
(f) "Cutomer Lists" all documentation (whether in written,
electronic or other form) related to existing, past and
prospective customers, references to which are attached
hereto as Exhibit B and incorporated herein by this
reference as is fully set forth at length.
(g) "Inventory" all supplies and existing inventory of the
business including but not limited to filters and other
supplies set forth in a schedule in Exhibit C.
(h) "Purchasing Records and Business Documentation" all of
Seller's rights and interests in and to any contracts,
agreements, accounts or purchase orders identified in
Exhibit C.
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(i) All papers and records (whether in written, electronic or
other form) of any kind presently in or in the future
coming into the care, custody or control of Seller
relating to any of the Business Assets sold to Purchaser
pursuant to this Agreement, including but not limited to:
all supplier lists, promotional materials, customer files,
service agreements and any other documentation regarding
the Business Assets or Assigned Contracts.
(j) "Intellectual Property" all Seller's right, title and
interest in the name "Xxxxx'x Filter Service" and any
copyrights, trademarks and patent rights as well as any
trade secret, confidential and proprietary information
related to the business.
(k) "Goodwill" all goodwill associated with the business.
2. Purchase Price.
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2.1 In consideration for the transfer to the Buyer of the Business
and the Business Assets, the Buyer will pay to the Seller an aggregate purchase
price of $150,000. Seller hereby acknowledges payment of $5,000 previously made
to Seller upon execution of the May 14, 2002 Letter of Intent.
(a) The Purchase Price will be paid as follows:
(i) A Cash Payment of $145,000 shall be payable at the
Closing by delivery of a cashier's check or by wire
transfer of immediately available funds in
accordance with the Seller's written instructions;
(b) The Purchase Price has been determined on the basis of the
Business Assets as reflected in the Current Financials and consists of the
following:
(i) $_______ for the Inventory;
(ii) $_______ for the Accounts Receivable;
(iii) $_______ for the Equipment; and
(iv) $_______ for the Proprietary Rights,
other Business Assets
$150,000 Total
2.2 Adjustment to Purchase Price. The Purchase Price will be
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adjusted by the amount, if any, of any Material Reduction or any Material
Increase in the stated book value of the Inventory, the Accounts Receivable,
and/or the Equipment at the Closing Date, as reflected in the then current
accounting records of the Seller. On or immediately prior to the Closing Date,
the Buyer will be entitled to review the then current accounting records of the
Seller and to undertake a physical inventory of the Business Assets at all
locations where Business Assets are located in order to confirm the existence of
the Business Assets and the book value of the Inventory, the Accounts
Receivable, the Real Property, and the Equipment at such date.
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If, on the basis of such review and inventory, the Buyer determines that there
is a Material Reduction or a Material Increase in the book value of the
Inventory, the Accounts Receivable, the Real Property, and/or the Equipment, it
will so notify the Seller and the Purchase Price will be reduced or increased by
an amount equal to the Material Reduction or the Material Increase, as the case
may be; and, in such event, the Closing Payment will be reduced or increased by
the amount of the adjustment in the Purchase Price. If the Seller objects to the
reduction or increase, if any, determined by the Buyer, then the Seller and the
Buyer will attempt to resolve the matter or matters in dispute. If such dispute
cannot be resolved by the Seller and the Buyer by the scheduled Closing Date,
then the scheduled Closing Date will be postponed by 30 Business Days and,
during such period of postponement, the specific matters in dispute will be
submitted to an accounting firm as may be approved by the Seller and the Buyer,
with the request that such firm render its opinion as to such matters as soon as
practicable. Based on such opinion, such accounting firm will be requested to
provide its determination on the specific matters in dispute, and such
determination will be final and binding on the Seller and the Buyer. Promptly
after receipt of the determination of such firm, the Seller and the Buyer shall
complete the Closing (subject to the satisfaction of the conditions to Closing
set forth in this Agreement) and the Purchase Price shall be based on the
determination of the accounting firm requested to make such determination. The
foregoing notwithstanding, under no circumstances will the Buyer be obligated to
pay a Purchase Price that exceeds $150,000; and in the event of a Material
Increase that would result in the Purchase Price exceeding $150,000, the Buyer,
at its election, shall be entitled to either pay the Purchase Price, as
increased pursuant to this Section, or to terminate this Agreement without
penalty.
2.2(b) Notwithstanding any provision to the contrary the Seller and
Buyer agree that (i) the Inventory shall include such cost allocations as are
required by IRC Section 263A and (ii) for all Inventory that Buyer contends is
obsolete by reason of age, Buyer will identify by May 24, 2002, and disclose
such obsolete inventory in writing to Seller.
2.3 Allocation of the Purchase Price. The Purchase Price shall be
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allocated among the Business Assets by the Buyer and the Seller as set forth in
this section. In respect to such allocation, the Seller and the Buyer agree as
follows:
(a) Such allocation of the Purchase Price will be reflected in form
8594 that will be filed by the Buyer and the Seller in accordance with Section
1060 of the IRC, with such adjustments as may be necessary pursuant to Section
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2.1(b); and
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(b) The Buyer and the Seller agree to treat and report in filings
under the IRC (and, if necessary, to cause each of their respective Affiliates
to so treat and report) the transactions contemplated by this Agreement in a
manner consistent with one another.
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2.4 Liabilities Not Assumed by the Buyer. The Seller shall pay and
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discharge in due course all of its Debt and perform and discharge in due course
all of its obligations relating to the Business or the Business Assets, whether
known or unknown, now existing or hereafter arising, contingent or liquidated,
including, without limitation, the liabilities and obligations set forth in
clauses (a) through (f) below (collectively, the "Retained Liabilities"), and
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the Buyer shall not assume, or in any way be liable or responsible for, any of
such Retained Liabilities. Without limiting the generality of the foregoing, the
Retained Liabilities shall include the following:
(a) Bank or Credit Card Debt;
(b) all Accounts Payable and Trade Payables of the Seller existing,
accrued, or created prior to the Closing Date;
(c) any liability or obligation of the Seller arising out of or in
connection with the negotiation and preparation of this Agreement and the
consummation and performance of the transactions contemplated hereby, whether or
not such transactions are consummated;
(d) any liability or obligation for any and all Taxes of, or
pertaining or attributable to, (i) the Seller for any period that ends on or
before the Closing Date, or (ii) the Business and/or the Business Assets for any
period or portion thereof that ends on or before the Closing Date (including,
but in no way limited to, any and all Taxes described in clauses (i) and (ii) of
this Section for which liability is or may be sought to be imposed on the Buyer
under any successor liability, transferee liability, or similar provision of any
applicable Law);
(e) any liability to which any number of the parties may become
subject as a result of the fact that the transactions contemplated by this
Agreement are being effected without compliance with the bulk sales provisions
of the Uniform Commercial Code as in effect in any state or any similar statute
as enacted in any jurisdiction; and
(f) all other liabilities and obligations of any Person arising
prior to the Closing that are related to the conduct or operation of the
Business or the Business Assets on or prior to the Closing Date.
2.5 Prorations of Expenses and Certain Property Taxes.
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(a) The Seller warrants that the Business Assets are not, and
covenants that on the Closing Date the Business Assets will not be, subject to
or liable for any special assessments or similar types of impositions. Any
general property Tax assessed against or pertaining to the Business Assets for
the taxable period that includes the Closing Date shall be prorated between the
Buyer and the Seller as of the Closing Date. In the event the amount of any such
general property Tax cannot be ascertained as of the Closing Date, proration
shall be made on the basis of the preceding year, the Buyer shall receive a
credit against the Purchase Price (which shall be applied to the Closing
Payment) on the Closing Date for the Seller's pro rata portion of such general
property Taxes, and to the extent that such proration may be inaccurate the
Seller and the Buyer agree to make such payment to the other after the Tax
statements from the appropriate Governmental Authorities have been received as
is necessary to allocate such general property Tax properly between the Seller
and the Buyer as of the Closing Date.
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(b) Except as otherwise provided in this Agreement, the Seller and
the Buyer agree that amounts payable with respect to utility charges and other
items of expenses attributable to the conduct of the Business shall be prorated
as of the Closing Date to the extent the charges and expenses cannot be
identified as to the party that received the benefits to which such charges and
expenses relate. To the extent such amounts are estimated on the Closing Date
and such prorations are inaccurate, the Seller and the Buyer agree to make such
payment to the other after such amounts are correctly computed as is necessary
to allocate such charges properly between the Seller and the Buyer as of the
Closing Date.
2.6 Transfer Taxes; Recording Fees.
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(a) The Buyer and the Seller acknowledge and agree that the Purchase
Price includes and is inclusive of any and all sales, use, transfer, or other
similar Taxes imposed as a result of the consummation of the transactions
contemplated by this Agreement and the Seller hereby agrees to indemnify the
Buyer against, and agrees to protect, save, and hold the Buyer harmless from,
any loss, liability, obligation, or claim (whether or not ultimately successful)
for sales, use, transfer, or other similar Taxes (and any interest, penalties,
additions to Tax, and fines thereon or related thereto) imposed as a result of
the consummation of the transactions contemplated by this Agreement.
(b) The Buyer shall pay any and all recording, filing, or other fees
relating to the conveyance or transfer of the Business Assets from the Seller to
the Buyer.
3. Closing. The parties agree to use their best efforts to
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consummate this transaction (the "Closing"). The Closing shall take place at the
offices of West Short and Associates, P.C. at 000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxx 00000 on May 24, 2002, at 10:00 a.m., or at such other time,
date and place mutually agreed upon in writing by Seller and Purchaser ("Closing
Date"). In either event, all terms and conditions to the Closing of this
Agreement shall have been met at least two hours prior to the Closing Date and
time.
4. Effective Date. The Effective Date of the Closing of this
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transaction shall be at the close of business on the Closing Date, or at such
other time, date and place mutually agreed upon in writing by Seller and
Purchaser.
5. Seller's Representations and Warranties. Seller represents and
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warrants to Purchaser that the following facts and circumstances are and at all
times up to and including the Effective Date will be true and correct:
(a) Seller has all requisite power and authority to own, operate and
carry on its business as now being conducted.
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(b) Seller is the sole owner of the Business Assets with full right
to sell or dispose of said assets as Seller may choose. No other person or
persons have any claim, right, title, interest or lien in, to or on Seller, or
any of the Business Assets described hereinabove. Seller shall provide to
Purchaser prior to Closing UCC searches evidencing no liens on the Business
Assets.
(c) All federal, state, local, and foreign income, ad valorem,
excise, sales, use, payroll, unemployment, and other taxes and assessments
("Taxes") that are due and payable by Seller on behalf of Seller as they relate
to its business have been properly computed, duly reported, fully paid, and
discharged. There are no unpaid Taxes that are or could became a lien on the
Business Assets, except for current Taxes not yet due and payable. Seller has
not incurred any liability for penalties, assessments, or interest under the
Internal Revenue Code. No unexpired waiver executed by or on behalf of Seller
with respect to any Taxes is in effect.
(d) Seller has good and marketable title to all of the Business
Assets. All of the Business Assets that are the subject of this Agreement are
free and clear of mortgages, liens, pledges, charges, encumbrances, equities,
claims, easements, rights of way, covenants, conditions, and restrictions.
(e) Seller is not in default or in violation of any law, regulation,
court order, or order of any federal, state, municipal, foreign, or other
government department, board, bureau, agency, or instrumentality, wherever
located, that could negatively impact the Business Assets.
(f) Seller has full power and authority to execute, deliver, and/or
consummate this Agreement, subject to the conditions to Closing set forth in
this Agreement. All reports and returns required to be filed by Seller with any
governmental and regulatory agency with respect to this transaction have been
properly filed. Except as otherwise disclosed in this Agreement, no notice to or
approval by any other person, firm, entity, including governmental authorities,
is required by Seller to consummate the transaction contemplated by this
Agreement.
(j) Seller has not retained, consented to or authorized any broker
investment banker or third party to act on Seller's behalf, directly or
indirectly, as a broker or finder in connection with the transactions
contemplated by this Agreement, nor entered into any agreement for the payment
of any finder's fee, broker's commission or any similar compensation in
connection with this Agreement.
(k) Seller occupies the premises at ___________________, Xxxx, Xxxxx
00000 (the "Leasehold Interest") pursuant to a valid and existing lease (the
"Real Property Lease") and has obtained an assignment of the lease to Purchaser
from the Landlord that has been prvided to Purchaser prior to Closing. The
Seller either owns the improvements and fixtures located on the Leasehold
Interest or validly occupies and uses such improvements and fixtures in
accordance with the terms of the Leasehold Interest, in each case free and clear
of all Liens. A true and complete copy of the Real Property Lease, which is the
only Lease governing the Leasehold Interest, as amended to date and including
any letter agreements relating thereto, has been furnished by the Seller to the
Buyer.
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(l) The Seller has caused to be delivered to the Buyer the Current
Financials of the Seller. The Current Financials were prepared in accordance
with GAAP and present fairly the financial condition, results of operations,
changes in shareholders' equity, and cash flow of the Seller as of, and for the
fiscal year ending on, the dates thereof. To the Knowledge of the Seller, there
were no material liabilities, direct or indirect, fixed or contingent, of the
Seller as of the dates of the Current Financials which are not reflected
therein. There have been no material adverse changes in the financial condition
of the Seller from that shown in the Current Financials between such dates and
the Effective Date, nor to the Knowledge of the Seller, has the Seller incurred
any material liability, direct or indirect, fixed or contingent, between the
dates of the Current Financials and the Effective Date other than in the
Ordinary Course of Business.
(m) All Accounts Receivable represent or will represent valid
obligations arising from sales actually made or services actually performed in
the Ordinary Course of Business. Unless paid prior to the Closing Date, the
Accounts Receivable are or as of the Closing Date will be current and
collectable, net of the reserves, if any, shown on the Current Financials or on
the accounting records of the Company as of the Closing Date (which reserves are
adequate and calculated consistent with past practice and, in the case of the
reserve as of the Closing Date, will not represent a greater percentage of the
Accounts Receivable as of the Closing Date than the reserve reflected on the
Current Financials represented of the Accounts Receivable reflected therein and
will not represent a material adverse change in the composition of such Accounts
Receivable in terms of aging). Subject to such reserves, each of the Accounts
Receivable either has been or will be collected in full without any set-off,
within 90 days after the date on which it first becomes due and payable. There
is no contest, claim, or right of set-off under any Contract with any obligor of
any Accounts Receivable relating to the amount or validity of such Accounts
Receivable.
(n) The Seller is in compliance in all material respects with each
Law that is or was applicable to the Seller or to the conduct or operation of
the Business or the ownership or use of the Business Assets, (b) no event has
occurred or circumstance exists that (with or without notice or lapse of time)
(i) may constitute or result in a violation by the Seller of, or a failure on
the part of the Seller to comply with, any Law, or (ii) may give rise to any
obligation on the part of the Seller to undertake, or to bear all or any portion
of the cost of, any remedial action of any nature, and (c) the Seller has not
received any notice or other communication (whether written or oral) from any
Governmental Authority or any other Person regarding (i) any actual, alleged,
possible, or potential violation of, or failure to comply with, any Law, or (ii)
any actual, alleged, possible, or potential obligation on the part of the Seller
to undertake, or to bear all or any portion of the cost of, any remedial action
of any nature.
(o) There is no actual pending Litigation (a) that has been
commenced by or against the Seller or that otherwise relates to or may affect
the Business, or (b) that challenges, or that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, this Agreement or the
transactions contemplated hereby. To the Knowledge of the Seller, (x) no such
Litigation has been threatened and (y) no event has occurred or circumstance
exists that may give rise to or serve as a basis for the commencement of any
such Litigation.
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(p) Since the date of the Current Financials, there has not been any
material adverse change in the Business, and, to the Knowledge of the Seller, no
event has occurred or circumstance exists that reasonably would be expected to
result in such a material adverse change.
(q) All Inventory, whether or not reflected in the Current
Financials, consists of a quality or quantity usable and/or salable in the
Ordinary 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 Current Financials or will be written off or written
down on the accounting records of the Seller as of the Closing Date. The
quantities of each item of Inventory are not excessive, but are reasonable in
the present circumstances of the Seller.
6. Purchaser's Representations and Warranties. Purchaser hereby
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represents and warrants to Seller:
(a) Purchaser has full power and authority to execute, deliver, and
consummate this Agreement subject to the conditions to Closing set forth in this
Agreement. All corporate acts, reports, and returns required to be filed by
Purchaser with any government or regulatory agency with respect to this
transactions have been or will be properly filed prior to the Closing Date. No
provisions exist in any contract, document, or other instrument to which
Purchaser is a party or by which Purchaser is bound that would be violated by
consummation of the transactions contemplated by this Agreement.
(b) Neither Purchaser, nor any of Purchaser's officers, directors,
or employees, has retained, consented to, or authorized any broker, investment
banker, or third party to act on its behalf, directly or indirectly, as a broker
or finder in connection with the transactions contemplated by this Agreement.
7. Seller's Covenants. Seller covenants with Purchaser that from
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and after the date of this Agreement until the Closing Date, Seller shall:
(a) Operate its business and conduct its activities in the normal
course of business and not introduce any material new method of management,
operation, or accounting.
(b) Maintain all the Business Assets in as good a state of operating
condition and repair as they are on the date of this Agreement, except for
ordinary depreciation, wear, and tear.
(c) Not sell, pledge, lease, mortgage, encumber, dispose of, or
agree to do any of these acts regarding any of the Business Assets without the
prior written approval of Purchaser.
(d) Use its best efforts to preserve intact the present Customers of
Seller and the goodwill of all Customers and others with respect to the
business.
(e) Perform all of its obligations and not make any material
amendment to its obligations under all agreements relating to or affecting
Seller's customers identified in the Assigned Contracts and the Business Assets.
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(g) Promptly notify Purchaser in writing of any outstanding or
threatened claims; legal, administrative, or other proceedings, suite,
investigations, inquiries, complaints, notices of violation, or other process;
or other judgments, orders, directives, injunctions, or restrictions against or
involving Seller or its personnel that could adversely affect the Business
Assets.
(h) Assist and cooperate with Purchaser in resisting any claim of
any broker, investment banker, or third party for any brokerage fee, finder's
fee, or commissions against Purchaser or Seller in connection with the
transactions contemplated by this.
(i) Coordinate any written publicity regarding this transaction with
Purchaser.
(j) Not modify, amend, cancel, or terminate any of Seller's existing
contracts or agreement, or agree to do so.
(k) Furnish to Purchaser clearance certificates from the appropriate
agencies to all states where Seller is qualified to do business and any related
certificates that Purchaser may reasonably request as evidence that all sales,
use, and other tax liabilities of Seller (other than income tax liabilities)
accruing before the Closing Date have been fully satisfied or provided for by
Seller.
(l) No negotiation with any other person or entity for the sale of
the Business Assets.
(m) Pay all employee accrued but unpaid wages, bonuses, commissions,
or reimburseable expenses (collectively, the "Outstanding Compensation"). Seller
will pay any Outstanding Compensation, including but not limited to commissions,
to its former employees no later than ten (10) days after the Closing Date.
(n) Provide training and expertise to Purchaser and Purchaser's
employees on an as needed basis for a period of time of twelve months after
closing, such training and expertise shall not exceed ten hours per month and
shall include sales related expertise needed to develop sales channels.
(o) Provide assistance as needed for the collection of any accounts
receivable conveyed to Purchaser.
(p) Dissolve within thirty days of the closing date the corporate
entity Xxxxx'x Filter Service, Inc. and any related corporations.
8. Non-competition Agreements.
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(a) For a period of five (5) years from the Effective Date, Seller,
including Xxxxxx X. Xxxxx individually, shall not, directly or indirectly,
either as an employee, employer, consultant, agent, principal, partner,
stockholder, corporate officer, director, or in any other individual or
representative capacity, engage or participate in any business which engages in
a filter service business or seeks to solicit any business from the Customers,
or any customers being provided service by Purchaser or its successors or any
potential customers of Purchaser. The parties hereto acknowledge and agree that
the geographical area subject to this agreement not to compete encompasses the
counties of central Texas including McLennan County and all counties adjacent to
McLennan County. Seller acknowledges that the limitations expressed herein as to
time, geographical area and scope of activity are reasonable and do not impose a
greater restraint than is necessary to protect the business interests of
Purchaser under this Agreement. Seller hereby acknowledges receipt fo the $5,000
xxxxxxx money as compensation for this covenant not to compete and further
represents that such amount is fair and adequate compensation for the this
covenant not to compete.
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9. Seller's Obligations at Closing. At the Closing, Seller shall
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execute and deliver to Purchaser:
(a) A xxxx of sale in a form substantially similar to the
document attached hereto as Exhibit D, and acceptable to
Purchaser, sufficient to convey to Purchaser all rights,
title and interest in and to all of the Business Assets
being sold to Purchaser under the terms of this Agreement.
(b) All documentation in the possession of Seller necessary to
operate and to use all Business Assets being sold to
Purchaser under the terms of this Agreement, including but
not limited to all Customer files and service agreements,
and all contracts or reports currently in use by Seller.
(c) Original certificates of title to all vehicles listed on
Exhibit A.
10. Purchaser's Obligations at Closing.
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(a) Subject to any Adjustments to the Purchase Price pursuant
to Section 2, Purchaser shall pay to Seller $145,000 in
immediately available funds at Closing.
11. Confidentiality. Upon execution of this Agreement by all
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parties, Purchaser shall have access to Seller's books and records and other
information pertaining to Seller's business as it relates to the Business Assets
(the "Information"). Seller and Purchaser agree that the Information furnished
hereunder shall be received and held in trust and confidence by Purchaser.
Purchaser agrees to hold all such Information in confidence and will not
disclose the same except to persons participating in this transaction, including
Purchaser's attorneys, accountants, potential investors and financing sources
who have a need for the Information in connection with the performance of their
services. Purchaser agrees to take all reasonable steps to insure that all such
persons to whom Information is disclosed shall not use or disclose the
Information for any purpose other than as required tocarry out the purposes and
intent of this Agreement. Purchaser agrees not to use the Information for any
purpose other than as required to carry out the purpose and intent of this
Agreement.
12. Obligations of Parties After the Closing.
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(a) Seller agrees that, after the Closing, it will not use or
in any manner, directly, or indirectly the name "Xxxxx'x
Filter Sevices" or any variation of the name.
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(b) From and after the Closing Date, Seller shall allow
Purchaser access to any records that are, after the
Closing Date, in the custody or control of Seller and that
relate to the Business Assets being transferred herein.
Seller shall give access to such records as Purchaser
reasonably requires in order to comply with its
obligations under law or when reasonably necessary for the
business operations of Purchaser. Any such access
requested by purchaser shall be given by Seller within
five (5) days of such request.
13. General Provisions.
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(a) The representations, warranties, covenants, and agreements
of the parties contained in this Agreement or contained in
any writing delivered pursuant to this Agreement shall
survive the Closing Date.
(c) All notices that are required or that may be given
pursuant to the terms of this Agreement shall be in
writing and shall be sufficient in all respects if given
in writing and delivered personally or any registered or
certified mail, return receipt requested, postage prepaid
as follows:
If to Seller: Xxxxxx X. Xxxxx, 000 Xxxxx 00xx Xxxxxx,
Xxxx, Xxxxx 00000.
If to Purchaser: XxXxxxx Energy Systems of America, Inc.
Xxxx Xxxxxx Xxx 000000, Xxxxxx, Xxxxx 00000, with a copy
to West Short, West Short and Associates Attorneys at Law,
000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000.
(d) This Agreement shall be binding on and inure to the
benefit of the parties to this Agreement and their
respective successors and permitted assigns. This
Agreement may not be assigned by any other party without
the written consent of all parties and any attempt to make
an assignment without consent is void.
(e) This Agreement shall be construed and governed by the laws
of the State of Texas.
(h) This Agreement may be amended only in writing by the
mutual consent of all of the parties, evidenced by all
necessary and proper corporate authority. No waiver of any
provision of this Agreement shall arise from any action or
inaction of any party, except an instrument in writing
expressly waiving the provision executed by the party
entitled to the benefit of the provision.
(g) This Agreement, together with any documents and exhibits
given or delivered pursuant to this Agreement, constitutes
the entire agreement between the parties to this
Agreement. No party shall be bound by any communications
between them on the subject matter of this Agreement
unless the communication is (a) in writing, (b) bears a
date contemporaneous with or subsequent to the date of
this Agreement, and (c) is agreed to by all parties of
this Agreement. Upon execution of this Agreement, all
prior agreements or understandings between the parties
shall be null and void.
12
(h) Purchaser and Seller shall each be responsible for their
respective out-of-pocket expenses, including attorney's
fees, in closing this Agreement.
(i) In the event of the bringing of any action or suit by a
party hereto against the other party by reason of a breach
of any of the covenants, conditions, agreements or
provisions by the other party, the party in whose favor
final judgment shall be entered shall be entitled to have
and recover from the other party all costs and expenses of
such an action or suit, including but not limited to
reasonable attorney's fees, depositions expenses and
expert witness fees.
EXECUTED at Georgetown, Xxxxxxxxxx County, Texas this 29th day of May, 2002.
SELLER: PURCHASER:
Xxxxxx X. Xxxxx XxXxxxx Energy Systems of America, Inc.
By: /S/ Xxxxxx X. Xxxxx By: /S/ Xxxxxx X. XxXxxxx
-------------------------- ---------------------------------
Xxxxxx X. Xxxxx Xxxxxx X. XxXxxxx, Chief Business
Officer
Xxxxx'x Filter Service, Inc.
By: /S/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx, President
13
Exhibit A
Tools, Trade Fixtures and Vehicles and other Business Assets
1985 Ford Econovan
Equipment
Steamcleaner
Filter Cutter
Assorted Hand Tools
Compaq Desk Top Computer
Panasonic Printer
Customer List
Electronic
Hard Copy
14
Exhibit B
Assignment of Contracts
Approximately 000 Xxxxxxxx
XX Xxxxxxx Xxxxxx Xxxx, XX Contract
15
Exhibit C
Inventory, Purchasing Records and Business Documentation
Grease Filters 300
One inch and Two inch filter media rolls (25 of each size)
Filter Frames (5,000)
22 gage galvanized steel (approximately 40 pieces and 50 foot of wire usage)
00
Xxxxxxx X
XXXXX XX XXXXX )
) XXXX OF SALE
------------
)
COUNTY OF XXXXXXXXXX )
For good and valuable consideration, the receipt of which is hereby
acknowledged, XXXXX'X FILETER SERVICE, INC. a Texas corporation and XXXXXX X.
XXXXX an individual (collectively referred to as "Seller"), have sold, conveyed,
transferred, assigned, and delivered, and by these premises do sell, convey,
transfer, assign, and deliver unto XXXXXXX ENERGY SYSTEMS OF AMERICA, INC.
("Purchaser") a Texas corporation, all of the property described in EXHIBIT A,
attached hereto and incorporated herein for all purposes. Sellers bind
themselves, their successors and assigns, to warrant and defend the title to all
the described property to XXXXXXX ENERGY SYSTEMS OF AMERICA, INC., its
successors and assigns, forever, against every person lawfully or unlawfully
claiming the described property or any part thereof.
In witness whereof, this Xxxx of Sale is executed on the 29th day of
May, 2002.
/S/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx
/S/ Xxxxxxx Xxxxx
----------------------------
Xxxxxxx Xxxxx
Xxxxx'x Filter Service, Inc.
By: /S/ Xxxxxx X. Xxxxx
-------------------------
Xxxxxx X. Xxxxx
President
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