Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of the 17th day of February, 2006, by and between Tires Into Recycled Energy
and Supplies, Inc., a North Carolina corporation having its principal place of
business at 0000-X Xxxxxxx Xxxxxx, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
("Purchaser"), XxxxxXxx Technologies of Georgia, Inc., a Georgia corporation,
having its principal place of business at 000X Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000 ("Seller"), and, joining in the execution hereof for the limited purposes
hereinafter set forth, XxxxxXxx Technologies, Inc., a Delaware corporation,
having its principal place of business at 0 Xxxxxxx Xxxx Xxxx. X, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Parent").
W I T N E S S E T H:
WHEREAS, Seller owns and operates a facility for the recycling of truck
tires (the "Business") that does business throughout the Southeastern United
States; and
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to
sell to Purchaser, subject to the terms and under the conditions set forth in
this Agreement, certain of the Seller's assets, free and clear of any and all
liabilities or obligations of Seller with respect to the operation of the
Business; and
NOW, THEREFORE, for and in consideration of the premises and of the mutual
covenants and agreements herein set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereby covenant and agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS; LIABILITIES
1.1 Sale of Assets. At the Closing (as such term is defined in Section 4.1
of this Agreement) and subject to the terms and under the conditions set forth
in this Agreement, Seller agrees to sell, convey, transfer, assign and deliver
to Purchaser, and Purchaser agrees to purchase from Seller, the specifically
defined assets listed on Schedule 1.1(a) and Schedule l.1(b) and described in
Section 1.1(c), (d) and (e) hereof (hereinafter referred to collectively as the
"Assets"):
(a) Tangible Personal Property. The specific equipment and
furnishings listed and described on Schedule 1.1(a) attached hereto (the
"Tangible Personal Property").
(b) Contracts. All of Sellers' right, title and interest in and to
those certain Contracts described on Schedule 1.1(b) attached hereto (the
"Contracts"). Purchaser shall have the right to exclude any of the
Contracts upon written notice to Seller delivered within thirty (30) days
from the Closing with no penalty, no obligation to customer, and no
adjustment to the Purchase Price.
(c) Intangible Assets. All of Seller's books, records, reports,
technical data, and internal memoranda relative to the purchased Tangible
Personal Property and Contracts, as well as all information on computer
hardware and software, customer and client lists, supplier and vendor
lists, and telephone listings and numbers used by Seller in the Business
(collectively, the "Intangible Assets").
(d) Licenses, Permits and Approvals. To the extent assignable, all
licenses, permits and approvals with respect to the Business and the Real
Property (as hereinafter defined), including, but not limited to, all
rights of Seller under any building permits, certificates of occupancy and
occupational licenses (together, the "Licenses").
(e) Warranties. All rights of Seller under or pursuant to all
warranties, representations and guarantees made by any contractors in
connection with products sold or services provided to Seller for its
Business, or affecting the property, machinery or equipment identified in
the Schedules.
1.2 Lease of Real Property. At the Closing, Seller agrees to execute a
sublease agreement ("Sublease Agreement") in the form set forth in Exhibit 1.2
with respect to a portion of the real property located at 000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 ("Real Property") and defined, in detail,
in Exhibit 1.2. Seller further agrees to insure that all tire-derived material
on site will be moved as necessary to insure that this is not on Purchaser's
portion of site. Seller shall obtain all consents necessary for the execution of
the Sublease Agreement and any and all non-disturbance agreements with respect
to the prime lease. The Sublease Agreement will renew daily so as to provide for
a rolling 6-month commitment by the Purchaser. The parties agree that the
monthly rental for the initial 3 months shall be No Dollars and No Cents ($0.00)
and Four Thousand Two Hundred and Eighty-Seven Dollars and Fifty Cents
($4,287.50), all-inclusive (insurance, taxes and maintenance), in advance
thereafter.
1.3 Xxxxxx Material. To the extent the Seller has not already done so as
of the Closing, Seller agrees, as part of this overall sale, to provide from its
Minnesota affiliate, four loads a week (approximately 44,000 lbs per load) of
all black truck tire 3/4 ? xxxxxx material that meets established specifications
from Material Supply Agreement (as defined in paragraph 1.5 below) either prior
to the Closing or for the four weeks subsequent to the Closing at the lower of
the cost described in the Material Supply Agreement or the cost of transporting
the material to Purchaser's Calhoun, Georgia facility.
1.4 Excluded Assets. All assets owned by the Seller and not specifically
identified on Schedule(s) 1.1(a) and 1.1(b) or in Sections 1.1(c), (d) or (e)
are excluded, including but not limited to: (i) cement kiln contracts; (ii)
Contracts with affiliates; (ii) the corporate records book and the corporate
stock record or register of Seller; (iii) prepaid and deposit accounts, cash and
accounts receivable; (iv) all raw material, work in process and finished goods
and inventory associated with the Business.
1.5 Purchase Price for the Assets and the Real Property. . Subject to the
terms, provisions and conditions of this Agreement, the purchase price for the
Assets (the "Purchase Price") shall be the sum of One Hundred Fifty-Five
Thousand and No/100 Dollars ($155,000.00), which the Buyer shall pay to the
Seller at the Closing in cash, by certified check or by wire transfer of good
funds to an account directed by the Seller. In addition to the Purchase Price,
and as additional consideration, as of the Closing the Purchaser shall terminate
all current and future obligations of Seller, Parent and their affiliates under
the following Agreements, which shall thereafter be null and void: (i) December
8, 2005, Material Supply Agreement ("Material Supply Agreement") and June 6,
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2005 Amendment thereto; (ii) December 8, 2005 Letter of Intent and June 6, 2005
amendment thereto (with the exception that Purchaser will retain the 127,389
shares of Parent's common stock provided under such agreement); (iii) June 6,
2005 Fiber Supply Agreement; (iv) June 6, 2005 Whole Tire Supply Agreement; and
(v) the Xxxxxx and Clean Wire Processing Equipment, Tire Shredding Equipment and
Rubber Granulation Equipment leases dated December 8, 2004
1.6 Allocation of Purchase Price. The Purchase Price for the Assets and
the Real Property shall be allocated among the Assets and the Real Property as
set forth on Schedule 1.6 attached hereto (the "Allocation Schedule"), which
shall be completed immediately prior to, or at, the Closing and initialed by the
parties. Seller and Purchaser each covenants and agrees not to take a position
on any income tax return, before any governmental agency charged with the
collection of any income tax, or in any judicial proceeding in relation to any
income tax which is in any way inconsistent with the Allocation Schedule.
Further, Seller and Purchaser each covenants and agrees to timely comply with
all filing requirements of Section 1060 of the Code.
1.7 Liabilities. Other than obligations under the Contracts purchased and
not excluded as provided in Section 1.1(b), if any, Purchaser will not assume
any of the obligations or liabilities of Seller of any kind or nature
whatsoever, regardless of whether such obligation or liability is known or
unknown, foreseen or unforeseen, asserted or unasserted, absolute or contingent
or arises from contract, tort or otherwise.
1.8 Instruments of Conveyance and Transfer. At the Closing, Seller and
Parent shall execute and deliver to Purchaser the closing documents described in
Section 6.10 below and such other bills of sale, endorsements, assignments,
third party agreements and other good and sufficient instruments of conveyance,
sale and assignment, satisfactory in form and substance to Purchaser and its
legal counsel, as shall be effective to vest in Purchaser good and marketable
title to all of the Assets and marketable leasehold title to the Real Property,
all as provided in this Agreement. At the Closing, Buyer shall pay the Purchase
Price and shall execute and deliver to Seller the closing documents described in
Section 7.5 below. Concurrently with and after such delivery, Seller will take
all additional steps as may be required to put Purchaser in possession and
operating control of the Assets and the Real Property. To the extent that after
the Closing any party discovers that such instruments fail to transfer to
Purchaser any portion of the Real Property or any item which comprises a part of
the Assets, Seller and their respective heirs, legal representatives, successors
and assigns, agrees to execute such further instruments as shall be necessary to
transfer title to such portion of the Real Property or such item to Purchaser.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT
Seller represents and warrants to and for the benefit of Purchaser as
follows:
2.1 Organization, Good Standing and Qualification. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Georgia has all necessary corporate power and authority to carry on its
business and to own, lease and operate its properties. Parent is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all necessary corporate power and authority to carry
on its business and to own, lease and operate its properties.
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2.2 Seller's and Parent's Corporate Action. The execution, delivery and
performance of this Agreement by Seller and Parent, and the consummation of the
transactions contemplated by this Agreement, including the conveyance, transfer
and delivery of the Assets, have been duly authorized by Seller's and Parent's
board of directors and by all other necessary corporate action.
2.3 Valid and Binding Agreement. Seller and Parent have full legal right,
capacity, power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and this Agreement constitutes
the legal, valid and binding obligations of Seller and Parent, enforceable
against Seller and Parent in accordance with its terms.
2.4 No Breach of Statute, Decree or Other Instrument. Neither the
execution and delivery of this Agreement by Seller or Parent nor the performance
of or compliance with the terms and provisions of this Agreement on the part of
Seller or Parent will violate or conflict with any term of the Articles of
Incorporation or Bylaws of Seller or Parent or constitute a material breach or
violation of any statute, law, rule or regulation of any governmental authority
affecting Seller or Parent or will on the date of the Closing (the "Closing
Date") conflict with, result in a breach of, or constitute a default under, any
of the terms, conditions or provisions of any judgment, order, award,
injunction, decree, contract, lease, agreement, indenture or other instrument to
which Seller or Parent are a party or by which Seller or Parent are bound.
2.5 Compliance with the Law. The execution, delivery and performance of
this Agreement will not conflict with or result in a breach or violation of any
law or regulation to which Seller is subject.
2.6 Consents Required. The Seller and Parent have received, or will prior
to the Closing receive, all necessary consents, authorizations or approvals of
or has made, or will prior to the Closing make, the necessary filings with any
governmental authority or agency, or any third party, in connection with the
consummation of the transactions contemplated hereby.
2.7 No Undisclosed Liabilities. Except as expressly disclosed in writing
to Purchaser as of the execution hereof, there are no liabilities or obligations
(including, but not limited to, any tax liabilities or accruals) of Seller,
including any contingent liabilities, that are, individually or in the
aggregate, material to the Assets and the transactions contemplated by this
Agreement. At the time of the Closing, there will be no liabilities or
obligations of any nature, whether accrued, absolute, contingent or otherwise,
or arising out of transactions entered into or any state of facts existing, for
which Purchaser may become liable or which may adversely affect the free and
clear title of Purchaser to the Assets or the Real Property after the Closing.
2.8 Tax Matters. All Federal, state, and local tax returns and tax reports
required to be filed by Seller, and with respect to which the failure to file
could give rise to a lien on all or any part of the Assets, on or before the
date hereof, have been timely filed with the appropriate governmental agencies
in all jurisdictions in which such returns and reports are required to be filed,
and all of such returns were true, correct and complete as filed. All Federal,
state, and local income, franchise, sales, use, property, excise, payroll and
other taxes (including interest and penalties and including estimated tax
installments where required to be filed and paid) due from or with respect to
Seller, the non payment of which could give rise to a lien on all or any part of
the Assets, as of the date hereof have been fully paid, and appropriate accruals
have been made on Seller's books for taxes not yet due and payable. There are no
outstanding or pending claims, deficiencies or assessments for taxes, interest
or penalties with respect to any taxable period of Seller with respect to all or
any part of the Assets.
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2.9 Contracts and Leases. Other than the Contracts, Seller does not have
any existing contract, lease or commitment with respect to the Business or any
of the Assets that will affect in any way any of the Assets after the Closing or
Purchaser's business to be conducted with the Assets after the Closing. Seller
has agreed that Purchaser may assume the activities of the Contracts ahead of
Closing as Seller no longer has the means to service said Contracts. Seller
agrees to furnish Purchaser with a letter (approved by Purchaser) to be sent to
each contracted tire generator explaining the sale of Assets and Contracts and
the assignment thereof. Furthermore, Seller agrees to assist, as requested by
Purchaser, in the transfer of said Contracts and in Purchaser's efforts to
re-establish the truck tire flow. Prior to the date of this Agreement, Purchaser
has been supplied with a true and complete copy of each of the Contracts.
2.10 Title; Liens and Encumbrances. Except as to the liens and
encumbrances listed and described on Schedule 2.10 attached hereto, Seller is
vested with, and at the Closing shall be vested with, good and marketable title
to all of the Assets free and clear of all restrictions, mortgages, security
interests and other encumbrances, and all liens and charges of any kind or
nature whatsoever. The Assets, and the leasehold interest in the Real Property,
shall be sold at Closing free and clear of all such liens and encumbrances,
except with respect to mechanic's liens which have not been reduced to judgment.
The Seller and the Purchaser agree to deliver the documents required to be
delivered pursuant to Sections 6.10 and 7.5 to counsel for Purchaser until such
time as the Liens and Encumbrances reflected in Schedule 2.10, (except with
respect to the mechanic's liens which have not been reduced to judgment), have
been released and the Purchaser has been provided with written confirmation,
acceptable to Purchaser, from a reputable title examiner/search firm, that none
of the lawsuits reflected in Schedule 2.19 have created a lien against any of
the Assets and the leasehold interest in the Real Property, that no additional
liens or claims have been filed against the Assets and the leasehold interest in
the Real Property and that all liens and encumbrances have been released, other
than Mechanic's Liens which have not been reduced to judgment. At such time as
the Purchaser has received such acceptable written assurance that all such liens
and encumbrances have been released, or have not attached, and that no new liens
and claims have been filed, Purchaser shall deliver the Purchase Price to Seller
and Purchaser's counsel shall deliver the documents to the parties entitled
thereto. If the Seller is unable to provide all necessary releases of liens,
claims and encumbrances (other than Mechanic's Liens which have not been reduced
to judgment) within ten (10) days from the Seller's and Purchaser's delivery of
the documents required to be delivered pursuant to Sections 6.10 and 7.5, or
such longer date as may be mutually agreed to between Purchaser and Seller,
Purchaser may instruct its counsel to return the Seller's document to Seller and
the Purchaser's documents to Purchaser and to declare the Seller in default
under this Agreement.
2.11 Condition of Tangible Personal Property. Seller has delivered, or
prior to the Closing will deliver, to Purchaser an accurate list and summary
description of all of the Tangible Personal Property. All items of the Tangible
Personal Property shall be sold "AS IS" with no warranties of any kind with
respect to their condition.
2.12 Real Property; Seller's Facilities. Seller does not own or have any
interest of any kind (whether ownership, lease or otherwise) in any real
property used in the Business, except to the extent of Seller's interest as
lessee for the Real Property. The buildings and other facilities used by Seller
on the Real Property (the "Seller's Facilities") are in good condition
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(reasonable wear and tear excepted), and are adequate for the operation of the
Business as presently conducted by Seller. To Seller's knowledge, Seller's use
of the Seller's Facilities in the normal conduct of the Business does not
violate any applicable building, zoning or other law, ordinance or regulation
affecting such real property, and no covenants, easements, rights of way or
other such conditions of record impair Seller's use of the Seller's Facilities
in the normal conduct of Seller's business. All of the buildings, fixtures and
other improvements located on the Real Property are accessible by public roads,
and during the two (2) year period prior to the date hereof, Seller has not
experienced any material interruption in the delivery of adequate quantities of
any utilities or other public services required by Seller in the normal
operation of the Business.
2.13 Compliance. As of the date of this Agreement, and upon transfer of
all rights of Seller in same to Purchaser at the Closing, the Assets, the Real
Property and all other fixtures, equipment, signage and other improvements
installed or located on the Real Property, and the operation of the Business on
the Real Property, to the Seller's knowledge, are and will be in compliance with
any and all applicable city, county, state or federal statutes, ordinances,
codes and regulations applicable to the size, design, use or occupancy of same,
including, but not limited to, all land use and zoning codes and regulations and
all building codes.
2.14 Environmental Matters.
(a) As used in this Section: (i) the term "Environmental Laws" means
all Federal, state and local laws, statutes, regulations, permits, orders,
ordinances, codes, rules and other governmental restrictions, requirements
and duties, including common law, relating to the treatment, storage,
disposal or release of air pollutants, water pollutants or processed waste
water or otherwise relating to human health, the environment or hazardous
substances, including, but not limited to, the Federal Solid Waste
Disposal Act; the Federal Clean Air Act (including, but not limited to,
the Clean Air Act Amendments of 1990); the Federal Water Pollution Control
Act; the Hazardous Materials Transportation Act; the Federal Toxic
Substances Control Act; the Federal Resource Conservation and Recovery Act
of 1976; the National Environmental Policy Act; the Federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA")
and similar state laws, all amendments to any of the foregoing statutes,
and all regulations promulgated by any federal or state agencies,
including the Environmental Protection Agency, regulations of the Nuclear
Regulatory Agency, and regulations of any state department of natural
resources or state environmental protection agency now or at any time
hereinafter in effect; and (ii) the terms "hazardous substances,"
"release," "respond," "response," and all variations and derivatives
thereof shall mean and include, without limitation, all radioactive
materials, asbestos and asbestos-containing materials, PCB's, petroleum
products and by-products, all solid, semi-solid, liquid or gaseous
substances which are toxic, ignitable, corrosive, carcinogenic or
otherwise dangerous to human, plant or animal health, and all substances
defined or listed as "hazardous substances," "toxic substances,"
"hazardous waste," "toxic pollutants" in, or otherwise regulated under any
Environmental Law, including, but not limited to, the meanings ascribed to
them in CERCLA.
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(b) Except as described on Schedule 2.14, Seller has not received
notice of any pending or threatened litigation or administrative
proceeding which in any instance (i) asserts or alleges any violation of
applicable Environmental Laws on the part of Seller, (ii) asserts or
alleges that Seller is required to clean up, remove or otherwise take
remedial or other response action due to the disposal, depositing,
discharge, leaking or other release of any hazardous substances or
materials, or (iii) asserts or alleges that Seller is required to pay all
or any portion of the costs of any past, present or future cleanup,
removal or remedial or other response action which arises out of or is
related to the disposal, depositing, discharge, leaking or other release
of any hazardous substances or materials by Seller. Seller is not subject
to any judgment, decree, order or citation related to or arising out of
any Environmental Laws. To the knowledge of Seller, Seller has not been
named or listed as a potentially responsible party by any governmental
body or agency in any matter arising under any Environmental Laws. Seller
is not a participant in, nor does Seller have knowledge of, any
governmental investigation involving the Seller's Assets or the Real
Property.
(c) Except as described on Schedule 2.14, neither Seller nor, to the
knowledge of Seller any other person, firm, corporation or governmental
entity has caused or permitted any hazardous substances or other materials
to be stored, deposited, treated, recycled or disposed of on, under or at
any portion of the Real Property, which materials, if known to be present,
may reasonably be expected to require or authorize cleanup, removal or
other remedial action under any applicable Environmental Laws.
(d) Except as described on Schedule 2.14, to the knowledge of Seller
there are not now nor have there ever been, any tanks or other storage
facilities on, under or at any portion of the Real Property which contain
or contained hazardous substances or other materials which, if known to be
present in soils or ground water, may reasonably be expected to require or
authorize cleanup, removal or other remedial action under any
Environmental Laws.
(e) To the knowledge of Seller, Seller has in full force and effect
all material permits, licenses and approvals required to be maintained
under any Environmental Laws applicable to Seller or any of the Seller's
Facilities. Seller disclaims any representation or warranty as to whether
any of such permits, licenses and approvals are transferable to Purchaser,
provided that the transfer of any such permits and licenses and the
obtaining of any such approvals are a condition of Purchaser's obligation
to Close as provided in Article VI.
(f) Except as described on Schedule 2.14, Seller is not aware of any
monitoring and testing equipment and records which are legally required to
assess environmental compliance in accordance with Environmental Laws at
any of the Seller's Facilities or any other real property owned or leased
by Seller, and, Seller has no knowledge of any conditions presently
existing at any real property currently owned, leased or occupied by
Seller which would subject Seller to any damages, penalties, cleanup costs
or other liability under any applicable Environmental Laws, or which may
reasonably be expected to require cleanup, removal, remedial action or
other response under any applicable Environmental Laws.
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(g) The parties agree that the Phase I Environmental Report prepared
by Xxxxxxx & Xxxxxxx, 000 XxxXxxxx Xxxxx, Xxxx, XX 00000, dated November
16, 2005, reflects the condition of the Real Property as of the date
hereof.
2.15 Insurance. Each insurance policy maintained by Seller with respect to
the Assets and the operation of the Business and the date of expiration thereof
is listed and briefly described on Schedule 2.15 attached hereto, including the
names of the insurer, the policy limits and the deductibles of each such
insurance policy. The types and levels of such insurance coverages are
reasonable and customary for businesses that are similar in type, size and
location to the Business. All such policies are in full force and effect and are
issued by insurers of recognized responsibility. Seller is not in default with
respect to its obligations under any of the insurance policies relating to the
Assets or the Business.
2.16 Warranties. All claims outstanding, pending or, to the knowledge of
threatened for breach of any warranty relating to any products or services of
the Business sold by Seller prior to the date hereof are listed and described on
Schedule 2.16 attached hereto. The description of Seller's product and service
warranties set forth on Schedule 2.16 is correct and complete.
2.17 Permits and Licenses. Schedule 2.17 lists all required permits,
licenses and/or franchises, from whatever governmental authorities or agencies
(domestic and/or foreign) requiring the same and having jurisdiction over
Seller, necessary in order to operate the Business in the manner presently
conducted. All of such permits, licenses and/or franchises are valid, current
and in full force and effect. Seller disclaims any representation or warranty as
to whether any of such permits, licenses and/or franchises are transferable to
Purchaser, provided that the transfer of any such permits and licenses and/or
franchises are a condition of Purchaser's obligation to Close as provided in
Article VI.
2.18 Employment Matters. Purchaser shall have the right, but not the
obligation, to employ any or all of Seller's employees in Georgia. Seller shall
remain liable for all current and accrued wages, employment taxes, severance,
vacation and other employee benefits and obligations to all of Seller's
employees accrued through the date(s) of their discharge by Seller, whether or
not they accept employment from Purchaser. Seller represents that it has no
employee pension benefit plans, as defined in Section 3(s) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), simple XXX as
defined in Section 408(p) of the Internal Revenue Code of 1986, as amended (the
"Code"), multiemployer plans, as defined in Section 3(37) of ERISA, employee
welfare benefit plans, as defined in Section 3(1) of ERISA, deferred
compensation plans, stock option plans, bonus plans, stock purchase plans,
health plans, disability plans, life insurance plans, severance or termination
pay plans or policies, employee retention agreements, cafeteria plans, as
defined in Section 125 of the Code for which Purchaser shall have any liability
or obligation. Seller agrees that to the extent that any employees are not hired
by Purchaser and are discharged by Seller that Seller shall be responsible for
any and all COBRA benefits/coverage as well as all other current and accrued
wages, employment taxes, severance, vacation and other employee benefits and
obligations.
2.19 Litigation. Except as listed and described on Schedule 2.19, there is
no suit, action, arbitration, or legal, administrative or other proceeding, or
governmental investigation pending, or, to the knowledge of Seller, threatened,
by or against Seller or any of the Assets. Seller is not aware of any state of
facts, events, conditions or occurrences that would properly constitute grounds
for or the basis of any meritorious suit, action, arbitration, proceeding or
investigation against or with respect to Seller, the Assets or any part of the
Real Property.
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2.20 Transactions with Affiliates. Except as described on Schedule 2.20,
no material Asset employed in the Business of Seller is owned by, leased from,
or leased to any affiliate or any other officer or director of Seller or any
affiliate of Seller.
2.21 Events Adversely Affecting the Assets. No event, occurrence or
condition, including any damage, destruction or loss (whether or not covered by
insurance) exists as of this date which adversely affects any of the Assets or
any portion of the Real Property or which may adversely affect the operation of
Purchaser's Business to be conducted with the Assets and the Real Property
subsequent to the Closing or which, with the passage of time or the giving of
notice, could adversely affect any of such Assets, any portion of the Real
Property or such business.
2.22 No Condemnation. Seller has not received any notice from any
governmental or quasi-governmental body or agency or from any person or entity
with respect to any actual or threatened taking of any portion of the Real
Property for any public or quasi-public purpose by the exercise of the right of
condemnation or eminent domain, nor does Seller have any knowledge of any such
actual or threatened taking. Further, Seller has not received any notice of any
existing or threatened lawsuit by which any party claims an interest in any
portion of the Real Property.
2.23 Schedules Incorporated by Reference. The making of any recitation in
any Schedule hereto shall be deemed to constitute a representation and warranty
that such recitation is an accurate statement and disclosure of the information
required by the corresponding Section(s) of this Agreement, and to any and all
other Sections(s) of this Agreement to which such recitations reasonably relate,
as, to the extent, and subject to the qualifications and limitations, set forth
in such corresponding Section(s).
2.24 Accuracy of Representations and Warranties. The representations and
warranties made by Seller including the Schedules attached hereto, or in any
document or certificate furnished or to be furnished by Seller pursuant to the
terms of this Agreement, or any information contained in such documents or
certificates do not contain, and will not contain, any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements and information contained herein or therein not misleading. Such
representations and warranties are true and correct on the date hereof and shall
be true and correct in all respects at the time of the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to and for the benefit of Seller
as follows:
3.1 Organization, Good Standing and Qualification. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of North Carolina, with all necessary power and authority to
execute and deliver this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby.
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3.2 Authorization of Agreement. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby by
Purchaser have been duly and validly authorized by all necessary corporate
action, and Purchaser has the full legal right, power and authority to execute
and deliver this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby. No further corporate
authorization is necessary on the part of Purchaser to consummate the
transactions contemplated hereby.
3.3 Valid and Binding Agreement. This Agreement constitutes the legal,
valid and binding obligations of Purchaser, enforceable against Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
3.4 No Breach of Statute or Contract. Neither the execution and delivery
of this Agreement by Purchaser, nor compliance with the terms and provisions of
this Agreement on the part of Purchaser, will: (a) violate the Certificate of
Incorporation or Bylaws of Purchaser, or any statute or regulation of any
governmental authority, domestic or foreign, which affects and is material to
the business of Purchaser; (b) require the issuance to or the obtaining by
Purchaser of any authorization, license, consent or approval of or exemption
from any Federal or state governmental agency; or (c) conflict with or result in
a breach of any of the terms, conditions or provisions of any judgment, order,
injunction, decree, note, indenture, loan agreement or other agreement or
instrument to which Purchaser is a party, or by which Purchaser is bound, or
constitute a default thereunder.
ARTICLE IV
COVENANTS OF SELLER
4.1 Conduct of Business Prior to Closing. Between the date of this
Agreement and the consummation of the transactions contemplated by this
Agreement (the "Closing"), Seller shall:
(a) Continue to maintain with financially sound and reputable
insurers insurance against such risks and in such amounts of coverage as
is acceptable to Purchaser (including casualty insurance coverage on the
Real Property and improvements in an amount equal to at least the fair
market value thereof); and comply with all applicable laws, ordinances,
rules and regulations or orders which if not complied with could
materially or adversely affect any of the Assets or the Real Property.
(b) Not sell, transfer, lease, or otherwise dispose of, or permit
the disposal or removal of, any of the Assets.
(c) Execute a letter (approved by Purchaser) to each of the
contracted tire generators explaining the sale and assigning the contract
to Purchaser.
(d) Use its best efforts to preserve Seller's business organizations
intact and maintain its relationships with suppliers, customers,
creditors, independent contractors, sales personnel, and employees and
others having business relations with Seller.
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(e) With respect to the subject matter hereof, not enter into any
agreements or transactions which are not in the normal course of business
or which are contrary to any provision hereof without the prior written
consent of Purchaser, and, except to the extent permitted elsewhere in
this Agreement, make any changes or modifications in any agreements
affecting any of the Assets to which it is a party.
(f) Not take any action or permit any action to be taken that might
impair the value of any of the Assets.
(g) Timely file all reports and tax returns due to any governmental
agency and timely pay all sums due thereunder, unless payment is being
contested in good faith.
4.2 Access - Purchaser's Inspections and Investigations. Seller shall
permit Purchaser and its representatives (including Purchaser's legal counsel,
accountants, engineers, employees, and other representatives) to have reasonable
access during normal business hours to the offices, properties, books and
records of Seller and to conduct physical inspections of the Assets and the Real
Property (including, but not limited to, environmental assessments of the Real
Property), and shall furnish to Purchaser and its representatives, for
inspection and copying, such financial and operating data, contracts, insurance
policies, title documents and other information with respect to the Business,
the Assets and the Real Property, which are from time to time reasonably
requested in order that Purchaser and its representatives may make such
inspections and investigations as Purchaser deems necessary to ascertain the
value and condition of the Assets and the Real Property, the value thereof and
the feasibility of Purchaser's purchase of the Assets and the Real Property.
Seller shall cooperate with Purchaser and Purchaser's agents, employees and
independent contractors, and provide access to the Real Property and the Assets
for the purpose of conducting the inspections described in this Section.
4.3 Exclusive Rights. In consideration of the expenditures of time, effort
and expense incurred and to be incurred by Purchaser in connection with the
preparation of this Agreement and in conducting its due diligence investigations
and review contemplated herein, Purchaser shall have the exclusive right and
option during the term of this Agreement to acquire the Assets, and Seller
agrees that, prior to any valid termination of this Agreement pursuant to
Article IX below, neither Seller nor any of its officers, directors, affiliates,
representatives or other agents will solicit or otherwise entertain any offers
or inquiries, or negotiate with or enter into any discussions, commitments,
agreements or understandings with any person, firm or entity (other than
Purchaser) in respect of any sale or disposition in any manner of any portion of
the leasehold interest in the Assets which, if consummated, would frustrate the
intent of this Agreement.
4.4 Conditions and Best Efforts. Seller shall use its best efforts to
effectuate the transactions contemplated by this Agreement and to timely fulfill
all of the conditions to their obligations and the obligations of Purchaser
under this Agreement and shall do all such acts and things as may be reasonably
required to carry out their obligations hereunder and to consummate and complete
this Agreement.
4.5 Employees. Buyer shall have the right, but not the obligation, to hire
any of the employees employed by Seller prior to the Closing, on such terms and
conditions as Buyer deems appropriate in its sole discretion. Seller agrees not
to take any action or permit the taking of any action prior to and subsequent to
the Closing which might prevent or discourage those employees of Seller that
Purchaser desires to hire after the Closing to accept employment with Purchaser;
provided, however, that Purchaser shall have no obligation to employ any of such
persons and Seller shall have no obligation to continue to employ any employees
currently employed by Seller.
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4.6 No Change in Warranties and Representations. Between the date hereof
and the Closing, Seller will take no action that would cause any representation
or warranty made by any of them in this Agreement to become untrue or inaccurate
in any respect as of the Closing.
4.7 Notification. If, prior to the Closing, any adverse event occurs or is
about to occur with respect to the Business, or if any of the representations or
warranties made in this Agreement made by Seller becomes untrue or inaccurate in
any respect, or if Seller is in breach of or default under any of their
agreements or covenants hereunder, then shall immediately provide Purchaser with
written notice of such occurrence or fact.
ARTICLE V
ADDITIONAL AGREEMENTS OF THE PARTIES
5.1 Confidentiality. The parties agree that they will each maintain in
confidence and not disclose to any third party, and will cause their respective
Affiliates, directors, officers, employees, agents, and advisors to maintain in
confidence and not disclose to any third party, any information obtained from
any other party in connection with this Agreement or the transactions
contemplated hereby, unless such information becomes publicly available through
no fault of such party, the use of such information is necessary or appropriate
in making any filing or obtaining any consent or approval required for the
consummation of the transactions contemplated herein, or the furnishing or use
of such information is required by legal proceedings or otherwise by any
applicable law.
5.2 Publicity. Either party shall have the right to issue press releases
or other public statements regarding the execution of this Agreement and the
transactions contemplated hereunder; provided, however, that such releases and
statements shall not include any disclosure of the financial terms of this
Agreement, except to the extent that such disclosures are required by law.
5.3 Right to Conduct Inventory. At any time after the execution of this
Agreement, Purchaser shall have the right to conduct an inventory of the Assets.
5.4 Non-Competition and Confidentiality Agreement. On the Closing Date,
Purchaser and Seller shall enter into a non-competition and confidentiality
agreement substantially in the form of Exhibit 5.4 attached hereto.
5.5 Non-Interference. Neither of the parties shall cause to occur any act,
event or condition which would cause any of their respective representations and
warranties made in this Agreement to be or become untrue or incorrect in any
material respect as of the Closing Date, or would interfere with, frustrate or
render unreasonably expensive the satisfaction by the other party or parties of
any of the conditions precedent set forth in Article VI or Article VII below.
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ARTICLE VI
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
The obligations of Purchaser to consummate the transactions contemplated
by this Agreement are further subject to the satisfaction, at or before the
Closing Date, of all the following conditions, any one or more of which may be
waived in writing by Purchaser:
6.1 Accuracy of Representations and Warranties. All representations and
warranties made by Seller and Parent in this Agreement, in any Schedule(s)
hereto, and/or in any written statement delivered to Purchaser pursuant to this
Agreement shall be true and correct in all respects on and as of the Closing
Date as though such representations and warranties were made on and as of that
date.
6.2 Performance. Seller shall have performed, satisfied and complied with
all covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by them on or before the Closing Date,
including, but not limited to, all covenants and agreements described in Article
IV and Article V of this Agreement.
6.3 Certification. Purchaser shall have received a certificate, dated the
Closing Date, signed by Seller and Parent certifying, in such detail as
Purchaser and its legal counsel may reasonably request, that the conditions
specified in Sections 6.1 and 6.2 above have been fulfilled.
6.4 Good Standing Certificates. Seller and Parent shall have delivered to
Purchaser a certificate issued by the Secretary of State of the State of Georgia
and the Secretary of State of Delaware, evidencing the good standing of Seller
and Parent, respectively, in such jurisdiction as of a date not more than ten
(10) calendar days prior to the Closing Date.
6.5 Absence of Litigation. No action, suit or proceeding by or before any
court or any governmental body or authority, against or involving Seller, the
Business, the Assets or the Real Property, or pertaining to the transactions
contemplated by this Agreement or their consummation, shall be pending or
threatened on the Closing Date, which action, suit or proceeding would, if
determined adversely, have a material adverse effect on the Real Property or the
business to be conducted by Purchaser after the Closing with the Assets, or
impair the ability of Seller to transfer and deliver to Purchaser title to the
Assets and the Real Property free and clear of all pledges, liens, claims,
charges, options, calls, encumbrances, restrictions and assessments of any kind
or nature whatsoever.
6.6 Consents. All necessary disclosures to and agreements and consents of
(a) any party to any of the Contracts and/or any licensing authorities, and (b)
any governmental authorities or agencies to the extent required in connection
with the transactions contemplated by this Agreement, shall have been obtained
and true and complete copies thereof delivered to Purchaser, including the
written consent from the Georgia Department of Natural Resources and
Environmental Protection Divisions to operate the Business.
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6.7 Condition of Property. Between the date of this Agreement and the
Closing Date, assets of Seller having an aggregate replacement value of $5,000
or more, including any of the Seller's Facilities, inventories, supplies and
machinery, equipment and other fixed assets, shall not have been lost, destroyed
or irreparably damaged by fire, flood, explosion, theft or any other cause,
whether or not covered by insurance.
6.8 No Bankruptcy. No proceeding shall have been commenced by or against
Seller or Parent under any bankruptcy, or insolvency or similar laws.
6.9 No Material Adverse Change. There shall not have occurred any event or
condition which could have a material adverse effect on the Assets, any of the
Real Property, any of the Seller's Facilities or the business or operations of
Purchaser to be conducted with the Assets subsequent to the Closing.
6.10 Seller's and Parent's Documents. Seller and Parent (with respect to
the document described in 6.10(d)) shall have duly executed and delivered to
Purchaser at the Closing, all of the following instruments and documents (all of
which shall be in a form satisfactory to Purchaser in Purchaser's sole
discretion):
(a) A Warranty Xxxx of Sale from Seller transferring to Purchaser
good and marketable title to the Assets;
(b) An Assignment and Assumption Agreement with respect to the
assignment of the Contracts from Seller to Purchaser and the assumption
thereof by Purchaser (the "Assignment and Assumption Agreement");
(c) A letter from Seller (approved by Purchaser) to each of
Contracted Tire Generators explaining the sale and assigning the rights of
the contract to Purchaser;
(d) The Executed Sublease Agreement;
(e) Non-Disturbance document(s) acceptable to Purchaser;
(f) The Non-Competition and Confidentiality Agreement;
(g) An affidavit establishing the Seller's exemption from the
withholding requirements of the Foreign Investment in Real Property Tax
Act, as amended ("FIRPTA"). If the Seller fails to provide such an
affidavit, Purchaser will be entitled to withhold from the Purchase Price
and pay to the Internal Revenue Service the sums required to be withheld
by FIRPTA (and the amount so withheld shall be paid by Purchaser, out of
the cash payment due at Closing, to the Internal Revenue Service, in order
for Purchaser to comply with the provisions of Section 1445 of the
Internal Revenue Code of 1986 or successor similar legislation, as the
same may be amended hereafter);
(h) Termination statements and releases with respect to any and all
of the liens, claims and encumbrances on or with respect to the Assets and
the leasehold interest in the Real Property; and
(i) All other documents and instruments required under this
Agreement to be executed and delivered by Seller and Parent to carry out
the intent of, and fulfill the obligations of Seller and Parent under,
this Agreement.
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6.11 Cooperation. From and for a period of six (6) months after the
Closing Date, Seller and Parent shall provide Purchaser and its authorized
representatives with such assistance, cooperation and information as is
reasonably requested by Purchaser in order to effect the transition of the
Business from Seller to Purchaser.
6.12 Proceedings and Instruments Satisfactory. All proceedings, corporate
or other, to be taken in connection with the transactions contemplated by this
Agreement, and all documents incidental thereto, shall be reasonably
satisfactory in form and substance to Purchaser and its legal counsel. Seller
shall have submitted to Purchaser or its representatives for examination the
originals or true and correct copies of all records and documents relating to
the business and affairs of Seller which Purchaser may have requested in
connection with said transactions.
ARTICLE VII
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligations of Seller to consummate the transactions contemplated by
this Agreement are further subject to the satisfaction, at or before the Closing
Date, of all of the following conditions, any one or more of which may be waived
in writing by the Seller:
7.1 Accuracy of Representations and Warranties. All representations and
warranties made by Purchaser in this Agreement and/or in any written statement
delivered by Purchaser under this Agreement shall be true and correct in all
material respects on and as of the Closing Date as though such representations
and warranties were made on and as of that date.
7.2 Performance. Purchaser shall have performed, satisfied and complied
with all covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by Purchaser on or before the Closing
Date, including, but not limited to, satisfaction of all of Purchaser's
covenants and agreements contained in Article V of this Agreement.
7.3 Certification. Seller shall have received a certificate, dated the
Closing Date, signed by Purchaser certifying, in such detail as their legal
counsel may reasonably request, that the conditions specified in Sections 7.1
and 7.2 above have been fulfilled.
7.4 Proceedings and Instruments Satisfactory. All proceedings to be taken
in connection with the transactions contemplated by this Agreement, and all
documents incidental thereto shall be reasonably satisfactory in form and
substance to Seller and its legal counsel
7.5 Purchaser's Documents. Purchaser shall have duly executed and
delivered to Seller at the Closing, all of the following instruments and
documents (all of which shall be in a form satisfactory to Seller in Seller's
sole discretion):
(a) The Executed Sublease Agreement;
(b) The Non-Competition and Confidentiality Agreement; and
(c) A termination and release of each of the agreements referred to
in Section 1.5 hereof.
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(d) All other documents and instruments required under this
Agreement to be executed and delivered by Purchaser to carry out the
intent of, and fulfill the obligations of Purchaser under, this Agreement.
ARTICLE VIII
CLOSING
8.1 Place and Date of Closing. Unless this Agreement is terminated
pursuant to Article IX below, the Closing shall take place at 10:00 a.m. on a
mutually convenient date designated by Purchaser and at the offices of a closing
agent selected by Purchaser that is reasonably acceptable to Seller and that is
located in Orlando, Florida (the "Closing Agent") (provided, however, that the
Closing may take place through the delivery of all documents to the Closing
Agent and to counsel for the Seller via telefax or overnight courier; provided,
however that the Closing Date shall not be later than February 17, 2006, unless
extended by mutual written agreement of the parties hereto (in either case, the
"Outside Closing Date").
8.2 Seller's and Parent's Obligations at the Closing. At the Closing and
coincidentally with performance by Purchaser of its obligations under Section
8.3, Seller and Parent, if applicable, shall execute and/or deliver or cause to
be delivered to Purchaser the following:
(a) The documents and instruments required under Section 6.10;
(b) Any satisfactions of mortgages and other secured indebtednesses,
releases and UCC termination statements for all encumbrances and liens
which are to be satisfied at or before the Closing pursuant to Section
6.11 and the other provisions hereof;
(c) Copies of Certified Resolutions of Seller's and Parent's Board
of Directors authorizing the transactions contemplated under this
Agreement, with certificates of Seller's and Parent's Secretary attached
certifying to the continued effectiveness of such resolutions; and
(d) All other documents required hereunder.
8.3 Purchaser's Obligations at the Closing. At the Closing and
coincidentally with performance by Seller of its obligations prescribed in
Section 8.2, Purchaser shall pay to Seller, in immediately available funds an
amount equal to the Purchase Price and shall execute and/or deliver or cause to
be delivered to Seller the following:
(a) The documents and instruments required under Section 7.5; and
(b) Copies of Certified Resolutions of Purchaser's Board of
Directors, authorizing the transactions contemplated under this Agreement,
with a certificate of Purchaser's Secretary attached certifying to the
continued effectiveness of such resolutions.
8.4 Possession. Sellers shall deliver possession of the Assets and the
Real Property to Purchaser at the Closing and all keys to the improvements on
the Real Property. All of the Tangible Personal Property and the Inventory will
be located on the Real Property at the time of the Closing.
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ARTICLE IX
TERMINATION OF AGREEMENT
9.1 General. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of the parties hereto at any time
prior to the Closing;
(b) by Purchaser, upon delivery of written notice to Seller, in the
event of a material breach by Seller of any provision of this Agreement,
including any of the their respective covenants, warranties or
representations contained herein, which breach remains uncured for at
least ten (10) days after Purchaser provides written notice of such breach
to Seller;
(c) by Seller, upon delivery of written notice to Purchaser, in the
event of a material breach by Purchaser of any provision of this
Agreement, including any of its covenants, warranties or representations
contained herein, which breach remains uncured for at least ten (10) days
after Seller provides written notice of such breach to Purchaser; or
(d) by Purchaser or Seller, upon delivery of written notice to the
other party or parties, as appropriate, if the Closing shall not have
occurred on or before the Outside Closing Date, provided that the party or
parties delivering such notice shall not have caused such failure to
close.
9.2 Effect of Termination. Except for the provisions of Section 5.1 and
Section 11.2, which shall survive any termination hereof, in the event of
termination of this Agreement pursuant to Section 9.1, this Agreement shall
forthwith become void and of no further force and effect, and the parties shall
be released from any and all obligations hereunder; provided, however, that
nothing herein shall relieve any party from liability for the willful breach of
any of its representations, warranties, covenants or agreements set forth in
this Agreement.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification Agreement. Seller and Parent jointly and severally
agree to indemnify, save, hold harmless and insure Purchaser and each of its
shareholders, directors, officers, employees, attorneys, agents and affiliates
from and against, and reimburse each of them for, any and all expenses, losses,
costs, deficiencies, liabilities and damages (including, but not limited to,
related reasonable attorney and paralegal fees and costs) incurred or suffered
by Purchaser (collectively, "Indemnifiable Damages") arising out of, relating
to, or resulting from (i) any inaccuracy in, any breach of, or any default of,
any representation, warranty, covenant or agreement of Seller contained in this
Agreement, including the Schedules attached hereto, or in any agreement,
document or other papers delivered pursuant hereto, (ii) any liability or
obligation (including, but not limited to, any federal, state, county, or other
tax or assessment of any kind whatsoever, plus any interest and penalties
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thereon), whether absolute or contingent, known or unknown, arising from or
otherwise related to the Business, the Assets or the Real Property, which
existed as of the Closing and that arises out of, relates to, or results from
any facts or circumstances that existed or took place prior to the Closing,
other than obligations under the Contracts that arise from and after the
Closing, (iii) any lawsuit or other proceeding or claim brought by any third
party against Purchaser or any of its officers, directors, employees, agents,
shareholders, successors and assigns, which arises out of, relates to, or
results from any acts or omissions that took place in the course of, or
otherwise in connection with, the Business prior to the Closing. The right of
Purchaser to make a claim for Indemnifiable Damages for a breach of any of the
agreements, covenants, representations and warranties made by the Seller in this
Agreement or pursuant hereto shall survive the Closing of this Agreement for a
period of two years. Without in any way limiting the foregoing, Seller and
Parent acknowledge and agree to indemnify and defend Purchaser with respect to
any claim or demand which is asserted by Tennessee Tire Recyclers, Xxx Xxxxxx or
any affiliate or successor thereof with respect to a claim for breach of any
right of first refusal or option.
10.2 Right to Control Disputes. Purchaser shall provide Seller with prompt
written notice of any third party claim that could reasonably lead to a claim
for Indemnifiable Damages hereunder. At the election of Seller and/or Parent,
and provided Seller and Parent agree, in writing, to indemnify Purchaser, Seller
and/or Parent shall have the exclusive right, at their sole expense, to defend
against any such third-party claim and, after notification to Purchaser that
Seller and/or Parent has elected to indemnify Purchaser and defend Purchaser
against such claim, neither Seller nor Parent shall have any liability or
obligation to reimburse or indemnify Purchaser for any of Purchaser's own
attorneys' fees and expenses in connection with such defense. Under such
circumstances, Purchaser may participate in such defense at its own expense,
provided that Seller and/or Parent shall control such defense and shall be
liable for Indemnifiable Damages resulting therefrom.
ARTICLE XI
COSTS
11.1 Finder's or Broker's Fees. Each of Seller and Purchaser represents
and warrants to and for the benefit of the other that neither has dealt with any
broker or finder and no such person is entitled to any commission or finder's
fee in connection with any of the transactions contemplated hereby.
11.2 Closing Expenses. Seller shall pay for the cost of recording any
Closing documents that are to be recorded, such as any satisfactions of
mortgage. Purchaser shall be responsible for any sales tax due with respect to
the transfer of title of any motor vehicles pursuant to the terms of this
Agreement. The parties shall each be responsible for their own respective
professional fees and other costs and expenses incurred or to be incurred by
them, respectively, in negotiating and preparing this Agreement and in closing
and carrying out the transactions contemplated by this Agreement.
ARTICLE XII
FORM OF AGREEMENT
12.1 Effect of Headings. The Section headings used in this Agreement and
the titles of the Schedules and Exhibits hereto are included for purposes of
convenience only, and shall not affect the construction or interpretation of any
of the provisions hereof or of the information set forth in such Schedules or
Exhibits.
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12.2 Entire Agreement; Waivers. This Agreement (including the Schedules
and Exhibits hereto) and the other documents to be delivered hereunder
(collectively, the "Transaction Documents") constitute the entire agreement
between the parties pertaining to the subject matter hereof and thereof, and
supersede all prior agreements or understandings as to such subject matter. No
party hereto has made any representation or warranty or given any covenant to
the other except as set forth in this Agreement and the Schedules and Exhibits
hereto and the other Transaction Documents. No waiver of any of the provisions
of this Agreement shall be deemed, or shall constitute, a waiver of any other
provisions, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
12.3 Counterparts; Facsimile Signatures. This Agreement and the
Transaction Documents may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Executed documents
furnished via facsimile shall be deemed to evidence original counterparts and
shall be binding upon the parties thereto.
ARTICLE XIII
PARTIES
13.1 Parties in Interest. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
heirs, executors, administrators, personal representatives, successors and
permitted assigns, nor is anything in this Agreement intended to relieve or
discharge the obligations or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over or against any party to this Agreement.
13.2 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given (a) on the date of service, if served personally on the party to whom
notice is to be given, (b) on the day after the date sent by recognized
overnight courier service with all charges prepaid or billed to the account of
the sender, (c) three (3) days after being deposited in the United States mail
if sent by first class mail, registered or certified, postage prepaid, or (d)
when sent by facsimile transmission, to the party being notified at its address
or facsimile number set forth below or such other address or facsimile number as
any party hereto shall subsequently notify all other parties hereto in writing,
provided that a copy of the material so transmitted is delivered to the party so
being notified no later than the next day either personally or via recognized
overnight courier service:
If to Purchaser: Tires Into Recycled Energy and Supplies, Inc.
000 Xxxxxxxxx Xx. Xxxx 000
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx, 00000
with a copy to: Lowndes, Drosdick, Doster, Xxxxxx & Xxxx,
Professional Association
000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxx, Esquire
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If to Seller or to Parent: XxxxxXxx Technologies of Georgia, Inc.
c/x Xxxxxxxx Technologies,Inc.
0 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, CFO
with a copy to: Morse, Barnes, Xxxxx and Xxxxxxxxx, P.C.
Reservoir Place
0000 Xxxxxxx Xxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esquire
Fax (000) 000-0000
or to such other address as any party shall have specified by notice in writing
given to the other party.
ARTICLE XIV
MISCELLANEOUS
14.1 Further Assurances. From time to time from and after the Closing, the
parties shall execute and deliver, or cause to be executed and delivered, any
and all such further agreements, instruments, certificates and other documents,
and shall take or cause to be taken any and all such further action, as any of
the parties may reasonably deem necessary or desirable in order to carry out the
intent and purposes of this Agreement.
14.2 Amendments and Modifications. No amendment or modification of this
Agreement or any Exhibit or Schedule hereto shall be valid unless made in
writing and signed by the party to be charged therewith.
14.3 Assignment. At Purchaser's election, Purchaser may assign its rights
to acquire the Assets as provided in this Agreement to a wholly-owned subsidiary
or affiliate of Purchaser, in which case, on the Closing Date, Seller shall
convey the Assets and enter into the Sublease Agreement with respect to the Real
Property with respect to such subsidiary or affiliate. Other than such an
assignment to a wholly owned subsidiary of Purchaser, this Agreement shall not
be assignable by any party hereto without the written consent of all of the
other parties hereto. Nothing in this Agreement, express or implied, is intended
to confer upon any person, other than the parties hereto and their successors
and permitted assigns, any rights or remedies under or by reason of this
Agreement.
14.4 Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of each of the parties and their respective heirs, legal
representatives, successors and permitted assigns.
14.5 Entire Agreement. This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
all other agreements, written or oral, between the parties with respect thereto.
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14.6 Attorney Fees. In any action or proceeding between any of the parties
concerning this Agreement or its enforcement, the prevailing party or parties in
such action or proceeding shall be entitled to collect and recover from the
non-prevailing party or parties all costs of such action or proceeding incurred
by such prevailing party or parties, including, but not limited to, reasonable
attorney fees and costs through all levels of proceedings, including appeals.
14.7 Governing Law. This Agreement shall be construed and interpreted and
the rights granted herein governed in accordance with the laws of the State of
Florida applicable to contracts made and to be performed wholly within such
State.
14.8 Jurisdiction; Venue. Jurisdiction of and venue for any action or
proceeding arising out of or connected with this Agreement shall lie exclusively
in the state courts of competent jurisdiction in and for Orange County, Florida.
Each of the parties hereto expressly waives its rights as to any other
jurisdiction and venue and agrees that it shall be subject personally to the
jurisdiction of the agreed-upon court(s).
14.9 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR AGAINST IT ON
ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT.
14.10 Rules of Construction. All personal pronouns used in this Agreement,
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa, as
appropriate in the context. Titles of Articles, Sections and Subsections are for
convenience of reference only, and shall neither limit nor amplify the
provisions of this Agreement itself. References in this Agreement to particular
Articles, Sections or Subsections are references to Articles, Sections or
Subsections of this Agreement unless otherwise specifically provided. The words
"hereof," "herein," "hereto" and "hereunder" shall refer to this Agreement as a
whole and not to any particular provision of this Agreement unless otherwise
specifically provided.
14.11 Counterparts. This Agreement may be executed in counterparts and
transmitted by facsimile transmission, and each of such counterparts, whether an
original or facsimile of an original will be deemed to be an original and all of
such counterparts together will constitute a single agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as of
the date first set forth above.
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THE SIGNATURES OF THE PARTIES ARE ON THE NEXT PAGES]
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PURCHASER:
TIRES INTO RECYCLED ENERGY
AND SUPPLIES, INC., a North Carolina
corporation
By: _________________________________
Name: _______________________________
Title: ______________________________
STATE OF ___________________________
COUNTY OF __________________________
The foregoing instrument was acknowledged before me this ___ day of
February, 2006, by Xxxxx X. Xxxxxxxxx as President of Tires Into Recycled Energy
and Supplies, Inc., a North Carolina corporation, for and on behalf of said
corporation. He/She is personally known to me or has produced
____________________ ________________________ as identification.
_____________________________________
Notary Public, State of _____________
Printed Name: _______________________
Commission Number: __________________
Commission Expires: _________________
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THE SIGNATURES OF THE PARTIES CONTINUE ON THE NEXT PAGE]
22
SELLER:
XXXXXXXX TECHNOLOGIES OF
GEORGIA, INC., a Georgia corporation
By: _________________________________
Name: _______________________________
Title: ______________________________
STATE OF ___________________________
COUNTY OF __________________________
The foregoing instrument was acknowledged before me this __ day of
February, 2006, by _______________________________________ as
____________________________ of XxxxxXxx Technologies of Georgia, Inc., a
Georgia corporation, for and on behalf of said corporation. He/She is personally
known to me or has produced ____________________ ________________________ as
identification.
_____________________________________
Notary Public, State of _____________
Printed Name: _______________________
Commission Number: __________________
Commission Expires: _________________
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THE SIGNATURES OF THE PARTIES CONTINUE ON THE NEXT PAGE]
23
SELLER:
XXXXXXXX TECHNOLOGIES, INC.,
Delaware corporation
By: _________________________________
Name: _______________________________
Title: ______________________________
STATE OF ___________________________
COUNTY OF __________________________
The foregoing instrument was acknowledged before me this ___ day of
February, 2006, by _______________________________________ as
____________________________ of XxxxxXxx Technologies Inc., a Delaware
corporation, for and on behalf of said corporation. He/She is personally known
to me or has produced ____________________ ________________________ as
identification.
_____________________________________
Notary Public, State of _____________
Printed Name: _______________________
Commission Number: __________________
Commission Expires: _________________
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