EXHIBIT 2.2
AMENDMENT NO. 1
TO PURCHASE AGREEMENT
This Amendment No. 1 to Purchase Agreement ("Amendment") is
entered into effective as of June 1, 1995, by and among Xxxxxx
Manufacturing, Inc. (formerly known as Green Isle Environmental
Services, Inc.), a Minnesota corporation ("SELLER"), Waste
Management Inc. of Florida, a Florida corporation ("PURCHASER"),
and U S WEST Financial Services, Inc., a Colorado corporation
("U S WEST").
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into that certain
purchase agreement, dated as of June 1, 1995 (the "Purchase
Agreement") respecting Purchaser's purchase of the Common Stock
and the Indebtedness;
WHEREAS, the parties hereto desire to amend the Purchase
Agreement to provide for Purchaser's purchase of the Common Stock
and the Corporation's payment in full of the Reduced
Indebtedness, as hereinafter defined; and
WHEREAS, capitalized terms used herein without definition
shall have the meanings assigned to them in the Purchase
Agreement;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and affirmed, the
parties hereto agree as follows:
I. AMENDMENTS
A. The fourth recital paragraph of the Purchase Agreement
is hereby amended to read in its entirety as follows:
WHEREAS, subject to the terms and conditions set forth
herein, Purchaser or its designee desires to purchase the
Common Stock (as hereinafter defined) from Seller and to
cause the Corporation to pay the full amount of the Reduced
Indebtedness (as hereinafter defined) to U S WEST and Seller
desires to sell the Common Stock to Purchaser or its
designee;
B. Section 1.1 of the Purchase Agreement is hereby amended
to add or revise, as the case may be, the following definitions:
"CLOSING DATE ADJUSTMENT STATEMENT" has the meaning
specified in Section 2.1(c) of this Agreement.
"ESTIMATED ADJUSTMENT AMOUNT" has the meaning specified
in Section 2.1(b) of this Agreement.
"REDUCED INDEBTEDNESS" means an amount equal to
$18,249,999 plus an amount equal to the dollar amount of the
Adjustment Amount (if the Accounts Receivable exceed the
Payables) or less an amount equal to the Adjustment Amount
(if the Payables exceed the Accounts Receivable).
"SUPPLEMENTAL CLOSING" has the meaning specified in
Section 2.1(c) of this Agreement.
C. Section 2.1 of the Purchase Agreement is hereby amended
to read in its entirety as follows:
SECTION 2.1 PURCHASE AND SALE. At Closing, subject
to the terms and conditions set forth in this Agreement, U S
WEST agrees to write down the Indebtedness as hereinafter
provided and Purchaser agrees to contribute to and cause the
Corporation to then indefeasibly pay to U S WEST an amount
equal to the Reduced Indebtedness, and simultaneously
therewith Seller agrees to sell the Common Stock to
Purchaser or its designee and Purchaser or its designee
agrees to pay the Purchase Price to U S WEST. Each of U S
WEST and Seller agrees that payment of (i) the Purchase
Price to U S WEST as Seller's designee and (ii) the Reduced
Indebtedness to U S WEST constitutes valid consideration to
Seller and U S WEST, respectively, under this Agreement.
The Purchase Price shall be payable by delivery thereof to U
S WEST at the Closing. The Reduced Indebtedness shall be
payable as follows:
(a) Upon execution of this Agreement by all parties
hereto, delivery to the Escrow Agent of a deposit of the sum
of $2,000,000 in immediately available funds (the "XXXXXXX
MONEY") to be held in an interest-bearing trust account
until applied by the Corporation to the Reduced Indebtedness
at the Closing (each of the parties hereto hereby agrees
severally and for itself only that the payment of the
Xxxxxxx Money to U S WEST at the Closing shall be deemed by
such party to be a payment by the Corporation) or until
distributed in whole or in part to Purchaser or U S WEST in
accordance with Section 13.4 of this Agreement and the
Escrow Agreement; and
(b) At the Closing, delivery by the Corporation to U S
WEST of the balance of the Reduced Indebtedness. The
parties hereto agree that at Closing they shall use their
best efforts to agree upon a good faith estimate of the
Adjustment Amount (the "ESTIMATED ADJUSTMENT AMOUNT") and
that at Closing, the then outstanding principal and interest
of the Indebtedness in excess of $18,249,999 shall be
adjusted by the Estimated Adjustment Amount as provided in
the definition of Reduced Indebtedness in Section 1.1 of
this Agreement, subject, however, to final adjustment as
provided in subsection 2.1(c) below.
(c) The Reduced Indebtedness shall be further adjusted
in the manner provided in this Section 2.1(c).
(i) Within 30 days after the Closing Date, Seller
shall cause a consolidated statement of the Adjustment
Amount (the "CLOSING DATE ADJUSTMENT STATEMENT") prepared in
accordance with generally accepted accounting principles and
certified to be true and correct in all material respects by
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Coopers & Xxxxxxx to be delivered to Purchaser and U S WEST.
During such period from the Closing Date until the date of
delivery of the Closing Date Adjustment Statement, Purchaser
shall give Seller, U S WEST and their representatives and
agents such assistance and access to the books and records
of the Corporation as Seller or U S WEST shall request in
order to provide for the preparation of the Closing Date
Adjustment Statement. The fees and expenses of Seller and U
S WEST in connection with the preparation of the Closing
Date Adjustment Statement shall be paid by Purchaser.
(ii) Purchaser shall have a period of ten days
after delivery of the Closing Date Adjustment Statement to
present in writing to Seller and U S WEST any objections
Purchaser may have to any of the matters set forth therein,
which objections shall be specified in reasonable detail.
If no objections are raised within such ten-day period, the
Closing Date Adjustment Statement shall be deemed approved
and accepted by Purchaser and a supplemental closing (the
"SUPPLEMENTAL CLOSING") shall take place five Business Days
following the expiration of such ten-day period, or on such
other date as may be mutually agreed upon in writing by
Seller, U S WEST and Purchaser. At the Supplemental
Closing, Purchaser shall cause the Corporation to pay to U S
WEST, or U S WEST shall pay to the Corporation, as the case
may be, such amount as is necessary to adjust the Reduced
Indebtedness based on the Closing Date Adjustment Statement.
If Purchaser, Seller or U S WEST raises any objections
within the ten-day period, Purchaser, Seller and U S WEST
shall attempt to resolve the matter or matters in dispute
and, if resolved, the Supplemental Closing shall take place
five Business Days following such resolution. If such
dispute cannot be resolved within 30 days after the delivery
of the Closing Date Adjustment Statement, then the specific
matters in dispute shall be submitted to arbitration in
accordance with Section 14.8 of this Agreement. In that
event, the Supplemental Closing shall take place five
Business Days after the receipt by Seller, U S WEST and
Purchaser of a written determination of the dispute by the
arbitrators pursuant to Section 14.8 of this Agreement.
D. Section 2.2 of the Purchase Agreement is hereby amended
to read in its entirety as follows:
SECTION 2.2 PURCHASE CONSIDERATION. The "PURCHASE
PRICE" shall be (i) the sum of One Dollar ($1) and (ii)
Purchaser's assignment of any property interest of any
nature it may have (whether vested, contingent, residual or
reversionary) to the Excluded Assets in accordance with the
terms of the Assignment of Excluded Assets, a form of which
is attached hereto as EXHIBIT C.
E. Section 4.3 of the Purchase Agreement is hereby amended
to read in its entirety as follows:
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(a) Purchaser understands that the Common Stock has
not been registered under the Securities Act and may not be
sold except pursuant to an effective registration statement,
or pursuant to a duly available exemption from such
registration requirements. The Common Stock to be acquired
by Purchaser pursuant to this Agreement is being acquired
for Purchaser's own account and without a view to the
distribution or resale of such Common Stock.
(b) Purchaser has such experience in financial matters
as to be capable of evaluating the risks and merits of
investment in the Common Stock, and Purchaser can afford the
loss of its entire investment in the Common Stock.
Purchaser acknowledges that it has received, or has had
access to, all information which it considers necessary or
advisable to enable it to make a decision concerning its
purchase of the Common Stock and its causing the
Corporation's payment of the Reduced Indebtedness.
F. Section 4.5 of the Purchase Agreement is hereby amended
to read in its entirety as follows:
SECTION 4.5 PRIVATE PLACEMENT. Purchaser covenants
to and agrees with Seller and U S WEST that (i) the offering
and sale of the Common Stock is intended to be exempt from
registration under the Securities Act, (ii) there is no
existing public or other market for the Common Stock and
(iii) there can be no assurance that Purchaser will be able
to sell or dispose of any of the Common Stock.
G. Section 4.6 of the Purchase Agreement is hereby amended
to read in its entirety as follows:
SECTION 4.6 AUTHORIZATIONS. The execution and
delivery of this Agreement and the purchase of the Common
Stock by Purchaser and payment of the Reduced Indebtedness
by the Corporation do not, and the consummation by Purchaser
of the transactions contemplated hereby will not, require
Purchaser to obtain any authorization, consent, approval or
waiver from, or to make any filing with, any Governmental
Authority or any other Person, except pursuant to the
requirements of the HSR Act or any substantially equivalent
provision of Florida law and except as set forth on SCHEDULE
4.6 to this Agreement.
H. Section 7.8 of the Purchase Agreement is hereby amended
to read in its entirety as follows:
SECTION 7.8 WRITE-OFF OF ASSETS; SALE OF ASSETS.
Purchaser acknowledges and agrees that the Corporation will
write down the fixed assets of the Corporation as shown on
the Financial Statements as set forth on SCHEDULE 3.17
hereto to reflect a fair market value of $18,250,000 and
Seller agrees to use reasonable commercial efforts to cause
the Corporation
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to record such write down of the value of
the assets of the Corporation prior to Closing. The
Corporation will not sell any of its assets except in the
ordinary course of business; provided that prior to Closing
the Corporation shall assign the Excluded Assets to U S
WEST.
I. Section 8.4 of the Purchase Agreement is hereby amended
to read in its entirety as follows:
SECTION 8.4 INDEBTEDNESS. (a) At Closing, U S WEST
shall write down and forgive all of the then outstanding
principal and interest of the Indebtedness in excess of the
Reduced Indebtedness and Purchaser shall provide sufficient
funds and cause the Corporation to indefeasibly pay to U S
WEST the Reduced Indebtedness in accordance with Section 2.1
of this Agreement. At Closing, each of U S WEST and Seller
shall cancel any other Indebtedness or liabilities of the
Corporation that are then due and owing to U S WEST and
Seller, respectively.
J. The first paragraph of Section 10.1 of the Purchase
Agreement is hereby amended to read in its entirety as follows:
SECTION 10.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF
PURCHASER. The obligations of Purchaser to purchase the
Common Stock and cause the Corporation to pay the Reduced
Indebtedness and consummate the transactions contemplated by
this Agreement and the Related Documents (except in respect
of Section 6.3 of this Agreement and the Restated Central
Contract) are subject, at the Closing Date, to the
satisfaction or waiver in writing by Purchaser of the
following conditions during the applicable time periods:
K. 10.(f) is hereby added and shall read as follows:
(f) Concurrent and simultaneous with the Closing, U S WEST
shall have written down the Indebtedness in accordance with
the terms hereof.
L. The first paragraph of Section 10.2 of the Purchase
Agreement is hereby amended to read in its entirety as follows:
SECTION 10.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF
SELLER AND U S WEST. The obligations of Seller to sell the
Common Stock and U S WEST to cancel the Indebtedness
pursuant to this Agreement and to consummate the
transactions contemplated by this Agreement and the Related
Documents (except in respect of Section 6.3 of this
Agreement and the Restated Central Contract) are subject, at
the Closing Date, to the satisfaction or waiver by Seller
and U S WEST of the following conditions:
M. Section 10.2(c) of the Purchase Agreement is hereby
amended to read in its entirety as follows:
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(c) DELIVERY OF PURCHASE PRICE AND PAYMENT OF REDUCED
INDEBTEDNESS. Concurrent and simultaneous with the Closing
and the write down of the Indebtedness, U S WEST shall have
received and collected the Purchase Price and the full
amount of the Reduced Indebtedness, including the Xxxxxxx
Money.
II. COVENANTS AND ACKNOWLEDGEMENT
2.1 COVENANTS OF PURCHASER. (a) Purchaser covenants
and agrees that Purchaser shall not, directly or indirectly,
under any circumstances, initiate or support any bankruptcy
or insolvency proceeding against or with respect to the
Corporation during the period beginning on the Closing Date
and continuing for at least 90 days thereafter.
(b) Purchaser covenants and agrees that Purchaser
shall never, directly or indirectly, under any
circumstances, challenge or support any challenge by any
third party to any liens of U S WEST (including without
limitation the priority thereof) that U S WEST releases at
the Closing that relate in any way to the Corporation, the
Indebtedness, the Reduced Indebtedness or the Purchase
Agreement.
2.2 ACKNOWLEDGEMENT. On the Closing Date, Seller and
the Corporation hereby acknowledge and agree that (i) the
Indebtedness and any and all documents related thereto to
which the Corporation is a party constitute valid and
legally binding agreements of the Corporation enforceable
against the Corporation in accordance with their respective
terms and (ii) the liens and security interests securing
such Indebtedness constitute first priority perfected liens
on and security interests in the assets that are subject
thereto.
III. MISCELLANEOUS
3.1 AMENDMENTS, ETC. No amendment or waiver of any
provision of this Amendment, nor consent to any departure
therefrom, shall be effective unless in writing and signed
by U S WEST, Seller and Purchaser, and then such amendment,
waiver, or consent shall be effective only in the specific
instance for the specific purpose for which given.
3.2 NO WAIVER; REMEDIES. No failure on the part of
any party hereto to exercise, and no delay in exercising,
any right, remedy or defense shall operate as a waiver
thereof; nor shall any single or partial exercise of any
right or remedy preclude any other or further exercise
thereof or the exercise of any other right, remedy or
defense. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law or the
Purchase Agreement and the Related Documents.
3.3 EFFECT. This Amendment contains the entire
agreement between the parties regarding the subject matter
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hereof and nothing contained in this Amendment is intended
to, nor shall, modify any of the terms of the Purchase
Agreement or the Related Documents except as expressly
stated herein. Except as expressly stated herein, all of
the terms and conditions of the Purchase Agreement and the
Related Documents shall continue in full force and effect
notwithstanding the execution of this Amendment. Each of
the parties to this Amendment hereby acknowledges and
affirms its obligations under the Purchase Agreement and the
Related Documents and agrees that Article II of this
Amendment constitutes a Surviving Obligation.
3.4 BINDING EFFECT; GOVERNING LAW. This Amendment
shall be binding upon and inure to the benefit of Seller,
Purchaser and U S WEST and their respective successors and
permitted assigns. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
FLORIDA, WITHOUT GIVING EFFECT TO PRINCIPLES THEREOF
RELATING TO CONFLICT OF LAWS.
3.5 HEADINGS. Section headings used herein are for
convenience only and shall not be used to interpret any term
hereof.
3.6 COUNTERPARTS. This Amendment may be executed in
one or more counterparts, each of which shall be deemed an
original.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to Purchase Agreement to be executed by their
respective authorized representatives effective as of the date
first above written.
WASTE MANAGEMENT INC. OF FLORIDA
By:/s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
U S WEST FINANCIAL SERVICES, INC.
By:/s/ XXXXXXX X. POST
------------------------------
Name: Xxxxxxx X. Post
Title: President
XXXXXX MANUFACTURING, INC.
By:/s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
ACKNOWLEDGED AND AGREED on behalf of
the Corporation and its Affiliates:
XXXXXX RECYCLING OF FLORIDA, INC.
By:/s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
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