EXHIBIT 2.5
January 30, 1997
TransAmerican Waste Industries, Inc.
000 Xxxxx Xxxx Xxx Xxxx
Xxxxxxx, Xxxxx 00000
Attn: J. Xxxxx Xxxxx
RE: FOURTH AMENDMENT ("FOURTH AMENDMENT") TO PURCHASE AND SALE AGREEMENT
EXECUTED DECEMBER 3, 1996 BY AND AMONG TRANSAMERICAN WASTE
INDUSTRIES, INC., A DELAWARE CORPORATION ("BUYER"), AND SANIFILL,
INC., A DELAWARE CORPORATION ("SANIFILL"), SANIFILL OF TEXAS
HAULING, INC., A TEXAS CORPORATION ("HAULING"), SUNRAY SERVICES,
INC., A DELAWARE CORPORATION ("SUNRAY"), S&J LANDFILL LIMITED
PARTNERSHIP, A LIMITED PARTNERSHIP FORMED UNDER TEXAS LAW ("S&J
LANDFILL") AND BRAZORIA COUNTY RECYCLING CENTER, INC., A TEXAS
CORPORATION ("BRAZORIA RECYCLING"), (SANIFILL, HAULING, SUNRAY, S&J
LANDFILL AND BRAZORIA RECYCLING ARE COLLECTIVELY REFERRED TO HEREIN
AS "SELLERS"), AS AMENDED BY A FIRST AMENDMENT DATED DECEMBER 4,
1996, A SECOND AMENDMENT DATED DECEMBER 12, 1996 AND A THIRD
AMENDMENT DATED DECEMBER 31, 1996 (THE "THIRD AMENDMENT") (SUCH
PURCHASE AGREEMENT, AS AMENDED TO DATE, REFERRED TO HEREIN AS THE
"PURCHASE AGREEMENT")
Dear Xx. Xxxxx:
As we have discussed and in connection with the closing of the Purchase
Agreement, Sellers and Buyer agree that the Purchase Agreement, and the prior
amendments thereto, shall be further modified and amended as set forth herein:
1. The last two pages of SCHEDULE 1.1(C), purporting to be a metes and
bounds description of 9.250 acres of land constituting the real property at the
Xxxxxx Road Facility, is hereby deleted and the pages marked SCHEDULE 1.1(C)
attached hereto are inserted in lieu thereof for all purposes.
2. The first clause of SECTION 2.5(A), "Post-Closing Adjustment;
Calculation of Net Working Capital on the Closing Date", of the Purchase
Agreement is hereby deleted and the following clause is inserted in lieu thereof
for all purposes:
"On or before March 31, 1997,"
3. The dates set forth in the first sentence of SECTION 9.2(C), "Buyer's
Covenants; Filing of Registration Statement", shall be amended such that
(a) March 30, 1997, the date for filing the Form S-3 registration
statement, shall be deleted and "within four months of the Closing (as
defined in the Registration Rights Agreement (as defined below))", the
date for filing the registration statement set forth in the Registration
Rights Agreement dated January 31, 1997 between Buyer, Xxxxxxx Xxxxxx
Xxxxx Inc., a Texas
TransAmerican Waste Industries, Inc.
January 30, 1997
Page
corporation, and the persons set forth on Exhibit A to such agreement (the
"Registration Rights Agreement"), shall be inserted in lieu thereof for
all purposes; and
(b) June 30, 1997, the date for causing the registration statement
to become effective, shall be deleted and "in no event later that seven
months after the Closing (as defined in the Registration Rights
Agreement)", the date for causing the registration statement to become
effective as set forth in the Registration Rights Agreement, shall be
inserted in lieu thereof for all purposes.
4. The following additional sentence shall be added to the end of SECTION
9.2(C), "Buyer's Covenants; Filing of Registration Statement" of the Purchase
Agreement:
"Sellers' registration rights hereunder shall be not less favorable to
Sellers than the registration rights granted to Xxxxxxx Xxxxxx Xxxxx Inc.,
a Texas corporation, and the persons on Exhibit A to the Registration
Rights Agreement dated January 31, 1997 between Buyer, Xxxxxxx Xxxxxx
Xxxxx Inc., a Texas corporation, and the persons set forth on Exhibit A to
such agreement (the "REGISTRATION RIGHTS AGREEMENT")."
5. The last four words of the first sentence of SECTION 11.11, "Allocation
of Purchase Price", of the Purchase Agreement is hereby deleted and the
following words are inserted in lieu thereof for all purposes:
"on or before March 31, 1997."
6. The following additional Sections 11.16 and 11.17 shall be added after
SECTION 11.15, "DTPA Waiver", of the Purchase Agreement:
" SECTION 11.16 ASSIGNMENT. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns, provided that
any assignment will not release the assignor from its obligations or
liabilities hereunder without the consent of the other parties hereto.
Notwithstanding the foregoing, Buyer may at any time collaterally assign
its rights hereunder to any person providing financing to Buyer; PROVIDED,
HOWEVER, that no such assignment shall impair any rights of Sellers
hereunder or any defenses of Sellers in connection with this Agreement and
the transactions contemplated hereby, and PROVIDED FURTHER, that any such
person who, by foreclosure or otherwise, succeeds to the rights of Buyer
hereunder shall likewise be subject to all obligations of Buyer hereunder.
SECTION 11.17 EFFECTIVE DATE OF CLOSING. Regardless of whether all
or any part of the documents executed and delivered at the Closing are
executed and delivered on an earlier date, and regardless of whether the
funding of Buyers' payment of the Cash Payment is effective on January 30,
1997 or January 31, 1997, the Closing shall be effective for all purposes
as of the close of business on January 31, 1997."
7. In connection with the acquisition of the expansion tract constituting
real property that will be added to the Landfill in the event to the Permit
Application is granted, Sunray agrees to contribute up to $11,000 in premiums to
acquire a title insurance policy insuring title in such expansion tract in
TransAmerican Waste of Houston, Inc. up to a face amount of such policy of
$1,750,000.
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TransAmerican Waste Industries, Inc.
January 30, 1997
Page
Capitalized terms used in this letter agreement that are not otherwise
defined herein shall have the meaning set forth in respect thereof in the
Purchase Agreement. Except as specifically amended hereby, the Purchase
Agreement, as amended through the Third Amendment thereof, and the terms of the
Third Amendment and each prior amendment of the Purchase Agreement, shall remain
in full force and effect.
[Balance of page intentionally left blank.]
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TransAmerican Waste Industries, Inc.
January 30, 1997
Page
If the foregoing correctly sets forth the terms of our agreement, please
execute this letter agreement in the space provided below.
SELLERS:
SANIFILL, INC.
By: /s/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
Authorized Representative and Attorney-in-Fact
SANIFILL OF TEXAS HAULING, INC.
By: /s/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
Authorized Representative and Attorney-in-Fact
SUNRAY SERVICES, INC.
By: /s/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
Authorized Representative and Attorney-in-Fact
S & J LANDFILL LIMITED PARTNERSHIP
by Sanifill of Texas, Inc., its general partner
By: /s/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
Authorized Representative and Attorney-in-Fact
BRAZORIA COUNTY RECYCLING CENTER, INC.
By: /s/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
Authorized Representative and Attorney-in-Fact
Amendments set forth in above letter accepted and agreed to as of the date first
set forth above:
BUYER:
TRANSAMERICAN WASTE
INDUSTRIES, INC.
By: /s/ J. XXXXX XXXXX
J. Xxxxx Xxxxx
Senior Vice President
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