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ASSET PURCHASE AGREEMENT
BY AND AMONG
SANIFILL, INC.,
XXXXXXXX XXXXX, X.X.
AND
XXXXXXXX XXXXX XXXX, L.P.,
AS THE SELLERS,
AND
US LIQUIDS INC.,
AS THE BUYER
DECEMBER 2, 1996
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.01 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II PURCHASE AND SALE. . . . . . . . . . . . . . . . . . . . . . . . .3
2.01 The Transaction. . . . . . . . . . . . . . . . . . . . . . . . .3
2.02 Purchase Price. . . .. . . . . . . . . . . . . . . . . . . . . .4
2.03 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.04 Deliveries at Closing. . . . . . . . . . . . . . . . . . . . . .4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS. . . . . . . . . . . . .4
3.01 Organization . . . . . . . . . . . . . . . . . . . . . . . . . .4
3.02 Qualification. . . . . . . . . . . . . . . . . . . . . . . . . .4
3.03 Authorizations; Approvals. . . . . . . . . . . . . . . . . . . .5
3.04 Brokers' Fees. . . . . . . . . . . . . . . . . . . . . . . . . .5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER. . . . . . . . . . . . . .5
4.01 Organization . . . . . . . . . . . . . . . . . . . . . . . . . .5
4.02 Qualification. . . . . . . . . . . . . . . . . . . . . . . . . .5
4.03 Authorizations; Approvals. . . . . . . . . . . . . . . . . . . .5
4.04 Absence of Conflicts . . . . . . . . . . . . . . . . . . . . . .6
4.05 Organizational Documents of Buyer. . . . . . . . . . . . . . . .6
4.06 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . .6
4.07 Brokers' Fees. . . . . . . . . . . . . . . . . . . . . . . . . .6
4.08 Investment . . . . . . . . . . . . . . . . . . . . . . . . . . .6
4.09 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . .6
ARTICLE V COVENANTS OF SELLERS AND BUYER . . . . . . . . . . . . . . . . . .6
5.01 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
5.02 Conduct of Business Pending the Closing. . . . . . . . . . . . .7
5.03 Capitalization Pending the Closing . . . . . . . . . . . . . . .7
5.04 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
5.05 Commercially Reasonable Efforts. . . . . . . . . . . . . . . . .8
5.06 Delivery and Retention of Records. . . . . . . . . . . . . . . .8
5.07 Accounting Treatment . . . . . . . . . . . . . . . . . . . . . .8
5.08 Closure of Lacassine Facility. . . . . . . . . . . . . . . . . .8
5.09 Maintenance of Bonds . . . . . . . . . . . . . . . . . . . . . .9
5.10 Additional Xxxxx . . . . . . . . . . . . . . . . . . . . . . . .9
5.11 Cooperation with Litigation. . . . . . . . . . . . . . . . . . .9
ARTICLE VI INDEPENDENT INVESTIGATION AND DISCLAIMER . . . . . . . . . . . . 00
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0.00 Xxxxxxxxxxx Investigation and Disclaimer . . . . . . . . . . . 10
ARTICLE VII TAX MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.01 Transfer Taxes . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VIII CONDITIONS TO CLOSING. . . . . . . . . . . . . . . . . . . . . 10
8.01 Conditions Precedent to Obligation of Each Party . . . . . . . 10
8.02 Additional Conditions Precedent to Obligations of Buyer. . . . 11
8.03 Additional Conditions Precedent to Obligations of Sellers. . . 11
ARTICLE IX INDEMNIFICATION AND ASSUMPTION . . . . . . . . . . . . . . . . . 12
9.01 By Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.02 By Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.03 Exceptions to Indemnities. . . . . . . . . . . . . . . . . . . 13
9.04 Notice of Claim. . . . . . . . . . . . . . . . . . . . . . . . 13
9.05 Third-Party Claims . . . . . . . . . . . . . . . . . . . . . . 14
9.06 Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.07 Exclusive Remedies; Survival of Representations and Warranties;
Limitation of Certain Liabilities; Insurance. . . . . . . . . 14
9.08 Waiver of Texas DTPA . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE X TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10.01 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . 16
10.02 Effect of Termination. . . . . . . . . . . . . . . . . . . . . 16
ARTICLE XI MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 16
11.01 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
11.02 Waiver and Amendment . . . . . . . . . . . . . . . . . . . . . 16
11.03 Public Statements. . . . . . . . . . . . . . . . . . . . . . . 17
11.04 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 17
11.05 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
11.06 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 17
11.07 Further Assurances . . . . . . . . . . . . . . . . . . . . . . 18
11.08 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.11 Entire Agreement; No Third Party Beneficiaries . . . . . . . . 18
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Annex I -- Purchased Assets
Annex II -- Assumed Liabilities
Annex III -- Bonds
Exhibit A -- Form of Note
Exhibit B -- Form of Warrant
Exhibit C -- Term Sheet for Note Purchase Agreement
Exhibit D -- Form of Seller Noncompetition Agreement
Exhibit E -- Form of Buyer Noncompetition Agreement
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as
of this 2nd day of December, 1996 by and among Sanifill, Inc., a Delaware
corporation ("Sanifill"), Xxxxxxxx Xxxxx, X.X., a Delaware limited
partnership ("Xxxxxxxx Xxxxx"), and Xxxxxxxx Xxxxx XXXX, L.P., a Delaware
limited partnership ("Xxxxxxxx Xxxxx XXXX" and, together with Sanifill and
Xxxxxxxx Xxxxx, the "Sellers"), and US Liquids Inc., a Delaware corporation
("Buyer"). Sellers and Buyer are referred to collectively herein as the
"Parties" and individually as a "Party."
RECITALS:
WHEREAS, Buyer desires to purchase from Sellers, and Sellers desire to
sell to Buyer, the Purchased Assets (as hereafter defined) pursuant to the terms
of this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained, the Parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 DEFINED TERMS. Capitalized terms not otherwise defined herein or
in the recitals to this Agreement used in this Agreement shall have the meanings
ascribed to them in this Section 1.01.
"AFFILIATE" shall mean with respect to any Person, any Person which,
directly or indirectly, controls, is controlled by, or is under a common control
with, such Person. The term "control" (including the terms "controlled by" and
"under common control with") as used in the preceding sentence means the
possession, directly or indirectly, of the power to direct or cause the
direction of management and policies of a Person, whether through the ownership
of voting securities, by contract, or otherwise.
"ASSUMED LIABILITIES" shall have the meaning given such term in
Section 2.01.
"BUYER INDEMNIFIED LIABILITIES" shall have the meaning given such term
in Section 9.01.
"BUYER MATERIAL ADVERSE EFFECT" shall mean any material and adverse
effect on the assets, liabilities, financial condition, business, operations,
affairs or circumstances of Buyer.
"BUYER NONCOMPETITION AGREEMENT" shall have the meaning given such
term in Section 8.03(b).
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"BUYER PARTIES" shall have the meaning given such term in Section
9.01.
"CLAIM" shall mean all demands, claims, actions, investigations,
causes of action, proceedings and arbitrations, whether or not ultimately
determined to be valid.
"CLAIM NOTICE" shall have the meaning given such term in Section
9.04(b).
"CLOSING" shall have the meaning given such term in Section 2.03.
"CLOSING DATE" shall have the meaning given such term in Section 2.03.
"DEDUCTIBLE AMOUNT" shall mean $200,000.
"DISCLOSURE SCHEDULE" shall have the meaning given such term in the
first sentence of Article III.
"ELECTION PERIOD" shall have the meaning given such term in Section
9.05.
"GOVERNMENTAL AUTHORITY" shall mean the United States and any state,
county, city or other political subdivision, agency, court or instrumentality.
"INDEMNIFIED PARTY" shall have the meaning given such term in Section
9.04(a).
"INDEMNIFYING PARTY" shall have the meaning given such term in Section
9.04(a).
"LACASSINE FACILITY" shall mean that disposal facility located in
Lacassine, Louisiana.
"LAWS" shall mean any constitution, statute, code, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
applicable Governmental Authority.
"LOSS" shall mean all debts, liabilities, obligations, losses,
damages, costs and expenses (including, without limitation, interest including
prejudgment interest in any litigated matter), penalties, fines, court costs and
reasonable attorneys' fees and expenses, judgments and settlements.
"MAN DAY" shall mean that measure of time equal to one employee
working for a full workday of not less than eight hours.
"NOTE" shall have the meaning given such term in Section 2.02.
"NOW" shall mean nonhazardous oil field waste associated with the
exploration and production of oil, gas and geothermal energy, that contains less
than 30 picocurries per gram of Radium 226 or 228.
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"PARTIES" shall have the meaning given in the introductory paragraph
of this Agreement.
"PERSON" shall mean any natural person, firm, partnership,
association, corporation, limited liability company, trust, entity, public body
or government.
"PURCHASE PRICE" shall have the meaning given such term in Section
2.02.
"PURCHASED ASSETS" shall have the meaning given such term in Section
2.01.
"RECORDS" shall have the meaning given such term in Section 5.06.
"RETAINED LIABILITIES" shall have the meaning given such term in
Section 2.01.
"SELLER MATERIAL ADVERSE EFFECT" shall mean any material and adverse
effect on the ownership or operation of the Purchased Assets, taken as a whole.
"SELLER NONCOMPETITION AGREEMENT" shall have the meaning given such
term in Section 8.02(b).
"SELLER PARTIES" shall have the meaning given such term in Section
9.02.
"TERMINATION DATE" shall mean January 31, 1997.
"THIRD-PARTY CLAIM" shall mean a Claim asserted against an Indemnified
Party by a Person other than a party to this Agreement or any Affiliate thereof
that could give rise to a right of indemnification under this Agreement.
"WARRANTS" shall have the meaning given such term in Section 2.02.
ARTICLE II
PURCHASE AND SALE
2.01 THE TRANSACTION. Subject to and in accordance with the terms and
conditions of this Agreement, at the Closing, Sellers agree to sell, transfer,
convey and assign to Buyer the Purchased Assets and the Assumed Liabilities,
effective as of the Closing Date, for the Purchase Price. Subject to and in
accordance with the terms and conditions of this Agreement, Buyer agrees to
acquire and purchase from Sellers the Purchased Assets owned by Sellers,
effective as of the Closing Date, for the payment to Sellers equal to the
Purchase Price. For purposes of this Agreement, the term "Purchased Assets"
shall mean all of the assets of Xxxxxxxx Xxxxx and Xxxxxxxx Xxxxx XXXX described
in ANNEX I hereto, and the term "Assumed Liabilities" shall mean all of the
liabilities of Xxxxxxxx Xxxxx and Xxxxxxxx Xxxxx XXXX described in ANNEX II
hereto. All liabilities other than (i) the Assumed Liabilities and
(ii) liabilities and obligations attributable to the use or operation of the
Purchased Assets for the period of time occurring on and after the Closing Date
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(collectively, the "Retained Liabilities") shall remain the responsibility of
Sellers (including, without limitation, litigation in existence prior to the
Closing Date).
2.02 PURCHASE PRICE. The Purchase Price shall consist of (i) a note
in the amount of $27,800,000, plus interest at the rate of 7.5% per annum, which
note shall be substantially in the form of EXHIBIT A hereto and shall be issued
pursuant to a Note Purchase Agreement to be entered into by the parties hereto
(the "Note"), and (ii) warrants to purchase 2,000,000 shares of common stock of
Buyer, par value $.01 per share ("Buyer Common Stock"), with an exercise price
of $1.00 per share, which warrants shall be substantially in the form of EXHIBIT
B hereto (the "Warrants").
2.03 CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxx & Xxxxx,
L.L.P., Xxx Xxxxx Xxxxx, 000 Xxxxxxxxx, Xxxxxxx, Xxxxx 00000 at 10:00 a.m.,
local time, on the second business day following satisfaction of the conditions
to closing set forth in Article VIII, or at such other time, date or place as
the Parties shall agree (the "Closing Date").
2.04 DELIVERIES AT CLOSING. At the Closing (a) Sellers will deliver
to Buyer the various certificates, instruments, and documents referred to in
Section 8.02, including the Seller Noncompetition Agreement, (b) Sellers will
deliver to Buyer bills of sale and assignment of the Purchased Assets, (c) Buyer
will deliver to Sellers the various certificates, instruments and documents
referred to in Section 8.03, including the Buyer Noncompetition Agreement and
(d) Buyer will deliver to Sellers the Note and the Warrants.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby represent and warrant to Buyer as follows:
3.01 ORGANIZATION. Sanifill is a corporation duly organized, validly
existing and in good standing under the laws of the State of Louisiana. Each of
Xxxxxxxx Xxxxx and Xxxxxxxx Xxxxx XXXX is a limited partnership duly formed and
validly existing under the laws of the State of Louisiana..
3.02 QUALIFICATION. Sanifill is duly qualified to transact business
as a foreign corporation and is in good standing in the State of Texas and in
each other jurisdiction in which the nature of the business as now conducted or
the character of the property owned or leased by it makes such qualification
necessary, except where the failure to be so qualified or in good standing would
not have a Seller Material Adverse Effect. Each of Xxxxxxxx Xxxxx and Xxxxxxxx
Xxxxx XXXX is duly registered to transact business in the State of Louisiana and
in each other jurisdiction in which the nature of its business as now conducted
or the character of the property owned or leased by it makes such qualification
necessary, except where the failure to be so qualified would not have a Seller
Material Adverse Effect.
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3.03 AUTHORIZATIONS; APPROVALS. The execution and delivery by Sellers
of this Agreement and the performance of their obligations hereunder have been
duly and validly authorized by all requisite corporate and partnership action.
This Agreement has been duly executed and delivered by Sellers, and this
Agreement constitutes the legal, valid and binding obligation of Sellers,
enforceable against them in accordance with its terms, except insofar as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether such principles are considered in a
proceeding at law or in equity).
3.04 BROKERS' FEES. Sellers do not have any liability or obligation
to pay any fees or commissions to any broker, finder or agent with respect to
the transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers as follows:
4.01 ORGANIZATION. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
4.02 QUALIFICATION. Buyer is duly qualified to transact business as a
foreign corporation and is in good standing in the State of Louisiana and in
each other jurisdiction in which the nature of the business as now conducted or
the character of the property owned or leased by it makes such qualification
necessary, except where the failure to be so qualified or in good standing would
not have a Buyer Material Adverse Effect.
4.03 AUTHORIZATIONS; APPROVALS. The execution and delivery by Buyer
of this Agreement and the performance of its obligations hereunder have been
duly and validly authorized by all requisite corporate action. This Agreement
has been duly executed and delivered by Buyer, and this Agreement constitutes
the legal, valid and binding obligation of Buyer, enforceable against it in
accordance with its terms, except insofar as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether such principles are considered in a proceeding at law or in equity).
Buyer does not need to give any notice to, make any filing or register with, or
obtain any consent, approval, authorization, waiver, permit, certificate or
order of any Governmental Authority to consummate the transactions contemplated
by this Agreement.
4.04 ABSENCE OF CONFLICTS. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby will, to
the knowledge of Buyer, violate or breach the terms of, cause a default under,
conflict with, result in acceleration of, create in any party the right to
accelerate, terminate, modify or cancel or require any notice under (a) any
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applicable Law, (b) the charter or bylaws of Buyer, or (c) any material
contract, agreement, lease, license or other arrangement to which Buyer is a
party or by which it or any of its properties are bound.
4.05 ORGANIZATIONAL DOCUMENTS OF BUYER. True and complete copies of
Buyer's charter and bylaws, each as amended through the date hereof, have been
delivered to Sellers prior to the date hereof.
4.06 CAPITALIZATION. The authorized capital stock of Buyer consists
solely of 30,000,000 shares of Buyer Common Stock, of which 6,753,000 shares are
issued and outstanding as of the date hereof.
4.07 BROKERS' FEES. Buyer does not have any liability or obligation
to pay any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement.
4.08 INVESTMENT. Buyer, together with its directors, officers and
advisors, is familiar with investments of the nature of the Purchased Assets,
understands that this investment involves substantial risks, has adequately
investigated the Purchased Assets and the Assumed Liabilities, has substantial
knowledge and experience in financial and business matters such that it is
capable of evaluating, and has evaluated, the merits and risks inherent in
purchasing the Purchased Assets, and is able to bear the economic risks of such
investment.
4.09 LITIGATION. There are no actions, suits, proceedings or
governmental investigations or inquiries pending or, to the knowledge of Buyer,
threatened against Buyer or any of its properties, assets, operations or
businesses that might delay, prevent or hinder the consummation of the
transactions contemplated hereby.
ARTICLE V
COVENANTS OF SELLERS AND BUYER
5.01 ACCESS.
(a) Upon reasonable notice and at Buyer's sole risk, liability and
expense, and during normal business hours, Sellers shall afford Buyer and
its representatives reasonable access, from the date hereof until the
Closing Date, to the Purchased Assets and any contracts, books, records and
data of Sellers specifically relating to the Purchased Assets. Buyer's
investigation shall be conducted in a manner that does not unreasonably
interfere with Sellers' normal operations. Buyer agrees to maintain the
confidentiality of all such information. BUYER HEREBY AGREES TO DEFEND,
INDEMNIFY, RELEASE, PROTECT, SAVE AND HOLD HARMLESS THE SELLERS AND THEIR
AFFILIATES, DIRECTORS, OFFICERS, PARTNERS AND AGENTS FROM AND AGAINST ANY
AND ALL LOSSES ARISING OUT OF OR RELATING TO ANY CLAIMS RELATING
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TO ANY SITE VISIT OR OTHER DUE DILIGENCE ACTIVITY CONDUCTED BY BUYER OR
ANY OF ITS AGENTS, REPRESENTATIVES, AFFILIATES, OFFICERS, REPRESENTATIVES
OR DIRECTORS, INCLUDING ANY LOSSES RESULTING IN WHOLE OR IN PART FROM THE
CONCURRENT OR JOINT NEGLIGENCE OF SELLERS (BUT NOT THE SOLE NEGLIGENCE OR
STRICT LIABILITY OF SELLERS).
(b) For a period of two years following the Closing Date, Sellers
shall afford Buyer and its representatives, for the sole purpose of
preparing financial statements and tax returns of Buyer, reasonable access
to its books, records and data to the extent that such books, records and
data concern the Purchased Assets or the operation of Xxxxxxxx Xxxxx and
Xxxxxxxx Xxxxx XXXX prior to the Closing Date.
5.02 CONDUCT OF BUSINESS PENDING THE CLOSING. Sellers covenant and
agree that, from the date of this Agreement until the Closing Date, unless Buyer
shall otherwise agree or as otherwise contemplated by this Agreement:
(a) Sellers will operate the Purchased Assets in the ordinary course
of business;
(b) Sellers will refrain from entering into any transaction or
contract relating directly to any of the Purchased Assets, other than in
the ordinary course of business;
(c) Sellers will not sell, assign or dispose of any of the Purchased
Assets, or incur or assume any liabilities with respect to any of the
Purchased Assets, other than any sales, assignments or dispositions made,
or liabilities incurred, in the ordinary course of business;
(d) Sellers will not waive any rights that, singly or in the
aggregate, are material to the Purchased Assets; and
(e) Sellers will maintain in full force and effect all insurance
currently maintained with respect to the Purchased Assets.
5.03 CAPITALIZATION PENDING THE CLOSING. Buyer covenants and agrees
that, from the date of this Agreement until the Closing Date, unless Sellers
shall otherwise agree in writing, Buyer shall not:
(a) make any change to its charter or bylaws as previously delivered
to Sellers;
(b) change in any manner its capitalization as set forth in Section
4.06 hereof; or
(c) commit itself to do either of the foregoing.
5.04 CONSENTS. Each of the Parties agrees to use commercially
reasonable efforts to obtain the authorizations, consents, orders and approvals
of Governmental Authorities and any other third parties that may be or become
necessary or advisable for the performance of its obligations
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pursuant to this Agreement and the consummation of the transactions
contemplated hereby and will cooperate in all reasonable respects with each
other in promptly seeking to obtain such authorizations, consents, orders and
approvals as may be necessary or advisable for the performance of their
respective obligations pursuant to this Agreement. In addition, each of the
parties shall make such filings or notices with any Governmental Authorities
as may be necessary or advisable. None of the Parties will take any action
that is reasonably likely to have the effect of delaying, impairing or
impeding the receipt of any required approvals and will use their
commercially reasonable efforts to secure such approvals as promptly as
possible.
5.05 COMMERCIALLY REASONABLE EFFORTS. Each of the Parties agrees to
use commercially reasonable efforts to obtain the satisfaction of all conditions
to Closing attributable to such Party in an expeditious matter.
5.06 DELIVERY AND RETENTION OF RECORDS. On or before the Closing
Date, Sellers will deliver or cause to be delivered to Buyer all files, records,
information and data specifically relating to the Purchased Assets
(collectively, the "Records"). Buyer agrees (a) to hold the Records and not to
destroy or dispose of any thereof for a period of six years from the Closing
Date or such longer time as may be required by law, and (b) following the
Closing Date, to afford to Sellers and their representatives (including, without
limitation, their accountants and counsel), during normal business hours, upon
reasonable request, full access to the Records and to Buyer's employees to the
extent that such access may be requested for any legitimate purpose; PROVIDED,
HOWEVER, that in the event of any litigation, nothing herein shall limit or
otherwise affect either Party's rights of discovery under applicable law.
5.07 ACCOUNTING TREATMENT. Each of the Parties agrees to treat the
transactions contemplated by this Agreement as a purchase for accounting
purposes.
5.08 CLOSURE OF LACASSINE FACILITY. Buyer hereby agrees to take
full responsibility and assume all liabilities relating to the closure and
any post-closure requirements of the Lacassine Facility; PROVIDED, HOWEVER,
that up to $1,300,000 of the costs incurred by Buyer in connection with such
closure and any post-closure requirements shall be reimbursed by Sellers.
Buyer shall send Sellers invoices on a monthly basis for all of such costs,
and Sellers shall cause such invoices to be paid not later than fifteen days
after receipt of such invoices.
5.09 MAINTENANCE OF BONDS. Sellers hereby agree to leave in place all
bonds maintained as of the date of this Agreement as set forth on ANNEX III
hereto with the Department of Natural Resources of the State of Louisiana until
December 31, 1997. Buyer shall promptly reimburse Sellers for (i) all costs and
expenses incurred in connection with the maintenance of such bonds from and
after the Closing Date and (ii) any amounts drawn on such bonds with respect to
operations or occurrences from and after the Closing Date.
5.10 ADDITIONAL XXXXX. In the event that Buyer is required by the
Department of Natural Resources or the Department of Environmental Quality of
the State of Louisiana to construct or install additional water injection xxxxx
with respect to its Mermentau, Bourg or Xxxxxxx Island facilities prior to
December 31, 1999, Sellers shall reimburse Buyer for its reasonable and
documented
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expenses incurred in connection with such construction or installation;
including compressors or other related equipment; PROVIDED, HOWEVER, that the
total of all such expenses to be reimbursed by Sellers shall not exceed
$1,600,000.
5.11 COOPERATION WITH LITIGATION.
(a) With respect to litigation existing as of the date hereof
included within the Retained Liabilities and involving any of Xxxxxxxx
Xxxxx, Xxxxxxxx Xxxxx XXXX or the Purchased Assets, Buyer agrees to
cooperate fully in all aspects of such litigation to the extent requested
by Sellers including, without limitation, making its officers and employees
available to Sellers. Sellers shall reimburse Buyer for all out-of-pocket
costs incurred in connection with such cooperation and assistance. In the
event that the time devoted by Buyer's personnel to such cooperation and
assistance in any calendar month exceeds either (i) forty hours by any
single officer or employee or (ii) twenty Man Days in the aggregate,
Sellers shall pay to Buyer a per diem amount for all time in excess of such
limitation. Such per diem amount shall be equal to the daily base pay plus
30% of such base pay of the most highly compensated employee assisting with
such litigation during such month.
(b) Sellers agree to obtain the written consent of Buyer, which
consent shall not be unreasonably withheld, prior to settling any of the
litigation referred to in paragraph (a) above to the extent that such
settlement restricts or otherwise adversely affects (i) the ongoing
operations of any facility included within the Purchased Assets or (ii) any
permit relating to any of such facilities; PROVIDED, HOWEVER, that such
consent may not be withheld by Buyer unless such operating restrictions or
adverse affects have a material adverse effect on Buyer. For purposes of
this Section 5.11, the term "material adverse effect" shall mean effects
involving (i) capital expenditures or increased operating expenses the net
present value of which (based on a 12% discount rate) is $500,000 or more
or (ii) a decrease in net income the net present value of which (based on a
12% discount rate) is $500,000 or more. Unless otherwise expressly agreed
by the parties, Sellers will not be liable to Buyer for any of such capital
expenditures, increased operating expenses or decreased net income.
ARTICLE VI
INDEPENDENT INVESTIGATION AND DISCLAIMER
6.01 INDEPENDENT INVESTIGATION AND DISCLAIMER. Buyer acknowledges
that its officers have served as officers of Xxxxxxxx Xxxxx and Xxxxxxxx Xxxxx
XXXX and will continue to serve as such through the Closing Date and, as such,
(i) it is intimately familiar with the Purchased Assets and the Assumed
Liabilities, (ii) it has more information and knowledge with respect to such
Purchased Assets and Liabilities than do the Sellers and (iii) it has had
sufficient access to the Purchased Assets and the Assumed Liabilities to enable
it to thoroughly evaluate the Purchased Assets and the Assumed Liabilities and
the risks associated therewith. Buyer further acknowledges that in making its
decision to enter into this Agreement and consummate the transactions
contemplated hereby, Buyer has relied solely on the basis of its own knowledge
and experience, its own independent investigation and the express
representations, warranties, covenants and agreements
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set forth in this Agreement. Accordingly, Buyer acknowledges that, except as
expressly set forth herein, Sellers have not made, AND SELLERS HEREBY
EXPRESSLY DISCLAIM AND NEGATE, ANY REPRESENTATION OR WARRANTY, EXPRESSED,
IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) THE CONDITION
OF THE PURCHASED ASSETS (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR
EXPRESSED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
OF ENVIRONMENTAL CONDITION), (ii) THE NATURE OR EXTENT OF THE ASSUMED
LIABILITIES, (iii) ANY INFRINGEMENT BY SELLERS OF ANY PATENT OR PROPRIETARY
RIGHT OF ANY THIRD PARTY, AND (iv) ANY INFORMATION, DATA OR OTHER MATERIALS
(WHETHER WRITTEN OR ORAL) FURNISHED TO BUYER OR ITS REPRESENTATIVES BY OR ON
BEHALF OF SELLERS.
ARTICLE VII
TAX MATTERS
7.01 TRANSFER TAXES. Buyer shall be responsible for the payment of
all state and local transfer, sales, use or other similar taxes, if any,
resulting from the transactions contemplated by this Agreement.
ARTICLE VIII
CONDITIONS TO CLOSING
8.01 CONDITIONS PRECEDENT TO OBLIGATION OF EACH PARTY. The respective
obligations of each Party to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment of the following conditions at or
prior to the Closing Date:
(a) No order shall have been entered and remain in effect in any
action or proceeding before any federal, state, foreign or local court or
governmental agency or other federal, state, foreign or local regulatory or
administrative agency or commission that would prevent or make illegal the
consummation of the transactions contemplated by this Agreement and no
action or proceedings that has a reasonable likelihood of preventing or
materially hindering the transactions contemplated hereby shall have been
instituted, which shall not have been subsequently dismissed;
(b) Newpark Resources, Inc. ("Newpark") shall have consented to (i)
the assignment to Buyer of all contracts and agreements with Newpark that
are included within the Purchased Assets and (ii) Buyer's assumption of all
of the Assumed Liabilities evidenced by such contracts and agreements;
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(c) The parties shall have entered into a Note Purchse Agreement
pursuant to which the Note will be issued, the terms and conditions of
which are described in the Term Sheet attached hereto as EXHIBIT C; and
(d) Any and all other consents of third parties, including
Governmental Authorities (other than any consents that would customarily be
obtained after the Closing), necessary in connection with the transactions
contemplated hereby shall have been obtained or arrangements shall have
been made reasonably satisfactory to Buyer to allow Buyer to receive
substantially the same economic benefits as if all such consents had been
obtained.
8.02 ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The
obligation of Buyer to consummate the transactions contemplated by this
Agreement is also subject to the fulfillment of the following conditions at or
prior to the Closing Date:
(a) The representations and warranties of Sellers contained herein
shall be true and correct in all material respects as of the Closing Date
as though such representations and warranties had been made at and as of
that date (except to the extent that such representations and warranties
expressly speak as to some earlier date); all of the terms, covenants and
conditions of this Agreement to be complied with and performed by Sellers
on or prior to the Closing Date shall have been duly complied with and
performed in all material respects; and a certificate to the foregoing
effect, dated as of the Closing Date and signed by an executive officer of
each Seller or its general partner, as applicable, shall have been
delivered to Buyer; and
(b) Sellers shall have executed and delivered to Buyer a
noncompetition agreement substantially in the form of EXHIBIT D hereto (the
"Seller Noncompetition Agreement").
8.03 ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS. The
obligation of Sellers to consummate the transactions contemplated by this
Agreement are also subject to the fulfillment at or prior to the Closing Date of
the following conditions:
(a) The representations and warranties of Buyer contained herein
shall be true and correct in all material respects as of the Closing Date
as though such representations and warranties had been made at and as of
that date (except to the extent that such representations and warranties
expressly speak as to some earlier date); all of the terms, covenants and
conditions of this Agreement to be complied with and performed by Buyer on
or prior to the Closing Date shall have been duly complied with and
performed in all material respects; and a certificate to the foregoing
effect, dated as of the Closing Date and signed by an executive officer of
Buyer, shall have been delivered to Sellers;
(b) Sellers shall have received the approval of the Board of
Directors of USA Waste, Inc., or any appropriate committee thereof; and
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(c) Buyer shall have executed and delivered to Sellers a
noncompetition agreement substantially in the form of EXHIBIT E hereto (the
"Buyer Noncompetition Agreement").
ARTICLE IX
INDEMNIFICATION AND ASSUMPTION
9.01 BY SELLERS. Subject to terms and conditions of this Article IX,
Sellers hereby agree to indemnify, defend and hold harmless Buyer, its
Affiliates and its and their respective directors, officers, employees and
agents (collectively, the "Buyer Parties"), from and against (i) the Retained
Liabilities and (ii) the following (collectively, the "Buyer Indemnified
Liabilities"): any Claim individually constituting a Loss in excess of $10,000
asserted against, imposed upon, or incurred by any Buyer Party, directly or
indirectly, arising out of or resulting from (a) the inaccuracy or breach of any
representation or warranty made by Sellers (other than with respect to the
Retained Liabilities) contained in or made pursuant to this Agreement, or
(b) the breach of any covenant or agreement of Sellers contained in or made
pursuant to this Agreement; PROVIDED, HOWEVER, that none of the Buyer Parties
shall be entitled to assert rights of indemnification by Sellers under clause
(ii) above of this Section 9.01 for Buyer Indemnified Liabilities unless and
until the aggregate of all such Buyer Indemnified Liabilities exceeds the
Deductible Amount (it being understood that such Buyer Indemnified Liabilities
shall accumulate until such time or times as the aggregate of all such Buyer
Indemnified Liabilities exceeds the Deductible Amount, whereupon the Buyer
Parties shall be entitled to indemnification by Sellers hereunder to the extent
of such excess, including, from such point forward, individual Claims of less
than $10,000. Notwithstanding the foregoing, Seller's maximum indemnification
obligation hereunder at any point in time shall be limited to the principal
amounts repaid under the Note to such point in time; PROVIDED, HOWEVER, that
Buyer may offset additional indemnification amounts, subject to the Deductible
Amount and the limitation on the maximum aggregate indemnification obligation
set forth in the next sentence, against future payments of principal under the
Note. In no event shall Sellers' maximum aggregate indemnification obligation
under this Article IX exceed $10,000,000.
9.02 BY BUYER. As of the Closing and subject to the indemnity
obligations of Sellers under Section 9.01, Buyer shall assume all of the Assumed
Liabilities, in addition to all of the obligations and liabilities that are
attributable generally to the ownership of the Purchased Assets following the
Closing, which assumption by Buyer is specifically made regardless of whether
any such obligations or liabilities are attributable to events or periods of
time prior to or after the Closing Date. Subject to the terms and conditions of
this Article IX, Buyer hereby agrees to indemnify, defend and hold harmless
Sellers, their Affiliates and their respective directors, officers, partners,
employees and agents (collectively, the "Seller Parties"), from and against the
following (collectively, the "Seller Indemnified Liabilities"); any Claim
individually constituting a Loss in excess of $10,000 asserted against, imposed
upon or incurred by any such person, directly or indirectly, arising out of or
resulting from (i) the inaccuracy or breach of any representation or warranty of
Buyer contained in or made pursuant to this Agreement, (ii) the breach of any
covenant or agreement of Buyer contained in or
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made pursuant to this Agreement, (iii) the ownership and operation of the
Purchased Assets from and after the Closing Date and (iv) the Assumed
Liabilities.
9.03 EXCEPTIONS TO INDEMNITIES. Notwithstanding anything to the
contrary set forth in Section 9.01, Buyer Indemnified Liabilities shall not
include any Claims to the extent such Claims are attributable to a breach of any
representation, warranty, covenant or agreement of Buyer under this Agreement.
Notwithstanding anything to the contrary set forth in Section 9.02, Seller
Indemnified Liabilities shall not include any Claims to the extent such Claims
are attributable to a breach of any representation, warranty, covenant or
agreement of Sellers under this Agreement.
9.04 NOTICE OF CLAIM. (a) For purposes of this Article IX, the term
"Indemnifying Party" when used in connection with a particular Claim shall mean
the party having an obligation to indemnify another party with respect to such
Claim pursuant to this Article IX, and the term "Indemnified Party" when used in
connection with a particular Claim shall mean the party having the right to be
indemnified with respect to such Claim by another party pursuant to this
Article IX.
(b) Promptly after any Indemnified Party becomes aware of facts
giving rise to a Claim by it for indemnification pursuant to this Article IX,
such Indemnified Party will provide notice thereof in writing to the
Indemnifying Party (a "Claim Notice") specifying the nature and specific basis
for such Claim and a copy of all papers served with respect to such Claim (if
any). For purposes of this Section 9.04(b), receipt by a Party of written
notice of any demand, assertion, claim, action or proceeding (judicial,
administrative or otherwise) by or from any person or entity other than a Party
that gives rise to a Claim on behalf of such Party shall constitute the
discovery of facts giving rise to a Claim by it and shall require prompt notice
of the receipt of such matter as provided in the first sentence of this Section
9.04(b). Each Claim Notice shall set forth a reasonable description of the
Claim and shall contain a statement to the effect that the Indemnified Party
giving the notice is making a claim pursuant to and formal demand for
indemnification under this Article IX. The Claim Notice shall set forth the
particular provision in this Article IX and any related provision in this
Agreement pursuant to which such indemnification claim is made. For example, if
an Indemnified Party elects to assert an indemnification claim for breach of the
Indemnifying Party's breach of representation, the Indemnified Party's Claim
Notice would provide that the Claim is asserted under Section 9.01(a) or
9.02(a)(i), as applicable, and that the representation allegedly breached is,
for example, the authorizations and approvals representation contained in
Section 3.03 or 4.03, as applicable.
9.05 THIRD-PARTY CLAIMS. (a) If an Indemnified Party shall have any
Third-Party Claim asserted against such Indemnified Party, the Indemnified Party
promptly shall transmit to the Indemnifying Party a Claim Notice relating to
such Third-Party Claim. Prior to the expiration of the 45-day period following
the Indemnifying Party's receipt of such notice (the "Election Period"), the
Indemnifying Party shall notify the Indemnified Party in writing as to
(i) whether the Indemnifying Party disputes its potential liability to the
Indemnified Party under this Article IX with respect to such Third-Party Claim
and (ii) whether the Indemnifying Party elects, at its sole cost and expense, to
defend the Indemnified Party against such Third-Party Claim.
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(b) If an Indemnifying Party notifies an Indemnified Party in writing
within the Election Period that the Indemnifying Party does not dispute its
potential liability to the Indemnified Party under this Article IX and that the
Indemnifying Party elects to assume the defense of the Third-Party Claim, then
the Indemnifying Party shall have the right to defend, at its sole cost and
expense, such Third-Party Claim by all appropriate proceedings, which
proceedings shall be prosecuted diligently by the Indemnifying Party to a final
conclusion or settled at the discretion of the Indemnifying Party in accordance
with this Section 9.05(b). The Indemnifying Party shall have full control of
such defense and proceedings, including any compromise or settlement thereof.
If requested by the Indemnifying Party, the Indemnified Party agrees to
cooperate fully with the Indemnifying Party and its counsel in contesting any
Third-Party Claim that the Indemnifying Party elects to contest, including,
without limitation, the making of any related counterclaim against the Person
asserting the Third-Party Claim or any cross-complaint against any Person. The
Indemnified Party shall have the right to participate in, but not control, any
defense or settlement of any Third-Party Claim controlled by the Indemnifying
Party pursuant to this Section 9.05(b) so long as such participation does not
unreasonably interfere with such defense or settlement, and shall bear its own
costs and expenses with respect to any such participation.
9.06 SUBROGATION. In the event that any Indemnified Party has a right
against a third party with respect to any damages, losses, costs or expenses
paid to such Indemnified Party by an Indemnifying Party, then such Indemnifying
Party shall, to the extent of such payment, be subrogated to the right of such
Indemnified Party.
9.07 EXCLUSIVE REMEDIES; SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
LIMITATION OF CERTAIN LIABILITIES; INSURANCE.
(a) Buyer and Sellers (i) agree that only actual damages shall be
recoverable under this Agreement and (ii) hereby waive any right to recover
special, punitive, consequential, incidental or exemplary damages.
Notwithstanding anything to the contrary in this Agreement, the indemnification
provisions of this Agreement shall be the exclusive remedy for any Claim based
upon this Agreement or the transactions described herein following the Closing.
In furtherance of the foregoing, all other remedies available at law or in
equity, in tort, contract or otherwise are hereby waived, released and
discharged by Sellers and Buyer. Indemnity obligations of any Indemnifying
Party shall be reduced by any insurance proceeds realized by any Indemnified
Party.
(b) The representations and warranties of Sellers contained herein
shall survive the Closing until the earlier of (i) thirty days after preparation
of Buyer's first full audited financial statements or (ii) December 31, 1997.
(c) The representations and warranties of Buyer contained herein
shall survive the Closing for a period of two years, except that Sellers' right
to seek indemnification with respect to any Claim arising out of or relating to
(i) Buyer's ownership and operation of the Purchased Assets from and after the
Closing Date and (ii) the Assumed Liabilities shall continue indefinitely
without expiration.
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(d) Neither Buyer Parties nor Seller Parties may assert any claim
under this Article IX based on facts constituting a breach of any of the
representations and warranties hereunder to the extent such person had actual
knowledge of such facts prior to the Closing Date.
9.08 WAIVER OF TEXAS DTPA. IT IS THE INTENT OF THE PARTIES THAT
SELLERS' AND BUYER'S RIGHTS AND REMEDIES WITH RESPECT TO THIS TRANSACTION AND
WITH RESPECT TO ALL ACTS OR PRACTICES OF SELLERS OR BUYER, PAST, PRESENT OR
FUTURE, IN CONNECTION WITH THIS TRANSACTION SHALL BE GOVERNED BY LEGAL
PRINCIPLES OTHER THAN THE TEXAS DECEPTIVE TRADE PRACTICES - CONSUMER
PROTECTION ACT, TEX. BUS. & COM. CODE XXX. Section 17.41 ET SEQ. (XXXXXX
1987 AND SUPP. 1994) (THE "DTPA"). AS SUCH, BUYER HEREBY WAIVES THE
APPLICABILITY OF THE DTPA TO THIS TRANSACTION AND ANY AND ALL DUTIES, RIGHTS
OR REMEDIES THAT MIGHT BE IMPOSED BY THE DTPA, WHETHER SUCH DUTIES, RIGHTS OR
REMEDIES ARE APPLIED DIRECTLY BY THE DTPA ITSELF OR INDIRECTLY IN CONNECTION
WITH OTHER STATUTES. BUYER ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT IT IS
PURCHASING THE ASSETS COVERED BY THIS AGREEMENT FOR COMMERCIAL OR BUSINESS
USE; THAT BUYER OR ITS PARENT COMPANY HAS ASSETS OF FIVE MILLION DOLLARS
($5,000,000) OR MORE ACCORDING TO ITS MOST RECENT FINANCIAL STATEMENT
PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES; THAT
BUYER HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT
ENABLE IT TO EVALUATE THE MERITS AND RISKS OF A TRANSACTION SUCH AS THIS; AND
THAT IT IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION WITH SELLERS.
BUYER EXPRESSLY RECOGNIZES THAT THE PRICE FOR WHICH SELLERS HAVE AGREED TO
SELL THE PURCHASED ASSETS AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT
HAS BEEN PREDICATED UPON THE INAPPLICABILITY OF THE DTPA AND THIS WAIVER OF
THE DTPA. BUYER FURTHER RECOGNIZES THAT SELLERS, IN DETERMINING TO PROCEED
WITH THE ENTERING INTO OF THIS AGREEMENT, HAVE EXPRESSLY RELIED ON THIS
WAIVER AND THE INAPPLICABILITY OF THE DTPA. BUYER AND SELLERS AGREE THAT THE
ABOVE WAIVER IS CONSPICUOUS AND IN SUBSTANTIALLY THE FORM REQUIRED BY SECTION
17.42(C)(3) OF THE DTPA.
ARTICLE X
TERMINATION
10.01 TERMINATION. This Agreement may be terminated and the
transactions contemplated hereby abandoned as follows:
(a) By the mutual written consent of Buyer and Sellers at any time
prior to the Closing;
(b) By Buyer or Sellers if a final, non-appealable order to
restrain, enjoin or otherwise prevent the consummation of the transactions
contemplated hereby shall have been entered;
(c) By Sellers at any time prior to the Closing if the Closing
shall not have occurred on or before the Termination Date by reason of a
failure of any condition precedent under Section 8.01 or 8.03, unless the
failure results primarily from the breach by Sellers of any representation,
warranty or covenant contained in this Agreement; or
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(d) By Buyer at any time prior to the Closing if the Closing shall
not have occurred on or before the Termination Date by reason of a failure of
any condition precedent under Section 8.01 or 8.02, unless the failure
results primarily from Buyer itself breaching any representation, warranty or
covenant contained in this Agreement.
10.02 EFFECT OF TERMINATION. In the event of any termination of
this Agreement pursuant to Section 10.01, (i) Sellers and Buyer shall have no
obligation or liability to each other except that the provisions of Sections
5.01, 9.07 and 9.08 shall survive any such termination, and (ii) nothing
herein and no termination pursuant hereto will relieve any party from
liability for any breach of this Agreement prior to such termination or, with
respect to those provisions that survive such termination, prior to or
following termination.
ARTICLE XI
MISCELLANEOUS
11.01 EXPENSES. Sellers and Buyer shall each bear and pay all
costs and expenses incurred by it in connection with the transactions
contemplated by this Agreement.
11.02 WAIVER AND AMENDMENT. Any provision of this Agreement may be
waived at any time by the Party that is entitled to the benefits thereof.
This Agreement may not be amended or supplemented at any time, except by an
instrument in writing signed on behalf of each Party hereto. The waiver by
any Party hereto of any condition or of a breach of another provision of this
Agreement shall not operate or be construed as a waiver of any other
condition or subsequent breach. The waiver by any Party hereto of any of the
conditions precedent to its obligations under this Agreement shall not
preclude it from seeking redress for breach of this Agreement other than with
respect to the condition so waived.
11.03 PUBLIC STATEMENTS. Sellers and Buyer agree to consult with,
and obtain the approval of (which approval will not be unreasonably
withheld), each other prior to issuing any press release or otherwise making
any public statement with respect to the transactions contemplated hereby,
and shall not issue any such press release or make any such public statement
prior to such consultation and approval, except as may be required by law.
11.04 ASSIGNMENT. This Agreement shall inure to the benefit of and
will be binding upon the Parties hereto and their respective legal
representatives, successors and permitted assigns. This Agreement shall not
be assignable by the Parties hereto without the prior written consent of the
other Parties hereto; PROVIDED, HOWEVER, that Buyer, upon written notice to
Sellers, may designate that the Purchased Assets be transferred and delivered
to a corporation or partnership wholly owned by Buyer (directly or
indirectly).
11.05 NOTICES. All notices, requests, demands, claims and other
communications which are required to be or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a)
delivered in person or by courier, (b) sent by telecopy or
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facsimile transmission, answer back requested, or (c) mailed, by registered
or certified mail, postage prepaid, return receipt requested, to the parties
hereto at the following addresses:
if to Sellers: Sanifill, Inc.
First City Tower, 0000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
if to Buyer: US Liquids Inc.
00 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxx 00000-0000
Attention: W. Xxxxxxx Xxx
Facsimile: (000) 000-0000
or to such other address as any party shall have furnished to the other by
notice given in accordance with this Section 11.05. Such notices shall be
effective, (i) if delivered in person or by courier, upon delivery, (ii) if
sent by overnight delivery service, on the day following the date on which
such notice was sent, (iii) if sent by telecopy or facsimile transmission,
upon completion of transmission, or (iv) if mailed, on the date of delivery
as shown by the return receipt therefor.
11.06 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY
CHOICE OF LAW RULES THAT MAY DIRECT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
11.07 FURTHER ASSURANCES. In case at any time after the Closing
Date any further action is necessary to carry out the purposes of this
Agreement including, without limitation, the transfer of the Purchased Assets
to Buyer and obtaining any post-Closing consents, Sellers and Buyer will take
or cause to be taken such further action (including the execution and
delivery of such further instruments and documents) as the other party
reasonably may request.
11.08 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall continue in full force and
effect and shall in no way be affected, impaired or invalidated unless such
an interpretation would materially alter the rights and privileges of any
party hereto or materially alter the terms of the transactions contemplated
hereby.
11.09 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
11.10 HEADINGS. The section headings herein are for convenience
only and shall not affect the construction hereof.
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11.11 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This
Agreement, including the Exhibits hereto and the Disclosure Schedule and any
other documents executed and delivered pursuant to this Agreement and the
Confidentiality Agreement constitute the entire agreements and supersede all
other prior agreements and understandings, both oral and written, among the
Parties or any of them, with respect to the subject matter hereof and neither
this nor any document delivered in connection with this Agreement, confers
upon any person not a party hereto any rights or remedies hereunder.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by its officers thereunto duly authorized, all as
of the date first above written.
SELLERS:
SANIFILL, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXXX XXXXX, X.X.
By: SANIFILL GP HOLDING CO., INC.,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXXX XXXXX XXXX, L.P.
By: SANIFILL GP HOLDING CO., INC.,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BUYER:
US LIQUIDS INC.
By: /s/ W. Xxxxxxx Xxx
-----------------------------------------------
Name: W. Xxxxxxx Xxx
Title: President
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