<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported: May 11, 1998
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TransCor Waste Services, Inc.
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(Exact name of registrant as specified in its charter)
Florida 1-11822 65-0369288
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) (Identification No.)
1502 Second Avenue, East - Tampa, FL 33605
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(Address of principal executive offices)
Registrant s telephone number, including area code: (813) 248-3878
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(Former name or former address, if changed since last report.)<PAGE>
Item 2. Disposition of Assets
On May 11, 1998, TransCor Waste Services, Inc., executed an
agreement to sell certain assets as described in a press release, a copy
of which is being filed as Exhibit 1 to this Form 8-K. The transaction is
scheduled to close on May 31, 1998.
Item 7. Financial Statements and Exhibits
Exhibit 1 - Press Release dated May 18, 1998
Exhibit 2 - Asset Purchase Agreement dated May 31, 1998
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
TRANSCOR WASTE SERVICES, INC.
Dated: August 4, 1998
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By: /s/ Joseph M. Williams
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Name: Joseph M. Williams
Title: President<PAGE>
Exhibit 1
FOR IMMEDIATE RELEASE: MONDAY, MAY 18, 1998
TRANSCOR WASTE SERVICES, INC., ANNOUNCES SALE OF BUSINESSES IN
JACKSONVILLE AND MIAMI, FLORIDA
TAMPA, FLORIDA, MONDAY, MAY 18, 1998... TransCor Waste Services, Inc.
(NASDAQ: TRCW) TransCor Waste Services, Inc., president, Mr. Joseph M.
Williams announced today that, Our entire Jacksonville area waste
collection and recycling operations assets, and certain assets of our
Miami front-end load and rear-load commercial waste and recycling
business will be sold to Eastern Environmental Services of Florida, Inc.,
in a cash transaction totaling $11.6 million. Mr. Williams added, A
definitive agreement has been executed by both companies and closing is
expected by May 31, 1998.
Mr. Williams concluded, The sale of these operations is consistent with
the plan we implemented in mid 1997 to re-focus our management and
resources towards a more concentrated geographic area and service base.
The recent startup of the Hillsborough County, Florida franchise and the
October 1, 1998 start-up of the Cape Coral, Florida franchise will
provide significant revenue opportunities to off-set the revenue lost
from this sale. We have completed the consolidation necessary to develop
consistent profitable results and now we can look forward to selectively
growing this business.
TransCor, a regional solid waste and recycling company, provides services
to commercial, industrial, and residential customers in the state of
Florida. TransCor s services include transfer, collection,
transportation, waste segregation, recycling, demolition, and disposal.
TransCor is headquartered in Tampa, Florida, and operates facilities in
Miami, Dade County; Clearwater, Pinellas County; Tampa, Hillsborough
County; Jacksonville, Duval County; and Ft. Myers, Lee County.
Kimmins Corp. (NYSE: KVN) owns 74 percent of TransCor Waste Services,
Inc.
Contact: Joseph M. Williams
TransCor Waste Services, Inc.
(813) 247-0151<PAGE>
EXHIBIT 2
ASSET PURCHASE AGREEMENT
KIMMINS CORP.
TRANSCOR WASTE SERVICES, INC.
KIMMINS RECYCLING CORP.
EASTERN ENVIRONMENTAL SERVICES OF FLORIDA, INC.
AND
EASTERN ENVIRONMENTAL SERVICES, INC.<PAGE>
TABLE OF CONTENTS
Page
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I ASSET TRANSFER; CLOSING . . . . . . . . . . . . . . . . . . . 1
ARTICLE II TITLE INSURANCE . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASERS . . . . . . . 16
ARTICLE V ADDITIONAL AGREEMENTS OF SELLER . . . . . . . . . . . . . . 16
ARTICLE VI ADDITIONAL AGREEMENTS OF PURCHASERS . . . . . . . . . . . 17
ARTICLE VII CONDITIONS OF PURCHASERS . . . . . . . . . . . . . . . . 17
ARTICLE VIII CONDITIONS OF SELLER . . . . . . . . . . . . . . . . . . 18
ARTICLE IX INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE X OTHER PROVISIONS . . . . . . . . . . . . . . . . . . . . . 22<PAGE>
SCHEDULES
To Be Agreed to and Attached to this Agreement Prior to Closing
1.9(c) Opinion of Counsel for Purchasers
1.9(d) Assignment and Assumption Agreement
1.10(a) Bill of Sale
1.10(e) Non-competition Agreement
1.10(f) Opinion of Counsel for Seller
Enclosed in Disclosure Binder
1.4(a) Containers
1.4(b) Rolling Stock
1.4(c) Equipment
1.4(f) Customers
1.4(h) Permits
1.4(k) Landfill Contracts
1.5 Excluded Contracts
1.11(b) Allocation of Purchase Price to Assets
2.1 Real Property Description
3.3 Contracts, Permits, Mortgages and Material Documents
3.6 Real Property Interests
3.6(a) Exceptions to governmental compliance
3.6(b) Exceptions to lawful use of the Real Property
3.6(c) Exceptions to conduct in compliance with Applicable laws
3.6(e) Litigation or administrative proceedings for
environmental violations
3.6(f) Definition of "Hazardous Materials" and
Environmental Conditions
3.6(h) Wetlands
3.6(i) Mechanic's liens
3.6(k) Exceptions to proceedings which would affect
use of the Real Property
3.7 Accounting Exceptions
3.9 Adverse Changes
3.10 Insurance Policies, Performance Bonds
and Letters of Credit
3.12 Employees
3.13(a) Violations of federal, state or local law
3.13(b) Environmental violations
3.13(c) Landfills and disposal facilities
3.13(f) List and Synopsis of All Litigation
3.15 Required Consents
5.8 Certain Miami Contracts<PAGE>
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made as of May 31,
1998, by and among Kimmins Corp., a Delaware corporation (the "Parent"),
TransCor Waste Services, Inc., a Florida corporation ("TransCor"),
Kimmins Recycling Corp., a Florida corporation ("Company"), Eastern
Environmental Services, Inc., a Delaware corporation ("EESI") and Eastern
Environmental Services of Florida, Inc., a Delaware corporation ("EESF")
For purposes of this Agreement, EESI and EESF are collectively referred
to as the "Purchasers or Purchaser," and Parent, TransCor and the Company
may be sometimes referred to collectively, as the "Seller."
RECITALS
The Parent owns a controlling interest of the outstanding stock of
TransCor, and TransCor is the owner of all of the outstanding stock of
the Company. The Company is in the business of operating a solid waste
transfer station and collecting, recycling, transporting, and disposing
of non-hazardous solid waste in various cities in Florida, including
Jacksonville and Miami. The parties desire that substantially all of the
assets of KRC used in its Jacksonville area waste collection and
recycling operations ("Jacksonville Business") and certain assets of the
Company used in its Miami area front-end load and rear-load commercial
waste collection, and front-end load and rear-end load corrugated
recycling operations (as so limited, the "Miami Business") be acquired by
EESF for cash, all on the terms contained herein.
Throughout this Agreement various Schedules are referenced as being
attached to this Agreement. Notwithstanding the fact that all Schedules
are referred to as being attached to this Agreement, some of the
Schedules are not attached but instead appear in a Disclosure Binder
prepared by the Seller. The Disclosure Binder is organized under
subheadings which correspond to the various Schedules described in this
Agreement. For purposes of identification, the Disclosure Binder has been
identified by the parties by a written statement executed by the parties
and appearing as the first page of the Disclosure Binder.
ARTICLE I
Asset transfer; Closing
Section 1.1 Incorporation of Recitals. The recitals set forth above
are incorporated herein by reference and are a part of this Agreement.<PAGE>
Section 1.2 Place for Closing. Subject to Section 1.9 hereof,
closing under this Agreement shall take place at the offices of EESF,
4300 Ravenswood Boulevard, Dania, Florida, or such other place as the
parties hereto may agree upon. The date that Closing occurs is referred
to hereinafter as the "Closing Date" and the act of closing as "Closing."
Section 1.3 Agreement to Transfer Assets; Consideration. At the
Closing, the Company shall transfer and deliver to EESF the Assets as
hereafter defined and as set forth in Section 1.4 below, and EESI shall
deliver to the Company the total consideration of $11, 596,000 (the "Cash
Payment"), payable by wire transfer of good funds to such account as
Company shall designate.
Section 1.4 Description of Assets. Upon the terms and subject to the
conditions set forth in this Agreement on the Closing Date the Company
shall grant, convey, sell, transfer and assign to EESF the following
assets, properties and contractual rights of the Company, wherever
located, all as set forth in this Section 1.4 (the "Assets"). Each of the
Schedules described in this Section 1.4 shall set forth under separate
subheadings the Assets attributable, respectively, the Jacksonville
Business and the Miami Business.
(a) All of the containers and carts ("Containers") listed on
Schedule 1.4(a);
(b) All of the motor vehicles and all attachments, accessories and
materials handling equipment ("Rolling Stock") listed on Schedule 1.4(b);
(c) All of the compactors, balers, scales, recycling and other
equipment used in the Jacksonville Business and Miami Business
(collectively, the "Business"), all as listed on Schedule 1.4(c);
(d) All radios located in the Rolling Stock, radio base stations,
and all manual and automated routing and billing systems and components
thereof, including, without limitation, all computer hardware and
accounting records used in the Jacksonville Business and located in
Jacksonville, and all computerized accounting records used in the Miami
Business in such format as mutually agreed to and readily available to
the Company;
(e) All of the inventory of parts, tires and accessories owned by
the Company and used in connection with the Business, and located in
Jacksonville and Miami, but in Miami only those items that are directly
related to the Miami Business;
(f) All contractual rights of the Company with the customers of the
Business (whether oral or in writing) ("Customer Contracts"); the
Customer Contracts in existence on the date hereof are listed on Schedule
1.4(f);
(g) All of the shop tools located in Jacksonville and owned by the
Company;<PAGE>
(h) All permits, licenses, franchises, consents and other approvals
from governments, governmental agencies (federal, state and local) and/or
third parties ("Consents and Approvals") held by the Company relating to,
used in or required for the operation of any of the Assets, all of which
are listed on Schedule 1.4(h), to the extent such Consents and Approvals
are assignable;
(i) The non-competition agreements executed by employees of the
Business which run in the favor of the Company and the Contract between
the Company and Curtis Hart dated January 15, 1998;
(j) All of the furniture and office or other equipment used in the
conduct of the Jacksonville Business;
(k) All real property owned by the Company and used in the
Jacksonville Business ("Real Property");
(l) All contractual rights of the Company under those landfill
disposal contracts relating to the Jacksonville Business ("Landfill
Contracts") listed on Schedule 1.4(k); and
(m) All books, records, original agreements and contracts and title
documents relating to the items set forth in (a) through (k) above.
At Closing, good and marketable title to the Assets will be conveyed to
Purchasers by the Company free and clear of all liens, encumbrances,
security interests and claims.
Section 1.5 Excluded Assets. All of the personal property used by
the Company in the conduct of the Jacksonville Business is included among
the Assets. Only the personal property scheduled in Section 1.4 with
respect to the Miami Business is included among the Assets.
Section 1.6 Assumption of Obligations. From and after the Closing,
the Purchasers agree to assume and perform all of Company's obligations
under the Customer Contracts included in the Assets, under the Landfill
Contracts, and under the Consents and Approvals listed on Schedule 1.4(h)
which are actually assigned to EESF, to the extent, and only to the
extent, such obligations first mature and are required to be performed
subsequent to the close of business on the Closing Date ("Assumed
Liabilities"). The Assumed Liabilities are being assumed by Purchaser "as
is", except for the warranties and representations made by Sellers in
this Agreement.<PAGE>
Section 1.7 Non-Assumption of Liabilities. Except for the Assumed
Liabilities and for as otherwise specifically provided by this Agreement,
Purchasers shall not, by the execution and performance of this Agreement
or otherwise, assume, become responsible for, or incur any liability or
obligation of any nature of the Seller, whether legal or equitable,
matured or contingent, known or unknown, foreseen or unforeseen, ordinary
or extraordinary, patent or latent, whether arising out of occurrences
prior to, at, or after the date of this Agreement, including, without
limiting the generality of the foregoing, any liability or obligation
arising out of or relating to: (a) any occurrence or circumstance
(whether known or unknown) which occurs or exists on or prior to the
Closing Date and constitutes, or which by the lapse of time or giving
notice (or both) would constitute, a breach or default under any lease,
contract, or other instrument or agreementor obligation (whether written
or oral); (b) injury to or death of any person or damage to or
destruction of any property, whether based on negligence, breach of
warranty, or any other theory; (c) violation of the requirements of any
governmental authority or of the rights of any third person, including,
without limitation, any requirements relating to the reporting and
payment of federal, state, local or other income, sales, use, franchise,
excise or property tax liabilities of Seller; (d) the generation,
collection, transportation, storage or disposal by the Seller of any
materials, including, without limitation, municipal service waste,
special waste, construction and demolition debris, or hazardous
materials; (f) any compensation, severance pay, or accrued vacation pay
obligation of the Seller owed to employees of the Company for periods
prior to the Closing Date, or any obligations under any employee benefit
plan (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended) or any other fringe benefit
program maintained or sponsored by Seller or to which the Seller
contributes or any contributions, benefits or liabilities therefor or any
liability for the withdrawal or partial withdrawal from or termination of
any such plan or program by the Seller; (g) the debts and obligations of
the Seller, except for the Assumed Liabilities; (h) any violation by the
Seller of any law, including, without limitation, any federal, state or
local antitrust, racketeering or trade practice law; and (i) liabilities
or obligations of the Seller for brokerage or other commissions relative
to this Agreement or the transaction contemplated hereunder.
Section 1.8 Term and Time for Closing. Following execution of this
Agreement, the Purchasers and Seller shall be obligated to conclude the
transaction strictly in accordance with its terms within ten business
days after the conditions of Closing set forth in Article VII and Article
VIII have been satisfied or waived. If the failure to conclude this
transaction is due to the refusal and failure of Seller to perform its
obligations to close under this Agreement, Purchasers may seek to enforce
this Agreement with an action of specific performance, or, in the
alternative, shall be entitled to liquidated damages in the amount of 10%
of the Cash Payment. If the failure to conclude this transaction is due
to the refusal and failure of Purchasers to perform their obligations to
close under this Agreement, the Seller may seek to enforce this Agreement
with an action of specific performance, or, in the alternative, shall be
entitled to liquidated damages in the amount of 10% of the Cash Payment. <PAGE>
This Agreement and the transactions contemplated hereby may be
terminated at any time prior to the Closing Date:
(a) by mutual written agreement of EESI and the Seller;
(b) by EESI within thirty (30) days after the date of this
agreement, if EESI is not satisfied, in its sole discretion, with the due
diligence it conducts on the Business, the Real Property, and the Assets
subsequent to the date of this Agreement.
(c) by the Seller, or by EESI, in the event Purchasers or the
Seller, as applicable, makes a material misrepresentation under this
Agreement or breaches a material covenant or agreement under this
Agreement, and fails to cure such misrepresentations or breach within ten
(10) business days from the date of written notice of the existence of
such misrepresentation or breach; or
(d) by the Seller or EESI, if the Closing shall not have occurred by
June 30, 1998, or such other date as may be agreed to by the parties
hereto in writing, due to the non-fulfillment of a condition precedent to
such party's obligation to close as set forth at Article VII or VIII
hereof, as applicable (through no fault or breach by the terminating
party). However, if the only condition to Closing which has not been
satisfied is the condition set forth in Section 7.3, the date of June 30,
1998, shall be extended to July 31, 1998, at the option of EESI or
Seller, to be exercised through written notice to Seller or EESI, as
applicable.
All terminations shall be exercised by sending the other parties a
written notice of the termination. In the event this Agreement is
terminated as provided herein, this Agreement shall become void and be of
no further force and effect and no party hereto shall have any further
liability to any other party hereto, except that this Section 1.8,
Article IX, Section 10.1, Section 10.2 and Section 10.15 shall survive
and continue in full force and effect, notwithstanding termination. The
termination of this Agreement shall not limit waive or prejudice the
remedies available to the parties, at law or in equity, for a breach of
this Agreement.
Section 1.9 Deliveries by Purchasers. At the Closing, Purchasers
shall deliver, all duly and properly executed, authorized and issued
(where applicable):
(a) The Cash Payment, as provided in Section 1.3 above, to be
delivered to the Company;
(b) A copy of resolutions of the directors of EESF and the directors
of EESI authorizing the execution and delivery of this Agreement and each
other agreement to be executed in connection herewith (collectively, the
"Collateral Documents") and the consummation of the transactions
contemplated herein and therein;
(c) A favorable opinion from counsel for EESI, dated the Closing
Date, in the form attached as Schedule 1.9(c); and
(d) An Assignment and Assumption Agreement in the form attached as
Schedule 1.9(d) attached hereto (the "Assignment and Assumption
Agreement");<PAGE>
(e) Other documents and instruments required by this Agreement, if
any.
Section 1.10 Deliveries by Seller. At the Closing, the Seller shall
deliver to Purchasers, all duly executed, the following:
(a) A duly executed Bill of Sale for the Assets to be conveyed and
assigned, in the form attached as Schedule 1.10(a);
(b) A certified copy of resolutions of the directors of the Company
authorizing the execution and delivery of this Agreement and each of the
Collateral Documents;
(c) The Certificate described at Section 7.1;
(d) The Assignment and Assumption Agreement;
(e) A Non-competition Agreement in form and substance attached as
Schedule 1.10(e);
(f) A favorable opinion from counsel for Seller, dated the Closing
Date, in form and substance attached as Schedule 1.10(f);
(g) A General Warranty Deed conveying each parcel of the Real
Property;
(h) Physical possession of all Assets at the location of the
respective Business; and
(i) Other collateral documents and instruments required by this
Agreement, if any.
Section 1.11 Transfer Tax, Allocation of Purchase
(a) Purchaser shall pay all sales, transfer taxes and fees imposed
on the conveyance of the Assets by all governments, state, local and
federal, including all fees incurred in re-titling and registering the
Rolling Stock.
(b) The parties agree that the consideration for the sale of the
Assets and the Real Property shall be allocated among the Assets and the
Real Property, and among the Jacksonville Business and the Miami
Business, as set forth on Schedule 1.11(b) attached hereto. The Seller
and the Purchasers acknowledge that the allocation has been arrived at
based upon their negotiations and shall be used by them for all purposes,
including, but not limited to, federal, state, and local tax and
financial reporting purposes, and they shall not take any position
inconsistent to the allocation. On the Closing Date, the Purchasers and
the Seller shall execute Internal Revenue Form 8594 which form shall be
binding on the Purchasers and the Seller and shall be filed with the
income tax returns of the Purchasers and the Seller.<PAGE>
ARTICLE II
Title Insurance
Section 2.1 Real Property. The Company owns the Real Property, a
legal description of the metes and bounds of which is attached as
Schedule 2.1. For purposes of this Agreement, "Real Property" shall also
include (i) all of the Company's right, title and interest in and to all
easements, rights-of-way, privileges and appurtenances thereto, (ii) all
of the Company's right, title and interest, if any, in and to the beds of
all streets, roads, avenues or highways, open or proposed, abutting the
Real Property, (iii) all of the Company's right, title and interest, if
any, in and to any award in condemnation, or damages of any kind, to
which The Company may have become entitled or may hereafter be entitled,
by reason of any exercise of the power of eminent domain with respect to
the Real Property or any other right, title or interest to be sold
hereunder or any part thereof, and (iv) all of The Company's right, title
and interest in and to all surveys, architectural and engineering plans,
specifications, drawings, reports, etc., if any, presently existing or
hereafter prepared, with respect to the Real Property. As of the date of
this Agreement Seller's believe, but are not certain, that the Real
Property may be owned by a subsidiary of the Seller other than the
Company. If the Real Property is owned by an entity other than the
Company, the Seller will cause the owner to convey the Real Property and
this Article shall be deemed modified to reflect the name of the actual
owner of the Real Property.
Section 2.2 Owners Title Policy. At Closing, Seller shall furnish to
Purchasers with respect to the Real Property an extended coverage owners
policy of title insurance from a title company acceptable to Purchasers
(the "Title Company") in the amount equal to the fair market value of
with respect to the Real Property ("Owners Policy"). The Owners Policy
shall have each of the Title Company's standard printed exceptions
deleted and shall include comprehensive, access and contiguity
endorsements. The Owners Policy shall insure title to the Real Property
to be in fee simple in EESF, subject only to the exceptions permitted by
Section 2.3 hereof. Seller shall order a preliminary title commitment in
respect of the Real Property and shall cause the same to be delivered to
Purchaser and its counsel, together with all documents noted as
exceptions to title in the preliminary title commitment. Seller shall
deliver to Purchasers any unrecorded leases, option agreements, contracts
and any other items affecting title which are in the possession of, or
known to, Seller. Purchasers, within 5 business days after the receipt of
such title commitment, and all such other documents required by this
Section, shall either: (i) notify in writing of Purchaser's approval of
the form and substance of the preliminary title commitment and such other
documents; or (ii) notify Seller in writing that Seller must remove or
satisfy any exception or exceptions shown in the preliminary title
commitment or contained in any such other document which are not
acceptable to Purchasers. If the exceptions objected to are not removed
or satisfied within fifteen (15) days after the date of receipt by Seller
of notice from Purchasers in accordance with (ii) above, then Purchasers
may, at Purchasers' sole option, to be exercised by written notice to
Seller, either: (a) accept such title as Seller is able to furnish
without removal of the exceptions to which Purchaser objected; or (b)
allow Seller additional time in which to cure or remove any objected to
exceptions; or (c) terminate this Agreement. Seller agrees to use its<PAGE>
reasonable efforts to remove any exception which is not accepted by the
Purchasers in accordance with this Section 2.2. At least three business
days prior to the Closing Date, Seller shall cause Title Company to
deliver to Purchaser and its counsel a pro forma Owners Policy or marked
title commitments listing as exceptions only those matters accepted by
the Purchasers and or not objected to by the Purchasers under this
Section 2.2 ("Permitted Exceptions"), containing all endorsements and
otherwise in the form required by this Section 2.2.
Section 2.3 Permitted Exceptions. The Owners Policy shall insure
EESF's interest in the Real Property to be free and clear of all
encumbrances and exceptions whatsoever except for the Permitted
Exceptions.
Section 2.4 Survey. Seller shall furnish Purchasers with a survey
relating to the Real Property that is sufficiently current that the Title
Company shall not include a survey exception in the Owner's Policy. If
Seller does not have such a survey available, Purchaser, at its election,
may have a survey of the Real Property made at its expense. Seller will
cooperate and aid Purchasers' surveyor in preparing any survey
commissioned by Purchasers.
ARTICLE III
Representations and Warranties of the Seller
Whenever the phrase "to Seller's knowledge," or a similar phrase is
used in this Agreement, the phrase as to Parent and TransCor means the
actual knowledge of any officer or director of Parent or TransCor.
Whenever the phrase "to Seller's knowledge" or "to Company's knowledge",
or a similar phrase is used in this Agreement, the phrase as to the
Company means the actual knowledge of any general manager, officer or
director of the Company and the knowledge such officers, directors or
general managers would or should have had, if such officer, director or
general manager had exercised reasonable diligence in the ordinary
conduct of the Business. It does not contemplate, however, that Seller,
or its officers, directors or general managers, have performed any
additional or specific due diligence in connection with this transaction
or in making the representations and warranties contained herein. With
knowledge that Purchasers are relying upon the representations,
warranties and covenants herein contained, the Seller represents and
warrants to Purchasers and makes the following covenants for the
Purchasers' benefit:
Section 3.1 Organization and Standing. The Company is a corporation
duly organized, legally existing and in good standing under the laws of
the states of their incorporation, with full power and authority to own
the Real Property and Assets and conduct the Business as now being
conducted.
Section 3.2 Authorization. The Company has by proper corporate
proceedings duly authorized the execution, delivery and performance of
this Agreement and each of the Collateral Documents to be entered into by
Seller and no other corporate action is required by law or the
certificate of incorporation or by-laws of Seller. The Parent owns a
controlling majority of the outstanding stock of TransCor, and TransCor
is the owner of all of the outstanding stock of The Company.<PAGE>
Section 3.3 Contracts, Permits and Material Documents. The items
listed in Schedule 3.3 attached hereto are all of the following
("Material Documents") with respect to the Assets which provide a benefit
or imposes a detriment of a single item value of $25,000 or more: (i)
leases for real and personal property, (ii) licenses, (iii) franchises,
(iv) promissory notes, guarantees, bonds, mortgages, liens, pledges, and
security agreements under which the Business or any of the Assets are
bound or under which the Business or any of the Assets are the
beneficiary, (v) collective bargaining agreements, (vi) patents,
trademarks, trade names, copyrights, trade secrets, proprietary rights,
symbols, service marks, and logos, (vii) all permits, licenses, consents
and other approvals from governments, governmental agencies (federal,
state and local) and/or third parties relating to, used in or required
for the operation of any of the Assets or Real Property; (viii) all
surety bonds, closure bonds or any other obligation which the Company has
liability for with respect to the Business; and (ix) other contracts,
agreements and instruments not listed on another Schedule attached to
this Agreement (such as the customer contracts listed on Schedule 1.4(f))
which are binding on the Business or any of the Assets and pursuant to
which the Company derives a benefit or incur a detriment having a value
of $ 10,000 or more. The Material Documents listed on Schedule 3.3 are
organized under separate headings for the Jacksonville Business and the
Miami Business and under subheadings for each of the different type of
documents listed. Except as set forth on Schedule 3.3, neither the
Company nor any person or party to any of the Material Documents or bound
thereby is in material or knowing default under any of the Material
Documents, and, to the knowledge of Seller, no act or event has occurred
which with notice or lapse of time, or both, would constitute such a
default. The Company is not a party to, and none of Company's properties
are bound by, any agreement or instrument which is material to the
continued conduct of the Business as now being conducted, except as
listed in Schedule 3.3.
Section 3.4 Personal Property; Title. All items of personal property
used in the Jacksonville Business, and those items of personal property
used exclusively in connection with the Miami Business, are included
among the Assets listed on the Schedules described in Section 1.4 hereof
and will be transferred to Purchasers at Closing. All items of personal
property owned by the Company and used in connection with the Business
are in reasonably good operating condition as of the date of this
Agreement, normal wear and tear excepted, and are sufficient in type,
quantity and quality to operate the Business as it is currently conducted
by the Company. The Company at Closing will have good and marketable
title to all of the Assets, each free and clear of any mortgages,
pledges, liens, encumbrances, leases, charge, claim, security agreement
or title retention or other security arrangement.
Section 3.5 Customers. The name and address of each customer the
Business serves together with information as to the services rendered to
each such customer, frequency of service and rates charged and the
contractual rights of each customer, whether oral or in writing, is
listed on Schedule 1.4(f) attached hereto. Neither the Company nor to the
Seller's knowledge any other person or party to any of the customer
contracts is in material or knowing default under any of the customer
contracts, and to Seller's knowledge no act or event has occurred which
with notice or lapse of time, or both, would constitute such a default.
The purchase of the Assets by Purchasers will not create a default under
any customer contract.<PAGE>
Section 3.6 Real Property. The Company has never owned, leased or
otherwise occupied, had an interest in or operated any real property for
use in the Jacksonville Business other than the Real Property, except as
listed on Schedule 3.6 attached hereto and incorporated herein by
reference. The Company or a wholly owned subsidiary of the Seller has
good, marketable and insurable title to the Real Property, except for the
Permitted Exceptions.
(a) To Seller's knowledge, in all material respects, except as set
forth in Schedule 3.6(a) attached hereto and 'incorporated herein, the
Real Property is, and at all times during operation of the Business
thereon has been, licensed, permitted and authorized for the operation of
such Business under all applicable federal, state and local statutes,
laws, rules, regulations, orders, permits (including, without limitation,
zoning restrictions and land use requirements) and licenses and all
administrative and judicial judgments, rulings, decisions and orders
affecting or otherwise applicable to the protection of the environment,
the Real Property and the conduct of such Business thereon (collectively,
the "Applicable Laws").
(b) To Seller's knowledge, except as set forth in Schedule 3.6(b)
attached hereto and incorporated herein by reference, the Real Property
is legally usable for its current uses, and the Real Property can be used
by the Purchasers after the Closing to operate such business as is
currently operated, without violating any Applicable Law or private
restriction, and such uses are legal, conforming uses.
(c) To Seller's knowledge, except as set forth in Schedule 3.6(c)
attached hereto and incorporated herein by reference, all activities and
operations conducted on the Real Property, whether by Seller or by third
parties, are now being conducted and have always been conducted in
compliance with all Applicable Laws.
(d) The Seller shall make available on Purchaser's reasonable
request all engineering, geologic and other similar reports,
documentation and maps relating to the Real Property in the possession or
control of the Seller or its consultants or employed professional firms.
(e) Except as set forth in Schedule 3.6(e) attached hereto and
incorporated herein by reference, the Real Property is not now and during
the Company's ownership has not been involved in any litigation or
administrative proceeding seeking to impose fines, penalties or other
liabilities or seeking injunctive relief for violation of any Applicable
Laws relating to the environment.
(f) To Seller's knowledge, there have been no spills, leaks,
deposits or other releases by the Company into the environment or onto or
under the Real Property of any Hazardous Materials as defined in Schedule
3.6(f) attached hereto or other material environmental conditions other
than as disclosed on Schedule 3.6(f).
(g) No party, other than the Company, has a present or future right
to possession of all or any part of the Real Property, except for any
right defined in, under or by any of the Permitted Exceptions.<PAGE>
(h) To Seller's knowledge, and without independent investigation, no
portion of the Real Property contains any areas that could be
characterized as disturbed, undisturbed or man-made wetlands or as
"waters of the United States" pursuant to any Applicable Laws or the
procedural manuals of the Environmental Protection Agency, U.S. Army
Corps of Engineers or the applicable state agency whether such
characterization reflects current conditions or historic conditions which
have been altered without the necessary permits or approvals, except as
listed on Schedule 3.6(h) attached hereto and incorporated herein by
reference.
(i) There are no mechanic's liens affecting the Real Property and no
work has been performed on the Real Property within ninety days of the
date hereof for which a mechanic's lien could be filed, except as set
forth in Schedule 3.6(i) attached hereto and incorporated herein by
reference.
(j) To Seller's knowledge, there are no levied or pending special
assessments affecting all or any part of the Real Property owed to any
governmental entity and none is threatened.
(k) There are no proceedings or amendments pending and brought by or
threatened by any third party which would result in a change in the
allowable uses of the Real Property or which would modify the right of
the Purchasers to use the Real Property for its present uses after the
Closing Date, except as set forth in Schedule 3.6(k) attached hereto and
incorporated herein by reference.
Section 3.7 Financial Statements. Within ten days after the date of
this Agreement, Company shall deliver to EESI true and correct copies of
the following financial statements of the Company (the "Financial
Statements"): (i) an unaudited balance sheet for each of the Jacksonville
Business and the Miami Business as of December 31, 1997, and March 31,
1998 ("Most Recent Balance Sheet"), and (ii) a statement of operations,
cash flows and stockholders' equity for each of the Jacksonville Business
and the Miami Business for the periods ended December 31, 1997, and March
3 1, 1998 ("Most Recent Income Statement"), both prepared on an accrual
basis internally by Seller. The Most Recent Balance Sheet and Most Recent
Income Statement are hereinafter referred to as the "Most Recent
Financial Statements."
The Financial Statements have been prepared in accordance with
generally accepted accounting principles ("GAAP") applied on a consistent
basis in accordance with past custom and practice of the Company. The
balance sheets present fairly, in all material respects, the financial
condition of the Business as of the dates indicated thereon and the
statements of income present fairly, in all material respects, on an
accrual basis the results of the operations of the Business for the
periods indicated thereon. Since the date of the Most Recent Balance
Sheet, the Company has not (i) made any material change in its accounting
policies or (ii) effected any prior period adjustment to, or other
restatement of, its financial statements for any period. The Financial
Statements are consistent with the books and records of the Business
(which books and records are correct and complete in all material
respects). Since the date of the Most Recent Financial Statements, except
as set forth on Schedule 3.7, there has not been any material adverse
change in the income, expenses or assets of the Business.<PAGE>
Section 3.8 Liabilities. The Company does not have any contractual
liabilities arising out of the Business, fixed or contingent, other than:
(a) the Landfill Contracts;
(b) liabilities fully reflected in the Most Recent Balance Sheet,
except for liabilities not required to be disclosed therein in accordance
with GAAP; and
(c) liabilities arising since the date of the Most Recent Balance
Sheet arising during the normal course of business consistent with past
custom and practice.
Section 3.9 Fiscal Condition of the Business. Since the date of the
Most Recent Balance Sheet, except as set forth in Schedule 3.9, there has
not been:
(a) Any material adverse change in the financial condition, business
organization or personnel of the Business or in the relationships of the
Business with suppliers, customers or others;
(b) Any material adverse change to any of the agreements or
contracts related to the Business;
(c) Any sale or other disposition of any asset used in the Business
and owned by the Company at the close of business on the date of the Most
Recent Balance Sheet, or acquired by them since that date, other than in
the ordinary course of business consistent with past practice;
(d) Any expenditure or commitment by the Company for the acquisition
of any single asset or any single business related to the Business,
except in the ordinary course of business consistent with past practices
and having an acquisition price of $10,000 or less;
(e) Any damage, destruction or loss (whether or not insured)
adversely affecting the Assets or Business, except damage, destruction or
loss which does not exceed $25,000 in the aggregate;
(f) Any bonuses or increases in the compensation payable or to
become payable by the Company to any officer or key employee of the
Business, except in the ordinary course of business or as required by law
or pursuant to a contract which is listed on a Schedule to this
Agreement; or
(g) Any change in accounting method or practice.
Section 3.10 Policies of Insurance. All insurance policies,
performance bonds, and letters of credit insuring the Assets or which the
Company has had issued regarding the Assets and which have not expired
are listed on Schedule 3.10 attached hereto. Schedule 3.10 includes the
names and addresses of the beneficiaries, insurers and sureties, policy
and bond numbers, types of coverage or bond, time periods or projects
covered and the names and addresses of all known agents or agencies,
issuing banks and beneficiaries with respect to each listed insurance
policy, performance bond and letter of credit.<PAGE>
Section 3.11 Tax Returns. The Company has filed all Federal and
other tax returns for all periods on or before the due date of such
return (as may have been extended by any valid extension of time) and
have paid all taxes due for the periods covered by the said returns.
Section 3.12 Employees. Schedule 3.12 is a list of all current
employees of the Company at the Jacksonville Business, and exclusively at
the Miami Business, together with the name, address and social security
number and current rate of compensation of each such employee and
capacity in which each person is employed. No employee of the Company is
represented by any union in connection with their employment by the
Company. Except as set forth on Schedule 3.12(a), no employee of the
Business has a written employment agreement with the Company. There is no
pending or, to the knowledge of the Seller, threatened dispute between
the Company and any of its employees which might materially and adversely
affect the customer contracts being assigned to Purchasers.
Section 3.13 Legality of Operation.
(a) To Seller's knowledge, except as disclosed in Schedule 3.13(a)
to this Agreement, and except as to Environmental Laws, as hereinafter
defined, the Company's use of the Assets and Real Property is in
compliance with all Federal, state and local laws, rules and regulations
including without limitation, the following laws: land use laws; payroll,
employment, labor, or safety laws; or federal, state or local "anti-
trust" or "unfair competition" or "racketeering" laws such as but not
limited to the Sherman Act, Clayton Act, Robinson Pitman Act, Federal
Trade Commission Act, or Racketeer Influenced and Corrupt Organization
Act ("Law"). Except as disclosed in Schedule 3.13(a), to Seller's
knowledge the Company is in compliance with all permits, franchises,
licenses, and orders that have been issued with respect to the Laws and
are or may be applicable to the Business, including, without limitation,
any order, decree or directive of any court or federal, state, municipal,
or other governmental department, commission, board, bureau, agency or
instrumentality wherever located, federal, state and local permits,
orders, franchises and consents. Except as set forth on Schedule 3.13(a),
with respect to any Law there are no claims, actions, suits or
proceedings pending, or, to the knowledgeof the Seller threatened against
or affecting the Assets or Real Property, at law or in equity, or before
or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, wherever located,
which would result in a material change in how Purchasers may use the
Assets or Real Property or which would invalidate this Agreement or any
action taken in connection with this Agreement. Except as disclosed in
Schedule 3.13(a), the Seller has received no notification of any past or
present failure by the Seller to comply with any Law applicable to the
Assets or Real Property or affecting the Company's use of the Assets or
Real Property.
(b) To Seller's knowledge, and except as disclosed in Schedule
3.13(b) to this Agreement, the Business is in compliance with all
federal, state and local laws, rules and regulations relating to
environmental issues of any kind and/or the receipt, transport or
disposal of any hazardous or nonhazardous waste materials from any source
("Environmental Law"). Except as disclosed in Schedule 3.13(b), with
respect to any Environmental Law, the Business is being operated in
compliance with all permits, licenses, and orders related thereto or
issued thereunder with respect to Environmental Laws, including, without<PAGE>
limitation, any order, decree or directive of any court or federal,
state, municipal, or other governmental department, commission, board,
bureau, agency or instrumentality wherever located. Except as set forth
on Schedule 3.13(b), there are no Environmental Law related claims,
actions, suits or proceedings pending, or, to the knowledge of the
Seller, threatened against or affecting the Business, at law or in
equity, or before or by any federal, state, municipal or other
,governmental department, commission, board, bureau, agency or
instrumentality, wherever located, which would result in an adverse
change in the financial condition of the Business of $5,000 or more or
which would invalidate this Agreement or any action taken in connection
with this Agreement. To the knowledge of the Seller, except as set forth
on Schedule 3.13(b), the Company has not transported, stored, treated or
disposed, nor has Company allowed any third persons, on its behalf, to
transport, store, treat or dispose waste generated or processed by the
Business to or at (i) any location other than a site lawfully permitted
to receive such waste for such purpose or, (ii)any location currently
designated for remedial action pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act ("CHURCHLY") or
any similar federal or state statute; nor has the Company performed,
arranged for or allowed by any method or procedure such transportation or
disposal in contravention of state or federal laws and regulations or in
any other manner which may result in liability for contamination of the
environment; and the Company has not disposed, nor has Seller knowingly
allowed third parties to dispose of waste upon the Real Property other
than as permitted by, and in conformity with, applicable Environmental
Law. Except as disclosed in Schedule 3.13(b), the Seller has not received
notification of any past or present failure by the Seller to comply with
any Environmental Law applicable to the Business. Without limiting the
generality of the foregoing, the Seller has not received any notification
(including requests for information directed to the Seller) from any
governmental agency asserting that, in connection with the operation of
the Business or the Real Property, or the Seller is or may be a
"potentially responsible person" for a remedial action at a waste
storage, treatment or disposal facility, pursuant tot he provisions of
CHURCHLY, or any similar federal or state statute assigning
responsibility for the costs of investigating or remediating releases of
contaminants into the environment. The Seller has not received at the
Real Property hazardous waste as defined in the Resource Conversation
Recovery Act, 42 USCA Section 6901 et seq., or in any similar federal or
state statute, except for de-minimis amounts which do not require
remediation.
(c) To Company's knowledge, Schedule 3.13(c) is a complete list of
all landfill and other disposal sites to which the Company has brought
waste generated by the Business within the past ten years. Except as set
forth on Schedule 3.13(c), in the operation of the Business at the Real
Property, the Company has never owned, operated, had an interest in,
engaged in and/or leased a waste transfer, recycling, treatment, storage,
landfill or other disposal facility. To the knowledge of Seller, in the
operation of the Business at the Real Property, the Company has obtained
and maintained, when required to do so under applicable Environmental
Laws, trip tickets, signed by the applicable waste generators
demonstrating the nature of all waste deposited and or transported by the
Company. To the Seller's knowledge, no employee, contractor or agent of
the Business has, in the course and scope of employment with the<PAGE>
Business, been harmed by exposure to hazardous materials, as defined
under the Laws. No liens with respect to environmental liability have
been imposed against the Real Property under CHURCHLY, any comparable
Florida state statute or other applicable Environmental Law, and to
Seller's knowledge no facts or circumstances exist which would give rise
to the same.
(d) Schedules 3.13(a) and 3.13(b) list all remedied violations of
Laws and Environmental Laws which existed within the past five years and
all outstanding unremedied notice of violations issued to the Seller by
any federal, state or local regulatory agency, with respect to the
Business or the Assets.
(e) To Seller's knowledge, no employee, officer, director, or
shareholder of the Company is under investigation by the Attorney General
of any state, by the District Attorney of any county of any state, or by
any United States Attorney or any other governmental investigative agency
for the violation of any Laws, including, without limitation, the
violation of any anti-trust, racketeering, or unfair competition Laws.
(f) All pending or, to Seller's knowledge, threatened litigation and
administrative or judicial proceedings involving the Real Property or the
Business or the Assets is set forth on Schedule 3.13(f) attached,
together with a description of each such proceeding.
Section 3.14 Corrupt Practices. To Seller's knowledge, the Seller
has not made, offered or agreed to offer anything of value to any
employees of any customers of the Company for the purpose of attracting
business to the Company or any foreign or domestic governmental official,
political party or candidate for government office or any of their
respective employees or representatives in any manner which would result
in the Company being in violation of any Law, nor has the Company
otherwise taken any action which would cause it to be in violation of the
Foreign Corrupt Practices Act of 1977, as amended.
Section 3.15 Legal Compliance. The Seller has the right power, legal
capacity and authority to enter into, and perform its obligations under
this Agreement, and, except as set forth in Schedule 3.15, no approvals
or consents of any other persons or entities are necessary in connection
with the transactions contemplated by this Agreement. Except as disclosed
in Schedule 3.15 to this Agreement, the execution and performance of this
Agreement will not result in a material breach of or constitute a
material default or result in the loss of any material right or benefit
under:
(a) Any charter, by-law, agreement or other document to which the
Company or the Parent are a party or by which the Company, the Parent or
any of their property is bound; or
(b) Any decree, order or rule of any court or governmental authority
which is binding on the Company or on any property of the Company.
Section 3.16 Transaction Intermediaries. No agent or broker or other
person acting pursuant to the express authority of Seller is entitled to
any commission or finder's fee in connection with the transactions
contemplated by this Agreement.<PAGE>
Section 3.17 Disclosure. The representations and warranties of the
Seller contained in this Article III or in any Exhibit or Schedule or
other document delivered by the Seller pursuant hereto, do not contain
any untrue statement of a material fact, or omit any statement of a
material fact necessary to make the statements contained not misleading.
If, prior to Closing, the Seller becomes aware of any inaccuracy, or
misrepresentation or omission in any of the Schedules, it shall
immediately advise Purchasers in writing of the inaccuracy,
misrepresentation or omission.
ARTICLE IV
Representations and Warranties of Purchasers
With knowledge that Seller is relying upon the representations,
warranties and covenants herein contained, the Purchasers Jointly and
severally represent and warrant to Seller and make the following
covenants for the Seller's benefit:
Section 4.1 Structure. The Purchasers are corporations duly
organized and legally existing in good standing under the laws of their
states of incorporation.
Section 4.2 Authorization to Proceed with this Agreement. Purchasers
have by proper corporate proceedings duly authorized the execution,
delivery and performance of this Agreement and each other agreement
contemplated to be entered into and no other corporate action is required
by law or the Certificate of Incorporation or by-laws of Purchasers.
Section 4.3 Legal Compliance. The Purchasers have the right, power,
legal capacity and authority to enter into, and perform their obligations
under this Agreement. The execution and performance of this Agreement
will not result in a material breach of or constitute a material default
or result in the loss of any material right or benefit under:
(a) Any charter, by-law, agreement or other document to which the
Purchasers are a party or by which the Purchasers or any of their
property is bound; or
(b) Any decree, order or rule of any court or governmental authority
which is binding on the Purchaser or on any property of the Purchaser.
Section 4.4 Transaction Intermediaries. No agent or broker or other
person acting pursuant to the express authority of Purchasers is entitled
to any commission or finder's fee in connection with the transactions
contemplated by this Agreement.<PAGE>
ARTICLE V
Additional Agreements of Seller
The parties hereto covenant and agree with the other, as applicable,
as follows:
Section 5.1 Access to Records. The Company shall give Purchasers and
their representatives, from the date hereof until six years after the
Closing Date, or until such time as the records have been disposed of in
the ordinary course of the Company's business, full access during normal
business hours upon reasonable notice to all of the properties, books,
contracts, documents and records of the Company pertaining to the Assets,
and to make available to Purchasers and their representatives all
additional financial statements of and all information with respect to
the Assets that Purchasers may reasonably request.
Section 5.2 Continuation of Business. The Company will operate the
Assets until the time of Closing, in the ordinary course of business,
consistent with past practice, so as to preserve their value intact, and
to preserve for Purchasers the relationships of the Company with
suppliers, customers, employees and others.
Section 5.3 Continuation of insurance. The Company shall keep in
existence all policies of insurance insuring the Assets and the operation
thereof against liability and property damage, fire and other casualty
through the time of Closing, consistent with the policies currently in
effect.
Section 5.4 Standstill Agreement. Until the Closing Date, unless
this Agreement is earlier terminated pursuant to the provisions hereof,
Seller will not, directly or indirectly, solicit offers for the Assets,
or respond to inquiries from, share information with, negotiate with or
in any way facilitate inquiries or offers from, third parties who express
or who have heretofore expressed an interest in acquiring any or all of
the Assets.
Section 5.5 FIRPTA Certificate. Purchasers and the Company
acknowledge that the financial provisions of this Agreement are subject
to the requirements of the Foreign Investment in Real Property Tax Act
("FIRPTA"), and that the Internal Revenue Code ("Code") Sections 1445 and
6039C require Purchasers in certain circumstances to withhold ten percent
(10%) of the amount realized by the Company. Among other circumstances,
Purchasers are not required to withhold said amount if the Company
furnishes Purchasers with a certificate stating the Company's U.S.
Taxpayer Identification Number and that the Company is not a foreign
person within the meaning of the Code. Company agrees to provide to
Purchasers at Closing such certificate as is reasonably necessary to
insure that such withholding is not required under FIRPTA.
Section 5.6 Asset Right of First Refusal. If, within one year after
Closing occurs under this Agreement, Company shall enter into any
agreement to sell or otherwise dispose of any of its assets, the
collective value of which exceeds $100,000, that are at the time used in
any of Company's Miami operations that are not being conveyed by this
Agreement, then no later than fifteen days prior to the Company executing<PAGE>
a contract for the sale or disposition, Company shall notify Purchasers
in writing of the agreed-upon terms, and Purchasers shall have the right
of first refusal to acquire such assets upon substantially similar terms.
Such right of first refusal shall be exercisable only if Purchasers
notify Company within fifteen days after receipt of the notice provided
for in the prior sentence of their intent to exercise such right.
Section 5.7 Consents. Seller and Purchasers shall cooperate with
each other and use their best efforts and act in good faith to obtain all
governmental approvals, authorizations and consents required to be
obtained under law to consummate the transaction set forth in this
Agreement, including without limitation the transfer or assignment of the
current operating permit for the transfer station operated at the Real
Property ("Transfer Station") by Company, Permit No. S016-263002, and the
transfer or assignment of any pending applications for permits to process
construction and demolition debris or municipal solid waste at the
Transfer Station (collectively, the "Permit Transfers").
Section 5.8 Certain Miami Contract. The Customer Contracts listed on
Schedule 5.8 ("Multiple Service Contracts") require the Company to
perform services in addition to rear and front load collection
("Additional, Services"). Purchasers and Seller shall use their
reasonable efforts to have the customers who are parties to the Multiple
Service Contracts execute new separate contracts with the Purchaser for
front and rear load collection and with the Company for the Additional
Services. If any customers of the Multiple Service Contracts refuse to
execute new separate contracts, as set forth above, the Purchaser after
Closing shall subcontract all of the Additional Services to the Company
for the balance of the term of each Multiple Service Contract. The terms
of the subcontract shall provide that the Company has the sole
responsibility for providing the Additional Services and shall receive
the entire payment made by the customer attributable to the Additional
Services computed at the rate for the Additional Services set forth in
the Multiple Service Contracts.
Section 5.9 Non-Compete Agreements. The Assets include non-compete
agreements executed by certain of the employees of the Jacksonville
Business ("Non-Compete Agreements"). If the Non-Compete Agreements may
not be legally assigned, Company shall enforce them at Purchaser's
request, at the Purchaser's sole cost and expense. The Seller makes no
representation or warranty that the Non-Compete Agreements are
enforceable.
Section 5.10 Curtis Hart Agreement. The Assets include an agreement
between the Company and Curtis Hart dated January 15, 1998 ("Hart
Agreement"). Under the Hart Agreement a fee of Fifteen Thousand ($15,000)
Dollars is due to Curtis Hart upon a re-zoning of the Real Property
("Zoning Fee"). The Company agrees to pay the Zoning Fee to Curtis Hart
when it is due under the terms of the Hart Agreement, regardless of its
becoming due before or after the Closing. The Company shall pay all other
fees due to Curtis Hart under the Hart Agreement which first become due
prior to Closing and the Purchaser shall pay all other fees due to Curtis
Hart under the Hart Agreement which first become due after the Closing.<PAGE>
Section 5.11 Customer Contracts.
(a) Section 1.4 of this Agreement provides that the Customer
Contracts will be assigned directly to the Purchaser. At the Purchaser's
request, the Company in lieu of assigning the Customer Contracts to
Purchaser will (i) form a new wholly owned subsidiary having no
liabilities and no assets, (ii) will assign the Customer Contracts to
such new subsidiary ("Contract Subsidiary") and (iii) at the Closing will
transfer all of the outstanding stock in the Contract Subsidiary to the
Purchaser.
(b) For purposes of this Agreement, the term "Canceled Customer
Contract" shall mean all Customer Contracts which are terminated by a
customer within sixty days of the Closing Date due to the customer
objecting to the assignment of the Customer Contract from the Company and
which are not replaced by the Purchaser with a new contract with the same
customer within the same sixty day period. Purchaser shall provide Seller
a list of all Canceled Customer Contracts on or before one hundred (120)
days after the Closing Date. Seller shall have the night to inspect
Purchaser's books and records during normal business hours to determine
the validity of the Seller's list of Canceled Contracts. Within thirty
days after the list of Canceled Customer Contracts are supplied to Seller
by Purchaser, Seller shall pay to Purchaser an amount equal to (i) twelve
times the monthly revenue of all Canceled Customer Contracts related to
the Miami Business up to a maximum amount of One Hundred Thousand
($100,000) Dollars and (ii) twelve times the monthly revenue of all
Canceled Customer Contracts related to the Jacksonville Business up to a
maximum amount of Two Hundred Thousand ($200,000) Dollars.
ARTICLE VI
Additional Agreements of Purchasers
Section 6.1 Payment of Expenses. EESI will pay all expenses incurred
by Purchasers in connection with the negotiation, execution and
performance of this Agreement and the Collateral Documents. Seller will
pay all expenses incurred by Seller in connection with the negotiation,
execution and performance of this Agreement and the Collateral Documents.
Section 6.2 Access to Records. The Purchasers shall give Seller and
its representatives, from the date hereof until six years after the
Closing Date, or until such time as the records have been disposed of in
the ordinary course of Purchasers' business, full access during normal
business hours upon reasonable notice to all of the properties, books,
contracts, documents and records of the Purchasers pertaining, to the
Assets, and to make available to Seller and its representatives all
additional financial statements of and all information with respect to
the Assets that Seller may reasonably request.
ARTICLE VII
Conditions of Purchasers
The obligations of Purchasers to effect the transaction contemplated
by this Agreement shall be subject to the fulfillment at or prior to the
time of Closing of each of the following items which are conditions to
the Closing.<PAGE>
Section 7.1 Compliance by Seller. The Seller shall have performed
and complied with all material obligations and conditions required by
this Agreement to be performed or complied with by Seller prior to or at
the Closing Date. All representations and warranties of Seller contained
in this Agreement shall be true and correct at and as of the Closing
Date, with the same force and effect as though made at and as of the
Closing Date, except for changes expressly permitted by this Agreement
and the Purchasers shall have received a Certificate duly executed by an
officer of the Company as to the foregoing.
Section 7.2 Litigation Affecting This Transaction. There shall be no
actual or threatened action by or before any court which seeks to
restrain, prohibit or invalidate the transaction contemplated by this
Agreement or which might affect the right of Purchasers to own, operate
or control the Assets which, in the judgment of the Boards of Directors
of Purchasers, made in good faith and based upon advice of their counsel,
makes it inadvisable to proceed with the transaction contemplated by this
A Agreement.
Section 7.3 Consents and Permit Transfers. All approvals,
authorizations and consents required to be obtained shall have been
obtained, and the Purchasers shall have been furnished with appropriate
evidence, reasonably satisfactory to Purchasers, of the granting of such
approvals, authorizations and consents. Purchasers shall have received
evidence of the approval of the Permit Transfers by the appropriate
regulatory authority, or shall have obtained new valid permits to operate
the Transfer Station as it is currently being operated in the Business.
Section 7.4 Fiscal Condition of Business. There shall have been no
material adverse change in the results of operations or financial
condition of the Company or the Business, and the Company shall have not
suffered any material loss or damage to any of the Assets, whether or not
covered by insurance, since the date of the Most Recent Balance Sheet.
Section 7.5 Opinion of Counsel. Company shall have delivered to
Purchasers the opinion of counsel, dated the Closing Date, in the form
annexed hereto as Schedule 1.11(f).
Section 7.6 Non-competition Agreement. Company shall have executed
and delivered to Purchasers the Non-competition Agreement.
Section 7.7 Due Diligence Investigation. As a condition of Closing,
EESI shall be satisfied with the results of the due diligence
investigation it has made concerning the Assets, the Business, and the
Real Property within the time frame specified in Section 1.8(b).
Section 7.8 Title Policy. Seller shall have provided the Owner's
Policy.
ARTICLE VIII
Conditions of Seller
The obligations of the Seller to transfer the Assets in accordance
with this Agreement shall be subject to the fulfillment at or prior to
the time of Closing of each of the following conditions:<PAGE>
Section 8.1 Compliance by Purchasers. The Purchasers shall have
performed and complied with all material obligations and conditions
required by this Agreement to be performed or complied with by Purchasers
prior to or at the Closing Date. All representations and warranties of
Purchasers contained in this Agreement shall be true and correct at and
as of the Closing Date, with the same force and effect as though made at
and as of the Closing Date, except for changes expressly permitted by
this Agreement and the Sellers shall have received a Certificate duly
executed by an officer of each of the Purchasers as to the foregoing.
Section 8.2 Payment. The Purchasers shall have delivered to the
Company the Cash Payment in accordance with Section 1.3.
Section 8.3 Consents. All approvals, authorizations and consents
required to be obtained shall have been obtained, and the Seller shall
have been furnished with appropriate evidence, reasonably satisfactory to
them and their counsel, of the granting of such approvals, authorizations
and consents.
Section 8.4 Opinion of Counsel. Purchasers shall have delivered to
Seller the opinion of counsel, dated the Closing Date, in the form
annexed hereto as Schedule 1.10(f).
Section 8.5 Assignment and Assumption Agreement. Purchasers shall
have delivered to Seller such other documents as provided herein,
including, without limitation, the Assignment and Assumption Agreement.
Section 8.6 Litigation Affecting This Transaction. There shall be no
actual or threatened action by or before any court which seeks to
restrain, prohibit or invalidate the transaction contemplated by this
Agreement or which might affect the right of Seller to own, operate,
control or sell the Assets which, in the judgment of the Board of
Directors of Seller, made in good faith and based upon advice of its
counsel, makes it inadvisable to proceed with the transaction
contemplated by this Agreement.
ARTICLE IX
Indemnification
Section 9.1 Indemnification by Seller. The Seller agrees that it
will indemnify, defend, protect and hold harmless the Purchasers and
their officers, shareholders, directors, divisions, subdivisions,
affiliates, subsidiaries, parent, agents, employees, legal
representatives, successors and assigns from and against all claims,
damages, actions, suits, proceedings, demands, assessments, adjustments,
penalties, costs and expenses whatsoever (including specifically, but
without limitation, reasonable attorneys' fees and expenses of
investigation) whether equitable or legal, matured or contingent, known
or unknown to the Seller, foreseen or unforeseen, ordinary or
extraordinary, patent or latent, whether arising out of occurrences prior
to, at, or after the date of this Agreement, as a result of or incident
to: (a) any breach of, misrepresentation in, untruth in or inaccuracy in
the representations and warranties by the Seller, set forth in this
Agreement or in the Collateral Documents; (b) nonfulfillment or
nonperformance of any agreement, covenant or condition on the part of<PAGE>
Seller made in this Agreement or in the Collateral Documents and to be
performed by Seller before or after the Closing Date; (c) the imposition
upon, claim against, or payment by the Purchasers of any liability or
obligation of the Company other than the Assumed Liabilities; (d) the
imposition upon, claim against, or payment by the Purchasers of any
liability or obligation under any employee benefit plans, funds or
programs (within the meaning of the Internal Revenue Code of the United
States or the Employee Retirement Income Security Act of 1974, as
amended) maintained by the Company, (e) those items set forth in Section
1.7, which Purchasers are not assuming any liability, and (f) any claim
by a third party that, if true, would mean that a condition for
indemnification set forth in subsections (a), (b), (c), (d) or (e) of
this Section 9.1 of this Agreement has occurred.
Section 9.2 Indemnification by Purchasers. The Purchasers each agree
that they will each, jointly and severally, indemnify, defend, protect
and hold harmless the Seller and its officers, shareholders, directors,
subdivisions, affiliates, subsidiaries, parents, agents, employees, legal
representatives, successors and assigns, as applicable, from and against
all claims, damages, actions, suits, proceedings, demands, assessments,
adjustments, penalties, costs and expenses whatsoever (including
specifically, but without limitation, reasonable attorneys' fees and
expenses of investigation) whether equitable or legal, matured or
contingent, known or unknown to the Purchasers, foreseen or unforeseen,
ordinary or extraordinary, patent or latent, whether arising out of
occurrences prior to, at, or after the date of this Agreement, as a
result of or incident to: (a) any breach of, misrepresentation in,
untruth in or inaccuracy in the representations and warranties of
Purchasers set forth in this Agreement or in the Schedules attached to
this Agreement or in the divisions, Collateral Documents; (b) non-
fulfillment or nonperformance of any agreement, covenant or condition on
the part of Purchasers made in this Agreement or in the Collateral
Documents and to be performed by Purchasers before or after the Closing
Date, including without limitation the Assumed Liabilities; and (c) any
claim by a third party that, if true, would mean that a condition for
indemnification set forth in subsections (a) or (b) of this Section 9.2
has occurred.
Section 9.3 Procedure for Indemnification with Respect to Third
Party Claims.
(a) If any third party shall notify a party to this Agreement (the
"Indemnified Party") with respect to any matter (a "Third Party Claim")
that may give rise to a claim for indemnification against any other party
to this Agreement (the "Indemnifying Party") under this Article IX, then
the Indemnified Party shall promptly notify each Indemnifying Party
thereof in writing; provided, however, that no delay on the part of the
Indemnified Party in notifying any Indemnifying Party shall relieve the
Indemnifying Party from any obligation hereunder unless (and then solely
to the extent) the Indemnifying Party is thereby prejudiced. Such notice
shall state the amount of the claim and the relevant details thereof.
(b) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as (i)
the Indemnifying Party notifies the Indemnified Party in writing within
fifteen business days after the Indemnified Party has given notice of the<PAGE>
Third Party Claim that the Indemnifying Party will indemnify the
Indemnified Party pursuant to the provisions of Article IX, as
applicable, from and against the entirety of any adverse consequences
against and from which the Indemnified Party is indemnified pursuant to
this Article IX (which will include, without limitation, all losses,
claims, liens, and attorneys' fees and related expenses) the Indemnified
Party may suffer resulting from, arising out of, relating to, in the
natureof, or caused by the Third Party Claim, (ii) the Indemnifying Party
provides the Indemnified Party with evidence reasonably acceptable to the
Indemnified Party that the Indemnifying Party will have the financial
resources to defend against the Third Party Claim and fulfill
indemnification obligations hereunder, (iii) the Third Party Claim
involves only monetary damages and does not seek an injunction or
equitable relief, (iv) settlement of, or adverse judgment with respect to
the Third Party Claim is not, in the good faith judgment of the
Indemnified Party, likely to establish a precedential custom or practice
adverse to the continuing business interests of the Indemnified Party,
and (v) the Indemnifying Party conducts the defense of the Third Party
Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with Section 9.3(b) above, (i) the
Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in (but not control) the defense of the Third
Party Claim, (ii) the Indemnified Party will not consent to the entry of
any judgment or enter into any settlement with respect to the Third Party
Claim without the prior written consent of the Indemnifying Party (which
will not be unreasonably withheld), and (iii) the Indemnifying Party will
not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent
of the Indemnified Party (which will not be unreasonably withheld). In
the case of (c)(ii) or (c)(iii) above, any such consent to judgment or
settlement shall include, as an unconditional .term thereof, the release
of the Indemnifying Party from all liability in connection therewith.
(d) If the conditions set forth in Section 9.3(b) above are or
become unsatisfied, (i) the Indemnified Party may defend against, and
consent to the entry of any judgment or enter into any settlement with
respect to, the Third Party Claim and any matter it may deem appropriate
and the Indemnified Party need not consult with, or obtain any consent
from, any Indemnifying Party in connection therewith, (ii) the
Indemnifying Party will reimburse the Indemnified Party promptly and
periodically for the cost of defending against the Third Party Claim
(including attorneys' fees and expenses) and (iii) the Indemnifying Party
will remain responsible for any adverse consequences the Indemnified
Parry may suffer resulting from, arising out of, relating to, in the
nature of, or caused by the Third Party Claim to the fullest extent
provided in this Article IX.
Section 9.4 Procedure for Non-Third Party Claims. If any Purchaser
or Seller wishes to make a claim for indemnity under Section 9.1 or
Section 9.2, as applicable, and the claim does not arise out of a third
party notification which makes the provisions of Section 9.3 applicable,
the party desiring indemnification ("Indemnified Party") shall deliver to
the parties from which indemnification is sought ("Indemnifying Party") a<PAGE>
written demand for indemnification ("Indemnification Demand"). The
Indemnification Demand shall state: (a) the amount of losses, damages or
expensesto which the Indemnified Party has incurred or has suffered or is
expected to incur or suffer to which the Indemnified Party is entitled to
indemnification pursuant to Section 9.1 or Section 9.2, as applicable,
and (b) the nature of the event or occurrence which entitles the
Indemnified Party to receive payment under Section 9.1 or Section 9.2, as
applicable. If the Indemnifying Party wishes to object to an
Indemnification Demand, the Indemnifying Party must send written notice
to the Indemnified Party stating the objections and the grounds for the
objections ("Indemnification Objection"). If no Indemnification Objection
is sent within forty-five (45) days after the Indemnification Demand is
sent, the Indemnifying Party shall be deemed to have acknowledged the
correctness of the claim or claims specified in the Indemnification
Demand and shall pay the full amount claimed in the Indemnification
Demand within sixty (60) days of the day the Indemnification Demand is
dated. If for any reason the Indemnifying Party does not pay the amounts
claimed in the Indemnification Demand, within thirty days of the
Indemnification Demand's date, the Indemnified Party may institute legal
proceedings as herein provided to enforce payment of the indemnification
claim contained in the Indemnification Demand and any other claim for
indemnification that the Indemnified Party may have.
Section 9.5 Survival of Claims.
(a) All of the respective representations and warranties of the
Seller and Purchasers shall survive consummation of the transactions
contemplated by this Agreement for eighteen months.
(b) Notwithstanding the provisions of Section 9.5(a) above, which
provide that representations, warranties and obligations expire after
certain stated periods of time, if within the stated period of time, an
Indemnification Demand is given, or a suit or action based upon
representation or warranty is commenced, the Indemnified Party shall not
be precluded from pursuing such claim or action, or from recovering from
the Indemnifying Party (whether through the courts or otherwise) on the
claim or action, by reason of the expiration of the representation or
warranty.
Section 9.6 Indemnification Threshold. No Indemnification Demand
shall be made under this Article IX until such time that the party making
an Indemnification Demand believes, in good faith, that it has a claim or
claims for indemnity totaling One Hundred Thousand Dollars ($100, 000) or
more, singly or in the aggregate, and no Indemnifying Party shall have
any liability to an Indemnified Party until the damages to the
Indemnified Party exceed a cumulative aggregate total of $100,000. Once
cumulative aggregate damages exceed $100,000, the Indemnifying Party
shall be liable for all damages to the Indemnified Party, including the
first $100,000 of damages.<PAGE>
Section 9.7 Limitation of Liability. Notwithstanding anything else
contained herein to the contrary, the obligations of the Seller pursuant
to the indemnification contained in Section 9.1 arising out of either the
Jacksonville Business or the Miami Business, respectively, shall be
limited to 75% of the value of the Cash Payment allocated to such
Business, as applicable, pursuant to Schedule 1.11(b).
Section 9.8 Prompt Payment. In the event that any party is required
to make any payment under this Article IX, such party shall promptly pay
the Indemnifying Party the amount so determined. If there should be a
dispute as to the amount or manner of determination of any indemnity
obligation owed under this Article IX, the Indemnifying Party shall,
nevertheless, pay when due such portion, if any, of the obligation as
shall not be subject to dispute. The portion in dispute shall be paid
upon a final and non-appealable resolution of such dispute. Upon the
payment in full of any claim, the Indemnifying Party shall be subrogated
to the rights of the Indemnified Party against any person with respect to
the subject matter of such claim.
ARTICLE X
Other Provisions
Section 10.1 Non-disclosure by Seller. Seller recognizes and
acknowledges that it has in the past, currently has, and in the future
will have certain confidential information relating to the Assets such as
lists of customers, operational policies, and pricing and cost policies
that are valuable, special and unique assets of the Business. Seller
agrees that for a period of two (2) years from the Closing Date and as to
any Records received by it under Section 6.2 of this Agreement, two (2)
years from its receipt of the Records, it will not disclose such
confidential information to any person, firm, corporation, association or
other entity for any purpose or reason whatsoever, except to authorized
representatives of the Seller, unless (i) such information becomes known
to the public generally through no fault of Seller, (ii) the Seller is
compelled to disclose such information by a governmental entity or
pursuant to a court proceeding, or (iii) the Closing does not take place.
In the event of a breach or threatened breach by Seller of the provisions
of this Section, Purchasers shall be entitled to an injunction
restraining Seller from disclosing, in whole or in part, such
confidential information. Nothing herein shall be construed as
prohibiting Purchasers from pursuing any other available remedy for such
breach or threatened breach, including, without limitation, the recovery
of damages.
Section 10.2 Non-disclosure by Purchasers. Purchasers recognize and
acknowledge that they have in the past, currently have, and prior to the
Closing Date, will have access to certain confidential information of the
Company relating to the Business, such as lists of customers, operational
policies, and pricing and cost policies that are valuable, special and
unique assets of the Company. Purchasers, jointly and severally, agree
that none of them will utilize such information in the business or
operation of Purchasers, or any of their affiliates or disclose such
confidential information to any person, firm, corporation, association,
or other entity for any purpose or reason whatsoever, unless (i) such<PAGE>
information becomes known to the public generally through no fault of
Purchasers or any of their affiliates (ii) Purchasers are compelled to
disclose such information by a governmental entity or pursuant to a court
proceeding or (iii) Closing takes place. In the event of a breach or
threatened breach by Purchasers of the provisions of this Section, the
Seller shall be entitled to an injunction restraining Purchasers from
utilizing or disclosing, in whole or in part, such confidential
information. Nothing contained herein shall be construed as prohibiting
Seller from pursuing any other available remedy for such breach or
threatened breach, including, without limitation, the recovery of
damages.
Section 10.3 Assignment Binding Effect, Amendment. This Agreement
and the rights of the parties hereunder may not be assigned (except after
Closing by operation of law by the merger of Purchasers) and shall be
binding upon and shall inure to the benefit of the parties hereto, the
successors of Purchasers, and the Seller. This Agreement, upon execution
and delivery, constitutes a valid and binding agreement of the parties
hereto enforceable in accordance with its terms and may be modified or
amended only by a written instrument executed by all parties hereto.
Section 10.4 Entire Agreement. This Agreement, is the final,
complete and exclusive statement and expression of the agreement among
the parties hereto with relation to the subject matter of this Agreement,
it being understood that there are no oral representations,
understandings or agreements covering the same subject matter as the
Agreement. The Agreement supersedes, and cannot be varied, contradicted
or supplemented by evidence of any prior to contemporaneous discussions,
correspondence, or oral or written agreements of any kind. The parties to
this Agreement have relied on their own advisors for all legal,
accounting, tax or other advice whatsoever with respect to the Agreement
and the transactions contemplated hereby.
Section 10.5 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original and all of which together shall constitute but one and the
same instrument.
Section 10.6 Notices. All notices or other communications required
or permitted hereunder shall be in writing and may be given by depositing
the same in United States mail, addressed to the party to be notified,
postage prepaid and registered or certified with return receipt
requested, by overnight courier or by delivering the same in person to
such party.
(a) If to Purchasers, addressed to them at:
President
1000 Crawford Place, Suite 400
Mount Laurel, New Jersey 08054
with a copy to:
Robert M. Kramer & Associates, P.C.
1150 First Avenue, Suite 900
King of Prussia, Pennsylvania 19406<PAGE>
(b) If to Seller, addressed to it at:
1502 Second Avenue, East
Tampa, Florida 33605
Attention: Mr. Joseph M. Williams
with a copy to:
Russell S. Thomas, Esq.
Anderson & Orcutt, P.A.
401 East Jackson Street, Suite 2400
Tampa, Florida 33602
Notice shall be deemed given and effective the day personally delivered,
the day after being sent by overnight courier and three business days
after the deposit in the U.S. mail of a writing addressed as above and
sent first class mail, certified, return receipt requested, or when
actually received, if earlier. Any party may change the address for
notice by notifying the other parties of such change accordance with this
Section 10.6.
Section 10.7 Governing Law and Venue. This Agreement shall be
governed by and construed in accordance with the internal laws of the
State of Florida, without giving effect to any choice or conflict of law
provision or rule (whether of the State of Florida or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Florida. Venue for any action
brought under this Agreement or the Collateral Documents shall be in the
courts of Dade County, Florida.
Section 10.8 No Waiver. No delay of or omission in the exercise of
any right, power or remedy accruing to any party as a result of any
breach or default by any other party under this Agreement shall impair
any such right, power or remedy, nor shall it be construed as a waiver of
or acquiescence in any such breach or default, or of or in any similar
breach or default occurring later; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach of default
occurring before or after that waiver.
Section 10.9 Captions. The headings of this Agreement are inserted
for convenience only, shall not constitute a part of this Agreement or be
used to construe or interpret any provision hereof
Section 10.10 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 but so as most nearly to 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 thereby.<PAGE>
Section 10.11 Construction. The parties 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 the parties 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 shall be deemed
to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" means included, without
limitation
Section 10.12 Extension or Waiver of Performance. Either the Seller
or Purchasers may extend the time for or waive the performance of any of
the obligations of the other, waive any inaccuracies in the
representations or warranties by the other, or waive compliance by the
other with any of the covenants or conditions contained in this
Agreement, provided that any such extension or waiver shall be in writing
and signed by the Seller and the Purchasers.
Section 10.13 Liabilities of Third Parties. Nothing in this
Agreement, whether expressed or implied, is intended to confer any rights
or remedies under or by reason of this Agreement on any persons other
than the parties to it and their respective successors, heirs, legal
representative and assigns, nor is anything in this Agreement intended to
relieve or discharge the obligation or liability of any third persons to
any party to this Agreement, nor shall any provisions give any third
person any rights of subrogation or action over or against any party to
this Agreement.
Section 10.14 Disclosure on Schedules. The parties to this Agreement
shall have the obligation to supplement or amend the Schedules being
delivered concurrently with the execution of this Agreement and annexed
hereto with respect to any matter hereafter arising or discovered which,
if existing or known at the date of this Agreement, would have been
required to be set forth or described in the Schedules. The obligations
of the parties to amend or supplement the Schedules shall terminate on
the Closing Date. Notwithstanding any such amendment or supplementation,
the condition to Closing set forth in Section 7.1 shall not be satisfied,
if the amendment or supplementation of any Schedule by Seller results in
any of Seller's representations and warranties changing in a manner which
the Purchaser in good faith believes is materially adverse to the
Purchasers or the Assets.
Section 10.15 Arbitration.
(a) Each and every controversy or claim arising out of or relating
to this Agreement shall be settled by arbitration in Miami, Florida, in
accordance with the commercial rules (the "Rules") of the American
Arbitration Association then obtaining, and judgment upon the award
rendered in such arbitration shall be final and binding upon the parties
and may be confirmed in any court having jurisdiction thereof.
Notwithstanding the foregoing, this Agreement to arbitrate shall not bar
any party from seeking temporary or provisional remedies in any Court
having jurisdiction if such party can establish irreparable harm. Notice
of the demand for arbitration shall be filed in writing with the other<PAGE>
party to this Agreement, which such demand shall set forth in the same
degree of particularity as required for complaints under the Federal
Rules of Civil Procedure the claims to be submitted to arbitration.
Additionally, the demand for arbitration shall be stated with reasonable
particularity with respect to such demand with documents attached as
appropriate. In no event shall the demand for arbitration be made after
the date when institution of legal or equitable proceedings based on such
claim, dispute or other matter in question would be barred by the
applicable statutes of limitations.
(b) The arbitrators shall have the authority and jurisdiction to
determine their own jurisdiction and enter any preliminary awards that
would aid and assist the conduct of the arbitration or preserve the
parties' rights with respect to the arbitration as the arbitrators shall
deem appropriate in their discretion. The award of the arbitrators shall
be in writing and it shall specify in detail the issues submitted to
arbitration and the award of the arbitrators with respect to each of the
issues so submitted.
(c) Within sixty (60) days after the commencement of any arbitration
proceeding under this Agreement, each party shall file with the
arbitrators its contemplated discovery plan outlining the desired
documents to be produced, the depositions to be taken, if ordered by the
arbitrators in accordance with the Rules, and any other discovery action
sought in the arbitration proceeding. After a preliminary hearing, the
arbitrators shall fix the scope andcontent of each party's discovery plan
as the arbitrators deem appropriate. The arbitrators shall have the
authority to modify, amend or change the discovery plans of the parties
upon application by either party, if good cause appears for doing so.
(d) The award pursuant to such arbitration will be final, binding
and conclusive.
(e) Counsel to the Purchasers and the Seller in connection with the
negotiation of and consummation of the transactions under this Agreement,
shall be entitled to represent their respective party in any and all
proceedings under this Section or in any other proceeding (collectively,
"Proceedings"). The Purchasers and the Seller, respectively, waive the
right and agree they shall not seek to disqualify any such counsel in any
such Proceedings for any reason, including but not limited to the fact
that such counsel or any member thereof may be a witness in any such
Proceedings or possess or have learned of information of a confidential
or financial nature of the party whose interests are adverse to the party
represented by such counsel in any such Proceedings.<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
PURCHASERS
ATTEST: Eastern Environmental Services, Inc.
By: /S/ ROBERT M. KRAMER By: /S/ ROBERT M. KRAMER
--------------------- ------------------------
Secretary Name: Robert M. Kramer
Title: Executive Vice President
ATTEST: Eastern Environmental Services
of Florida, Inc.
By: /S/ ROBERT M. KRAMER By: /S/ ROBERT M. KRAMER
--------------------- ------------------------
Secretary Name: Robert M. Kramer
Title: Vice President
COMPANY
ATTEST: Kimmins Recycling Corp.
By: /S/ MICHAEL D. O'BRIEN By: /S/ JOSEPH M. WILLIAMS
--------------------- ------------------------
Secretary Name: JOSEPH M. WILLIAMS
Title: President
PARENT
ATTEST: KIMMINS CORP.
By: /S/ MICHAEL D. O'BRIEN By: /S/ JOSEPH M. WILLIAMS
--------------------- ------------------------
Assistant Secretary Name: JOSEPH M. WILLIAMS
Title: Secretary
TRANSCOR
ATTEST: TransCor Waste Services, Inc.
By: /S/ MICHAEL D. O'BRIEN By: /S/ JOSEPH M. WILLIAMS
--------------------- ------------------------
Assistant Secretary Name: JOSEPH M. WILLIAMS
Title: President<PAGE>
