EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
BETWEEN
TRANSAMERICAN WASTE INDUSTRIES, INC.,
AND
SANIFILL, INC.,
SANIFILL OF TEXAS HAULING, INC.,
SUNRAY SERVICES, INC.,
S & J LANDFILL LIMITED PARTNERSHIP, AND
BRAZORIA COUNTY RECYCLING CENTER, INC.
DECEMBER 3, 1996
TABLE OF CONTENTS
PAGE
ARTICLE 1. SALE OF STOCK AND/OR ASSETS.............................. 1
Section 1.1 Description of Assets.............................. 1
(a) Houston Area Front-End Loader Assets..................... 1
(b) Channelview Rearload Assets.............................. 2
(c) Garage Facilities........................................ 2
(d) Sunray Type IV Landfill.................................. 3
Section 1.2 Baytown/Angleton Airspace Assets................... 3
Section 1.3 Retained Items..................................... 5
ARTICLE 2. PURCHASE PRICE........................................... 5
Section 2.1 Consideration...................................... 5
Section 2.2 Down Payment....................................... 6
Section 2.3 Cash Payment....................................... 6
Section 2.4 Grant of Warrants.................................. 6
Section 2.5 Post-Closing Adjustment............................ 6
(a) Calculation of Net Working Capital on the Closing Date... 6
(b) Payment of Adjustment Amount............................. 6
Section 2.6 Contingency in Respect of Expansion Permit......... 6
Section 2.7 Accounts Receivable; Prepaid Services.............. 7
ARTICLE 3. ASSUMPTION OF OBLIGATIONS................................ 7
ARTICLE 4. CLOSING.................................................. 8
Section 4.1 Time and Place of Closing.......................... 8
Section 4.2 Deliveries by Sellers.............................. 8
Section 4.3 Deliveries by Buyer................................ 8
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF SELLERS................ 9
Section 5.1 Representations and Warranties..................... 9
(a) Authority................................................ 9
(b) Compliance with Law...................................... 9
(c) Containers, etc.......................................... 9
(d) Front-End and Rearload Trucks............................ 9
(e) Customer Contracts....................................... 9
(f) Title to the Assets...................................... 10
(g) Litigation............................................... 10
(h) Tax Matters.............................................. 10
(i) The Landfill............................................. 10
(j) The Final Judgment....................................... 11
(k) Disclaimer Regarding Assets.............................. 11
Section 5.2 Survival........................................... 12
i
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF BUYER.................. 12
Section 6.1 Representations and Warranties..................... 12
(a) Corporate Organization................................... 12
(b) Authorization............................................ 12
(c) Noncontravention......................................... 12
(d) Investment Intent........................................ 13
(e) Available Funds.......................................... 13
Section 6.2 Survival........................................... 13
ARTICLE 7. TERMINATION.............................................. 13
Section 7.1 Termination........................................ 13
Section 7.2 Effect of Termination.............................. 14
Section 7.3 Pre-Closing Damages................................ 14
ARTICLE 8. CONDITIONS TO CONSUMMATION OF THE AGREEMENT.............. 14
Section 8.1 Conditions to Each Party's Obligation to
Effect the Agreement.............................. 14
Section 8.2 Conditions to Obligation of Sellers to
Effect the Agreement.............................. 14
Section 8.3 Conditions to Obligation of Buyer to
Effect the Agreement.............................. 15
ARTICLE 9. COVENANTS................................................ 15
Section 9.1 Grantors' Covenants................................ 15
Section 9.2 Buyer's Covenants.................................. 15
(a) Compliance with the Final Judgment....................... 15
(b) Release of Sureties and Bonds............................ 15
(c) Filing of Registration Statement......................... 15
Section 9.3 Sellers' Covenants................................. 16
(a) Expansion Permit......................................... 16
(b) Maintain Subject Assets and Operations;
Non-Solicitation of Employees.......................... 16
Section 9.4 Covenants of Each Party............................ 16
(a) Rearload Customer Contracts.............................. 16
ARTICLE 10. INDEMNIFICATION.......................................... 17
Section 10.1 Indemnification Provisions for
Benefit of Buyer.................................. 17
Section 10.2 Indemnification Provisions for
Benefit of Sellers................................ 17
Section 10.3 Procedure for Indemnification of
Third Party Claims................................ 17
Section 10.4 Negligence and Strict Liability.................... 18
Section 10.5 Subrogation........................................ 18
Section 10.6 Limitations on Indemnification
Provisions; Exclusive Remedy...................... 18
(a) Deductible and Maximum Aggregate Liability............... 18
(b) Waiver of Non-Compensatory Damages....................... 18
(c) Waiver of Right to Rescission............................ 18
(d) Mitigation Obligation.................................... 18
(e) Exclusive Remedy; Waiver and Release..................... 18
ARTICLE 11. GENERAL.................................................. 19
Section 11.1 No Third Party Beneficiaries....................... 19
Section 11.2 Notices............................................ 19
Section 11.3 Use of Name........................................ 19
ii
Section 11.4 Entire Agreement................................... 20
Section 11.5 Expenses of Transaction............................ 20
Section 11.6 Broker's Commission................................ 20
Section 11.7 Modification; Remedies Cumulative.................. 20
Section 11.8 Severability....................................... 20
Section 11.9 Availability of Records............................ 20
Section 11.10 Sales and Other Taxes.............................. 20
Section 11.11 Allocation of Purchase Price....................... 21
Section 11.12 Definition of Knowledge............................ 21
Section 11.13 Construction....................................... 21
Section 11.14 Governing Law...................................... 21
Section 11.15 DTPA Waiver........................................ 21
EXHIBIT 1.2(d)(iii) Form of Agreement of Assignee.......................... 24
SCHEDULE 1.1(a)(i) Front-End Containers.................................... 25
SCHEDULE 1.1(a)(ii) Front-End Trucks....................................... 26
SCHEDULE 1.1(b)(i) Rearload Containers, Carts and Compactors............... 27
SCHEDULE 1.1(b)(ii) Rearload Trucks........................................ 28
SCHEDULE 1.1(c) Description of Garage Facilities........................... 29
SCHEDULE 1.1(d)(i) Description of the Land................................. 30
SCHEDULE 1.1(d)(iv) Description of Personal Property and
Equipment at the Landfill................................................ 31
SCHEDULE 1.3 Specified Retained Items...................................... 32
SCHEDULE 5.1(b) Notices of Violations...................................... 33
SCHEDULE 5.1(g) Pending or Threatened Claims............................... 34
iii
INDEX OF DEFINITIONS
TERM SECTION
Agreement..............................................Introductory Paragraphs
Airspace Tonnage...........................................................1.2
Assumed Liabilities..........................................................3
Brazoria Recycling.....................................Introductory Paragraphs
Buyer..................................................Introductory Paragraphs
Cash Payment...............................................................2.3
Closing....................................................................4.1
Closing Date...............................................................4.1
Down Payment...............................................................2.2
Final Judgment..........................................................5.1(j)
Front-End Customer Contracts.......................................1.1(a)(iii)
Front-End Trucks....................................................1.1(a)(ii)
Grantors...................................................................1.2
Hauling................................................Introductory Paragraphs
Hazardous Materials.................................................5.1(i)(iv)
Houston Commercial Business..........................................1.1(a)(i)
Including................................................................11.13
Indemnified Party.........................................................10.3
Indemnifying Party........................................................10.3
Land.................................................................1.1(d)(i)
Landfill............................................................1.1(d)(ii)
Losses....................................................................10.1
Notice....................................................................10.3
Permit..............................................................1.1(d)(ii)
Permit Application.................................................1.1(d)(iii)
Rearload Customer Contracts........................................1.1(b)(iii)
Rearload Business.......................................................1.1(b)
Rearload Trucks.....................................................1.1(b)(ii)
Records..............................................................1.1(a)(v)
Retained Items.............................................................1.3
S&J Landfill...........................................Introductory Paragraphs
Sanifill...............................................Introductory Paragraphs
Securities Act..........................................................6.1(d)
Sellers................................................Introductory Paragraphs
Subject Assets.............................................................1.1
Sunray.................................................Introductory Paragraphs
Target Date................................................................2.6
Termination Notice......................................................7.1(b)
Third Person..............................................................10.3
TNRCC...................................................................1.1(d)
Transfer Taxes...........................................................11.10
Transferred Corporations...................................................2.5
Transferred Employee....................................................9.3(b)
Warrants...................................................................2.4
iv
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "AGREEMENT") is executed and
delivered as of the third day of December, 1996, between 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").
P R E M I S E S:
This Agreement contemplates a transaction in which Buyer will purchase (a)
certain front-end loader assets and businesses in the Houston area specified
below, (b) the rearload assets and the rearload business in the Channelview area
specified below, (c) certain garage and office facilities, including the real
property and improvements thereto, as specified below and (d) the Sunray Type IV
landfill specified below, in each case through various asset sales or the
acquisition of all of the capital stock of Hauling, and in addition S&J Landfill
and Brazoria Recycling will grant to Buyer the right to dispose, over a ten-year
period, up to a total of 2,000,000 tons of municipal solid waste at the Baytown
and Angleton Type I landfills specified below.
Now, therefore, in consideration of the mutual promises and covenants
herein contained and other good and valuable consideration, received to the full
satisfaction of each of them, the parties hereby agree as follows:
A G R E E M E N T:
ARTICLE 1.
SALE OF STOCK AND/OR ASSETS
SECTION 1.1 DESCRIPTION OF ASSETS. In accordance with the terms of this
Agreement, Buyer will purchase all of the capital stock of Hauling from Sanifill
at the Closing. Buyer may designate one or more of its wholly-owned subsidiaries
to purchase assets or stock hereunder provided that Buyer shall remain liable in
all respects hereunder and under all agreements and instruments executed in
connection herewith. Prior to the Closing, Hauling will have transferred and
conveyed to other parties all of its assets, properties and operations other
than those listed in SUBSECTIONS (A), (B), (C) AND (D) below, to the end that
from and after the Closing the assets, properties and operations of Hauling
shall consist only of the items specified in this SECTION 1.1 (collectively, the
"SUBJECT ASSETS"):
(a) HOUSTON AREA FRONT-END LOADER ASSETS. The following front-end
loader waste collection, transportation, hauling and disposal business
assets:
(i) all of the containers owned and used by Hauling in
conducting the Houston Commercial Business as described in SCHEDULE
1.1(A)(I). As used herein, the term "HOUSTON COMMERCIAL BUSINESS"
means the front-end loader commercial business currently conducted
by Hauling in Harris, Chambers, Brazoria, Fort Bend, Montgomery,
Walker and Galveston Counties in the State of Texas;
1
(ii) the front-end loader trucks, and all attachments,
accessories and materials handling equipment now located in or on
such motor vehicles, as described in SCHEDULE 1.1(A)(II) (the
"FRONT-END TRUCKS");
(iii) all contractual rights of Hauling with Hauling's
customers (whether oral or in writing), and all customer accounts,
in each case attributable to the Houston Commercial Business (the
"FRONT-END CUSTOMER CONTRACTS"), as Buyer has had access to or have
otherwise been made available to Buyer;
(iv) all of Hauling's inventory of parts, tires and
accessories of every kind, nature and description used or held for
use in the Houston Commercial Business; and
(v) the books and records, excluding original copies of the
tax returns and business records that are Retained Items set forth
in SECTION 1.3(B) (the "RECORDS"), that primarily relate to the
Houston Commercial Business.
(b) CHANNELVIEW REARLOAD ASSETS. The rearload residential waste
collection, transportation, hauling and disposal business presently served
by the Channelview garage located at 999 Ashland in Channelview, Texas
(the "REARLOAD BUSINESS"), including:
(i) all of the containers, carts and compactors used or for
use in the Rearload Business as described in SCHEDULE 1.1(B)(I);
(ii) the rearload trucks, and all attachments, accessories and
materials handling equipment now located in or on such motor
vehicles (the "REARLOAD TRUCKS"), as described in SCHEDULE
1.1(B)(II);
(iii) all contractual rights of Hauling with Hauling's
customers (whether oral or in writing), and all customer accounts,
of the Rearload Business (the "REARLOAD CUSTOMER CONTRACTS"), as
Buyer has had access to or have otherwise been made available to
Buyer;
(iv) all of Hauling's inventory of parts, tires and
accessories of every kind, nature and description used or held for
use in the Rearload Business; and
(v) the Records that primarily relate to the Rearload
Business.
(c) GARAGE FACILITIES. The following garage facilities, including
the real property and improvements thereon, as further described and
defined on SCHEDULE 1.1(C):
(i) the Channelview Facility located at 999 Ashland in
Channelview, Texas; and
(ii) the Xxxxxx Road Facility located at 00000 Xxxxxx Xxxx in
Houston, Texas.
2
(d) SUNRAY TYPE IV LANDFILL:
(i) the real property described on SCHEDULE 1.1(D)(I) attached
hereto (the "LAND") and all improvements on and all fixtures related
to the Land;
(ii) the Permit No. MSW-1849, being a State of Texas Permit
for a Type IV landfill ("PERMIT") authorizing and permitting the
operation of a Type IV landfill (the "LANDFILL") on the Land;
(iii) the Permit Amendment Application 1849A for an additional
19.99 acres adjacent to the currently permitted area (the "PERMIT
APPLICATION");
(iv) all personal property and equipment located at the
Landfill used or held for use in the operation of the Landfill and
listed on SCHEDULE 1.1(D)(IV);
(v) all engineering and architectural drawings, plans and
designs owned by Sunray relating to the Landfill; and
(vi) the Records that primarily relate to the Permit and the
operations at the Landfill; PROVIDED, HOWEVER, that Sellers shall
retain possession of, or retain copies of or otherwise have access
to, all such Records, together with all items referred to in
SECTIONS 1.1(D)(III) AND 1.1(D)(V) above to the extent necessary to
discharge its obligations pursuant to SECTION 9.3(A) hereof.
In the event that the transactions set forth herein can be accomplished more
expeditiously or at lower cost by means of one or more sales of assets directly
to Buyer (or any subsidiary designated by Buyer), then in such event certain, or
all, of the Subject Assets may be transferred to Buyer by means of such asset
sale. Furthermore, to the extent certain of the Subject Assets are currently
owned by a subsidiary of Sanifill other than Hauling, Sellers may at their
option transfer all assets and operations other than the Subject Assets out of
such subsidiary and thereafter transfer the stock of such subsidiary to Buyer on
the Closing Date. In addition, in the event that the Texas Natural Resource
Conservation Commission (the "TNRCC") has not approved the transfer of the
Permit necessary to give effect to the transactions set forth herein on or
before December 31, 1996, then the parties will enter into a management and
operating agreement or similar arrangement to permit Buyer to operate the
Landfill and receive the revenues therefrom, and providing that Buyer will pay
all costs in connection with such operation, and indemnify and hold Sellers
harmless in respect of such operation.
SECTION 1.2 BAYTOWN/ANGLETON AIRSPACE ASSETS. S&J Landfill and Brazoria
Recycling (collectively referred to as "GRANTORS") hereby grant to Buyer the
right to dispose, over a ten-year period beginning on the Closing Date, and
terminating on the tenth anniversary of the Closing Date, up to a total of
2,000,000 tons of municipal solid waste (the "AIRSPACE TONNAGE") in amounts not
to exceed a total of 270,000 tons per year in the aggregate at the Xxxxxxxxx
Type I landfill located at 0000 Xxx-Xxxx Xxxxx Xxxx xx Xxxxxxx, Xxxxx (Permit
No. 1535) and the Brazoria County Type I landfill located at 00000 XX 000 xx
Xxxxxxxx, Xxxxx (Permit No. 1539). Buyer's right to dispose or deliver waste,
and Grantors' obligation to accept such waste or deliveries, as set forth in
this SECTION 1.2 shall be suspended, in Grantors' sole discretion, in the event
that Buyer is not in compliance with Grantors' non-discriminatory, uniform rules
and procedures regarding the use of the above landfills or is at least
forty-five days delinquent in payment of any invoices for the use of such
landfills (unless there is a bona fide dispute over the payment of such invoiced
amounts, provided that any non-disputed amounts are paid without
3
delinquency). In connection with the conversion of yards to tons and vice-versa
for purposes of this SECTION 1.2, Buyer and Sellers agree to implement a
conversion rate of (a) 3.5:1 yards to tons in respect of commercial waste and
(b) 2.5:1 yards to tons in respect of residential waste.
(a) Buyer will pay to Grantors, as applicable, for the disposal or
delivery of such municipal solid waste the following fees for the periods
indicated:
(i) an initial fee of $4.87 per yard of waste disposed at the
Baytown or Angleton Type I landfills; or
(ii) an initial fee of $23.08 per ton of waste delivered to
the Xxx Houston Transfer Station (Permit No. 1471) or the WRS
Transfer Station (Permit No. 1483).
Buyer will be invoiced for such disposal and deliveries in the ordinary
course of Grantors' business; PROVIDED, HOWEVER, that in no event will
such billing be done more frequently than on a monthly basis.
(b) Buyer shall further pay the Grantors, not later than 30 days
after receipt of invoices therefor, the following additional costs
incurred by them in connection with operation of such landfills and their
receipt of waste as part of the Airspace Tonnage:
(i) any tax, fee, levy or charge imposed by any government or
regulatory authority, including without limitation any increases in
state fees imposed on the disposal of waste, and any increases in
host fees or similar fees;
(ii) increases in costs of doing business resulting from
revised laws, ordinances, regulations or other legal requirements,
if any, to be borne by Grantors hereunder; and
(iii) each year from and after the first anniversary of the
Agreement increases in fees as will give effect to an annual
consumer price index price adjustment (based on the fee in effect at
the beginning of the year net of taxes) as determined by the
Consumer Price Index for All Urban Consumers, U.S. City Average -
All Items, as published by the U.S. Department of Labor, Bureau of
Labor Statistics.
Grantors shall provide Buyer with reasonable justification for the basis
of the increased costs specified above, including the manner in which the
amount of such increase is calculated; and in the case of any increase
pursuant to SECTION 1.2(B)(II) above, shall spread such increased costs
uniformly over the available airspace affected by the increased costs,
subject to any non-uniform adjustments that may reasonably be made to
account for the economic impact of the specific changes involved.
(c) Notwithstanding the foregoing provisions of SECTIONS 1.2(A) AND
1.2(B), in respect of waste disposed of by Buyer at Grantors' landfills
pursuant to the above grant, Buyer shall be charged a disposal fee equal
to the lower of (i) the fee set forth in SECTIONS 1.2(A) AND 1.2(B) above;
(ii) Grantors' then-current internal gate rate for the applicable landfill
at the time of disposal; or (iii) the lowest rate charged by Grantors at
the time of disposal to any unaffiliated third party for disposal at the
applicable landfill. The provisions of this SUBSECTION (C) shall not apply
to waste deposited at a transfer station.
4
(d) all or any portion of the Airspace Tonnage may be assigned by
Buyer at any time from and after the Closing Date and from time to time,
provided the following procedures are followed in connection with such
assignment:
(i) Buyer will give Sellers written notice of any proposed
assignment, including information reasonably identifying the
proposed assignee, at least ten business days prior to the effective
date of any such assignment;
(ii) such assignment will be void and of no effect, and
Sellers shall be under no obligation to give effect to such
assignment, in the event that within five (5) business days of their
receipt of a notice of proposed transfer Sellers notify Buyer in
writing that Sellers do not consent to such transfer on the grounds
that, based on prior actions of the proposed assignee, Sellers
reasonably and in good faith believe the assignee will not comply
with its obligations pursuant to the terms of this Agreement; and
(iii) no such assignment will become effective unless and
until Buyer and its assignee have executed and delivered to Buyer an
agreement in the form attached hereto as EXHIBIT 1.2(D)(III),
pursuant to which, among other matters, such assignee agrees to be
bound by the terms of this Agreement regarding the Airspace Tonnage.
SECTION 1.3 RETAINED ITEMS. Anything in SECTIONS 1.1 AND 1.2 to the
contrary notwithstanding, there shall be excluded from the Subject Assets the
following items (the "RETAINED ITEMS"):
(a) all cash and cash equivalent instruments;
(b) Sellers' tax returns and any business records which might
reasonably be required by Sellers in preparation of Sellers' tax returns,
provided that Buyer shall be provided copies thereof or given reasonable
access thereto;
(c) any and all rights to tax refunds and credits;
(d) any intellectual property rights and proprietary processes and
technology of Sellers, including without limitation all trademarks and the
use of their business names;
(e) all accounts receivable for services performed by Sellers on or
prior to the Closing Date in respect of the Subject Assets and the
businesses and operations primarily related thereto; and
(f) those certain items, including the specified office furniture,
listed on SCHEDULE 1.2 hereto.
ARTICLE 2.
PURCHASE PRICE
SECTION 2.1 CONSIDERATION. Buyer shall pay to Sellers for the Subject
Assets the Down Payment, the Cash Payment (in each case as defined below) and
the grant of warrants (set forth below). Such payments, together with the
obligations undertaken by Buyer pursuant hereto (including its
5
obligations in respect of the Assumed Liabilities), constitute the consideration
to be paid by Buyer hereunder.
SECTION 2.2 DOWN PAYMENT. Upon execution of this Agreement, Buyer has paid
Sellers $1,000,000 by wire transfer or other payment in immediately available
funds to Sellers' designated account as xxxxxxx money and as a nonrefundable
down payment (the "DOWN PAYMENT") toward payment of the purchase price
hereunder. The Down Payment will be nonrefundable except as specified in SECTION
7.2 below.
SECTION 2.3 CASH PAYMENT. At the Closing, Buyer will pay to Sellers Twelve
Million Six Hundred Thousand and No/100 Dollars ($12,600,000) (the "CASH
PAYMENT") by wire transfer of immediately available funds to Sellers' designated
account(s) on the Closing Date. Such Cash Payment is in addition to the Down
Payment paid by Buyer to Sellers on December 3, 1996.
SECTION 2.4 GRANT OF WARRANTS. At the Closing, Buyer will grant to Sellers
warrants for the purchase of 1,500,000 shares of Buyer's common stock at an
exercise price of $1.50 per share (the "WARRANTS"). The Warrants shall provide
Sellers customary anti-dilution protection in respect of the underlying common
stock, such that Sellers shall be protected from dilution resulting from stock
splits, stock dividends, recapitalizations, mergers and similar corporate
actions. The Warrants shall be exercisable for a period of at least five (5)
years from the Closing Date, and shall be transferrable, together with the
registration rights granted pursuant to SECTION 9.2(C) hereof.
SECTION 2.5 POST-CLOSING ADJUSTMENT. In the event the transactions set
forth herein are accomplished in whole or in part as a sale of stock, the
following provisions shall apply as to the corporations sold to Buyer hereunder
(the "TRANSFERRED CORPORATIONS").
(a) CALCULATION OF NET WORKING CAPITAL ON THE CLOSING DATE. On or
before the date that is forty-five (45) days after the Closing Date,
Sellers' accountants shall compute in good faith the amount of net working
capital of the Transferred Corporations as of the Closing Date (but
without taking into account any termination of leases, notes, consulting
agreements or other transactions effected in order to accomplish Sellers'
sale of the capital stock of the Transferred Corporations, if applicable;
PROVIDED HOWEVER, that any tax accruals in respect of such transactions
will be taken into account) in accordance with GAAP, and shall provide
Buyer a summary reflecting how such computations were made. Buyer shall
review such computations and deliver any objections to Sellers within ten
(10) days of receipt whereupon the parties shall in good faith resolve any
disputes.
(b) PAYMENT OF ADJUSTMENT AMOUNT. If the net working capital as of
the Closing Date is (i) less than the zero, then Sellers, within five
business days of such computation, shall pay Buyer, by check, an amount
equal to the negative amount of net working capital at the Closing Date or
(ii) greater than the zero, then Buyer, within five business days of such
computation, shall pay Sellers, by check, an amount equal to the positive
amount of net working capital at the Closing Date.
SECTION 2.6 CONTINGENCY IN RESPECT OF EXPANSION PERMIT. In the event that
it is determined that the TNRCC has denied approval of the application to expand
the Permit on substantially the terms set forth in the Permit Application, or
has denied its approval to transfer such expansion permit to Buyer as set forth
in SECTION 9.3(A), and such denials have become final and subject to no further
appeal, then (a) Sellers shall pay to Buyer $1,575,000 by corporate check or by
wire transfer to Buyer's designated
6
account(s); (b) Sellers will not be obligated to convey to Buyer the portion of
the Land subject to the Permit Application; and (c) the foregoing contingent
payment shall constitute the sole and exclusive remedy of Buyer for such failure
to expand the Permit and provide for its transfer to Buyer. In the event that
the TNRCC grants the Permit Application for a permitted airspace capacity of
less than 2,750,000 cubic yards, Sellers shall pay to Buyer by corporate check
or wire transfer to Buyer's designated account an amount equal to the product
obtained by multiplying $1,575,000 by a fraction, the numerator of which is the
difference obtained by subtracting the number of cubic yards of airspace
permitted for the expansion permit from 2,990,000 and the denominator of which
is 2,990,000.
In addition to the foregoing, in the event that the Permit Application has
not been approved by the TNRCC by the later of (x) the date the Landfill is
completely filled or (y) September 30, 1996 (the "TARGET DATE") then Sellers
shall on the Target Date deposit the $1,575,000 contingent payment into escrow.
Such funds shall be held by the escrow agent until the earlier to occur of (a)
such time as the TNRCC has denied approval of the application to expand the
Permit, or has denied its approval to transfer such expansion permit to Buyer,
at which time such payment shall be delivered to Buyer or (b) such time as the
Permit Application is approved by the TNRCC, at which time such payment shall be
returned to Sellers. Buyer shall be paid all interest accrued by the $1,575,000
contingent payment while such payment is held by the escrow agent.
SECTION 2.7 ACCOUNTS RECEIVABLE; PREPAID SERVICES. The provisions of this
SECTION 2.7 shall apply to any assets and operations that are transferred by
asset sale rather than by stock sale. All accounts receivable of Sellers for
service through the Closing Date and all preceding months are retained items of
Sellers. Accordingly, Buyer shall have no obligation whatsoever to Sellers in
connection with such accounts receivable, nor shall Buyer in any way have any
responsibility for collecting such accounts receivable. In the event, however,
that Buyer receives payments on Sellers' accounts receivable that are clearly
marked to indicate that they relate to Sellers' accounts receivable, Buyer shall
promptly remit such payments to Sellers. In the event either party receives
payments on accounts receivable with respect to periods both before and after
the Closing Date, such payments shall be divided pro rata between Sellers and
Buyer to conform to the division of accounts receivable set forth in this
Section, and each party shall promptly remit to the other any portion of such
payments due to the other party pursuant thereto. In the event that,
notwithstanding Sellers' customary practices, Sellers receive any prepayment for
services to be rendered by Buyer after the Closing Date in respect of the
Subject Assets and the businesses and operations related thereto, Sellers shall
promptly remit to Buyer all such prepayments to the extent they are attributable
to such post-Closing services.
ARTICLE 3.
ASSUMPTION OF OBLIGATIONS
Pursuant to this Agreement, and as part of the consideration paid by Buyer
hereunder, Buyer shall assume all liabilities, duties and obligations of every
kind whatsoever of Sellers (a) relative to the ownership or operation of the
Subject Assets from and after the Closing Date, including without limitation (i)
Hauling's obligations pursuant to the express terms of the written Front-End
Customer Contracts and Hauling's obligations pursuant to the express terms of
the Rearload Customer Contracts and (ii) the written summaries of oral Front-End
Customer Contracts provided by Hauling to Buyer and the written summaries of
oral Rearload Customer Contracts provided by Hauling to Buyer, (b) relative to
the condition of the Subject Assets existing as of the Closing Date and (c)
before, on or after the Closing Date (except to the extent Sellers have
expressly agreed hereunder to indemnify Buyer in respect of such matters)
relative to (i) the status of title to any real property or real property
interests, (ii) any matter or
7
circumstance relating to environmental laws, the release of materials into the
environment or protection of the environment or health, regardless in each case
whether known or unknown and (iii) any loss caused relative to or arising from
any materials deposited as a part of the Airspace Tonnage which materials are
not permitted to be accepted by the applicable permits relative to such Airspace
Tonnage or are otherwise deposited in violation of any applicable laws (the
foregoing referred to as the "ASSUMED LIABILITIES").
ARTICLE 4.
CLOSING
SECTION 4.1 TIME AND PLACE OF CLOSING. The closing of the transactions set
forth herein (the "CLOSING") shall take place at the offices of Mayor, Day,
Xxxxxxxx & Xxxxxx, L.L.P., 000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, on
December 31, 1996 or at such earlier date and time as the closing conditions
specified in ARTICLE 8 have been satisfied (the "CLOSING DATE"), and shall be
effective for all purposes as of 12:01 a.m., local time, on the Closing Date.
SECTION 4.2 DELIVERIES BY SELLERS. At the Closing, Sellers shall deliver
to Buyer, each as applicable:
(a) a xxxx of sale conveying, selling, transferring and assigning to
Buyer the Subject Assets, as applicable in event of one or more asset
sales hereunder, and assigning to Buyer Sellers' rights in any contracts
that may be transferred hereunder by asset sale;
(b) special warranty deeds conveying the Channelview and Xxxxxx Road
Facilities, including real property and improvements thereto, to Buyer;
(c) motor vehicle certificates of title and registrations to the
Front-End Trucks, the Rearload Trucks and any certificated vehicles
located on the Land and used in the operation of the Landfill, properly
endorsed to Buyer, as applicable in the event of one or more asset sales
hereunder;
(d) a special warranty deed conveying the Land, and all improvements
on and all fixtures related to the Land, to Buyer, in the event such Land
is transferred by asset sale; PROVIDED, HOWEVER, that the portion of the
Land subject to the Permit Application need not be conveyed to Buyer until
such time as the Permit Application has been granted;
(e) title insurance policies covering the Land, the Channelview
Facility and the Xxxxxx Road Facility;
(f) the stock certificates of Hauling, endorsed in blank or
accompanied by duly executed assignment documents;
(g) certificates of good standing for each Seller organized as a
corporation; and/or
(h) an officer's certificate pursuant to SECTION 8.3.
SECTION 4.3 DELIVERIES BY BUYER. At the Closing, Buyer shall deliver to
Sellers:
(a) the Cash Payment;
8
(b) the Warrants;
(c) an assumption agreement evidencing Buyer's assumption of the
Assumed Liabilities; and
(d) an officer's certificate pursuant to SECTION 8.2.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SELLERS
SECTION 5.1 REPRESENTATIONS AND WARRANTIES. Sellers represent and warrant
to Buyer that:
(a) AUTHORITY. Sellers have full power and capacity, are under no
legal restraint, and have all necessary authority to enter into this
Agreement, perform Sellers' obligations hereunder and consummate the
transactions contemplated hereby. Sellers (other than S&J Landfill) are
corporations duly organized and constituted and in good standing under the
laws of their respective states of incorporation. S&J Landfill is a
limited partnership duly formed under the Texas Revised Uniform Limited
Partnership Act. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the compliance by
Sellers with the terms of this Agreement do not and will not conflict with
or result in a breach of any terms of, or constitute a default under,
their respective Articles of Incorporation or Bylaws (or, in the case of
S&J Landfill, its Agreement of Limited Partnership). This Agreement
constitutes a valid obligation of Sellers enforceable in accordance with
its terms except as limited by bankruptcy, insolvency, reorganization or
other such laws concerning the rights of creditors.
(b) COMPLIANCE WITH LAW. Except as disclosed in SCHEDULE 5.1(B),
since June 1, 1993, Sellers have not received any notice alleging any
violation of applicable federal, state or local laws, statutes,
ordinances, permits, licenses, orders, approvals, variances, rules or
regulations or judicial or administrative decisions, except for
insignificant instances of non-compliance that would not, individually or
in the aggregate, have a material adverse effect upon the Subject Assets,
the Houston Commercial Business or the Rearload Business.
(c) CONTAINERS, ETC. Listed on SCHEDULE 1.1(A)(I) hereto is a
complete and accurate list of all containers owned by Hauling with respect
to the Houston Commercial Business. Listed on SCHEDULE 1.1(B)(I) hereto is
a complete and accurate list of all containers, carts and compactors owned
by Hauling with respect to the Rearload Business.
(d) FRONT-END AND REARLOAD TRUCKS. Listed on SCHEDULE 1.1(A)(II)
hereto is a complete and accurate list of all Front-End Trucks used in the
Houston Commercial Business and listed on SCHEDULE 1.1(B)(II) hereto is a
complete and accurate list of all Rearload Trucks used in the Rearload
Business.
(e) CUSTOMER CONTRACTS. A complete and accurate set of all Front-End
Customer Contracts and Rearload Customer Contracts has been delivered to
Buyer simultaneously with the execution of this Agreement. Hauling is
currently providing services pursuant to each Front-End Customer Contract
and Hauling is currently providing services pursuant to each Rearload
Customer Contract. As to each Rearload Customer Contract, either (i) no
approval of the customer is needed to give effect to the transactions set
forth herein, (ii) the approval of the
9
customer to give effect to the transactions set forth herein has been
obtained or (iii) adequate provision has been made to hold Buyer harmless
in respect of any Rearload Customer Contract as to which such approval is
required and has not been obtained (and in the event such provision
involves Sellers' retention of the obligation to perform such contract,
Sellers shall retain the motor vehicles and the equipment dedicated to
performing such contract, and deduct the net book value thereof from the
purchase price otherwise payable in respect of the Subject Assets).
(f) TITLE TO THE ASSETS. Sellers have good and marketable title to
the Subject Assets, as applicable, free and clear of all liens and
security interests. By virtue of the grant, conveyance, sale, transfer,
and assignment of the Subject Assets hereunder, Buyer shall receive good
and marketable title (or in the case of Subject Assets consisting of real
estate, good and indefeasible title) to the Subject Assets free and clear
of all liens and security interests.
(g) LITIGATION. Except as set forth on SCHEDULE 5.1(G) hereof, there
is no claim, litigation, action, suit or proceeding, administrative or
judicial, pending or, to Sellers' knowledge threatened, against Sellers,
or involving the Subject Assets, the Houston Commercial Business or the
Rearload Business or the transactions set forth herein, at law or in
equity, before any federal, state or local court or regulatory agency, or
other governmental authority. Except as set forth on such Schedule,
Sellers have received no notice of any of the above.
(h) TAX MATTERS. Sellers have filed all income tax returns that they
were required to file, and have paid all income taxes shown thereon as
owing, except where the failure to file income tax returns or to pay
income taxes would not have a material adverse effect on the financial
condition of Sellers taken as a whole. Sellers have paid, or have made
provision on their books for payment of, all taxes incurred in the
operation of the Subject Assets through the Closing Date. Sellers are not
a party to any income tax allocation or sharing agreement.
(i) THE LANDFILL. To Sellers' knowledge, the following statements
are true in all material respects:
(i) The Land is, and at all times during its operation has
been, fully licensed, permitted and authorized as a State of Texas
Type IV landfill under applicable laws;
(ii) As of the date hereof, Sellers are not in default under
any applicable laws or under any order of any court or governmental
administrative body having jurisdiction over Sellers, the Land or
the Permit, or any operations or activities thereon or thereunder,
and which default would have a material adverse effect on Sellers,
the Land or the Permit;
(iii) As of the date hereof, there are no claims, actions,
suits or proceedings, at law or in equity, pending or threatened,
against or directly involving Sellers, before any court or
administrative body, and which claims, actions, suits or proceedings
directly involve the Land, the Permit or the Landfill, and no notice
of any such claim, action, suit or proceeding, whether pending or
threatened, has been received by Sellers. Furthermore, there are no
actions, suits or proceedings pending against Sellers, or threatened
to be brought against Sellers, in any court or before any
administrative agency or authority which, if adversely determined,
would (A) adversely affect the ability of Sellers or Buyer to
operate the Landfill in the manner in which it is currently
operated; (B) adversely affect the ability of Sellers to perform
their respective obligations hereunder
10
and in connection with the transactions contemplated hereby or (C)
result in any liability being imposed on Buyer or any lien, charge
or encumbrance being imposed on the Landfill;
(iv) Except for small quantities of materials and substances
commonly contained in municipal solid waste and non-hazardous
industrial solid waste, Sellers have never knowingly owned, leased,
had an interest in, generated, transported, handled, recycled,
reclaimed, disposed of, or contracted for the disposal of, hazardous
wastes, hazardous substances, toxic wastes or substances, or
radioactive waste, as those terms are defined by applicable laws
regarding environmental matters (collectively, "HAZARDOUS
MATERIALS");
(v) As of the date hereof, the Land does not contain any
underground or above-ground storage tanks or transformers containing
Hazardous Materials, petroleum products or wastes or other hazardous
substances regulated by 40 CFR 280 or other laws applicable to
underground or above-ground storage tanks or transformers;
(vi) As of the date hereof, Sellers have not received any type
of summons or written notice from the TNRCC, or any other local,
state or federal governmental entity, in regard to any alleged
violation by Sellers of that part or portion of the applicable laws
which would apply to the receipt and/or storage of any Hazardous
Materials by Sellers at the Landfill; and
(vii) As of the date hereof, there has been no storage of
disposable materials or dirt on the Land by Sellers that would
violate the horizontal or vertical storage restrictions imposed upon
the Landfill by the Permit.
(j) THE FINAL JUDGMENT. Sellers have satisfied, and will in all
respects satisfy and comply with, all obligations and requirements
applicable to Sellers in respect of Buyer under the Final Judgment dated
as of September 3, 1996 entered in the suit styled UNITED STATES OF
AMERICA, ET. AL. V. USA WASTE SERVICES, INC., ET. AL. Civil Action No.
962031 in the United States District Court for the District of Columbia
(the "FINAL JUDGMENT").
(k) DISCLAIMER REGARDING ASSETS. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, BUYER ACKNOWLEDGES THAT SELLERS HAVE NOT MADE,
AND SELLERS HEREBY EXPRESSLY DISCLAIM AND NEGATE, ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, RELATING TO THE CONDITION OF THE FACILITIES,
REALTY RIGHTS, IMMOVABLE PROPERTY, MOVABLE PROPERTY, EQUIPMENT, INVENTORY,
MACHINERY, FIXTURES AND PERSONAL PROPERTY CONSTITUTING PART OF THE SUBJECT
ASSETS (INCLUDING, WITHOUT LIMITATION, (a) ANY IMPLIED OR EXPRESS WARRANTY
OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO
MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE
STATUTES TO CLAIM DIMINUTION OF CONSIDERATION OR RETURN OF THE PURCHASE
PRICE, (e) ANY IMPLIED OR EXPRESS WARRANTY OF FREEDOM FROM PATENT OR
TRADEMARK INFRINGEMENT, (f) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER
APPLICABLE LAW NOW OR HEREAFTER IN EFFECT, AND (g) ANY IMPLIED OR
11
EXPRESS WARRANTY REGARDING ENVIRONMENTAL LAWS, THE RELEASE OF MATERIALS
INTO THE ENVIRONMENT OR PROTECTION OF THE ENVIRONMENT OR HEALTH), IT BEING
THE EXPRESS INTENTION OF BUYER AND SELLERS THAT (EXCEPT TO THE EXTENT
EXPRESSLY PROVIDED IN THIS AGREEMENT) THE FACILITIES, REALTY RIGHTS,
IMMOVABLE PROPERTY, MOVABLE PROPERTY, EQUIPMENT, INVENTORY, MACHINERY,
FIXTURES AND PERSONAL PROPERTY CONSTITUTING PART OF THE SUBJECT ASSETS
SHALL BE CONVEYED TO BUYER "AS IS" "WHERE IS" AND IN THEIR PRESENT
CONDITION AND STATE OF REPAIR AND BUYER REPRESENTS TO SELLERS THAT BUYER
HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS WITH RESPECT TO THE
FACILITIES, REALTY RIGHTS, IMMOVABLE PROPERTY, MOVABLE PROPERTY,
EQUIPMENT, INVENTORY, MACHINERY, FIXTURES AND PERSONAL PROPERTY
CONSTITUTING PART OF THE SUBJECT ASSETS AS BUYER DEEMS APPROPRIATE AND
BUYER WILL ACCEPT THE FACILITIES, REALTY RIGHTS, IMMOVABLE PROPERTY,
MOVABLE PROPERTY, EQUIPMENT, INVENTORY, MACHINERY, FIXTURES AND PERSONAL
PROPERTY CONSTITUTING PART OF THE SUBJECT ASSETS "AS IS" "WHERE IS," IN
THEIR PRESENT CONDITION AND STATE OF REPAIR. THE PARTIES AGREE THAT THIS
PARAGRAPH CONSTITUTES A CONSPICUOUS LEGEND.
SECTION 5.2 SURVIVAL. Each of the representations and warranties set forth
in this ARTICLE 5 or elsewhere in this Agreement shall survive Closing (unless
Buyer knew or had reason to know of any misrepresentation or breach of warranty
at the time of Closing) and the transfer of the Subject Assets and shall remain
in effect for a period of one year thereafter.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF BUYER
SECTION 6.1 REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants
to Sellers that:
(a) CORPORATE ORGANIZATION. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware.
(b) AUTHORIZATION. Buyer has all requisite corporate power and
corporate authority to enter into this agreement, perform its obligations
hereunder and consummate the transactions contemplated hereby. The
execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the compliance by Buyer with the
terms of this Agreement do not and will not conflict with or result in a
breach of any terms of, or constitute a default under, Buyer's Articles of
Incorporation or Bylaws or, in any material respect, any material
agreement or instrument to which Buyer is a party or by which it is bound.
All necessary corporate action has been taken by Buyer with respect to the
execution and delivery of this Agreement, and this Agreement constitutes a
valid obligation of Buyer enforceable in accordance with its terms except
as limited by bankruptcy, insolvency, reorganization or other such laws
concerning the rights of creditors.
(c) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions contemplated hereby), will
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
12
governmental agency, or court to which Buyer is subject or any provision
of its Articles of Incorporation or Bylaws. Buyer does not need to give
any notice to, make any filing with, or obtain any authorization, consent,
or approval of any government or governmental agency in order for the
parties to consummate the transactions contemplated by this Agreement
(including the assignments and assumptions contemplated hereby).
(d) INVESTMENT INTENT. In connection with the purchase of the
capital stock of Hauling and any subsidiary of Hauling, by Buyer, if
applicable, Buyer hereby represents and warrants that the securities to be
acquired by Buyer pursuant to this Agreement are being acquired by Buyer
for Buyer's own account, not as a nominee or agent, and without a view to
resale or other distribution within the meaning of the Securities Act of
1933 (the "SECURITIES ACT") and the rules and regulations thereunder, and
that Buyer will not distribute any of such securities in violation of the
Securities Act.
(e) AVAILABLE FUNDS. Buyer has sufficient funds available to pay the
Cash Payment on the Closing Date.
SECTION 6.2 SURVIVAL. Each of the representations and warranties set forth
in this ARTICLE 6 or elsewhere in this Agreement shall survive the Closing and
the transfer of the Subject Assets and shall remain in effect for a period of
one year thereafter.
ARTICLE 7.
TERMINATION
SECTION 7.1 TERMINATION. This Agreement may be terminated at any time
prior to the Closing Date:
(a) by the written agreement of Buyer and Sellers;
(b) by either Sellers or Buyer by written notice to the other (a
"TERMINATION NOTICE") if (i) the U.S. Department of Justice makes an
objection to this sale pursuant to the Final Judgment or (ii) the Closing
has failed to occur on or before 5:00 p.m. Houston time on December 31,
1996, (or such later date as Sellers and Buyer shall agree in writing),
except that neither Buyer nor Sellers shall terminate this Agreement by
delivery of a Termination Notice while such party is in breach or default
of its obligations hereunder;
(c) by Buyer by written notice to Sellers if the representations and
warranties of Sellers shall not have been true and correct in all respects
(in the case of any representation or warranty containing any materiality
qualification) or in all material respects (in the case of any
representation or warranty without any materiality qualification) as of
the date when made, or Sellers have breached in a material respect their
covenants hereunder; or
(d) by Sellers by written notice to Buyer if the representations and
warranties of Buyer shall not have been true and correct in all respects
(in the case of any representation or warranty containing any materiality
qualification) or in all material respects (in the case of any
representation or warranty without any materiality qualification) as of
the date when made, or Buyer has breached in a material respect its
covenants hereunder.
13
SECTION 7.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement pursuant to the provisions of SECTION 7.1, this Agreement shall become
void and have no effect, without any liability to any person in respect hereof
or of the transactions contemplated hereby on the part of any party hereto, or
any of its directors, officers, employees, agents, consultants, representatives,
advisers, stockholders or affiliates, except as specified in SECTION 11.5 and
except for any liability resulting from such party's breach of this Agreement.
Notwithstanding the foregoing, in the event this Agreement is terminated as a
result of (a) Sellers' default, (b) an objection to the sale by the U.S.
Department of Justice pursuant to the Final Judgment or (c) the failure to
satisfy the closing conditions specified at SECTIONS 8.1(B) OR 8.1(C) resulting
from any litigation, proceeding, order or the like (provided that Buyer has not
directly or indirectly caused, instigated, participated in or been at fault in
respect of such matter), then in such event Sellers shall refund to Buyer the
Down Payment promptly after such termination.
SECTION 7.3 PRE-CLOSING DAMAGES. If this Agreement is terminated by either
party, upon the default of or breach by the other party, prior to Closing, the
parties agree that the damages resulting from such breach shall be limited to
the amount of the Down Payment and the Cash Payment and shall be for actual
damages only and not for consequential or punitive damages. Nothing contained in
this SECTION 7.3 shall limit the right of either party to seek equitable relief
(including the right of specific performance) in addition to monetary damages in
the event of a breach by the other party.
ARTICLE 8.
CONDITIONS TO CONSUMMATION OF THE AGREEMENT
SECTION 8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE AGREEMENT.
The respective obligations of each party to effect the Agreement shall be
subject to the satisfaction at or prior to the Closing Date of the following
conditions:
(a) the U.S. Department of Justice shall have confirmed that it will
not make any objection to this sale pursuant to the Final Judgment, or the
time period for making such objection pursuant to the Final Judgment shall
have expired;
(b) no statute, rule, regulation, executive order, decree, ruling,
or preliminary or permanent injunction shall have been enacted, entered,
promulgated, or enforced by any federal or state court or governmental
authority that prohibits, restrains, enjoins, or restricts the
consummation of the Agreement; and
(c) no claim, action, suit, arbitration, inquiry proceeding, or
investigation shall have been commenced by or before any United States
federal, state, or local or any foreign government, governmental,
regulatory, or administrative authority, agency, or commission or any
court, tribunal or judicial or arbitral body against Buyer or Sellers
seeking to restrain or materially and adversely alter the transactions
contemplated by this Agreement that, in the reasonable good faith
determination of any party, is likely to render it impossible or unlawful
to consummate such transactions; PROVIDED, HOWEVER, that the provisions of
this SECTION 8.1(C) shall not apply to any party that has directly or
indirectly solicited or encouraged any such action.
SECTION 8.2 CONDITIONS TO OBLIGATION OF SELLERS TO EFFECT THE AGREEMENT.
The obligation of Sellers to effect the Agreement shall be subject to the
satisfaction at or prior to the Closing Date of the following additional
conditions: Buyer shall have performed in all material respects its obligations
under this Agreement required to be performed by it at or prior to the Closing
Date; the representations
14
and warranties of Buyer contained in this Agreement that are qualified with
respect to materiality shall be true and correct in all respects, and such
representations and warranties that are not so qualified shall be true and
correct in all material respects, in each case as of the date of this Agreement
and on the Closing Date as if made at and as of such time except as contemplated
by this Agreement; and Sellers shall have received a certificate of the chairman
of the board, the president, an executive vice president, a senior vice
president, or the chief financial officer of Buyer as to the satisfaction of
this condition.
SECTION 8.3 CONDITIONS TO OBLIGATION OF BUYER TO EFFECT THE AGREEMENT. The
obligations of Buyer to effect the Agreement shall be subject to the
satisfaction at or prior to the Closing Date of the following additional
conditions: Sellers shall have performed in all material respects their
obligations under this Agreement required to be performed by them at or prior to
the Closing Date; the representations and warranties of Sellers contained in
this Agreement that are qualified with respect to materiality shall be true and
correct in all respects, and such representations and warranties that are not so
qualified shall be true and correct in all material respects, in each case as of
the date of this Agreement and at and as of the Closing Date as if made at and
as of such time, except as contemplated by this Agreement; and Buyer shall have
received a certificate of the chairman of the board, the president, or a vice
president of each Seller as to the satisfaction of this condition.
ARTICLE 9.
COVENANTS
SECTION 9.1 GRANTORS' COVENANTS. Grantors will in all respects satisfy and
comply with SECTION IV.F of the Final Judgment, including operating the gate,
scale house, and disposal area under terms and conditions no less favorable than
those provided to Grantors' vehicles or the vehicles of any municipality in the
Houston area, except as to price and credit terms.
SECTION 9.2 BUYER'S COVENANTS.
(a) COMPLIANCE WITH THE FINAL JUDGMENT. Buyer will in all respects
satisfy and comply with all obligations and requirements applicable to a
buyer of the Subject Assets under the Final Judgment and will comply with
all of its obligations hereunder including without limitation those set
forth at SECTION 1.2(D).
(b) RELEASE OF SURETIES AND BONDS. Buyer shall cause Sellers to be
released of all sureties and bonds within one hundred eighty (180) days of
the Closing Date. In addition to the foregoing, Buyer shall obtain a
replacement bond in its name for the bond currently in place with respect
to the Land and the operation of the Landfill not later than such time as
the Permit Application is transferred to Buyer hereunder; and Buyer shall
cause Sellers to be released from such bond at such date.
(c) FILING OF REGISTRATION STATEMENT. Buyer shall, reasonably
promptly after all requisite information (including pro forma financial
information) becomes available therefor but in no event later than March
30, 1997, file a Form S-3 registration statement with the Securities and
Exchange Commission to effect the registration of the resale of the shares
of common stock issuable upon exercise of the Warrants under the
Securities Act and use its best efforts to cause such registration
statement to become effective by June 30, 1997; and Buyer shall maintain
the effectiveness of such registration statement until the exercise period
of the Warrants has expired and the shares issuable upon exercise of the
Warrants have been resold; and in the event that after
15
the effective date of the registration statement resales may not be made
under such registration statement for a consecutive period of at least
forty-five (45) days, whether as a result of the staleness of financial
statements of Buyer or otherwise, Buyer shall take such actions (including
without limitation giving Sellers the right to demand registration on some
other form of registration statement), or shall xxxxx Xxxxxxx such other
benefits, as will afford Sellers the economic benefits of selling the
shares in a registered transaction.
SECTION 9.3 SELLERS' COVENANTS.
(a) EXPANSION PERMIT. Sellers will use their commercially reasonable
best efforts at Sellers' expense to obtain from the TNRCC the approval of
the application to expand the Permit on substantially the terms set forth
in the Permit Application. Sellers' obligation pursuant hereto will
terminate at such time as the parties have received a draft permit on
substantially the terms applied for, and have made adequate arrangements
for the transfer of such expansion permit to Buyer; and in the event the
TNRCC finally denies such application or the transfer of the expansion
permit to Buyer, Buyer shall be entitled to payment to the extent set
forth in SECTION 2.6.
(b) MAINTAIN SUBJECT ASSETS AND OPERATIONS; NON-SOLICITATION OF
EMPLOYEES. In the period of time from the Closing to the Closing Date,
Sellers shall (i) carry on their businesses in the ordinary course
consistent with past practices and in compliance with all applicable laws,
rules and regulations, except where failure to be in such compliance would
not have a material adverse effect on Buyer, (ii) use their reasonable
efforts to collect their accounts receivable, (iii) use their reasonable
efforts to preserve their business organization, maintain their rights and
franchises, keep available the services of their officers and employees
and preserve the goodwill and their relationships with customers,
suppliers and others having business dealings with them, (iv) use their
reasonable efforts to preserve in full force and effect all leases,
operating agreements, easements, rights-of-way, permits, licenses,
contracts and other agreements which relate to their assets (other than
those expiring by their terms and those whose failure to preserve would
not have a material adverse effect on Buyer), (v) use their reasonable
efforts to perform or cause to be performed all of their obligations in or
under any of such leases, agreements and contracts, except where the
failure to perform would not have a material adverse effect on Buyer, and
(vi) consistent with past practices, use their reasonable efforts to
safeguard and maintain secure all engineering data, reports and other
confidential data in the possession of Sellers relating to their assets.
For a period terminating six months after the Closing Date, Sellers
further covenant not to call upon any Transferred Employee with the intent
of enticing such employee away from or out of the employ of Buyer. As used
herein, the term "TRANSFERRED EMPLOYEE" means any person who is employed
by Sellers in connection with Sellers' operation of businesses primarily
related to the Subject Assets prior to the Closing Date and who becomes an
employee of Buyer immediately after the Closing Date; PROVIDED HOWEVER,
that from and after the time any such persons ceases to be employed by
Buyer or its subsidiaries, for any reason, and Sellers have not breached
their covenants hereunder in respect of such former employee, such former
employee shall cease to be a "TRANSFERRED EMPLOYEE."
SECTION 9.4 COVENANTS OF EACH PARTY.
(a) REARLOAD CUSTOMER CONTRACTS. Sellers shall take such action as
is required to hold Buyer harmless in respect of any Rearload Customer
Contract as to which approval is required and has not been obtained. In
the event such provision involves Sellers' retention of the
16
obligation to perform such contract, Sellers may, in satisfaction of the
preceding sentence, reacquire the motor vehicles and the equipment
dedicated to performing such contract and pay to Buyer the net book value
thereof.
ARTICLE 10.
INDEMNIFICATION
SECTION 10.1 INDEMNIFICATION PROVISIONS FOR BENEFIT OF BUYER. In the event
Sellers breach any of their representations, warranties, and covenants contained
in this Agreement, and, if there is an applicable survival period pursuant to
SECTION 5.2 above, provided that Buyer makes a written claim for indemnification
against Sellers pursuant to SECTION 11.2 below within such survival period, then
Sellers agree to indemnify Buyer from and against any Losses (as hereinafter
defined) Buyer shall suffer caused proximately by the breach. As used in this
Agreement, "LOSSES" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, liabilities, obligations, taxes, liens, losses, expenses, and
fees, including court costs and attorneys' fees and expenses, but net of all
insurance proceeds or similar reimbursements or recoveries, and after giving
effect to any tax savings resulting from such indemnified matter.
SECTION 10.2 INDEMNIFICATION PROVISIONS FOR BENEFIT OF SELLERS.
(a) In the event Buyer breaches any of its representations,
warranties, and covenants contained in this Agreement, and, if there is an
applicable survival period pursuant to SECTION 6.2 above, provided that
Sellers make a written claim for indemnification against Buyer pursuant to
SECTION 11.2 below within such survival period, then Buyer agrees to
indemnify Sellers from and against the entirety of any Losses Sellers
shall suffer caused proximately by the breach.
(b) Buyer agrees to indemnify Sellers from and against the entirety
of any Losses Sellers shall suffer caused by any liability of Sellers
which is an Assumed Liability.
SECTION 10.3 PROCEDURE FOR INDEMNIFICATION OF THIRD PARTY CLAIMS. Promptly
after a party hereto (hereinafter the "INDEMNIFIED PARTY") has received notice
of or has knowledge of any claim by a person not a party to this Agreement
("THIRD PERSON") or the commencement of any action or proceeding by a Third
Person, the Indemnified Party shall, as a condition precedent to a claim with
respect thereto being made against any party obligated to provide
indemnification pursuant to this Agreement (hereinafter the "INDEMNIFYING
PARTY"), give the Indemnifying Party written notice of such claim or the
commencement of such action or proceeding (the "NOTICE"). The Notice shall state
the nature and the specific basis of such claim and a reasonable estimate of the
amount thereof. The Indemnifying Party, after receipt of the Notice, may defend
and settle, at its own expense and by its own counsel, each such matter;
PROVIDED, HOWEVER, that the Indemnifying Party will not consent to the entry of
any judgment or enter into any settlement with respect to the third party claim
without the prior written consent of the Indemnified Party if such judgment or
settlement requires the Indemnified Party to take, or refrain from taking, any
actions other than the payment of monetary damages to be paid by the Indemnified
Party. Notwithstanding the foregoing, the Indemnified Party shall have the right
to participate in any matter through counsel of its own choosing. Such separate
representation shall be at the cost and expense of the Indemnified Party as long
as the Indemnifying Party is pursuing the defense of such matter diligently,
reasonably and in good faith. If the Indemnifying Party within fifteen (15) days
fails to acknowledge in writing to the Indemnified Party its obligation to
defend any such matter or does not assume the defense hereunder
17
within fifteen (15) days diligently, reasonably and in good faith, the
Indemnified Party may undertake such defense through counsel of its choice and
at the Indemnifying Party's expense.
SECTION 10.4 NEGLIGENCE AND STRICT LIABILITY. WITHOUT LIMITING OR
ENLARGING THE SCOPE OF THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS
AGREEMENT, THE PARTIES HERETO SHALL BE ENTITLED TO INDEMNIFICATION IN ACCORDANCE
WITH THE TERMS HEREOF, REGARDLESS OF WHETHER THE LOSS OR CLAIM GIVING RISE TO
SUCH INDEMNIFICATION OBLIGATION IS THE RESULT OF THE STRICT LIABILITY OR
NEGLIGENCE OF THE PARTY INDEMNIFIED. THE PARTIES AGREE THAT THIS PARAGRAPH
CONSTITUTES A CONSPICUOUS LEGEND.
SECTION 10.5 SUBROGATION. Any party providing indemnification hereunder
shall be entitled to subrogation as to all rights of the indemnified party in
respect of such indemnified matter to the extent of amounts paid by the
indemnifying party as a result of such matter.
SECTION 10.6 LIMITATIONS ON INDEMNIFICATION PROVISIONS; EXCLUSIVE REMEDY.
(a) DEDUCTIBLE AND MAXIMUM AGGREGATE LIABILITY. No party shall be
entitled to indemnity hereunder for any misrepresentation or breach of
warranty until the Losses suffered by such party as a result thereof shall
exceed $75,000 in the aggregate and then only for Losses in excess of such
amount. In addition to the foregoing, the maximum amount of Losses that
either party may recover from the other on account of indemnification for
all misrepresentations and breaches of warranties hereunder shall be
$2,200,000 in the aggregate.
(b) WAIVER OF NON-COMPENSATORY DAMAGES. No Indemnified Party shall
be entitled to recover from an Indemnifying Party for any losses, costs,
expenses, or damages as to which indemnification is provided under this
Agreement any amount in excess of the actual compensatory damages, court
costs and reasonable attorney fees, suffered by such party; and Buyer and
Sellers waive any right to recover punitive, special, exemplary and
consequential damages arising in connection with or with respect to the
indemnification provisions hereof.
(c) WAIVER OF RIGHT TO RESCISSION. Sellers and Buyer acknowledge
that the payment of money, as limited by the terms of this Agreement,
shall be adequate compensation for breach of any representation, warranty,
covenant or agreement contained herein or for any other claim arising in
connection with or with respect to the transactions contemplated in this
Agreement. As the payment of money shall be adequate compensation, Buyer
and Sellers waive any right to rescind this Agreement or any of the
transactions contemplated hereby.
(d) MITIGATION OBLIGATION. Each person entitled to indemnification
hereunder shall take all reasonable steps to mitigate all losses, costs,
expenses and damages after becoming aware of any event which could
reasonably be expected to give rise to any losses, costs, expenses and
damages that are indemnifiable or recoverable hereunder or in connection
herewith.
(e) EXCLUSIVE REMEDY; WAIVER AND RELEASE. The indemnifications under
this ARTICLE 3, and enforcement of the various agreements and instruments
executed pursuant hereto at the Closing, shall be Buyer's and Sellers'
sole and exclusive remedies, each against the other, with respect to
matters arising under this Agreement, of any kind or nature, or relating
to the Houston Commercial Business, the Rearload Business, the ownership,
operation, management, use or control of the Subject Assets. Buyer and
Sellers hereby waive and release any other
18
rights, remedies, causes of action or claims that they have or that may
arise against the other with respect to matters arising under this
Agreement, of any kind or nature, or relating to the Houston Commercial
Business, the Rearload Business, the ownership, operation, management, use
or control of the Subject Assets.
ARTICLE 11.
GENERAL
SECTION 11.1 NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person other than the parties and their
respective successors and permitted assigns.
SECTION 11.2 NOTICES. All notices or communications required or permitted
under this Agreement shall be given in writing and served either by personal
delivery, overnight courier or by deposit in the United States mail and sent by
first class registered or certified mail, return receipt requested, postage
prepaid:
If to Sellers: Sellers/Purchase and Sale of Assets Agreement
c/o USA Waste Services, Inc.
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attn: President
with copies to: USA Waste Services, Inc.
0000 XXX Xxxxxxx, Xxxxx 000 - Xxxxx Xxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
and: Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxx X. Xxxxxxxxxx
If to Buyer: TransAmerican Waste Industries, Inc.
000 Xxxxx Xxxx Xxx Xxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxx
Notice shall be deemed given and effective the day personally delivered, the day
after being sent by overnight courier and three days after deposit in the U.S.
mail as provided above, or when actually received, if earlier. Either party may
change the address for notices or communications to be given to it by written
notice to the other party given as provided in this Section.
SECTION 11.3 USE OF NAME. Sellers hereby consent to the use by Buyer of
the name "Sanifill" and any variation or derivation thereof and any trademarks,
service marks, trade names, trade dress, logos, business and product names and
slogans for a period of (a) 90 days after the Closing Date in connection with
controllable invoicing; (b) 180 days after the Closing Date in connection with
(i) the identifying marks on the trucks forming a part of the Subject Assets and
(ii) the phone identification of the businesses; and (c) one year after the
Closing Date in connection with identifying marks on containers
19
as of the Closing Date. Not later than fifteen days after the Closing Date,
Buyer shall take all action necessary to change the corporate name of any
Transferred Corporation to a name dissimilar to "Sanifill"; and following the
expiration of the periods set forth herein, Buyer will discontinue its limited
uses of the name "Sanifill" and the related intellectual property rights
permitted hereunder.
SECTION 11.4 ENTIRE AGREEMENT. This Agreement, the Schedules hereto and
the other agreements referred to herein constitute the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
supersede all prior and contemporaneous agreements and understandings, oral or
written, relative to said subject matter.
SECTION 11.5 EXPENSES OF TRANSACTION. Each of Buyer and Sellers will bear
their own costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby, including, without limitation, the fees and
expenses of attorneys and accountants.
SECTION 11.6 BROKER'S COMMISSION. Sellers represent and warrant to Buyer
and Buyer represents and warrants to Sellers that the warranting party has had
no dealing with any dealer, broker or agent so as to entitle such dealer, broker
or agent to a commission or fee in connection with the sale of the Subject
Assets to Buyer. If for any reason a commission or fee shall become due, the
party dealing with such dealer, broker or agent shall pay such commission or fee
and agrees to indemnify and save the other party harmless from all claims for
such commission or fee and from all attorneys' fees, litigation costs and other
expense relating to such claim.
SECTION 11.7 MODIFICATION; REMEDIES CUMULATIVE. This Agreement may not be
changed, amended, terminated, augmented, rescinded or otherwise altered, in
whole or in part, except by a writing executed by the parties hereto. No right,
remedy or election given by any term of this Agreement shall be deemed exclusive
but each shall be cumulative with all other rights, remedies and elections
available at law or in equity.
SECTION 11.8 SEVERABILITY. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, it shall, to the extent possible, be
modified in such manner as to be valid, legal and enforceable and so as to most
nearly retain the intent of the parties. If such modification is not possible,
such provision shall be severed from this Agreement. In either case the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired hereby.
SECTION 11.9 AVAILABILITY OF RECORDS. Buyer shall cooperate in providing
Sellers with copies of, or reasonable access to, such records as Sellers may
need in connection with any audit, claim, challenge or review of Sellers' tax
liabilities, including any tax liabilities relating to its operation of the
Houston Commercial Business or the Rearload Business.
SECTION 11.10 SALES AND OTHER TAXES. The parties hereto will use
reasonable efforts to minimize all sales, use, value added, documentary, stamp,
gross receipts, registration, transfer, conveyance, excise, recording, license
and other similar taxes and fees ("TRANSFER TAXES") and will equally share such
Transfer Taxes payable in connection with the transaction contemplated hereby;
PROVIDED, HOWEVER, that the first $50,000 of such Transfer Taxes shall be borne
by Sellers. Sellers shall prepare and timely file all tax returns required to be
filed in respect of Transfer Taxes. Sellers' preparation of any such tax returns
involving payments for which Buyer will share the cost shall be subject to
Buyer's approval, which approval shall not be withheld unreasonably.
20
SECTION 11.11 ALLOCATION OF PURCHASE PRICE. The parties will attempt to
agree on the allocation of the purchase price among the Subject Assets prior to
the Closing. In the event they are unable to agree on such allocation, neither
party shall have any liability or obligation to the other in connection with the
other party's allocation.
SECTION 11.12 DEFINITION OF KNOWLEDGE. As used herein, the terms
"knowledge," "best of knowledge," "with knowledge," "knowingly" and the like
refer to matters that are actually known by the executive officer having
responsibility for the matter as to any corporation or entity making the
applicable representation, without any implied duty of investigation on the part
of such executive officer.
SECTION 11.13 CONSTRUCTION. Buyer and Sellers have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by Buyer and Sellers and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement. Any reference to any federal, state, local,
or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "INCLUDING" shall mean including without limitation. The parties intend
that each representation, warranty, and covenant contained herein shall have
independent significance. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first representation, warranty, or covenant.
SECTION 11.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL
RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE INTERNAL
LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES
THEREOF. BUYER AND SELLERS HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF TEXAS AND THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA LOCATED IN THE STATE OF TEXAS SOLELY IN RESPECT OF THE INTERPRETATION
AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND OF THE DOCUMENTS
REFERRED TO IN THIS AGREEMENT, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A
DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT
HEREOF OR OF ANY SUCH DOCUMENT, THAT IS NOT SUBJECT THERETO OR THAT SUCH ACTION,
SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR
THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY OF
SUCH DOCUMENTS MAY NOT BE ENFORCED IN OR BY SAID COURTS, AND THE PARTIES HERETO
IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
SHALL BE HEARD AND DETERMINED IN SUCH A TEXAS OR FEDERAL COURT. BUYER AND
SELLERS HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON
OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY SUCH DISPUTE AND AGREE THAT
MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR
PROCEEDING IN THE MANNER PROVIDED IN SECTION 11.2, OR IN SUCH OTHER MANNER AS
MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
SECTION 11.15 DTPA WAIVER. BUYER HEREBY WAIVES THE PROVISIONS OF THE TEXAS
DECEPTIVE TRADE PRACTICES ACT, CHAPTER 17, SUBCHAPTER E, SECTIONS 17.41 THROUGH
17.63, INCLUSIVE (OTHER THAN SECTION 17.555, WHICH IS NOT WAIVED), OF THE TEXAS
BUSINESS AND COMMERCE CODE. TO EVIDENCE ITS ABILITY TO GRANT SUCH WAIVER, BUYER
REPRESENTS TO SELLERS THAT IT (A) IS IN THE BUSINESS OF SEEKING OR ACQUIRING, BY
PURCHASE OR LEASE, GOODS OR SERVICES FOR COMMERCIAL OR BUSINESS USE, (B) HAS,
EITHER BY ITSELF OR TOGETHER WITH ANY ENTITY THAT CONTROLS IT, ASSETS OF $25
MILLION OR MORE ACCORDING TO ITS MOST RECENT FINANCIAL STATEMENT PREPARED IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, (C) HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO
21
EVALUATE THE MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED HEREBY, AND (D) IS
NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
BUYER:
TRANSAMERICAN WASTE INDUSTRIES, INC.
By: /s/ XXX X. XXXXX
Name: Xxx X. Xxxxx
Title: President & Chairman
SELLERS:
SANIFILL, INC.
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Representative & Attorney-in-Fact
SANIFILL OF TEXAS HAULING, INC.
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Representative & Attorney-in-Fact
SUNRAY SERVICES, INC.
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Representative & Attorney-in-Fact
S & J LANDFILL LIMITED PARTNERSHIP
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Representative & Attorney-in-Fact
BRAZORIA COUNTY RECYCLING CENTER, INC.
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Representative & Attorney-in-Fact
23
