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EXHIBIT 10.6
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into, effective as of February 13, 1998 (the "CLOSING DATE"), between and among
SANTI GROUP OF FLORIDA, INC. , a Georgia corporation (the "BUYER"); A RAPID
ROOTER SEWER & DRAIN SERVICE, INC., a Florida corporation (the "SELLER"); and
XXXXXXX X. XXXX, a Florida resident ("X. XXXX"), XXXX X. XXXX, a Florida
resident ("X. XXXX"), XXXXXXX X. XXXXXXXX, a Florida resident ("A. GRUNSKIS"),
XXXXX XXXX GRUNSKIS, a Florida resident ("D. GRUNSKIS"), XXXXXX X. XXXX, a
Florida resident ("X. XXXX"), and XXXX XXX XXXX, a Florida resident ("X. XXXX"),
(X. Xxxx, X. Xxxx, A. Grunskis, D. Grunskis, X. Xxxx and X. Xxxx sometimes
collectively referred to herein as the "SELLER SHAREHOLDERS" and sometimes
individually referred to herein as a "SELLER SHAREHOLDER") (the Buyer, the
Seller and the Seller Shareholders are sometimes referred to collectively herein
as the "PARTIES" and sometimes referred to individually herein as a "PARTY").
WHEREAS, the Seller owns certain contract rights, customer accounts,
trucks, containers and other assets and is engaged in the non-hazardous liquid
waste collection and disposal business in the Miami/Dade, Broward and Palm Beach
Counties, Florida area, including, but not limited to, under the name "A Rapid
Rooter" (the "BUSINESS"); and
WHEREAS, this Agreement contemplates a transaction in which the Buyer
will purchase all of the assets of the Seller used in the Business and assume
certain of the liabilities of the Seller in return for cash and the SanTi Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, the Parties agree as follows.
ARTICLE 1. KEY DEFINITIONS
"ACCOUNTS" means (i) all customer accounts, names, lists, purchase
orders, service agreements and contracts (including implied or quantum meruit
contractual rights) or other rights of the Seller to provide liquid waste
services to customers of the Seller, and all rights to and in connection with
any activities commonly associated with such services, customer service
agreements, and contract rights (including implied or quantum meruit contractual
rights) with customers, and (ii) all files, correspondence, records (including
billing and service records for the preceding twelve (12) months) and related
proprietary information and material and other intellectual property which is
necessary, helpful or related to providing such services described above;
excluding, however, (x) all customer accounts, rights or contracts which deal in
hazardous chemical toxic or low-level radioactive waste or any Hazardous
Materials which the Buyer determines it does not wish to purchase, and (y) all
small business set aside contracts which the Buyer determines it does not wish
to purchase. All of the customer accounts, contracts and other rights which are
not being purchased, including those accounts described in items (x) and (y) of
this definition, shall be set forth on Schedule 1 and are hereinafter referred
to collectively as the "EXCLUDED ACCOUNTS".
"ACQUIRED ASSETS" means all right, title and interest in and to all of
the assets of the Seller used or useful in the Business, and shall include, but
not be limited to, all of the Seller's: (a) Accounts, (b) leaseholds and
subleaseholds in real property, improvements, fixtures, and fittings thereon,
and easements, rights-of-way, and other appurtenants thereto (such as
appurtenant rights in and to public streets), (c) tangible personal property
(such as repair parts, machinery, equipment, inventories of raw materials and
supplies, manufactured and purchased parts, goods in process and finished goods,
furniture, certain automobiles, trucks, tractors, trailers, tankers, tools,
pumps, stabilizers, jigs, and dies), (d) intellectual property (including, but
not limited to, the name "A Rapid Rooter"), goodwill associated therewith,
licenses and sublicenses granted and obtained with respect thereto, and rights
thereunder, remedies against
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infringements thereof, and rights to protection of interests therein under the
laws of all applicable jurisdictions, (e) leases, subleases, and rights
thereunder, (f) agreements (such as equipment rental agreements and service
agreements), contracts, customer agreements, disposal agreements, service
agreements, indentures, mortgages, instruments, Security Interests, guaranties,
other similar arrangements, and rights thereunder, (g) notes receivable and
other receivables, other than accounts receivable, (h) securities (including,
but not limited to, the capital stock of its Subsidiaries), (i) claims,
deposits, prepayments, refunds, causes of action, choses in action, rights of
recovery, rights of set off, and rights of recoupment (including any such item
relating to the payment of Taxes), (j) franchises, approvals, permits (including
but not limited to disposal permits), licenses (including but not limited to
radio transmitter licenses), orders, registrations, certificates, variances, and
similar rights obtained from governments and governmental agencies,
servicemarks, trademarks, logos, and (k) telephone numbers, yellow page
advertising, books, records (excluding bank accounts), ledgers, files,
documents, correspondence, lists, plats, architectural plans, drawings and
specifications, creative materials, advertising and promotional materials,
operational, billing and payable information, studies, reports, and other
printed or written materials, computer hardware and software; provided, however,
that the Acquired Assets shall not include those assets of the Seller set forth
on Schedule 2 (collectively the "EXCLUDED ASSETS").
"EMPLOYEE BENEFIT PLAN" means any (i) nonqualified deferred
compensation or retirement plan or arrangement, (ii) qualified defined
contribution retirement plan or arrangement which is an Employee Pension Benefit
Plan, (iii) qualified defined benefit retirement plan or arrangement which is an
Employee Pension Benefit Plan (including any Multiemployer Plan), or (iv)
Employee Welfare Benefit Plan or material fringe benefit or other retirement,
bonus, or incentive plan or program.
"ENVIRONMENTAL, HEALTH, AND SAFETY REQUIREMENTS" shall mean all
federal, state, local and foreign statutes, regulations, ordinances and other
provisions having the force or effect of law, all judicial and administrative
orders and determinations, all contractual obligations and all common law
concerning public health and safety, worker health and safety, and pollution or
protection of the environment, each as amended and as now or hereafter in
effect.
"HAZARDOUS MATERIALS" means any substance that has been designated by
any governmental authority whose requirements are applicable to any of the
Seller and its Subsidiaries to be radioactive, toxic, hazardous, or otherwise
pose potential danger to health or the environment, including, but not limited
to, volatile organic compounds and all substances listed pursuant to the federal
Comprehensive Environmental Response, Compensation and Liability Act, the
federal Resource Conservation Recovery Act, the federal Clean Air Act, the
federal Water Pollution Control Act, the Toxic Substance Control Act and the
Occupational Safety and Health Act, as such acts are amended to the Closing
Date, and the regulations and publications promulgated to the Closing Date
pursuant to said acts, and "extremely hazardous substances" (as said term is
defined in ss.302 of the Emergency Planning and Community Right-to-Know Act of
1986, as amended).
"KNOWLEDGE" means actual knowledge after reasonable investigation and
includes constructive knowledge.
"LIABILITY" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due).
"LITIGATION" means any legal action, administrative or other
proceeding, arbitration, cause of action, claim, complaint, criminal
prosecution, inquiry, hearing, investigation (governmental or otherwise), or
notice (written or oral) by any Person alleging potential liability or
requesting information relating to or affecting the Seller, any of its
Subsidiaries, the Business, the Acquired Assets or the transactions contemplated
by this Agreement.
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"LOSSES" means any and all direct or indirect demands, claims,
payments, obligations, recoveries, deficiencies, fines, penalties, interests,
assessments, actions, causes of action, suits, losses, diminution in the value
of any of the Acquired Assets, compensatory, punitive, exemplary or
consequential damages (including, without limitation, lost income and profits
and interruptions of business), Liabilities, costs, expenses (including, without
limitation, (i) interest, penalties and reasonable attorneys' fees and expenses,
(ii) attorneys' fees and expenses necessary to enforce rights to indemnification
hereunder, and (iii) consultant's fees and other costs of defense or
investigation); and interest on any amount payable to a third party as a result
of the foregoing, whether accrued, absolute, contingent, known, unknown or
otherwise.
"MONTHLY GROSS REVENUES" means (i) prior to the Closing, the monthly
gross revenues of the Seller from the Business (but only from the following
lines of business: maintenance, repair and replacement of sanitary and storm
water sewers, sewer lines, septic tanks, drain fields, lift stations and other
storm water and flood control facilities; high pressure water blasting and
clean-up services; collecting, transporting and disposal of liquid waste and
yellow grease; plumbing services incidental to any of the foregoing) determined
on an accrual basis, and (ii) subsequent to the Closing, the monthly gross
revenues of the Buyer from the Business (but only from the following lines of
business: maintenance, repair and replacement of sanitary and storm water
sewers, sewer lines, septic tanks, drain fields, lift stations and other storm
water and flood control facilities; high pressure water blasting and clean-up
services; collecting, transporting and disposal of liquid waste and yellow
grease; plumbing services incidental to any of the foregoing) determined on an
accrual basis. In each of the situations described in items (i) and (ii) of this
definition, the term Monthly Gross Revenues shall not include (i) any revenues
of the Seller or the Buyer, as the case may be, from the Business with respect
to extraordinary sales which may take place or which may be included in the
Business, (ii) any revenues of the Seller or the Buyer, as the case may be, from
the Business for services not actually rendered, or (iii) any revenues of the
Seller or the Buyer, as the case may be, from the Excluded Accounts.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (i) mechanic's, materialmen's,
and similar liens, (ii) liens for Taxes not yet due and payable or for Taxes
that the taxpayer is contesting in good faith through appropriate proceedings,
(iii) purchase money liens and liens securing rental payments under capital
lease arrangements, and (iv) other liens arising in the Ordinary Course of
Business and not incurred in connection with the borrowing of money.
"SUBSIDIARY" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"TAX" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, documentary,
occupation, premium, windfall profits, environmental (including taxes under
ss.59A of the Internal Revenue Code of 1986, as amended (the "CODE")), customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on
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minimum, estimated, or other tax of any kind whatsoever, including any interest,
penalty, or addition thereto, whether disputed or not.
"TAX RETURN" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
ARTICLE 2. BASIC TRANSACTIONS
2.1 PURCHASE AND SALE OF ASSETS. On and subject to the terms and
conditions of this Agreement, and effective as of 12:01 am on the Closing Date,
the Buyer hereby purchases from the Seller, and the Seller hereby sells,
transfers, conveys, and delivers to the Buyer, all of the Acquired Assets, for
the consideration specified below in this Article 2, free and clear of any and
all Security Interests, other than the Assumed Liabilities.
2.2 ASSUMPTION OF LIABILITIES. On and subject to the terms and
conditions of this Agreement, and effective as of the Closing, the Buyer hereby
assumes and becomes responsible for all of the liabilities of the Seller set
forth on Schedule 3 (collectively the "Assumed Liabilities"). Except for the
Assumed Liabilities, nothing in this Agreement or any other document entered
into on the Closing Date shall in any way obligate the Buyer for any
Liabilities, obligations or charges of the Seller, any of its Subsidiaries, or
any of the Seller Shareholders, including, but without limitation, any
Liabilities attributable to Environmental, Health and Safety Requirements, or
Liabilities or charges for Taxes or recording fees arising out of the sale or
transfer of the Acquired Assets. It is specifically understood and agreed by the
Parties that the Buyer does not assume any Liabilities, obligations or charges
of the Seller, any of its Subsidiaries, or the Seller Shareholders except for
the Assumed Liabilities. All Liabilities other than Assumed Liabilities shall
remain those of the Seller exclusively. In the event that the Buyer does not
payoff those Assumed Liabilities set forth in Item 1 of Schedule 3 at the
Closing or within five (5) business days thereafter, the Buyer covenants and
agrees to deliver to the Seller Shareholders, within thirty (30) days after the
date of the Closing, evidence of discharge of the Seller and the Seller
Shareholders from such Assumed Liabilities signed by the applicable creditor.
2.3 PURCHASE PRICE. The Buyer agrees to pay, issue and deliver to the
Seller at the Closing the following (collectively, the "PURCHASE PRICE"): (i)
cash in the amount of $3,300,000, payable by wire transfer or delivery of other
immediately available funds, (ii) 100,000 shares (the "SANTI STOCK") of the
common stock of SanTi Group, Inc., a Delaware corporation ("SANTI"), and (iii)
documentation effecting the assumption of the Assumed Liabilities. The Buyer is
contemporaneously at the Closing tendering to the Seller (i) all of the cash
portion of the Purchase Price, less the sum of the amount(s) set forth on
Schedule 4 which is required to be paid to the third parties set forth on
Schedule 4 at the Closing in order to remove those Security Interests set forth
on Schedule 4 which encumber certain of the Acquired Assets immediately prior to
the Closing, and (ii) documentation effecting the assumption of the Assumed
Liabilities. The Seller acknowledges and agrees that the Buyer is retaining the
SanTi Stock, pursuant to that certain Stock Pledge Agreement, of even date
herewith, between the Buyer and the Seller (the "STOCK PLEDGE"), to hold as
security to offset against any Losses asserted against, imposted upon or
incurred by the Buyer arising out of any of the matters listed in items (i)
through (v) of Section 5.2 hereof.
2.4 THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") is contemporaneously taking place at the offices of
Xxxx, Cook, Riggs, Mehr & Xxxxxx, P.A., Suite 401, 0000 Xxxxxxxxx Xxxxxxxxx,
X.X., Xxxx Xxxxx, Xxxxxxx 00000, commencing at 7:30 a.m. local time on the
Closing Date.
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2.5 ALLOCATION. The Parties agree to allocate the Purchase Price (and
all other capitalizable costs) among the Acquired Assets for all purposes
(including financial accounting and tax purposes) consistent with the Code and
in accordance with the allocation schedule to be agreed upon by the Parties.
2.6 USE OF NAME. Following the Closing Date, the Seller shall not use
or give permission to any other Party to use the name "A Rapid Rooter" or any
substantially similar name in connection with the operation of a waste
collection and disposal business.
2.7 CONFIDENTIALITY. The Seller and each Seller Shareholder agree that
for a period of five (5) years after the Closing Date, none of them nor any
other person connected with any of them shall at any time divulge, and each of
them shall cause their respective agents, employees and "AFFILIATES" (as said
term is defined in Rule 12b-2 of the regulations promulgated under the
Securities Exchange Act of 1934, as amended) not to divulge, the existence and
terms of the negotiations resulting in this Agreement, the terms and conditions
of this Agreement and the financing arrangements of the Buyer and its
Affiliates, except as required by applicable federal, state or local statutes
pursuant to subpoena or court order.
2.8 TELEPHONE REFERRALS. From and after the Closing Date, the Seller
shall refer, and cause its agents to refer, all telephone calls to it or them
for liquid waste collection and disposal to the Buyer.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
OF THE SELLER AND THE SELLER SHAREHOLDERS
The Seller and each of the Seller Shareholders jointly and severally
represent and warrant to the Buyer that the statements contained in this Article
3 are correct and complete as of the Closing Date, except as set forth in the
disclosure schedule accompanying this Agreement and initialed by the Parties
(the "DISCLOSURE SCHEDULE"). The Disclosure Schedule will be arranged in
sections corresponding to the lettered and numbered sections contained in this
Article 3.
3.1 ORGANIZATION OF THE SELLER AND CERTAIN SELLER SHAREHOLDERS. The
Seller is a corporation duly organized, validly existing, and in good standing
under the laws of the jurisdiction of its incorporation. The Seller is duly
authorized to conduct business and the Business, and is in good standing, under
the laws of each jurisdiction where such qualification is required. If any
Seller Shareholder is an entity, such Seller Shareholder is duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation or other formation and organization.
3.2 AUTHORIZATIONS. The Seller has full power and authority (including
full corporate power and authority) to execute and deliver this Agreement and to
perform its obligations hereunder. Without limiting the generality of the
foregoing, the board of directors of the Seller and the Seller Shareholders have
duly authorized the execution, delivery, and performance of this Agreement by
the Seller. Each of the Seller Shareholders has full power and authority
(including, if any Seller Shareholder is a corporation or other entity, full
corporate or other entity power and authority) to execute and deliver this
Agreement and to perform such Seller Shareholders' obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of the Seller and
each Seller Shareholder, enforceable in accordance with its terms and
conditions.
3.3 NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement by the Seller and the Seller Shareholders, nor the consummation by the
Seller and the Seller Shareholders of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, stipulation, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Seller, any of its
Subsidiaries or any Seller Shareholder is subject (or, if any Seller Shareholder
is a corporation or other entity, any provision of its charter or bylaws or
other governing
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documents) or any provision of the charter or bylaws of any of the Seller or any
of its Subsidiaries, or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any Person the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, permit, instrument, or other arrangement to
which the Seller, any of its Subsidiaries, or any Seller Shareholder is a party
or by which the Seller, any of its Subsidiaries, or any Seller Shareholder is
bound or to which any assets of the Seller, any of its Subsidiaries, or any
Seller Shareholder is subject (or result in the imposition of any Security
Interest upon any assets of the Seller, any of its Subsidiaries, or any Seller
Shareholder). Neither the Seller nor any of its Subsidiaries needs to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order for the Parties to
consummate the transactions contemplated by this Agreement.
3.4 SELLER SHARES; BROKERS' FEES. Each Seller Shareholder holds of
record the number of shares of issued and outstanding capital stock of the
Seller set forth next to such Seller Shareholder's name in Section 3.4 of the
Disclosure Schedule. Neither the Seller nor any of its Subsidiaries has any
Liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement for which
the Buyer could become liable or obligated.
3.5 TITLE TO ASSETS. The Seller and its Subsidiaries have good and
marketable title to, or a valid leasehold interest in, the properties and assets
used by any of them, located on any of their respective premises, or shown on
the balance sheet contained within the Most Recent Financial Statements (the
"MOST RECENT BALANCE SHEET") or acquired after the date thereof, free and clear
of all Security Interests, other than the Assumed Liabilities, except for
properties and assets disposed of in the Ordinary Course of Business since the
date of the Most Recent Balance Sheet. Without limiting the generality of the
foregoing, the Seller has good and marketable title to all of the Acquired
Assets, free and clear of any Security Interest or restriction on transfer,
other than the Assumed Liabilities.
3.6 SUBSIDIARIES. Each Subsidiary of the Seller is listed in Section
3.6 of the Disclosure Schedule, and is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation. Each Subsidiary of the Seller is duly authorized to conduct
business and is in good standing under the laws of each jurisdiction where such
qualification is required. Each Subsidiary of the Seller has full power and
authority (including full corporate power and authority) and all licenses,
permits, and authorizations necessary to carry on the Business and the other
businesses in which it is engaged and in which it presently proposes to engage
and to own and use the properties owned and used by it. All of the issued and
outstanding shares of capital stock of each Subsidiary of the Seller have been
duly authorized and are validly issued, fully paid, and nonassessable. The
Seller holds of record and owns beneficially all of the outstanding shares of
each Subsidiary of the Seller, free and clear of any restrictions on transfer
(other than restrictions under the Securities Act and state securities laws),
Taxes, Security Interests, options, warrants, purchase rights, contracts,
commitments, equities, claims, and demands. There are no outstanding or
authorized options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments that could require
any of the Seller and its Subsidiaries to sell, transfer, or otherwise dispose
of any capital stock of any of its Subsidiaries or that could require any
Subsidiary of the Seller to issue, sell, or otherwise cause to become
outstanding any of its own capital stock (other than this Agreement). There are
no voting trusts, proxies, or other agreements or understandings with respect to
the voting of any capital stock of any Subsidiary of the Seller. The minute
books (containing the records of meetings of the stockholders, the board of
directors, and any committees of the board of directors), the stock certificate
books, and the stock record books of each Subsidiary of the Seller are correct
and complete. None of the Subsidiaries of the Seller is in default under or in
violation of any provision of its charter or bylaws. None of the Seller and its
Subsidiaries controls directly or indirectly or has any direct or indirect
equity participation in any corporation, partnership, trust, or other business
association which is not a Subsidiary of the Seller.
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3.7 FINANCIAL STATEMENTS. Attached hereto as Exhibit A are the
following financial statements (collectively, the "FINANCIAL STATEMENTS"): (i)
Financial Statements and Supplementary Information and Accountant's Compilation
Report, including a balance sheet, a statement of operations and retained
earnings, a schedule of operating expenses and a schedule of reconciliation of
beginning retained earnings as of and for the fiscal years ended December 31,
1995 and December 31, 1996 (the "MOST RECENT FISCAL YEAR END") for the Seller
and its Subsidiaries; and (ii) Financial Statements and Supplementary
Information and Accountant's Compilation Report, including a balance sheet, a
statement of operations and retained earnings, a schedule of operating expenses
and a schedule of reconciliation of beginning retained earnings (the "MOST
RECENT FINANCIAL STATEMENTS") as of and for the eight month period ended August
31, 1997 (the "MOST RECENT FISCAL MONTH END") for the Seller and its
Subsidiaries. The Financial Statements (including the notes thereto) present
fairly the financial condition of the Seller and its Subsidiaries as of such
dates and the results of operations of the Seller and its Subsidiaries for such
periods, are correct and complete, and are consistent with the books and records
of the Seller and its Subsidiaries (which books and records are correct and
complete). The net book value of the Acquired Assets is not less than
$550,000.00.
3.8 EVENTS SUBSEQUENT TO MOST RECENT FISCAL MONTH END. Since the Most
Recent Fiscal Month End, there has not been any adverse change in the Business
or the business, financial condition, operations, results of operations, or
future prospects of the Seller or any of its Subsidiaries. Without limiting the
generality of the foregoing, since that date: (i) neither the Seller nor any of
its Subsidiaries has sold, leased, transferred, pledged or assigned any of its
assets, tangible or intangible, other than for a fair consideration in the
Ordinary Course of Business; (ii) neither the Seller nor any of its Subsidiaries
has entered into (or issued), accelerated, terminated, modified, or canceled any
agreement, contract, lease, note, bond, debt security or license either
involving more than $5,000 or outside the Ordinary Course of Business; (iii)
neither the Seller nor its Subsidiaries has made any capital expenditure (or
series of related capital expenditures) either involving more than $10,000 or
outside the Ordinary Course of Business; (iv) neither the Seller nor any of its
Subsidiaries has delayed or postponed the payment of accounts payable and other
Liabilities outside the Ordinary Course of Business; (v) neither the Seller nor
any of its Subsidiaries has canceled, compromised, waived, or released any right
or claim (or series of related rights and claims) either involving more than
$5,000 or outside the Ordinary Course of Business; (vi) neither the Seller nor
any of its Subsidiaries has issued, sold, disposed of or granted any rights to
purchase any of its capital stock, or declared, set aside, or paid any dividend
or made any distribution with respect to its capital stock (whether in cash or
in kind), or redeemed, purchased, or otherwise acquired any of its capital
stock; (vii) neither the Seller nor any of its Subsidiaries has experienced any
damage, destruction, or loss (whether or not covered by insurance) to its
property; (viii) neither the Seller nor any of its Subsidiaries has made any
loan to, or entered into any other transaction with, any of its directors,
officers, or employees outside the Ordinary Course of Business; (ix) neither the
Seller nor any of its Subsidiaries has (a) entered into any employment contract
or collective bargaining agreement, written or oral, or modified the terms of
any existing such contract or agreement; (b) granted any increase in the base
compensation of any of its directors, officers, or employees (or made any other
change in employment terms for such persons) outside the Ordinary Course of
Business; or (c) adopted, amended, modified, or terminated any Employee Benefit
Plan; (x) there has not been any other occurrence, event, incident, action,
failure to act, or transaction outside the Ordinary Course of Business involving
the Seller or any of its Subsidiaries; and (xi) neither the Seller nor any of
its Subsidiaries has committed to any of the foregoing.
3.9 UNDISCLOSED LIABILITIES. Neither the Seller nor any of its
Subsidiaries has any Liability (and there is no basis for any present or future
action, suit, proceeding, hearing, investigation, charge, complaint, claim, or
demand against any of them giving rise to any Liability), except for (i)
Liabilities set forth on the face of the Most Recent Balance Sheet (rather than
in any notes thereto) and (ii) Liabilities which have arisen after the Most
Recent Fiscal Month End in the Ordinary Course of Business (none of which
results from, arises out of, relates to, is in the nature of, or was caused by
any breach of contract, breach of warranty, tort, infringement, or violation of
law).
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3.10 LEGAL COMPLIANCE. Each of the Seller, its Subsidiaries, and its
predecessors and Affiliates has complied with all applicable laws (including
rules, statutes, regulations, codes, permits, plans, injunctions, judgments,
orders, decrees, rulings, and charges thereunder) of federal, state, local, and
foreign governments (and all agencies thereof), and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has been
filed or commenced against any of them alleging any failure so to comply. None
of the Seller Shareholders and the directors, officers and management employees
of the Seller has any Knowledge of any basis (existing prior to the Closing)
which could result in (i) any failure of the Buyer (based upon its acquisition
of the Business) to comply after the Closing with any and all applicable laws
(including rules, statutes, regulations, codes, permits, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of federal, state,
local, and foreign governments (and all agencies thereof), or any action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand or notice
being filed or commenced after the Closing against the Buyer or any of its
Affiliates alleging any failure to so comply.
3.11 TAX MATTERS. Each of the Seller and its Subsidiaries has filed all
Tax Returns that it was required to file. All such Tax Returns were correct and
complete in all respects. All Taxes owed by any of the Seller and its
Subsidiaries (whether or not shown on any Tax Return) have been paid. No claim
has ever been made by an authority in a jurisdiction where any of the Seller and
its Subsidiaries does not file Tax Returns that it is or may be subject to
taxation by that jurisdiction. Each of the Seller and its Subsidiaries has
withheld and paid all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee, independent contractor,
creditor, stockholder or other third party. No Seller Shareholder or director or
officer (or employee responsible for Tax matters) of any of the Seller and its
Subsidiaries expects any authority to assess any additional Taxes for any period
for which Tax Returns have been filed. There is no dispute or claim concerning
any Tax Liability of any of the Seller and its Subsidiaries either (i) claimed
or raised by any authority in writing or (ii) as to which any of the Seller
Shareholders and the directors and officers (and employees responsible for Tax
matters) of any of the Seller and its Subsidiaries has Knowledge based upon
personal contact with any agent of such authority. Section 3.11 of the
Disclosure Schedule lists all federal, state, local, and foreign income Tax
Returns filed with respect to any of the Seller and its Subsidiaries for taxable
periods ended on or after December 31, 1996, indicates those Tax Returns that
have been audited, and indicates those Tax Returns that currently are the
subject of audit. The Seller has delivered to the Buyer correct and complete
copies of all federal income Tax Returns, examination reports, and statements of
deficiencies assessed against or agreed to by any of the Seller and its
Subsidiaries since December 31, 1996. The unpaid Taxes of the Seller and its
Subsidiaries (i) did not, as of the Most Recent Fiscal Month End, exceed the
reserve for Tax Liability (rather than any reserve for deferred Taxes
established to reflect timing differences between book and Tax income) set forth
on the face of the Most Recent Balance Sheet (rather than in any notes thereto)
and (ii) do not exceed that reserve as adjusted for the passage of time through
the Closing Date in accordance with the past custom and practice of the Seller
and its Subsidiaries in filing their Tax Returns.
3.12 REAL PROPERTY.
(i) Section 3.12(i) of the Disclosure Schedule lists and
describes briefly all real property that any of the Seller and its Subsidiaries
owns. With respect to each such parcel of owned real property required to be
listed and described on Section 3.12(i) of the Disclosure Schedule: (A) the
identified owner has good and marketable title to the parcel of real property,
free and clear of any Security Interest, easement, covenant, or other
restriction, except for installments of special assessments not yet delinquent
and recorded easements, covenants, and other restrictions which do not impair
the current use, occupancy, or value, or the marketability of title, of the
property subject thereto; (B) there are no pending or threatened condemnation
proceedings, lawsuits, or administrative actions relating to the property or
other matters
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affecting adversely the current use, occupancy, or value thereof; (C) the legal
description for the parcel contained in the deed thereof describes such parcel
fully and adequately, the buildings and improvements are located within the
boundary lines of the described parcels of land, are not in violation of
applicable setback requirements, zoning laws, and ordinances (and none of the
properties or buildings or improvements thereon are subject to "permitted
non-conforming use" or "permitted non-conforming structure" classifications),
and do not encroach on any easement which may burden the land, the land does not
serve any adjoining property for any purpose inconsistent with the use of the
land, and the property is not located within any flood plain or subject to any
similar type restriction for which any permits or licenses necessary to the use
thereof have not been obtained; (D) all facilities have received all approvals
of governmental authorities (including licenses and permits) required in
connection with the ownership or operation thereof and have been operated and
maintained in accordance with applicable laws, rules, and regulations; (E) there
are no leases, subleases, licenses, concessions, or other agreements, written or
oral, granting to any Person or Persons the right of use or occupancy of any
portion of the parcel of real property; (F) there are no outstanding options or
rights of first refusal to purchase the parcel of real property, or any portion
thereof or interest therein; (G) there are no Persons (other than the Seller and
its Subsidiaries) in possession of the parcel of real property, other than
tenants under any leases disclosed in Section 3.2.12(i) of the Disclosure
Schedule who are in possession of space to which they are entitled; (H) all
facilities located on the parcel of real property are supplied with utilities
and other services necessary for the operation of such facilities, including
gas, electricity, water, telephone, sanitary sewer, and storm sewer, all of
which services are adequate in accordance with all applicable laws, ordinances,
rules, and regulations and are provided via public roads or via permanent,
irrevocable, appurtenant easements benefitting the parcel of real property; (I)
each parcel of real property abuts on and has direct vehicular access to a
public road, or has access to a public road via a permanent, irrevocable,
appurtenant easement benefitting the parcel of real property, and access to the
property is provided by paved public right-of-way with adequate curb cuts
available; (J) no Hazardous Material is present in, on or under such real
property at any time prior to the Closing Date, including any land and the
improvements, ground water and surface water thereof, except in accordance with
applicable laws and regulations; and (K) there are and have been no storage
tanks located on or under such property.
(ii) Section 3.12(ii) of the Disclosure Schedule lists and
describes briefly all real property leased or subleased to or not owned but
otherwise used by any of the Seller and its Subsidiaries. The Seller has
delivered to the Buyer correct and complete copies of the leases and subleases
(as amended to date) required to be listed in Section 3.12(ii) of the Disclosure
Schedule. With respect to each lease and sublease required to be listed in
Section 3.12(ii) of the Disclosure Schedule: (A) the lease or sublease is legal,
valid, binding, enforceable, and in full force and effect; (B) the lease or
sublease will continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation of the
transactions contemplated hereby; (C) no party to the lease or sublease is in
breach or default, and no event has occurred which, with notice or lapse of
time, would constitute a breach or default or permit termination, modification,
or acceleration thereunder; (D) there are no disputes, oral agreements, or
forbearance programs in effect as to the lease or sublease and no party to the
lease or sublease has repudiated any provision thereof; (E) with respect to each
sublease, the representations and warranties set forth in subsections (A)
through (D) above are true and correct with respect to the underlying lease; (F)
the Seller has not assigned, transferred, conveyed, mortgaged, deeded in trust,
or encumbered any interest in the leasehold or subleasehold; (G) all facilities
leased or subleased thereunder have received all approvals of governmental
authorities (including licenses and permits) required in connection with the
operation thereof and have been operated and maintained in accordance with
applicable laws, rules, and regulations; (H) all facilities leased or subleased
thereunder are supplied with utilities and other services necessary for the
operation of said facilities; (I) no Hazardous Material is present in, on or
under such real property at any time prior to the Closing Date, including any
land and the improvements, ground water and surface water thereof, except in
accordance with applicable laws and regulations; and (J) there are and have been
no storage tanks located on or under such property. With respect to each such
property used by but not owned
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by, leased to or subleased to any of the Seller and its Subsidiaries, Section
3.12(ii) of the Disclosure Schedule states the nature and terms of the
relationship pursuant to which such property is used.
3.13 TANGIBLE ASSETS. The Seller and its Subsidiaries own, hold or
lease all buildings, machinery, equipment, other tangible assets, permits,
licenses and agreements necessary for the conduct of the Business as presently
conducted and as presently proposed to be conducted. Except as set forth on
Section 3.13 of the Disclosure Schedule, each such tangible asset is in good
operating condition and repair (subject to normal wear and tear). There are no
defects in the Acquired Assets which affect the plumbing, electrical, sewer,
ventilating or air conditioning systems thereof.
3.14 CONTRACTS. Section 3.14 of the Disclosure Schedule lists all
contracts and other agreements to which any of the Seller and its Subsidiaries
is a party. The Seller has delivered to the Buyer a correct and complete copy of
each written agreement (as amended to date) required to be listed in Section
3.14 of the Disclosure Schedule. With respect to each agreement required to be
listed in Section 3.14 of the Disclosure Schedule: (i) the agreement is legal,
valid, binding, enforceable, and in full force and effect; (ii) the agreement
will continue to be legal, valid, binding, enforceable, and in full force and
effect on identical terms following the consummation of the transactions
contemplated hereby; (iii) no party thereto is in breach or default, and no
event has occurred which with notice or lapse of time would constitute a breach
or default, or permit termination, modification, or acceleration, under the
agreement; and (iv) no party thereto has repudiated any provision of the
agreement.
3.15 POWERS OF ATTORNEY. There are no outstanding powers of attorney
executed by or on behalf of any of the Seller and its Subsidiaries.
3.16 INSURANCE. Section 3.16 of the Disclosure Schedule lists each
insurance policy (including policies providing property, casualty, liability,
and workers' compensation coverage and bond and surety arrangements) to which
any of the Seller and its Subsidiaries is a party, a named insured, or otherwise
the beneficiary of coverage. With respect to each insurance policy required to
be listed in Section 3.16 of the Disclosure Schedule: (i) the policy is legal,
valid, binding, enforceable, and in full force and effect; (ii) the policy will
continue to be legal, valid, binding, enforceable, and in full force and effect
on identical terms following the consummation of the transactions contemplated
hereby; (iii) neither the Seller and its Subsidiaries nor any other party to the
policy is in breach or default (including with respect to the payment of
premiums or the giving of notices), and no event has occurred which, with notice
or the lapse of time, would constitute such a breach or default, or permit
termination, modification, or acceleration, under the policy; and (iv) no party
to the policy has repudiated any provision thereof. Each of the Seller and its
Subsidiaries has been covered during the past 3 years by insurance in scope and
amount customary and reasonable for the Business and the other businesses in
which it has engaged during the aforementioned period. Section 3.16 of the
Disclosure Schedule describes any self-insurance arrangements affecting any of
the Seller and its Subsidiaries, as well as any pending claims with respect to
insurance coverage owned by the Seller or its Subsidiaries, including amounts
held in reserve by the Seller or its Subsidiaries in connection with any such
claim.
3.17 LITIGATION. Section 3.17 of the Disclosure Schedule sets forth
each instance in which any of the Seller and its Subsidiaries (i) is subject to
any outstanding injunction, judgment, order, decree, ruling, or charge or (ii)
is a party or is threatened to be made a party to any action, suit, proceeding,
hearing, or investigation of, in, or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator. None of the actions, suits, proceedings, hearings, and
investigations required to be set forth in Section 3.17 of the Disclosure
Schedule could result in any adverse change in the Business, the other business,
financial condition, operations, results of operations, or future prospects of
any of the Seller and its Subsidiaries. None of the Seller Shareholders and the
directors and officers (and employees with responsibility for litigation
matters) of the Seller and its Subsidiaries has any
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reason to believe that any such action, suit, proceeding, hearing, or
investigation may be brought or threatened against any of the Seller and its
Subsidiaries.
3.18 SERVICE WARRANTY AND LIABILITY. Each service provided or delivered
by any of the Seller and its Subsidiaries has been in conformity with all
applicable contractual commitments and all express and implied warranties, and
neither the Seller nor any of its Subsidiaries has any Liability (and there is
no basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against any of the Seller and
its Subsidiaries giving rise to any Liability) (i) for damages in connection
therewith, or (ii) arising out of any injury to individuals or property as a
result of the use of any service provided or delivered by any of the Seller and
its Subsidiaries. No service provided or delivered by any of the Seller and its
Subsidiaries is subject to any guaranty, warranty, or other indemnity beyond the
applicable standard terms and conditions of sale. Section 3.18 of the Disclosure
Schedule includes copies of the standard terms and conditions of sale for each
of the Seller and its Subsidiaries (containing applicable guaranty, warranty,
and indemnity provisions).
3.19 [THIS SECTION INTENTIONALLY LEFT BLANK]
3.20 EMPLOYEES AND INDEPENDENT CONTRACTORS. Section 3.20 of the
Disclosure Schedule contains a complete list of all employees and independent
contractors of each of the Seller and its Subsidiaries engaged in the conduct of
the Business, and for each employee or independent contractor required to be
listed on Section 3.20 of the Disclosure Schedule, their address, social
security number, current annual base salary or hourly rate and years of
employment or engagement with any of the Seller and its Subsidiaries. No
executive, key employee, group of employees, key independent contractor or group
of independent contractors has any plans to terminate employment or engagement
with any of the Seller and its Subsidiaries or with the Buyer if the Buyer has
made known to the Seller its intention to employ or engage such person, persons,
entity or entities. Neither the Seller nor any of its Subsidiaries is a party to
or bound by any collective bargaining agreement, or experienced any strikes,
grievances, claims of unfair labor practices, or other collective bargaining
disputes. Neither the Seller nor any of its Subsidiaries has committed any
unfair labor practice or taken an action which would give rise to a claim under
any federal or state law restricting discrimination in employment. None of the
Seller Shareholders and the directors and officers (and employees with
responsibility for employment matters) of the Seller and its Subsidiaries has
any Knowledge of any organizational effort presently being made or threatened by
or on behalf of any labor union with respect to employees of any of the Seller
and its Subsidiaries.
3.21 EMPLOYEE BENEFITS. Section 3.21 of the Disclosure Schedule lists
each Employee Benefit Plan that any of the Seller and its Subsidiaries maintains
or to which any of the Seller and its Subsidiaries contributes or has any
obligation to contribute. Each Employee Benefit Plan (and each related trust,
insurance contract, or fund) required to be listed on Section 3.21 of the
Disclosure Schedule complies in form and in operation in all respects with the
applicable requirements of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), the Code and other applicable laws.
3.22 GUARANTIES. Neither the Seller nor any of its Subsidiaries is a
guarantor or otherwise liable or responsible for any Liability or obligation
(including indebtedness) of any other Person.
3.23 ENVIRONMENTAL, HEALTH, AND SAFETY MATTERS.
(i) The Seller, its Subsidiaries, and its predecessors and
Affiliates have complied with all Environmental, Health, and Safety
Requirements, and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed or commenced against any of
them alleging any failure so to comply.
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(ii) Neither the Seller nor any of its Subsidiaries has any
Liability (and none of their respective predecessors and Affiliates have handled
or disposed of any substance, arranged for the disposal of any substance,
exposed any employee or other individual to any substance or condition, or owned
or operated any property or facility in any manner that could form the basis for
any present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand against the Seller, giving rise to any Liability)
for damage to any site, location, or body of water (surface or subsurface), for
any illness of or personal injury to any employee or other individual, or for
any reason under any Environmental, Health and Safety Requirements, except in
compliance with all applicable Environmental, Health and Safety Requirements.
(iii) All properties and equipment used in the Business, the
Seller's Subsidiaries' businesses, and their respective predecessors' and
Affiliates' businesses, have been free of asbestos, PCB's, methylene chloride,
trichloroethylene, 1, 2-trans-dichloroethylene, dioxins, dibenzofurans, and all
Hazardous Materials.
(iv) Neither the Seller nor any of its Subsidiaries has
transported, stored, treated or disposed, nor allowed or arranged for any third
person to transport, store, treat or dispose of, waste to or at any location
other than a site lawfully permitted to receive such waste for such purposes.
Neither the Seller nor any of its Subsidiaries has transported, stored, treated
or disposed of, nor allowed or arranged for any third person to transport,
store, treat or dispose of, (A) any Hazardous Materials, or (B) any other waste
to or at any location designated for remedial action pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, as from
time to time amended, or any similar federal or state statute assigning
responsibility for the cost of investigating or remediating releases of
contaminants into the environment.
(v) Section 3.23(v) of the Disclosure Schedule is a complete
and accurate list of (A) locations (identified by name, address, owner/operator,
type of facility and type of waste) to which any of the Seller and its
Subsidiaries has ever transported, or ever caused to be transported, allowed or
arranged for any third party to transport, any type of waste material, generated
by any of the Seller and its Subsidiaries, or customers of any of the Seller and
its Subsidiaries, for storage (other than at a customer's facility), treatment,
burning, recycling or disposal, and (B) storage (other than at a customer's
facility), treatment, burning, recycling or disposal activities which any of the
Seller and its Subsidiaries has undertaken, at any time, at locations then or
presently owned or occupied by any of the Seller and its Subsidiaries (such list
to include property address, nature of the interest of the Seller or its
Subsidiaries in property, nature of the activity conducted at such location,
type and form or waste, estimated volume of waste disposal on or in ground, and
period of time the activity was conducted).
(vi) Neither the Seller nor any of its Subsidiaries has
received any notification (including requests for information directed to any of
the Seller and its Subsidiaries or any Seller Shareholder) from any governmental
agency or any other person asserting that any of the Seller and its Subsidiaries
is or may be a "potentially responsible person" or otherwise liable with respect
to a remediation or the payment of response costs at a waste storage treatment
or disposal action facility, pursuant to the provisions of the Comprehensive
Environmental Response, Compensation and Liability Act, as from time to time
amended, or any similar federal or state statute assigning responsibility for
the costs of investigating or remediating releases of contaminants into the
environment.
3.24 CERTAIN BUSINESS RELATIONSHIPS WITH THE SELLER AND ITS AFFILIATES.
None of the Seller Shareholders nor any of their respective Affiliates has been
involved in any business arrangement or relationship with any of the Seller and
its Subsidiaries within the past 12 months which has caused or resulted in
increased gross revenues for the Seller from the Business and which, if not
continued subsequent to the Closing, will cause or result in decreased revenues
for the Buyer from the Business, and none of the
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Seller Shareholders nor any of their respective Affiliates owns or leases any
asset, tangible or intangible, which is used in the businesses of any of the
Seller and its Subsidiaries. Neither the Seller, any of its Subsidiaries nor any
Seller Shareholder owns or has any interest in a Person (other than the Seller
and its Subsidiaries) conducting a liquid waste management business.
3.25 INVESTMENT. The Seller and each of the Seller Shareholders (i)
understands that the SanTi Stock has not been, and will not be, registered under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), or under any
state securities laws, and is being offered and sold in reliance upon federal
and state exemptions for transactions not involving any public offering, (ii)
understands that the Seller is acquiring the SanTi Stock solely for its own
account for investment purposes, and not with a view to the distribution
thereof, (iii) is a sophisticated investor with knowledge and experience in
business and financial matters, (iv) has received certain information concerning
the Buyer and SanTi and has had the opportunity to obtain additional information
as desired in order to evaluate the merits and the risks inherent in holding the
SanTi Stock, (v) is able to bear the economic risk and lack of liquidity
inherent in holding the SanTi Stock, and (vi) is an "ACCREDITED INVESTOR" (as
said term is defined in Regulation D promulgated under the Securities Act) for
the reasons set forth in Section 3.25 of the Disclosure Schedule.
3.26 OWNERSHIP AND ASSIGNABILITY OF ACCOUNTS. The Seller is the lawful
owner of all of the Accounts, and all such Accounts are free and clear of all
claims, liens, mortgages, pledges, encumbrances and security interests of every
kind, including, but not limited to financing arrangements (including
receivables financing). There are no outstanding rights of any kind to acquire
from either the Seller or the Seller Shareholders, either separately or jointly,
any interest whatsoever, whether current or future, in the Accounts, held by any
Person other than Buyer. Except for those Accounts expressly set forth in
Section 3.26 of the Disclosure Schedule, all Accounts are freely assignable by
the Seller, and such assignment, transfer and delivery thereof to the Buyer of
all of the Accounts will not constitute or result in a breach, violation or
default of any agreements relating to such Accounts, and such agreements and
Accounts shall remain in full force and effect as if there had been no
assignment, transfer or delivery.
3.27 REVENUE AND MAJOR ACCOUNTS. The average Monthly Gross Revenue of
the Seller for the calendar months of January through August, 1997 is at least
$371,416. Section 3.27 of the Disclosure Schedule contains a listing of the
Monthly Gross Revenues of the Seller for the calendar months of January through
August, 1997. Unless otherwise noted on Section 3.27 of the Disclosure Schedule,
during the 12 calendar month period immediately preceding the Closing Date, the
Seller has not lost any customer that generated more than ten percent (10%) of
the Seller's gross revenues in any of the Seller's past fiscal periods. The
Seller and the Seller Shareholders further represent and warrant that during the
360 day period immediately following the Closing, the average Monthly Gross
Revenues of the Buyer shall not be less than $360,000. To the extent that the
average Monthly Gross Revenues of the Buyer are less than $360,000, the Parties
agree that the Buyer shall be deemed to have suffered a Loss in an amount equal
to the product of said deficiency and the factor 16.11, and that the Buyer shall
be entitled to indemnity from the Seller in the amount of such Loss or to offset
the amount of said Loss against the SanTi Stock pursuant to the Stock Pledge.
3.28 [THIS SECTION INTENTIONALLY LEFT BLANK]
3.29 POSSESSION OF FRANCHISES, LICENSES, ETC. Except as set forth on
Section 3.29 of the Disclosure Schedule, each of the Seller and each of its
Subsidiaries possesses, free from any burdensome restriction, all franchises,
certificates, licenses, permits, clearances, consents and other authorizations
from governmental political subdivisions or regulatory authorities that are
necessary for (i) the continued ownership, maintenance and operation of the
Business and the other businesses conducted by any of the Seller and its
Subsidiaries, as currently being operated and conducted, (ii) the continued
operation, use and ownership of the Acquired Assets, as currently being operated
and used, and (iii) the servicing of the
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Accounts, as currently being serviced (collectively the "PERMITS"). Section 3.29
of the Disclosure Schedule sets forth all of the Permits and for each Permit,
accurately describes the expiration and/or renewal date thereof. Neither the
Seller nor any of its Subsidiaries is in any way whatsoever in violation of any
of the Permits, and each of the Seller and its Subsidiaries has complied with
all applicable covenants and conditions of each of the Permits. There is no
action, proceeding, permit revocation, permit amendment, writ, injunction, claim
or investigation pending or threatened, concerning or relating to any of the
Permits or the Hazardous Materials activities of any of the Seller and its
Subsidiaries, including, but not limited to, the treatment, storage or disposal
of Hazardous Materials or liquid or solid waste materials which have been
handled by the Seller, any of its Subsidiaries, or any of their respective
predecessors or Affiliates.
3.30 THIRD PARTY RELATIONSHIPS. Each of the Seller and its Subsidiaries
has good working relationships in accordance with past practices with all
suppliers, subcontractors, governmental regulators and other Persons necessary
or appropriate for the normal operation of the Business and the businesses of
the Seller's Subsidiaries. The consummation of the subject transaction will not
result in any injury to or disruption of such relationships, and none of the
Seller Shareholders and the directors and officers of the Seller and its
Subsidiaries has any Knowledge that the Buyer will incur any costs or expenses
in order to continue such relationships as they had been maintained previous to
the Closing.
3.31 ACQUISITION QUESTIONNAIRE. All statements and representations
contained in that certain February 13, 1998 Acquisition Questionnaire (by
reference made an integral part hereof) initialed by the Seller Shareholders and
tendered by the Seller to the Buyer is true and correct in all material
respects.
3.32 DISCLOSURE. The representations and warranties contained in this
Article 3 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Article 3 not misleading.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller that the statements
contained in this Article 4 are correct and complete as of the Closing Date,
except as set forth in the Disclosure Schedule. The Disclosure Schedule will be
arranged in sections corresponding to the lettered and numbered sections
contained in this Article 4.
4.1 ORGANIZATION OF THE BUYER. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
4.2 AUTHORIZATION OF TRANSACTION. The Buyer has full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of the Buyer, enforceable
in accordance with its terms and conditions, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally, or by the exercise of judicial discretion
in accordance with general equitable principles.
4.3 NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement by the Buyer, nor the consummation by the Buyer of the transactions
contemplated hereby, will (i) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Buyer is subject
or any provision of its charter or bylaws or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any Person the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, permit, instrument, or
other arrangement to which the Buyer is a party or by which it is bound or to
which any of its assets is subject. The Buyer does not need
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to give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order for the
Parties to consummate the transactions contemplated by this Agreement.
4.4 BROKERS' FEES. The Buyer has no Liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Seller could become
liable or obligated.
ARTICLE 5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties, agreements, covenants and obligations made or undertaken by the
Seller and each Seller Shareholder in this Agreement are, whether specified as
such or not, the joint and several representations, warranties, agreements,
covenants and obligations of all of the Seller and the Seller Shareholders,
unless otherwise specifically indicated to the contrary herein with respect to a
particular representation, warranty, agreement, covenant or obligation; are
material, have been relied upon by the Buyer, shall survive the Closing
hereunder, and shall not merge in the performance of any obligation by any
Party; and, as to the representations and warranties, shall terminate or expire
on the fifth (5th) anniversary of the Closing Date, provided that such
representations and warranties shall not terminate or expire, but shall
continue, during the pendency of any suit, action, claim or other proceeding
brought in respect of such representations and warranties prior to the
termination or expiration of such five (5) year period. Notwithstanding the
above, all representations and warranties made by the Seller and each Seller
Shareholder in this Agreement that in any manner relate to (i) Tax matters, (ii)
environmental matters, and (iii) title matters, or as to the terms and
performance of this Agreement (collectively, the "SPECIAL MATTERS"), or any of
the foregoing, shall terminate or expire only upon the termination or expiration
of all applicable statutes of limitation. All representations, warranties,
agreements, covenants and obligations made or undertaken by the Buyer in this
Agreement shall survive the Closing hereunder, and shall not merge in the
performance of any obligation by any Party; and, as to the representations and
warranties, shall terminate or expire on the fifth (5th) anniversary of the
Closing Date, provided that such representations and warranties shall not
terminate or expire, but shall continue, during the pendency of any suit,
action, claim or other proceeding brought in respect of such representations and
warranties prior to the termination or expiration of such five (5) year period.
5.2 OBLIGATION OF THE SELLER AND THE SELLER SHAREHOLDERS TO INDEMNIFY.
Subject to the limitations contained in this Article 5, the Seller and the
Seller Shareholders, jointly and severally, shall defend, indemnify and hold the
Buyer and its shareholders, officers, directors, employees, counsel, agents,
Affiliates and assigns (collectively, the "BUYER INDEMNITEES") harmless from and
against any and all Losses asserted against, imposed upon or incurred by the
Buyer Indemnitees, or any of them, by reason of or resulting from, arising out
of, based upon or otherwise in respect of:
(i) any inaccuracy in any representation or warranty made by
the Seller or any Seller Shareholder pursuant to this Agreement or the
Disclosure Schedule;
(ii) any breach of any covenant or agreement made or to be
performed by the Seller or any Seller Shareholder pursuant to this Agreement;
(iii) any Liability or Loss resulting from, arising out of,
based upon or otherwise in respect of any violation or alleged violation of any
Environmental, Health and Safety Requirements the Acquired Assets, or the
presence of any Hazardous Materials on the Acquired Assets, that occurred at any
time prior to Closing;
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(iv) the Parties' failure to comply with any of the bulk sales
laws and any other similar laws in any applicable jurisdiction in respect of the
transactions contemplated by this Agreement, and any action brought or levy made
as a result thereof; and/or
(v) any Liability or obligation of the Seller, any of its
Subsidiaries (accruing prior to the Closing), or any of the Seller Shareholders,
or in any manner related to the Business (accruing prior to the Closing), the
Acquired Assets (accruing prior to the Closing) or the Excluded Assets, in each
of the foregoing cases, other than the Assumed Liabilities.
Notwithstanding the foregoing, neither the Seller nor any of the Seller
Shareholders shall have any obligation to indemnify the Buyer Indemnitees, or
any of them, for or with respect to any Losses resulting from, arising out of,
based upon or otherwise in respect of any of the matters listed in items (i)
through (v) of this Section until the Buyer Indemnitees, or any of them, has
suffered Losses by reason thereof in excess of a $10,000 aggregate threshold (at
which point the Seller and the Seller Shareholders will be jointly and severally
obligated to indemnify the Buyer Indemnitees, and each of them, for or with
respect to all such Losses in excess of such $10,000 aggregate threshold).
5.3 OBLIGATION OF THE BUYER TO INDEMNIFY. Subject to the limitations
contained in this Article 5, the Buyer shall defend, indemnify and hold the
Seller and its officers, directors, stockholders, employees, counsel, agents,
Affiliates and assigns (collectively, the "SELLER INDEMNITEES") harmless from
and against any and all Losses asserted against, imposed upon or incurred by the
Seller Indemnitees, or any of them, by reason of or resulting from, arising out
of, based upon or otherwise in respect of:
(i) any inaccuracy in any representation or warranty made by
the Buyer pursuant to this Agreement or the Disclosure Schedule;
(ii) any breach of any covenant or agreement made or to be
performed by the Buyer pursuant this Agreement; and/or
(iii) any Assumed Liability.
5.4 MATTERS INVOLVING THIRD PARTIES.
5.4.1 If any third party shall notify any Person that is
entitled to seek indemnification pursuant to Sections 5.2 or 5.3 hereof (the
"INDEMNIFIED PARTY") with respect to any matter (a "THIRD PARTY CLAIM") which
may give rise to a claim for indemnification against any other Person (the
"INDEMNIFYING PARTY") under this Article 5, then the Indemnified Party shall
promptly notify the Indemnifying Party thereof in writing; provided, however,
that no delay on the part of the Indemnified Party in notifying the Indemnifying
Party shall relieve the Indemnifying Party from any obligation hereunder unless
(and then solely to the extent) the Indemnifying Party thereby is prejudiced.
5.4.2 The Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying
Party notifies the Indemnified Party in writing within 15 days after the
Indemnified Party has given notice of the Third Party Claim that the
Indemnifying Party will indemnify the Indemnified Party from and against all
Losses the Indemnified Party may suffer resulting from, arising out of, relating
to, in the nature of or caused by the Third Party Claim, (ii) the Indemnifying
Party provides the Indemnified Party with evidence reasonably acceptable to the
Indemnified Party that the Indemnifying Party will have the financial resources
to defend against the Third Party Claim and fulfill its indemnification
obligations hereunder, (iii) the Third Party Claim involves only money damages
and does not seek an injunction or other equitable relief, (iv) settlement of,
or an adverse judgment with respect to, the Third Party Claim is
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not, in the good faith judgment of the Indemnified Party, likely to establish a
precedential custom or practice adverse to the continuing business interests of
the Indemnified Party, and (v) the Indemnifying Party conducts the defense of
the Third Party Claim actively and diligently.
5.4.3 So long as the Indemnifying Party is conducting the
defense of the Third Party Claim in accordance with Section 5.4.2 above, (i) the
Indemnified Party may retain separate co-counsel at its cost and expense and
participate in the defense of the Third Party Claim, (ii) the Indemnified Party
will not consent to the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written consent of the
Indemnifying Party (not to be withheld unreasonably), and (iii) the Indemnifying
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably).
5.4.4 In the event any of the conditions in Section 5.4.2
above is or becomes unsatisfied, however, (i) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any settlement
with respect to, the Third Party Claim in any manner it reasonably may deem
appropriate (and the Indemnified Party need not consult with, or obtain any
consent from, the Indemnifying Party in connection therewith), (ii) the
Indemnifying Party will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Third Party Claim (including
reasonable attorneys' fees and expenses), and (iii) the Indemnifying Party will
remain responsible for any and all Losses the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of or caused by the
Third Party Claim to the fullest extent provided in this Article 5.
5.5 INDEMNIFICATION PAYMENTS. An Indemnifying Party shall pay to the
Indemnified Party the full amount of any and all Losses (other than Losses
resulting from a Third Party Claim) for which it is required to indemnify the
Indemnified Party under this Article 5 within ten (10) days after its receipt of
notice thereof from the Indemnified Party, and the full amount of any and all
Losses resulting from a Third Party Claim within ten (10) days after final
settlement or adjudication thereof; and in each case, thereafter the amount of
any such Loss shall bear interest at the rate of interest publicly announced in
Atlanta, Georgia from time to time by NationsBank of Georgia, N.A. as its prime
rate, plus one percent (1%) per annum. After complying with the provisions of
Section 5.4 hereof with respect to any Loss that results from a Third Party
Claim (if applicable), the Buyer shall be entitled to offset from any payments
due the Seller or any of the Seller Shareholders as part of the Purchase Price
or otherwise (including but not limited to the SanTi Stock), the full amount of
any and all Losses (whether or not resulting from a Third Party Claim) for which
the Seller or any Seller Shareholder is required to indemnify any Buyer
Indemnitee pursuant to Section 5.2 hereof, and the Buyer shall not be liable for
any amounts so offset. Notwithstanding anything to the contrary set forth in
this Agreement, the Buyer agrees that, in satisfying its remedies under this
Agreement, it shall proceed against the following sources of recovery in the
order listed:
1. the SanTi Stock, but only for so long as the SanTi Stock is
pledged to the Buyer pursuant to the Stock Pledge;
2. any and all amounts currently due and payable, but unpaid, to
any of the Seller Shareholders under any and all employment
and/or consulting agreements entered into between the Buyer
and any of the Seller Shareholders on or about the Closing
Date; provided that the Buyer shall not be required to wait
until future amounts are due and payable thereunder prior to
proceeding against any of the sources described in item 3
immediately following; and
3. any and all of the assets of the Seller or any of the Seller
Shareholders.
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5.6 OTHER RIGHTS AND REMEDIES NOT AFFECTED. The indemnification rights
of the Parties and other Persons under this Article 5 are independent of and in
addition to such other rights and remedies that the Parties and such other
Persons may have at law or in equity or otherwise for any misrepresentation,
breach of warranty or failure to fulfill any agreement or covenant hereunder on
the part of any Party hereto, including, without limitation, the right to
offset, seek specific performance, rescission or restitution, none of which
rights or remedies shall be adversely affected or diminished hereby.
ARTICLE 6. MISCELLANEOUS
6.1 COMPLIANCE WITH BULK SALES LAWS. The Parties hereby waive
compliance by the Buyer and the Seller with the bulk sales law and any other
similar laws in any applicable jurisdiction in respect of the transactions
contemplated by this Agreement.
6.2 TAXES. The Seller shall pay all federal, state and local income,
sales, use, other transfer, documentary, stamp and other taxes, if any, due as a
result of the purchase, sale or transfer of the Acquired Assets in accordance
herewith, whether such Taxes are imposed by law on the Seller or the Buyer.
Notwithstanding the foregoing, each of the Seller and the Buyer shall pay
one-half of any and all sales taxes due as a result of transfer of the Acquired
Assets consisting of motor vehicles.
6.3 NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be (i) delivered
by hand, (ii) mailed by United States registered or certified mail, return
receipt requested, first class postage prepaid and properly addressed, or (iii)
sent by national overnight courier service to the Parties or their permitted
assignees at the addresses set forth opposite the Parties' signatures hereto.
All notices, requests, instructions or documents given to any Party in
accordance with this Section 6.3 shall be deemed to have been given (i) on the
date of receipt if delivered by hand or overnight courier service, or (ii) on
the date five (5) business days after depositing with the United States Postal
Service if mailed by United States registered or certified mail, return receipt
requested, first class postage prepaid and properly addressed. Any Party may
change its address specified for notices herein by designating a new address by
notice in accordance with this Section 6.3.
6.4 ENTIRE AGREEMENT. All Exhibits and Schedules (including the
Disclosure Schedule) referred to herein are intended to be, and hereby are,
specifically incorporated into and made a part of this Agreement. This Agreement
constitutes the entire agreement among the Parties relating to the subject
matter hereof and supersedes all prior and contemporaneous negotiations,
writings and agreements relating to the subject matter of this Agreement.
6.5 MODIFICATIONS, AMENDMENTS AND WAIVERS. The Parties may, by mutual
written agreement and in no other manner, modify or amend the terms of this
Agreement. The failure or delay of any Party at any time or times to require the
performance of any provision of this Agreement shall in no manner affect its
right to enforce that provision. No single or partial waiver by any Party of any
condition of this Agreement, or the breach of any term, agreement or covenant
of, or the inaccuracy of any representation or warranty in, this Agreement,
whether by conduct or otherwise, in any one or more instances shall be construed
or deemed to be a further or continuing waiver of any such condition, breach or
inaccuracy or a waiver of any other condition, breach or inaccuracy.
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the Parties, and their
respective successors and permitted assigns. This Agreement may not be assigned
by any Party without the prior written consent of the other Parties, except that
the Buyer may assign this Agreement and its rights and obligations hereunder to
one or more of its Affiliates, or to any of its lenders as collateral security.
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6.7 GOVERNING LAW. This Agreement shall be controlled, construed and
enforced in accordance with the substantive laws of the State of Florida,
without regard to any laws related to choice or conflicts of laws.
6.8 SEVERABILITY. Should any one or more of the provisions of this
Agreement be determined to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions hereof
shall not in any way be adversely affected or impaired thereby. The Parties
shall endeavor in good faith to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
practicable to that of the invalid, illegal or unenforceable provisions.
6.9 ATTORNEYS' FEES AND EXPENSES. In any Litigation arising out of,
under or in connection with this Agreement in which one Party prevails over
another Party, the reasonable attorneys' fees and expenses incurred by the
prevailing Party in connection with such Litigation shall be paid for or
reimbursed by the opposing Party or Parties in such Litigation.
6.10 NO BENEFIT TO OTHERS. The representation, warranties, covenants
and agreements contained in this Agreement are for the sole benefit of the
Parties and, in the case of Article 5 hereof, the other Indemnified Parties, and
their respective heirs, executors, administrators, legal representatives,
successors and assigns, and they shall not be construed as conferring any rights
on any other Persons.
6.11 CONSTRUCTION. Nothing in any Schedule (including the Disclosure
Schedule) attached hereto shall be deemed adequate to disclose an exception to a
representation or warranty made herein unless the Schedule identifies the
exception with particularity and describes the relevant facts in detail (and in
terms of Liabilities, quantifies the amount thereof with specificity). Without
limiting the generality of the foregoing, the mere listing (or inclusion of a
copy) of a document or other item shall not be deemed adequate to disclose an
exception to a representation or warranty made herein, unless the representation
or warranty has to do with the existence of the document or other item itself.
The Parties intend that each representation, warranty and covenant contained
herein shall have independent significance. If any Party has breached any
representation, warranty or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty or covenant.
6.12 EXPENSES. Except as otherwise provided herein, each of the Parties
will bear such Party's own costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.
6.13 FURTHER ASSURANCES. From time to time, at any Party's request and
without further consideration (unless the requesting Party is entitled to
indemnity therefor as provided herein), the other Parties will execute and
deliver to the requesting Party such documents and take such other action as
such Party may reasonably request in order to consummate more effectively the
transactions contemplated hereby.
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IN WITNESS WHEREOF, the Parties have executed this Agreement under seal
effective as of the date first above written.
SELLER:
A RAPID ROOTER SEWER & DRAIN SERVICE,
INC.
Address: 00 X.X. 0xx Xxxxxx By:/s/Xxxxxxx Xxxx [SEAL]
Xxxxxxx Xxxxx, XX 00000 ----------------------------------
Name:
--------------------------------
Title:
-------------------------------
SELLER SHAREHOLDERS
Address: 0000 X.X. 00xx Xxxxxx /s/ Xxxxxxx X. Xxxx [SEAL]
Xxxx Xxxxx, XX 00000 -------------------------------------
Xxxxxxx X. Xxxx
Address: 0000 X.X. 00xx Xxxxxx /s/ Xxxx X. Xxxx [SEAL]
Xxxx Xxxxx, XX 00000 -------------------------------------
Xxxx X. Xxxx
Address: 6901 E. Cypress Head Drive/s/ Xxxxxxx X. Xxxxxxxx [SEAL]
Xxxxxxxx, XX 00000 -------------------------------------
Xxxxxxx X. Xxxxxxxx
Address: 0000 X. Xxxxxxx Xxxx Xxxxx/x/ Xxxxx Xxxx Grunskis [SEAL]
Xxxxxxxx, XX 00000 -------------------------------------
Xxxxx Xxxx Grunskis
Address: 00000 Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxx [SEAL]
Xxxx Xxxxx, XX 00000 -------------------------------------
Xxxxxx X. Xxxx
Address: 00000 Xxxxxx Xxxxxx /s/ Xxxx Xxx Xxxx [SEAL]
Xxxx Xxxxx, XX 00000 -------------------------------------
Xxxx Xxx Xxxx
BUYER:
SANTI GROUP OF FLORIDA, INC.
Address: 0000 Xxxxxxx Xxxx By:/s/ Xxxxx Xxxx [SEAL]
Xxxxxx, XX 00000 ----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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EXHIBIT A
FINANCIAL STATEMENTS
[SEE ATTACHED]
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SCHEDULE 1
EXCLUDED ACCOUNTS
1. All customer accounts, rights or contracts which deal in hazardous chemical
toxic or low-level radioactive waste or any Hazardous Materials except for those
that the Buyer otherwise indicates in writing that it wishes to purchase.
2. Any and all accounts for the business of A Rapid Rooter Sewer & Drain Service
of Orlando, Inc.
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SCHEDULE 2
EXCLUDED ASSETS
1. The corporate charter, qualifications to conduct business as a foreign
corporation, arrangements with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals, minute books,
stock transfer books, blank stock certificates, and other documents relating to
the organization, maintenance, and existence of the Seller as a corporation.
2. All of the Excluded Accounts.
3. All Accounts Receivable of the Seller.
4. Any asset related to Hazardous Materials.
5. Cash and cash equivalents of the Seller.
6. Securities owned by the Seller, other than any and all such securities
which represent an interest in any non-hazardous liquid waste business.
7. The following automobiles:
a. 1998 Mercedes VIN 156967
b. 1996 Cadillac VIN 274311
c. 1995 Chevrolet VIN 106033
d. 1998 Ford VIN A09122
e. 1998 Ford VIN 29849
f. 1994 Nissan VIN 323969
8. The Seller's 401-K Plan
9. Personal photographs, awards and mementos of any of the Seller
Stockholders located on the business premises of the Seller.
10. Bank accounts of the Seller and any and all records relating thereto.
11. The Seller's insurance coverage relating to those automobiles listed in
Item 7 above.
12. The following residential and cellular phone numbers of the Seller
Shareholders:
(000) 000-0000 (000) 000-0000 (000) 000-0000 (000) 000-0000
(000) 000-0000 (000) 000-0000 (000) 000-0000 (000) 000-0000
(000) 000-0000 (000) 000-0000 (000) 000-0000 (000) 000-0000
(000) 000-0000
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SCHEDULE 3
ASSUMED LIABILITIES
1. That certain institutional indebtedness of the Seller in connection with
motor vehicles owned by the Seller and a part of the Acquired Assets in favor of
the banks set forth below in the amount of indebtedness set forth opposite such
banks:
First Union Bank $516,375.13
Xxxxxxx Bank $173,745.31
2. All obligations of the Seller directly associated with or under the
agreements, contracts, leases, licenses, and other arrangements referred to in
the definition of Accounts either (i) to furnish goods, services, and other
non-cash benefits to customers after the Closing, or (ii) to pay for goods,
services, and other non-cash benefits that another Person will furnish to it
after the Closing.
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SCHEDULE 4
CLOSING PAY-OFF INFORMATION
OTHER THAN WITH RESPECT TO ASSUMED LIABILITIES
NONE
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DISCLOSURE SCHEDULE TO ASSET PURCHASE AGREEMENT
[the Seller and the Seller Shareholders need to complete and provide information
required by Article 3, as well as set forth any other exceptions to the
representations and warranties of the Seller and the Seller Shareholders] [below
is list of Sections in Article 3 which require certain information] [other
Sections may be required]
Section 3.4 [Seller Shares]
Section 3.4 [Subsidiaries]
Section 3.11 [Tax Returns]
Section 3.12(i) [Owned Real Property]
Section 3.12(ii) [Leased Real Property]
Section 3.14 [Contracts/Agreements]
Section 3.16 [Insurance]
Section 3.17 [Litigation]
Section 3.18 [Service Warranty]
Section 3.20 [Employees]
Section 3.21 [Employee Benefits]
Section 3.23(v) [Disposal Sites]
Section 3.25 [Accredited Investor Qualifications]
Section 3.26 [Nonassignable Accounts]
Section 3.27 [Accounts]
Section 3.29 [Permits]
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