EXHIBIT 10.52
PURCHASE AND SALE OF ASSETS AGREEMENT
THIS PURCHASE AND SALE OF ASSETS AGREEMENT (the "Agreement") is
executed and delivered as of January 1, 1998, among U S LIQUIDS NORTHEAST, INC.,
a Delaware corporation ("Buyer"); U S LIQUIDS INC., a Delaware corporation
("Parent"); SUBURBAN WASTEWATER SERVICES INC., a Massachusetts corporation
("Seller"); and XXXXX X. XXXXX ("Xxxxx"), XXXXX X. XXXXX, XXXXX X. XXXXXXX AND
XXXX X. XXXXXX ("Xxxxxx") its sole stockholders ("Stockholders").
P R E M I S E S:
WHEREAS, Seller operates a non-hazardous commercial waste
transportation, and disposal business in the Braintree, Massachusetts area (the
"Business");
WHEREAS, as part of the Business, Seller subleases certain
improved real property located in Braintree, Massachusetts pursuant to a written
lease dated July 1, 1995 with Suburban Contract Cleaning, Inc. (the "Land");
WHEREAS, Buyer desires to purchase and acquire substantially all
of the assets, properties and contractual rights of Seller used in connection
with the Business and Seller desires to sell such assets, properties and
contractual rights to Buyer, all in accordance with the terms and conditions set
forth in this Agreement;
WHEREAS, Stockholders hold all of the outstanding capital stock
of Seller and Buyer is unwilling to enter into this Agreement without the
covenants and promises of Stockholders herein set forth; and
NOW, THEREFORE, in consideration of Ten Dollars ($10), the mutual
promises and covenants herein contained and other good and valuable
consideration, received to the full satisfaction of each of them, the parties
hereby agree as follows:
A G R E E M E N T:
ARTICLE 1. SALE OF ASSETS
SECTION 1.1 DESCRIPTION OF ASSETS. Upon the terms and subject to
the conditions set forth in this Agreement, Seller does hereby grant, convey,
sell, transfer and assign to Buyer the following assets, properties and
contractual rights of Seller, wherever located, subject to the exclusions
hereinafter set forth:
(a) all equipment used or for use in the operation of the
Business, including, without limitation, the equipment listed on
Schedule 1.1(a) attached hereto and made a part hereof (the
"Equipment");
(b) all of the motor vehicles used or for use in the Business,
and all radios, attachments, accessories and materials handling
equipment now located in or on such motor vehicles (the "Rolling
Stock"), as the same are listed and more completely described by
manufacturer, model number and model year on Schedule 1.1(b), attached
hereto and made a part hereof;
(c) all manual and automated routing and billing information and
components thereof;
(d) all contractual rights of Seller with Seller's customers
(whether oral or in writing) relating to the conduct of the Business
(the "Customer Accounts"), and all commitments, lists, leases, permits,
licenses, consents, approvals, franchises and other instruments relating
to the Customer Accounts (the "Related Approvals"); a complete and
accurate list of the Customer Accounts and the Related Approvals is set
forth on Schedule 1.1(d), attached hereto and made a part hereof, and
true and complete copies of all Customer Accounts and Related Approvals
shall be delivered to Buyer simultaneously with the execution and
delivery of this Agreement;
(e) all of Seller's inventory of parts, tires and accessories of
every kind, nature and description used or for use in connection with
the Business (the "Inventory");
(f) all right, title and interest of Seller in and to all trade
secrets, proprietary rights, symbols, trademarks, service marks, logos
and trade names used in the Business;
(g) all permits, licenses, franchises, consents and other
approvals relating to the Business set forth on Schedule 1.1(g),
attached hereto and made a part hereof (the "Permits"), true and
complete copies of which are attached to Schedule 1.1(g);
(h) Seller's leasehold interest in the Land;
(i) all of Seller's right, title and interest in and to the name
"Suburban Wastewater Services Inc." and the right to use such name (the
"Business Name");
(j) all of Seller's existing documents, files and other material
related to all current or past customers of the Business;
(k) all of Seller's shop tools, nuts and bolts relating to the
Business; and
(l) all of the goodwill of the Business.
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All of the foregoing assets, properties and contractual rights are
hereinafter sometimes collectively called the "Assets."
SECTION 1.2 EXCLUDED ASSETS. The parties agree that there shall
be excluded from the Assets the following which are not being sold to Buyer
pursuant to this Agreement (the "Excluded Assets"): (a) all cash on hand and on
deposit of Seller, except as set forth in Section 1.5 hereof; (b) all accounts
receivable of Seller ("Accounts Receivable") as of the close of business on the
date of Closing (hereinafter defined); (c) all real property other than Seller's
leasehold interest in the Land; (d) all contracts and contract rights and
obligations of Seller (whether oral or in writing) other than the Customer
Accounts and all commitments, lists, leases, permits, licenses, consents,
approvals, franchises and other instruments not relating to the Customer
Accounts or the Business; (e) all employment contracts to which Seller is a
party or by which Seller is bound; and (f) all motor vehicles of Seller that are
not Rolling Stock.
SECTION 1.3 NON-ASSIGNMENT OF CERTAIN CUSTOMER ACCOUNTS.
Notwithstanding anything to the contrary in this Agreement, to the extent that
the assignment hereunder of any Customer Account shall require the consent of
any third party, neither this Agreement nor any action taken pursuant to its
provisions shall constitute an assignment or an agreement to assign if such
assignment or attempted assignment would constitute a breach thereof or result
in the loss or diminution thereof; provided, however, that in each such case,
Seller shall use its best efforts to obtain the consent of such other party to
such assignment to Buyer. If such consent is not obtained, Seller shall
cooperate with Buyer in any reasonable arrangement designed to provide for Buyer
the benefits under any such Customer Account, including, without limitation, an
adjustment of the purchase price set forth in Section 2.1 hereof and enforcement
for the account and benefit of Buyer, of any and all rights of Seller against
any other person arising out of the breach or cancellation of any such Customer
Account by such other person, or otherwise. Attached hereto as Schedule 1.3 is a
list of all Customer Accounts requiring consent to their assignment.
SECTION 1.4 SELLER ACCOUNTS RECEIVABLE.
(a) Buyer shall have no liability or obligation whatsoever to
Seller in connection with the Accounts Receivable and Buyer shall not be
responsible for collecting the Accounts Receivable. However, if Buyer
receives any payments which are designated by the customer as being
toward such Accounts Receivable, then Buyer shall forward such payments
to Seller as set forth in Section 1.4(b). Attached hereto as Schedule
1.4 is a true and complete list of all Accounts Receivable of Seller as
of January 1, 1998.
(b) All sums representing Accounts Receivable as set forth on
Schedule 1.4 collected by Buyer from the customers
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set forth on Schedule 1.1(d) shall be conclusively presumed to be
receipts from the collection of the oldest Accounts Receivable of such
customer unless the customer specifically indicates otherwise in
writing. All such sums received by Buyer shall be received in trust and
shall be remitted to Seller on a regular basis (but at least monthly),
together with an itemized list of the sources thereof. Seller shall be
entitled to take such action as may be necessary in order to collect its
unpaid Accounts Receivable; provided, however, that Seller agrees not to
deliver any such Accounts Receivable to a collection agency or institute
any litigation related to an Accounts Receivable without the prior
written consent of Buyer, which consent shall not be unreasonably
withheld.
SECTION 1.5 PRORATION OF CASH ON HAND. Seller shall pay all
expenses and be entitled to all revenues related to the Business up to and
including the close of business on December 31, 1997. Commencing January 1,
1998, Buyer shall pay all expenses and be entitled to all revenues related to
the Business. The parties agree that on or before 90 days after the Closing Date
they will conduct a final accounting of such revenues and expenses and the party
owing any additional adjustment shall make payment in cash within seven business
days thereafter.
SECTION 1.6 CHANGE OF NAME. On the date of Closing, Seller shall
take all necessary action to change Seller's current Business Name, to a name
not the same as or similar to Suburban Wastewater Services Inc. or any other
symbol, trademark, service xxxx, logo or trade name now used by Seller. Seller
shall, on the date of closing, deliver to Buyer, in form suitable for filing,
such certificates, consents and other documents as are necessary to effect the
transfer of the registration of the Business Name conveyed by Buyer pursuant to
this Agreement in Massachusetts and shall grant any consents and take any other
and further action, all at Seller's own expense, requested by Buyer to enable
Buyer to reserve or register any such name for use of Buyer in Massachusetts.
Notwithstanding the foregoing, Seller currently uses the name "Suburban" in
other contexts and may continue to do so after the date of Closing.
ARTICLE 2. PURCHASE PRICE
SECTION 2.1 PURCHASE PRICE. Subject to Sections 2.3 and 2.4
below, Parent shall pay to Seller for the Assets and the restrictive covenants
set forth herein $1,200,000 (the "Purchase Price"). The Purchase Price shall be
payable on the Closing Date as follows: (i) the assumption by Buyer of the
Assumed Debt (as hereinafter defined); (ii) the balance by delivery of that
total number of shares of the common stock of Parent, $.01 par value (the
"Parent Stock"), which shall have an aggregate Agreed Value equal to $1,200,000
minus the amount of the Assumed Debt, calculated in accordance with Section 2.2
below.
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SECTION 2.2 AGREED VALUE OF PARENT STOCK. For purposes of this
Agreement, the "Agreed Value" per share of Parent Stock shall be the average of
the closing prices of a share of the only class of common stock of Parent, $.01
par value per share, on the American Stock Exchange as reported in THE WALL
STREET JOURNAL for the following trading days: December 24, 1997; December 26,
1997; December 29, 1997; December 30, 1997; and December 31, 1997, adjusted for
any stock splits, stock dividends and other capital changes between the first
date of the valuation period and the date of issuance.
SECTION 2.3 ASSUMPTION OF DEBT. As a portion of the Purchase
Price payable in Section 2.1 above, Buyer shall assume or pay off at Closing,
the actual debt of Seller up to a maximum of $197,383, which amount constitutes
all of the debts of Seller (including lease payments and lease-end buy-out
payments) related to the Assets (the "Assumed Debt"). Attached hereto as
Schedule 2.3 is a listing of all Assumed Debt and evidence establishing the
amount required to pay off the Assumed Debt in full on the date of Closing.
SECTION 2.4 CONTINGENT ADDITIONAL PURCHASE PRICE.
(a) In addition to the consideration payable pursuant to Section
2.1 above, Parent will pay to Xxxxx and Xxxxxx an aggregate additional
consideration in Parent Stock for the Assets if the operation of the
Northeast Region (as hereinafter defined) due to the efforts of the
Xxxxx and Xxxxxx after closing generates the specified amount of
earnings before taxes ("Pre-Tax Earnings") (as defined below), as
follows:
(i) Parent Stock which shall have an aggregate Agreed
Value of $500,000 if the Pre-Tax Earnings exceed $3,000,000
within the period from July 1, 1998 to June 30, 1999 (the "First
Period");
(ii) the Parent Stock payable in (i) above plus Parent Stock
which shall have an aggregate Agreed Value of $250,000 if the
Pre-Tax Earnings exceed $4,000,000 within the First Period; and
(iii) the Parent Stock payable in (i) and (ii) above plus
Parent Stock which shall have an aggregate Agreed Value of
$250,000 if the Pre-Tax Earnings exceed $5,900,000 within the
First Period.
(b) The Agreed Value of the Parent Stock issued pursuant to
Section 2.4(a) above shall not be more than 125% greater than the Agreed
Value of the Parent Stock issued at Closing.
(c) In addition to the consideration payable pursuant to Section
2.1 above, Parent will pay to Stockholders an
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aggregate additional consideration in Parent Stock for the Assets if the
operation of the Northeast Region due to the efforts of the Xxxxx and
Xxxxxx after closing generates Pre-Tax Earnings, as follows:
(i) Parent Stock which shall have an aggregate Agreed
Value of $900,000 if the Pre-Tax Earnings exceed $8,000,000
within the period from July 1, 1999 to June 30, 2000 (the "Second
Period");
(ii) the Parent Stock payable in (i) above plus Parent Stock
which shall have an aggregate Agreed Value of $375,000 if the
Pre-Tax Earnings exceed $10,000,000 within the Second Period; and
(iii) the Parent Stock payable in (i) and (ii) above plus
Parent Stock which shall have an aggregate Agreed Value of
$225,000 if the Pre-Tax Earnings exceed $11,900,000 within the
Second Period.
(d) The Agreed Value of the Parent Stock issued pursuant to
Section 2.4(c) above shall not be more than 140% greater than the Agreed
Value of the Parent Stock issued at Closing.
(e) Pre-Tax Earnings will be calculated within 60 days after the
end of the First Period or Second Period, respectively, and any payments
owed to Xxxxx and Xxxxxx shall be paid on the date that is 90 days after
the end of the First Period or Second Period, respectively.
(f) For purposes of this Agreement, "Pre-Tax Earnings" shall mean
the gross revenues derived from the Assets calculated in accordance with
generally accepted accounting principles ("GAAP") consistently applied
minus (i) all costs incurred in operating the Business (including,
without limitation, all payroll costs, equipment operating costs,
insurance costs, maintenance costs, legal, accounting and other
professional fees, all depreciation, depletion and amortization
expenses, all selling, general and administrative costs, interest and
all other operating expenses); (ii) all taxes on operations such as
franchise taxes, real and personal property taxes, use taxes and sales
taxes (but specifically excluding all federal, state (if any) and local
income taxes); (iii) reserves for financial assurance, closure and post
closure costs (as applicable in the case of the acquisition or
permitting of a treatment facility) and doubtful accounts. All of the
foregoing shall be determined by Buyer in accordance with Parent's past
practices and in accordance with GAAP consistently applied.
(g) For purposes of this Agreement, "Northeast Region" shall mean
the States of New Jersey, New York, Connecticut, Rhode Island,
Massachusetts, New Hampshire, Vermont and Maine.
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(h) In the event that Parent abandons its acquisition efforts in
the Northeast Region prior to June 30, 2000, all future payments which
could still be payable pursuant to the terms of Section 2.4(a) or
Section 2.4(c) above, respectively, shall be paid by Parent to Xxxxx and
Xxxxxx within 60 days after such discontinuance.
(i) All consideration which becomes payable under this Section
2.4 shall be allocated among the Xxxxx and Xxxxxx in the percentages set
forth on Exhibit A attached hereto and made a part hereof.
ARTICLE 3. CLOSING
SECTION 3.1 TIME AND PLACE OF CLOSING. Unless the parties
otherwise agree, this transaction shall be closed simultaneously with the
execution and delivery of this Agreement and the other documents and instruments
referred to in this Article 3 (the "Closing"). The Closing shall take place at a
location mutually acceptable to Buyer and Seller.
SECTION 3.2 DELIVERIES BY SELLER AND STOCKHOLDERS. At the
Closing, Seller and Stockholders shall deliver to Buyer, all duly executed:
(a) an assignment of Seller's leasehold interest in the
Land;
(b) a General Conveyance, Assignment and Xxxx of Sale, in form
and substance satisfactory to Buyer and Seller, conveying, selling,
transferring and assigning to Buyer all of the Assets (other than the
Land) (the "Xxxx of Sale");
(c) motor vehicle Certificates of Title and/or registrations to
the Rolling Stock, properly endorsed to Buyer;
(d) a receipt acknowledging payment by Buyer of the Purchase
Price;
(e) fully executed consents to the assignment of the Customer
Accounts set forth on Schedule 1.3, if any, in form and substance
satisfactory to Buyer;
(f) the documents evidencing Seller's change of name as required
by Section 1.6;
(g) a certified copy of the resolutions of the shareholders and
directors of Seller authorizing the execution of this Agreement, the
sale of the Assets to Buyer, and the consummation of the transactions
contemplated herein, along with an incumbency certificate of Seller; and
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(h) such other separate instruments of sale, assignment or
transfer reasonably required by Buyer.
SECTION 3.3 DELIVERIES BY BUYER. At the Closing, Buyer shall
deliver to Seller the Purchase Price set forth in Section 2.1 and shall assume
or make payment in full on the Assumed Debt.
ARTICLE 4. COVENANTS OF SELLER AND STOCKHOLDERS
SECTION 4.1 USE OF BUSINESS NAME. Except as set forth in Section
1.6 above, Seller and Stockholders covenant not to use the Business Name or any
similar names from and after the close of business on the date of Closing.
SECTION 4.2 TRANSITION. Neither Seller nor Stockholders will take
any action that is designed or intended to have the effect of discouraging any
customer or business associate of Seller from maintaining the same business
relationships with Buyer after the Closing that it maintained with Seller before
the Closing. Seller and Stockholders will refer all customer inquiries relating
to the Business to Buyer from and after the Closing.
SECTION 4.3 SURVIVAL. Each of the covenants set forth
in this Article 4 shall survive the Closing and the transfer of the
Assets.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF SELLER
AND STOCKHOLDERS
SECTION 5.1 Seller and Stockholders, jointly and severally,
represent and warrant to Buyer that:
(a) AUTHORITY.
(i) Seller is a corporation duly formed, validly existing
and in good standing under the laws of the Commonwealth of
Massachusetts. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the
compliance by Seller and Stockholders with the terms of this
Agreement do not and will not conflict with or result in a breach
of any terms of, or constitute a default under, the Articles of
Incorporation or Bylaws of Seller, or any instrument or other
agreement to which Seller or Stockholders are a party or by which
Seller or Stockholders are bound. This Agreement constitutes a
valid obligation of Seller and Stockholders enforceable against
Seller and Stockholders in accordance with its terms except as
limited by bankruptcy, insolvency, reorganization or other such
laws concerning the rights of creditors.
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(ii) Stockholders are each competent, under no duress or
legal restraint, and have all necessary authority to enter into
this Agreement, perform their obligations hereunder and
consummate the transactions contemplated hereby.
(iii) All of the issued and outstanding shares of Seller are
owned of record and beneficially by Stockholders, free and clear
of all liens, security interests and encumbrances whatsoever.
(b) COMPLIANCE WITH LAW. Neither Seller nor any of the
Stockholders, to the best of their knowledge, is in default under any
applicable federal, state or local laws, statutes, ordinances, permits,
licenses, orders, approvals, variances, rules or regulations or judicial
or administrative decisions ("Applicable Laws") which would have an
adverse effect upon the Assets or the Business. Seller has been granted
all licenses, permits, consents, authorizations and approvals from
federal, state and local government regulatory bodies necessary or
desirable to carry on the Business, all of which are currently in full
force and effect. To the best knowledge of Seller and Stockholders, each
of the Assets complies in all respects with all federal, state and local
laws, statutes, ordinances, permits, licenses, approvals, rules and
regulations applicable thereto.
(c) EQUIPMENT. Listed on Schedule 1.1(a) hereto is a complete and
accurate list of all Equipment used or for use in connection with the
Business. Each piece of Equipment is in good working order and repair.
(d) ROLLING STOCK. Listed on Schedule 1.1(b) hereto is a complete
and accurate list of all Rolling Stock. Each motor vehicle, attachment,
accessory and piece of materials handling equipment comprising the
Rolling Stock is in good working order and repair.
(e) CUSTOMER ACCOUNTS. Listed on Schedule 1.1(d) hereto is a
complete and accurate list of the Customer Accounts as of the date
hereof. Except as set forth on Schedule 1.3, all Customer Accounts are
(and will be immediately following the Closing) in full force and effect
and are valid, binding and enforceable against the respective parties
thereto in accordance with their respective provisions, and Seller is
not in default in, nor has there occurred an event or condition
(including Seller's execution and delivery of or performance under this
Agreement) which with the passage of time or the giving of notice (or
both) would constitute a default, with regard to the payment or
performance of any obligation under any Customer Account; no claim of
such a default has been asserted and there is no reasonable basis upon
which such a claim could validly be made. Neither Seller nor
Stockholders
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has received any notice that any person intends or desires to modify,
waive, amend, rescind, release, cancel or terminate any Customer
Account. By virtue of the grant, conveyance, sale, transfer and
assignment of the Customer Accounts by Seller to Buyer hereunder, Buyer
shall own and hold all right, title and interest of Seller in and to the
Customer Accounts, without the consent or approval of any other person
or entity.
(f) TITLE TO THE PERSONAL PROPERTY. Seller has good and
marketable title to all of the Assets constituting personal property,
free and clear of all liens, encumbrances, security interests, equities
or restrictions whatsoever except the Assumed Debt and, by virtue of the
grant, conveyance, sale, transfer, and assignment of the Assets
hereunder, Buyer shall receive good and marketable title to all of the
Assets constituting personal property, free and clear of all liens,
lease payments (including lease-end buy-out payments), encumbrances,
security interests, equities or restrictions whatsoever except the
Assumed Debt. The Assets include all of the permits, licenses,
franchises, consents and other approvals necessary or desirable to
conduct the Business.
(g) TITLE TO REAL PROPERTY. Seller has never owned, leased or
otherwise occupied, had an interest in or operated any real property
other than the Land. Seller has good, leasehold title to the Land.
Attached hereto as Schedule 5.1(g) is a true and complete copy of the
lease for the Land.
Except as set forth on Schedule 5.1(g):
(i) The Land is, and at all times during operation of the
Business has been, fully licensed, permitted and authorized for
the operation of the Business under all Applicable Laws relating
to the protection of the environment, the Land and the conduct of
the Business thereon (including, without limitation, all zoning
restrictions and land use requirements).
(ii) The Land is usable for its current uses and can be used
by Buyer after the Closing for such uses without violating any
applicable law or private restriction, and such uses are legal
conforming uses. There are no proceedings or amendments pending
and brought by or, to the best of Seller's knowledge, threatened
by, any third party which would result in a change in the
allowable uses of the Land or which would modify the right of
Buyer to use the Land for its current uses after the Closing
Date.
(h) LITIGATION. Except as set forth on Schedule 5.1(h) hereof,
there is no claim, litigation, action, suit or proceeding,
administrative or judicial, pending or threatened against Seller or
Stockholders, or involving the Assets or the Business, at law or in
equity, before any federal, state or
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local court or regulatory agency, or other governmental authority.
Neither Seller nor Stockholders has received any notice of any of the
above and no facts or circumstances exist which would, with the passage
of time or giving of notice (or both), give rise to any of the above.
(i) EMPLOYEES. Attached as Schedule 5.1(i) hereof is a complete
list of all employees of Seller and their respective rates of
compensation (including a breakdown of the portion thereof attributable
to salary, bonus and other compensation, respectively) as of the date of
Closing. Each employee is an employee at will and there are no
collective bargaining agreements affecting any employee of Seller. Buyer
shall not be obligated to hire any of Seller's employees.
(j) EMPLOYEE RELATIONS AND BENEFIT PLANS. Set forth on Schedule
5.1(j) is an accurate and complete list of all agreements of any kind
between Seller and its employees or group of employees, including,
without limitation, employment agreements, collective bargaining
agreements and benefit plans. Buyer shall not, by the execution and
delivery of this Agreement or otherwise, become obligated to or assume
any liabilities or contractual obligations with respect to any employee
of Seller or otherwise become liable for or obligated in any manner
(contractual or otherwise) to any employee of Seller, including, without
limiting the generality of the foregoing, any liability or obligation
pursuant to any collective bargaining agreement, employment agreement,
or pension, profit sharing or other employee benefit plan (within the
meaning of Section 3(3) of the Employment Retirement Income Security Act
of 1974, as amended) or any other fringe benefit program maintained by
Seller or to which Seller contributes or any liability for the
withdrawal or partial withdrawal from or termination of any such plan or
program by Seller.
(k) FINANCIAL STATEMENTS. Seller has delivered to Buyer copies of
Seller's balance sheet as of October 31, 1997 (the "Balance Sheet
Date"), and a statement of income, cash flow and retained earnings for
the period then ended (the "Financial Statements"). The Financial
Statements (including any footnotes thereto) have been prepared in
accordance with GAAP, applied on a consistent basis throughout the
periods indicated. The Financial Statements (including all footnotes
thereto) are true, complete and correct and present fairly the financial
condition and the results of the operations of Seller for the period
indicated thereon. All reserves for contingent risks have been estimated
in accordance with GAAP and are appropriate and sufficient to cover all
costs reasonably expected to be incurred from such risks. The Financial
Statements are consistent with the books and records of Seller (which
books and records are correct and complete).
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(l) TAXES. No federal, state, local or other tax returns or
reports filed by Seller (whether filed prior to, on or after the date
hereof) with respect to the Business or the Assets will result in any
taxes, assessments, fees or other governmental charges upon the Assets
or Buyer, whether as a transferee of the Assets or otherwise. All
federal, state and local taxes due and payable with respect to the
Business or the Assets have been paid, including, without limiting the
generality of the foregoing, all federal, state and local income, sales,
use, franchise, excise and property taxes.
(m) HAZARDOUS MATERIALS. To the best of Seller's and
Shareholders' knowledge, neither Seller nor Stockholders has ever
generated, transported, stored, handled, recycled, reclaimed, disposed
of, or contracted for the disposal of, hazardous materials, hazardous
wastes, hazardous substances, toxic wastes or substances, infectious or
medical waste, radioactive waste or sewage sludges as those terms are
defined by the Resource Conservation and Recovery Act of 1976; the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"); the Atomic Energy Act of 1954; the Toxic Substances
Control Act; the Occupational Health and Safety Act; any comparable or
similar Massachusetts statute; or the rules and regulations promulgated
under any of the foregoing, as each of the foregoing may have been from
time to time amended (collectively, "Hazardous Materials"). Seller has
never owned, operated, had an interest in, engaged in and/or leased a
waste transfer, recycling, treatment, storage or disposal facility,
business or activity other than the Business. Seller has obtained and
maintained all necessary trip tickets, signed by the applicable waste
generators, and other records demonstrating the nature of the waste
transported in connection with the Business. To the best of Seller's and
Stockholders' knowledge, no employee, contractor or agent of Seller has,
in the course and scope of employment with Seller, been harmed by
exposure to Hazardous Materials. To the best of Seller's and
Stockholders' knowledge, Seller has no direct or contingent liability or
obligation for or in connection with any claimed release, discharge or
leak of any substance onto the Land or into the environment. Further, to
the best of Seller's and Stockholders' knowledge, no portion of the Land
is listed on the CERCLA list or the National Priorities List of
Hazardous Waste Sites or any similar list maintained by the Commonwealth
of Massachusetts. Attached hereto as Schedule 5.1(m) is a complete list
of the names and addresses of all disposal sites at any time now or in
the past utilized by Seller, none of which sites, to the best of
Seller's and Stockholders' knowledge, is listed on the CERCLA list or
the National Priorities List of Hazardous Waste Sites or any comparable
Massachusetts list. Neither Seller nor Stockholders is listed as a
potentially responsible party under CERCLA or any comparable or similar
Massachusetts statute; neither Seller
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nor Stockholders has received any notice of such a listing; and neither
Seller nor Stockholders knows of any facts or circumstances which could
give rise to such a listing.
(n) GOVERNMENT NOTICES. Seller has delivered to Buyer, a
description and copies, as of the date of this Agreement, of all
notifications, filed or submitted, or required to be filed or submitted,
to governmental agencies and of all material notifications from such
governmental agencies relating to Seller and the Assets or relating to
the discharge or release of materials into the environment or otherwise
relating to the protection of the public health or the environment.
(o) ABSENCE OF PRICE RENEGOTIATION CONTRACTS. Seller is not now
nor has ever been a party to any governmental contracts subject to price
redetermination or renegotiation.
(p) GROSS REVENUES. Set forth on Schedule 5.1(p) are the gross
revenues generated by the Business for the 12-month period immediately
preceding the month in which the Closing occurs.
(q) UNDERGROUND STORAGE TANKS. Except for the Land, Seller has
never owned, leased or operated any real estate having any underground
storage tanks containing petroleum products or wastes or other hazardous
substances regulated by 40 CFR 280 and/or other applicable federal,
state or local laws, rules and regulations and requirements. Set forth
on Schedule 5.1(q) is a list of all above and below ground tanks located
on the Land, each of which are being used and maintained in accordance
with Applicable Laws.
(r) COMPLETENESS OF DISCLOSURE. This Agreement and the Schedules
hereto and all other documents and information furnished to Buyer and
its representatives pursuant hereto do not and will not include any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading. If Seller or
Stockholders become aware of any fact or circumstance which would change
a representation or warranty of Seller or Stockholders in this
Agreement, the party with such knowledge shall immediately give notice
of such fact or circumstance to Buyer. However, such notification shall
not relieve Seller or Stockholders of their obligations under this
Agreement, and at the sole option of Buyer, the truth and accuracy of
any and all warranties and representations of Seller and Stockholders at
the date of this Agreement shall be a precondition to the consummation
of this transaction.
SECTION 5.2 SURVIVAL. Each of the representations and warranties
set forth in this Article 5 shall survive the Closing and the transfer of the
Assets, in accordance with Article 8 hereof.
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ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF BUYER AND PARENT
SECTION 6.1 Buyer and Parent represent and warrant to Seller and
Stockholders that:
(a) CORPORATE ORGANIZATION. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) AUTHORIZATION. Buyer and Parent each have all requisite
corporate power and corporate authority to enter into this Agreement,
perform its respective obligations hereunder and consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and
the compliance by Buyer and Parent with the terms of this Agreement do
not and will not conflict with or result in a breach of any terms of, or
constitute a default under, Buyer's Articles of Incorporation or Bylaws
or any other agreement or instrument to which Buyer or Parent is a party
or by which Buyer or Parent is bound. All necessary corporate action has
been taken by Buyer and Parent with respect to the execution and
delivery of this Agreement, and this Agreement constitutes a valid
obligation of Buyer and Parent enforceable in accordance with its terms
except as limited by bankruptcy, insolvency, reorganization or other
such laws concerning the rights of creditors.
(c) PARENT STOCK. The Parent Stock to be delivered to Seller in
connection with this Agreement, when delivered in accordance with the
terms of this Agreement, will constitute valid and legally issued
shares, fully paid and nonassessable and will be registered and free
from any restriction on transfer other than restrictions imposed by the
Securities Act of 1933, as amended, or the regulations promulgated
thereunder.
SECTION 6.2 SURVIVAL. Each of the representations and warranties
set forth in this Article 6 shall survive the Closing and the transfer of the
Assets, in accordance with Article 8 hereof.
ARTICLE 7. NONCOMPETITION
SECTION 7.1 NONCOMPETITION COVENANTS. Seller and each of the
Stockholders, jointly and severally, agree that for a period of four years
following the date of Closing, none of them shall directly or indirectly,
through a subsidiary or affiliate, without the prior express written consent of
Buyer:
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(i) engage, whether as a corporation on its own account, or as an
officer, director, shareholder, owner, partner, joint venturer,
investor, agent, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales
representative, in the business of: siting, developing, constructing,
permitting or operating a facility for the processing, treatment or
disposal of nonhazardous liquid waste (including, without limitation,
waste oil, waste water, grease trap waste, grit trap waste and oil
contaminated water); and transportation or collection of any such
materials, in each case within a radius of 100 air miles of Braintree,
Massachusetts (the "Territory");
(ii) call upon any person who is, at that time, within the
Territory, an employee of Buyer in a managerial capacity for the purpose
or with the intent of enticing such employee away from or out of the
employ of Buyer;
(iii) call upon any person or entity which is, at that time, or which
has been, within one year prior to that time, a customer of Seller or
Buyer, as the case may be, within the Territory for the purpose of:
siting, developing, constructing, permitting or operating a facility for
the processing, treatment or disposal of non-hazardous liquid waste
(including, without limitation, waste oil, waste water, grease trap
waste, grit trap waste and oil contaminated water); and transportation
or collection of any such materials, in each case within the Territory;
(iv) call upon any prospective acquisition candidate, on their own
behalf or on behalf of any competitor, which candidate was either called
upon by Seller or Stockholders or for which Seller or Stockholders made
an acquisition analysis for Seller or Buyer;
(v) disclose the identity of Buyer's customers, whether in
existence or proposed, to any person, firm, partnership, corporation or
business for any reason or purpose whatsoever; or
(vi) promote or assist, financially or otherwise (including, without
limitation, lending, guaranteeing loans or otherwise providing financial
assurance in any way), any person, firm, partnership, corporation or
other entity whatsoever to do any of the above.
Notwithstanding the above, the foregoing covenant shall not be
deemed to prohibit Seller or Stockholders from acquiring as an investment not
more than one percent of the capital stock of a competing business, whose stock
is traded on a national securities exchange or over-the-counter.
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SECTION 7.2 INJUNCTIVE RELIEF. Because of the difficulty of
measuring economic losses to Buyer as a result of the breach of the foregoing
covenant, and because of the immediate and irreparable damage that would be
caused to Buyer for which it would have no other adequate remedy, Seller and
Stockholders agree that, in the event of breach by any of them of the foregoing
covenant, the covenant may be enforced by Buyer by, without limitation,
injunctions and restraining orders.
SECTION 7.3 REASONABLENESS OF COVENANTS. It is agreed by the
parties that the foregoing covenants in this Section 7 impose a reasonable
restraint on Seller and Stockholders in light of the activities and business of
the Buyer on the date of the execution of this Agreement and the future plans of
the Buyer.
SECTION 7.4 SEVERABILITY OF COVENANTS. The covenants in this
Section 7 are severable and separate, and the unenforceability of any specific
covenant shall not affect the provisions of any other covenant. Moreover, in the
event any court of competent jurisdiction shall determine that the scope, time
or territorial restrictions set forth are unreasonable, then it is the intention
of the parties that such restrictions be enforced to the fullest extent which
the court deems reasonable, and the Agreement shall thereby be reformed.
SECTION 7.5 INDEPENDENT COVENANTS. All of the covenants in this
Section 7 shall be construed as an agreement independent of any other provision
of this Agreement, and the existence of any claim or clause of action of Seller
or Stockholders against Buyer, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Buyer of such
covenants. It is specifically agreed that the duration of the noncompetition
covenants stated above shall be computed by excluding from such computation any
time during which Seller or Stockholders is in violation of any provision of
this Section 7 and any time during which there is pending in any court of
competent jurisdiction any action (including any appeal from any judgment)
brought by any person, whether or not a party to this Agreement, in which action
Buyer seeks to enforce the agreements and covenants of Seller or Stockholders or
in which any person contests the validity of such agreements and covenants or
their enforceability or seeks to avoid their performance or enforcement.
SECTION 7.6 MATERIALITY. Seller and Stockholders hereby agree
that the foregoing noncompetition covenants are a material and substantial part
of this transaction.
ARTICLE 8. NON-ASSUMPTION OF LIABILITIES; INDEMNIFICATION
SECTION 8.1 NON-ASSUMPTION OF LIABILITIES. Except as
explicitly set forth in Section 8.2 below, Buyer shall not, by the
execution and performance of this Agreement or otherwise, assume,
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become responsible for or incur any liability or obligation of any nature of
Seller or Stockholders 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 date of this Agreement and which 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 agreement (whether written or oral); (b)
any 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) a 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 or
Stockholders; (d) the generation, collection, transportation, storage or
disposal by Seller or Stockholders of any materials, including, without
limitation, Hazardous Materials; (e) an agreement or arrangement between Seller
and the employees of Seller or Stockholders or any labor or collective
bargaining unit representing any such employees; (f) the severance pay
obligation of Seller or 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 Stockholders
or to which Seller or Stockholders 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 Seller or Stockholders; (g)
the debts of Seller or Stockholders other than the Assumed Debt; (h) any
litigation against Seller or Stockholders, whether or not listed on Schedule
5.1(h); (i) any liability, obligation, cost or expense related to the Excluded
Assets; (j) any liability, obligation cost or expense related to the Land
related to the time prior to the Closing Date, including, without limitation,
the environmental condition thereof; and (k) the liabilities or obligations of
Seller or Stockholders for brokerage or other commissions relative to this
Agreement or the transactions contemplated hereunder. Seller and Stockholders
each agree to indemnify Buyer, its successors and assigns from and against all
of the above liabilities and obligations in accordance with Section 8.3 below.
SECTION 8.2 ASSUMPTION OF SPECIFIC LIABILITIES. In addition to
the payment of the Assumed Debt, Buyer agrees to perform all of Seller's
contractual obligations related to the Customer Contracts to the extent, and
only to the extent, such obligations first mature and are required to be
performed after the close of business on the Closing Date.
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SECTION 8.3 INDEMNIFICATION BY SELLER AND STOCKHOLDERS.
Notwithstanding investigation at any time made by or on behalf of Buyer, Seller
and Stockholders, jointly and severally, agree to defend, indemnify and hold
harmless Buyer, its officers, shareholders, directors, divisions, subdivisions,
affiliates, parent, employees, agents, successors, assigns and the Assets from
and against all losses, claims, actions, causes of action, damages, liabilities,
expenses and other costs of any kind or amount whatsoever (including, without
limitation, reasonable attorneys' fees), whether equitable or legal, matured or
contingent, known or unknown, foreseen or unforeseen, ordinary or extraordinary,
patent or latent, which result, either before or after the date of this
Agreement, from:
(a) inaccuracy in any representation or warranty made by Seller
or Stockholders in this Agreement;
(b) breach of any representation or warranty under this Agreement
by Seller or Stockholders;
(c) failure of Seller or Stockholders duly to perform and observe
any term, provision, covenant, agreement or condition under this
Agreement;
(d) liability of Seller or Stockholders imposed upon Buyer
(including, without limitation, all liability for the generation,
collection, transportation, storage or disposal of any materials,
including, without limitation, Hazardous Materials, whether or not
disclosed on Schedule 5.1(m) hereof);
(e) misrepresentation in or omission from any Schedule to this
Agreement;
(f) failure of Seller or Stockholders to obtain consent to a
Customer Account requiring such consent (including, without limitation,
reimbursement to Buyer of the value of such nonassigned Customer
Account);
(g) liability of Seller or Stockholders resulting from one or
more pending or threatened lawsuits whether or not listed on Schedule
5.1(h);
(h) liability of Seller or Stockholders to creditors of Seller or
Stockholders which is imposed on Buyer whether as a result of bankruptcy
proceedings or otherwise and whether as an account payable by Seller or
Stockholders or as a claim of alleged fraudulent conveyance or
preferential payments within the meaning of the United States Bankruptcy
Code or otherwise; and
(i) the existence of creditors of Seller which are not disclosed
to Buyer;
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(j) any of the matters described in Section 8.1(a)-(k) hereof;
and
(k) subject to Section 8.5 hereof, any claim by a third party
that, if true, would mean that a condition for indemnification set forth
in this Section 8.3 had been satisfied.
Buyer shall be deemed to have suffered such loss, claim, action, cause of
action, damage, liability, expense or other cost, or to have paid or to have
become obligated to pay any sum on account, of, the matters referred to in
subparagraphs (a) - (l) of this Section 8.3 if the same shall be suffered, paid
or incurred by Buyer or any parent, subsidiary, affiliate, or successor of
Buyer. The amount of the loss, claim, action, cause of action, damage,
liability, expense or other cost deemed to be suffered, paid or incurred by
Buyer shall be an amount equal to the loss, claim, action, cause of action,
damage, liability, expense or other cost suffered, paid or incurred by such
parent, subsidiary, affiliate, or successor.
SECTION 8.4 PROCEDURE FOR INDEMNIFICATION. Promptly after a party
hereto (hereinafter the "Indemnified Party") has received notice of or has
knowledge of any claim by a person not a party to this Agreement ("Third
Person") or the commencement of any action or proceeding by a Third Person, the
Indemnified Party shall, as a condition precedent to a claim with respect
thereto being made against any party obligated to provide indemnification
pursuant to this Agreement (hereinafter the "Indemnifying Party"), give the
Indemnifying Party written notice of such claim or the commencement of such
action or proceeding (the "Notice"). The Notice shall state the nature and the
basis of such claim and a reasonable estimate of the amount thereof. The
Indemnifying Party, after receipt of the Notice, shall defend and settle, at its
own expense and by its own counsel, each such matter so long as the Indemnifying
Party pursues the same diligently and in good faith and the claim does not
involve injunctive or equitable relief or involve the possibility of criminal
penalties. The Indemnified Party shall cooperate with the Indemnifying Party and
its counsel in the defense thereof and in any settlement thereof. Such
cooperation shall include, but shall not be limited to, furnishing the
Indemnifying Party with any books, records or information reasonably requested
by the Indemnifying Party that are in the Indemnified Party's possession or
control. Notwithstanding the foregoing, the Indemnified Party shall have the
right to participate in any matter through counsel of its own choosing at its
own expense, provided that the Indemnifying Party's counsel shall always be lead
counsel and shall determine all litigation and settlement steps, strategy and
the like. After the Indemnifying Party has received the Notice, the Indemnifying
Party shall not be liable for any additional legal expenses incurred by the
Indemnified Party in connection with any defense or settlement of such asserted
liability, except to the extent such participation is
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requested by the Indemnifying Party, in which event the Indemnified Party shall
be reimbursed by the Indemnifying Party for reasonable additional legal
expenses, out-of-pocket and allocable share of employee compensation incurred in
connection with such participation for any employee whose participation is so
requested. The foregoing notwithstanding, if the Indemnifying Party fails
diligently to defend any such matter to which the Indemnified Party is entitled
to indemnification hereunder or if the claim involves injunctive or equitable
relief or involves the possibility of criminal penalties, the Indemnified Party
may undertake such defense through counsel of its choice and at the Indemnifying
Party's expense. In each case where the Indemnifying Party is obligated to pay
the costs and expenses of the Indemnified Party, the Indemnifying Party shall
pay the costs and expenses of the Indemnified Party as such costs and expenses
are incurred. If the Indemnifying Party desires to accept a final and complete
settlement of any such Third Person claim and the Indemnified Party refuses to
consent to such settlement, then the Indemnifying Party's liability under this
Section with respect to such Third Person claim shall be limited to the amount
so offered in settlement by said Third Person and the Indemnified Party shall
reimburse the Indemnifying Party for any additional costs of defense which it
subsequently incurs with respect to such claim.
SECTION 8.5 LIMITATION ON LIABILITY. The indemnification
obligations set forth in this Agreement shall apply only after the aggregate
amount of such obligations exceed $25,000, at which time the indemnification
obligations shall be effective as to all amounts, including the initial $25,000
and shall in no event exceed a maximum of the payments made pursuant to Article
2 hereof.
SECTION 8.6 SURVIVAL OF INDEMNIFICATION. The indemnification
obligations of the parties contained herein shall survive until July 1, 2001.
ARTICLE 9. FEDERAL SECURITIES ACT RESTRICTIONS ON STOCK
SECTION 9.1 REGISTERED STOCK. Parent represents and warrants to
Seller and Seller acknowledges that all of the shares of Parent Stock to be
delivered to Seller pursuant to this Agreement will be registered under the
Securities Act of 1933, as amended (the "Act") prior to delivery to Seller.
SECTION 9.2 GENERAL LEGEND. All Parent Stock shall bear
the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS
OF RULE 145(D) PROMULGATED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT
BE TRANSFERRED OR DISPOSED OF BY THE HOLDER WITHOUT COMPLIANCE WITH SAID
RULE.
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SECTION 9.3 COMPLIANCE WITH LAW. Seller covenants, warrants and
represents that none of the shares of Parent Stock will be offered, sold,
assigned, pledged, hypothecated, transferred or otherwise disposed of except in
full compliance with the Act and the rules and regulations promulgated
thereunder. Further, no Stockholder has any current plan or intention to seller,
exchange or otherwise dispose of any of the Parent Stock following the Closing.
ARTICLE 10. GENERAL
SECTION 10.1 FURTHER ASSURANCE. From time to time after the
Closing, Seller and Stockholders will, without further consideration, execute
and deliver such other instruments of conveyance and transfer, and take such
other action as Buyer reasonably may request to more effectively convey and
transfer to and vest in Buyer and to put Buyer in possession of the Assets to be
transferred hereunder, and in the case of contracts and rights, if any, which
cannot be transferred effectively without the consents of third parties, to
endeavor to obtain such consents promptly, and if any be unobtainable, to use
their best efforts to provide Buyer with the benefits thereof in some other
manner. Seller and Stockholders will cooperate and use their best efforts to
have the present officers, directors and employees of Seller cooperate with
Buyer on and after the Closing in furnishing information, evidence, testimony
and other assistance in connection with any actions, proceedings, arrangements
or disputes of any nature with respect to matters pertaining to all periods
prior to the Closing.
SECTION 10.2 JOINT AND SEVERAL OBLIGATIONS. All representations,
warranties and agreements of Seller or Stockholders under this Agreement, the
Schedules and the transactions contemplated hereby shall be joint and several.
SECTION 10.3 WAIVER. Except as otherwise provided herein, 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; not 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 10.4 TIME OF THE ESSENCE. Time is of the essence of this
Agreement.
SECTION 10.5 NOTICE. All notices or communications required or
permitted under this Agreement shall be given in writing and served either by
personal delivery, overnight courier or by deposit in the United States mail and
sent by first class
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registered or certified mail, return receipt requested, postage prepaid:
If to Seller or Stockholders:
Xxxxx X. Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxxxxxx X. Xxxxxxx
Xxxxx & Zalcman, P.C.
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
If to Buyer:
U S Liquids Inc.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
ATTN: W. Xxxxxxx Xxx
with a copy to:
U S Liquids Inc.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
ATTN: Xxxxx Xxxxxx
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxx & Xxxxxxxxx LLP
3200 National City Center
0000 X. 0xx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Notice shall be deemed given and effective the day personally delivered, the day
after being sent by overnight courier, subject to signature verification, and
three days after deposit in the U.S. mail as provided above, or when actually
received, if earlier. Either party may change the address for notices or
communications to be given to it by written notice to the other party given as
provided in this Section.
SECTION 10.6 ENTIRE AGREEMENT. This Agreement, the Schedules
hereto, the consulting agreements and the other agreements referred to herein
constitute the entire agreement and understanding of the parties with respect to
the subject matter hereof, and supersede all prior and contemporaneous
agreements and understandings, oral or written, relative to said subject matter.
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SECTION 10.7 BINDING EFFECT; ASSIGNMENT. This Agreement and the
various rights and obligations arising hereunder shall inure to the benefit of
and be binding upon the parties hereto and their respective executors,
administrators, heirs, legal representatives, successors and permitted assigns.
Seller shall have no right to assign this Agreement or any of their respective
rights hereunder. Buyer may assign this Agreement without consent by Seller;
provided, however, that the assignee under such assignment shall agree to assume
the obligations of the assignor under this Agreement. It is further understood
and agreed that Buyer may be merged or consolidated with another entity and that
any such entity shall automatically succeed to the rights, powers and duties of
Buyer hereunder.
SECTION 10.8 EXPENSES OF TRANSACTION. Seller shall pay all costs
and expenses incurred by Seller or Stockholders in connection with this
Agreement and the transactions contemplated hereby and thereby, including,
without limitation, the fees and expenses of Seller's attorneys and accountants
and will make all necessary arrangements so that the Assets will not be charged
with or diminished by any such cost or expense. Buyer shall pay all costs and
expenses incurred by it in connection with this Agreement and the transactions
contemplated hereby and thereby, including without limitation, the fees and
expenses of its attorneys and accountants.
SECTION 10.9 BROKER'S COMMISSION. Seller and Stockholders
represent and warrant to Buyer and Buyer represents and warrants to Seller and
Stockholders that the warranting party has had no dealing with any dealer,
broker or agent so as to entitle such dealer, broker or agent to a commission or
fee in connection with the sale of the Assets to Buyer. If for any reason any
commission or fee shall become due, the party dealing with such dealer, broker
or agent shall pay such commission or fee and agrees to indemnify and save the
other party harmless from all claims for such commission or fee and from all
attorneys' fees, litigation costs and other expense relating to such claim.
SECTION 10.10 MODIFICATION; REMEDIES CUMULATIVE. This Agreement
may not be changed, amended, terminated, augmented, rescinded or otherwise
altered, in whole or in part, except by a writing executed by all of the parties
hereto. No right, remedy or election given by any term of this Agreement shall
be deemed exclusive but each shall be cumulative with all other rights, remedies
and elections available at law or in equity.
SECTION 10.11 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 to most nearly retain the intent of the parties. If such modification is
not possible, such provision shall be severed from this Agreement. In either
case the validity, legality and enforceability of the remaining provisions
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of this Agreement shall not in any way be affected or impaired thereby.
SECTION 10.12 GOVERNING LAW. This Agreement shall in all respects
be governed by and construed in accordance with the internal laws of the
Commonwealth of Massachusetts, without giving effect to any choice or conflict
of law provision or rule (whether of the Commonwealth of Massachusetts or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the Commonwealth of Massachusetts.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above written.
BUYER:
U S LIQUIDS NORTHEAST, INC.
By: ___________________________
Its: ___________________________
PARENT:
U S LIQUIDS INC.
By: ___________________________
Its: ___________________________
SELLER:
SUBURBAN WASTEWATER SERVICES, INC.
(EIN: 00-0000000)
By: ___________________________
Its: ___________________________
STOCKHOLDERS:
______________________________
Xxxxx X. Xxxxx
(SSN: ###-##-####)
______________________________
Xxxxx X. Xxxxx
(SSN: ###-##-####)
______________________________
Xxxxx X. Xxxxxxx
(SSN: ###-##-####)
______________________________
Xxxx X. Xxxxxx
(SSN: ###-##-####)
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LIST OF SCHEDULES
Exhibit A -- Allocation of Contingent Additional Purchase Price
Schedule 1.1(a) -- Equipment
Schedule 1.1(b) -- Rolling Stock
Schedule 1.1(d) -- Customer Accounts and Related Approvals
Schedule 1.1(g) -- Permits
Schedule 1.3 -- Customer Accounts Requiring Consent to Assignment
Schedule 1.4 -- Accounts Receivable
Schedule 2.3 -- Assumed Debt
Schedule 5.1(g) -- Real Property Disclosure
Schedule 5.1(h) -- Litigation
Schedule 5.1(i) -- Employees
Schedule 5.1(j) -- Employee Agreements
Schedule 5.1(m) -- List of Disposal Sites
Schedule 5.1(p) -- Gross Revenues
Schedule 5.1(q) -- Storage Tanks
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