PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made this 2nd day of March, 1998, by and
between ENVIRONMENTAL TRANSPORTATION SERVICES, INC., an Oklahoma
corporation ("Seller"), and METROPOLITAN ENVIRONMENTAL, INC., an
Indiana corporation ("Purchaser"), under the following
circumstances:
A. Seller and Purchaser executed a letter of intent dated
January 19, 1998 (the "Letter of Intent") outlining their agreement
in principle for the acquisition by Purchaser of certain assets
from Seller.
B. Seller and Purchaser desire to enter into this agreement
as the final agreement contemplated by the Letter of Intent.
C. Seller desires to sell and Purchaser desires to purchase
(i) certain personal property assets of Seller described in Part 1
of this Agreement and (ii) certain real property owned by Seller
and located in Chattanooga, Tennessee and Oklahoma City, Oklahoma
described in Part 2 of this Agreement, upon the following terms and
conditions.
D. Seller has advised Purchaser that Seller and its parent
company, AMETECH, Inc., an Oklahoma corporation ("AMETECH"), have
filed for protection under Chapter 11 ("Bankruptcy Proceedings") of
the United States Bankruptcy Code on February 2, 1998, in the
United States Bankruptcy Court, Western District of Oklahoma
("Bankruptcy Court"), and, as a result, the Seller and AMETECH are
presently operating as "Debtors-In-Possession" and that this
Agreement is subject to approval by the Bankruptcy Court.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises contained herein, the parties agree as follows:
PART 1: ASSET PURCHASE
1. Purchase and Sale of Assets, Subject to approval by the
Bankruptcy Court of this Agreement and the transactions
contemplated herein, at the Closing (as defined) Seller agrees to
sell, assign, transfer, convey and delivery to Purchaser, and
Purchaser agrees to purchase from Seller, the following personal
property assets of Seller (collectively, the "Assets"):
1.1 Rolling Stock. Eight van trailers, thirteen rolloff
trailers, nine vacuum trailers, two oil vacuum trailers and
fourteen tractors (the "Rolling Stock") owned by Seller. A true
and complete list of all of the Rolling Stock, including equipment
type, unit number, serial number, current location, and allocated
purchase price of each item of Rolling Stock to be acquired by
Purchaser is attached hereto as Schedule I and made a part of this
Agreement.
1.2 Rolloff Containers and Container Rental Business.
Four hundred ten (410) rolloff containers (the "Rolloff
Containers") and the Container Rental Business, including, but not
limited to, customer records, contracts and related files relating
to the Container Rental Business as described in Schedule I hereto
(the "Container Rental Business") owned by Seller. A true and
complete list of all of the Rolloff Containers with the unit number
and current location of each is included in Schedule I. The
parties acknowledge and agree that Seller leases the one hundred
seventy-six (176) Rolloff Containers listed in Exhibit A of
Schedule I to certain customers of Seller under rental agreements
as set forth in Exhibit A of Schedule I (such rental agreements may
hereinafter be referred to as the "Rolloff Container Leases"). In
addition to Seller's transfer of title to said Rolloff Containers
at the closing, Seller agrees to assign to Purchaser the Rolloff
Container Leases that are assignable. Notwithstanding anything
herein to the contrary, the Seller is not selling to Purchaser, and
the Purchaser is not acquiring from the Seller, any of the Seller's
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cash, accounts, accounts receivable, deposits, deposit accounts,
securities, chattel paper, instruments, certificates of deposit,
letters of credit or any other assets of the Seller not
specifically listed in this Section 1 or in Section 6 of Part 2
hereof.
1.3 Fixed Assets. The Seller's fixed assets located at
the two parcels of Real Property as defined in Part 2 of this
Agreement as set forth in Exhibits C, D, E and F of Schedule II
attached hereto ("Fixed Assets").
1.4 Spare Parts and Inventory. The Seller's spare parts
and inventory located at the two parcels of Real Property that are
set forth in Exhibit G of Schedule II attached hereto ("Spare
Parts").
2. Condition of Assets and Rights of Inspection.
2.1 "As-Is, Where-Is". All of the Assets shall be
purchased by Purchaser from Seller in an "As-Is, Where-Is"
condition. Except as expressly set forth in Section 5 hereof, the
Seller makes no representation or warranties as to the Assets.
2.2 Right of Inspection. The Purchaser shall have the
right to inspect the Assets, subject to the terms of Section 12
hereof, during the period beginning on the date of this Agreement
and ending fifteen (15) days from the date of this Agreement
("Inspection Period"), as follows:
2.2.1 Rolling Stock. The Purchaser shall have
the right to inspect the Rolling Stock ("First Inspection"),
subject to the terms of Section 12 hereof, during the Inspection
Period, with the First Inspection being conducted jointly with
Seller. Purchaser and Seller shall jointly create a report or
record which documents any damage to any of the Rolling Stock. The
Purchaser shall have a period of ten (10) days from the date of
Closing and ending ten (10) days from the date of Closing
("Rolling Stock Inspection Period") to determine, in good faith,
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if, subsequent to the First Inspection and prior to the Closing,
Material Damage has occurred to the Rolling Stock (with "Material
Damage" in this section 2.2.1 meaning damage to the Rolling Stock
resulting in costs to repair such damage to the Rolling Stock being
Five Thousand and No/100 Dollars ($5,000.00) or more, in the
aggregate, as determined by an independent third party appointed by
Purchaser and paid for by the Purchaser, with such independent
third party being reasonably satisfactory to Seller. If there has
been Material Damage to the Rolling Stock subsequent to the date of
the First Inspection and prior to the Closing, the Purchaser shall
give written notice to the Seller of such during the Rolling Stock
Inspection Period, which notice shall include the specific Rolling
Stock comprising part of the Assets for which Material Damage is
claimed and a written notice from the independent third party of
the amount of Material Damage for each Asset so identified and such
damage occurred prior to the Closing. If Purchaser gives written
notice to Seller of Material Damage to the Rolling Stock in the
manner described in this Section 2.2.1, with such written notice
containing the determination of the independent third party, then
the amount of such Material Damage, if any, including the initial
Five Thousand and No/100 Dollars ($5,000.00), shall be deducted
from the Rolling Stock Escrow Account in the manner set forth in
Section 4.1 and be paid to Purchaser and Seller shall have no
further liability or responsibility to Purchaser for any such
Material Damage.
2.2.2 Schedule I Assets. If during the
Inspection Period the Purchaser determines that it does not wish to
purchase one or more of the items comprising the Rolling Stock and
Rolloff Boxes set forth in the attached Schedule I ("Schedule I
Assets"), the Purchaser may exclude certain items of the Rolling
Stock and/or Rolloff Boxes from the Agreement by giving written
notice to the Seller during the Inspection Period of its election,
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which notice shall identify each particular item of Rolling Stock
and Rolloff Boxes which is not desired by Purchaser, specifying
each specific item by reference to how such item is identified in
Schedule I hereof. If the Purchaser elects to exclude any
particular Rolling Stock or Rolloff Boxes from this Agreement
during the Inspection Period as provided in this Section 2.2.2, the
Asset Purchase Price, and specifically, the Schedule I Asset Price
component of the Asset Purchase Price, shall be reduced by the
amount opposite that particular Asset so excluded set forth in
Schedule I hereof and such particular Asset shall not be considered
as Assets or transferred to Purchaser under this Agreement.
Notwithstanding the above, if the Purchaser gives notice to the
Seller during the Inspection Period that it elects to exclude from
this Agreement a Schedule I Asset or Assets with a price or prices
equal to or exceeding an aggregate of Two Hundred Thousand and
No/100 Dollars ($200,000.00) or more, then the Seller may, at its
option, terminate this Agreement without any liability or
obligation to the Purchaser. If Purchaser does not provide written
notice to the Seller regarding exclusion of certain of the Schedule
I Assets as described in this Section 2.2.2 within the Inspection
Period, the Purchaser will be deemed to have agreed to purchase all
of the Schedule I Assets, with no exceptions.
2.2.3 Schedule II Assets. If during the
Inspection Period the Purchaser determines that it does not wish to
purchase one or more of the items comprising the Assets comprising
the Fixed Assets and Spare Parts and Inventory set forth in the
attached Schedule II ("Schedule II Assets") prior to the conclusion
of the Inspection Period the Purchaser shall give written notice to
the Seller of such, which notice shall identify the items which are
not desired, specifying each specific item by reference to how such
items are identified in Schedule II hereof. If the Purchaser
elects to exclude any or all such Schedule II Asset or Assets from
this Agreement during the Inspection Period as provided in this
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Section 2.2.3, the Asset Purchase Price, and specifically the
Schedule II Asset Price component of the Asset Purchase Price,
shall be reduced by the amount opposite that particular Schedule II
Asset so excluded set forth in Schedule II hereof and that
particular Schedule II Asset so excluded shall not be considered as
Assets or transferred to Purchaser under this Agreement. If
Purchaser does not provide written notice to the Seller regarding
exclusion of certain of the Schedule II Assets during the
Inspection Period as described in this Section 2.2.3, the Purchaser
will be deemed to have agreed to purchase all of the Schedule II
Assets, with no exceptions.
3. Assumption of Liability. The Purchaser agrees to assume
all of Seller's obligations under the Rolloff Container Leases that
are assigned to Purchaser hereunder and which obligations occur
from and after the Closing. Except as otherwise expressly provided
in this Agreement, Purchaser is not assuming any obligation to pay
any of the debts, liabilities, or obligations of Seller, whether
now or hereafter existing, accrued or contingent or whether arising
out of or relating to the consummation of the transactions
contemplated herein.
4. Asset Purchase Price. The aggregate purchase price (the
"Asset Purchase Price") to be paid by Purchaser for the Assets
shall be (i) Two Million Seventy-eight Thousand Five Hundred and
No/100 Dollars ($2,078,500.00) for the Rolling Stock, Rolloff
Containers, and Container Rental Business, allocated as set forth
on Schedule I (collectively, the "Schedule I Assets"), subject to
reduction pursuant to Section 2.2.2 hereof, and (ii) Two Hundred
Thirty-Three Thousand One Hundred Fourteen and No/100 Dollars
($233,114.00) for the Fixed Assets, Spare Parts and Inventory as
set forth in Schedule II (collectively, the "Schedule II Assets"),
subject to reduction pursuant to Section 2.2.3 hereof. The Asset
Purchase Price shall be payable in full by Purchaser to the Seller
at the Closing, as defined in Section 14 of this Agreement, by
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certified check, cashier's check or wire transfer of federal funds
to an account designated by Seller, except that Fifty-Thousand and
No/100 Dollars ($50,000.00) of the Asset Purchase Price shall be
payable to the Escrow Agent pursuant to Section 4.1 hereof.
4.1 Rolling Stock Escrow. At Closing the parties shall
execute an escrow agreement with an escrow agent selected by the
Seller and reasonably satisfactory to the Purchaser ("Escrow
Agent") to establish the Rolling Stock Escrow Account, as defined
in this Section. Fifty-Thousand and No/100 Dollars ($50,000.00) of
the Asset Purchase Price shall be payable in full by Purchaser at
the Closing, by certified check, cashier's check or wire transfer
of federal funds, to an Escrow Account ("Rolling Stock Escrow
Account") of the Escrow Agent selected by Seller and reasonably
satisfactory to Purchaser. At the conclusion of the Rolling Stock
Inspection Period (i) the Escrow Agent shall, upon receiving
written notice from both Seller and Purchaser during the Rolling
Stock Inspection Period as to the aggregate amount of Material
Damage, if any, calculated pursuant to Section 2.2.1 hereof, deduct
such amount from the Rolling Stock Escrow Account and deliver the
balance amount, if any, of the Material Damage to the Seller, and
(ii) the Escrow Agent shall deliver the Rolling Stock Escrow
Account to the Purchaser. Notwithstanding the above, if Escrow
Agent has not received written notice from the Seller and Purchaser
of the amount of Material Damage, if any, to the Rolling Stock
prior to the expiration of the Rolling Stock Inspection Period,
then the Escrow Agent shall deliver to the Seller the full amount
of the Rolling Stock Escrow Account promptly upon expiration of the
Rolling Stock Inspection Period.
5. Seller's Representations and Warranties. Seller
represents and warrants to the Purchaser that, unless expressly
provided, the following are true and correct as of the date of this
Agreement and will be true and correct on the Closing:
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5.1 Title. Seller is the sole owner of the Assets and
Seller agrees to take all reasonably necessary action required to
obtain approval of the Bankruptcy Court for the purchase and sale
of Assets pursuant to this Agreement so that the sale and delivery
of the Assets will vest in Purchaser legal and valid title to the
Assets. Although the Assets are currently subject to certain liens
and encumbrances and subject to Bankruptcy Court approval, at the
Closing Seller will transfer to Purchaser all of the Assets, free
and clear of all security interests and liens, and Seller will have
full and unrestricted right and authority to sell the Assets.
Subject to Bankruptcy Court approval, at the Closing, Seller will
execute and deliver to Purchaser such instruments of sale,
assignment, transfer, and conveyance that shall be reasonably
necessary or appropriate to effect such transfer and conveyance.
5.2 Condition of Assets. The Assets are being sold by
Seller to Purchaser, and Purchaser is acquiring the Assets, in an
"As-Is, Where-Is" condition.
5.3 Legal Capacity and Authority. Seller is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Oklahoma, and is currently operating
as a "Debtor-In-Possession" under Chapter 11 of the Bankruptcy
Proceedings. The person who executes this Agreement on behalf of
Seller has full authority to act on behalf of, and to bind, Seller
with respect to this Agreement, subject to approval by the
Bankruptcy Court of this Agreement and the transactions
contemplated herein.
5.4 Authorization. The transactions provided for
hereunder have been duly authorized by the Board of Directors of
Seller. Seller will seek Bankruptcy Court Approval of this
Agreement and the transactions provided for hereunder so that such
transactions will not require the consent or approval of any other
entity or person. Subject to the approval by the Bankruptcy Court,
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this Agreement and the documents to be delivered pursuant to this
Agreement, when executed and delivered by Seller, will be valid and
binding on Seller, and enforceable in accordance with their terms.
5.5 Allocation of Purchase Price. Seller shall file all
tax returns in a manner consistent with the allocations set forth
on Schedules I, II and III attached hereof.
5.6 Survival of Representations and Warranties. The
representations and warranties made by Seller in this Agreement
shall terminate on the Closing, except that the representations and
warranties made in Section 5.1 hereof regarding the title of only
the Rolloff Containers, Spare Parts and Fixed Assets that are
purchased hereunder shall survive the Closing for a period of six
(6) months following the Closing.
PART 2: REAL ESTATE PURCHASE
6. Purchase and Sale of Real Property. Subject to approval
by the Bankruptcy Court of this Agreement and the transactions
contemplated herein, Seller agrees to sell, and Purchaser agrees to
purchase, on an "As-Is, Where-Is" condition and on the terms and
conditions set forth in this Agreement, certain real property
located at 0000 Xxxxxxxxx 00xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx
00000, and 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000
(collectively, the "Real Property"), the legal descriptions of
which are set forth on attached Schedule III, together with all
appurtenant rights, privileges and easements, which property is
more fully described as follows:
(i) except as herein otherwise expressly provided, as of
the date of this Agreement, all and singular of Seller's present
and future interests in, to and under all public and quasi public
and private utility service contracts and deposits necessary for,
or existing in connection with, the providing of all utility
services to the Premises; and
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(ii) except as herein otherwise expressly provided,
as of the date of this Agreement, all and singular of the
easements, rights-of-way, estates, tenements, hereditaments,
reversions, and remainders, presently or in the future,
appurtenant, belonging, attaching, or relating to the Premises or
any component thereof.
7. Real Property Purchase Price. As consideration for the
sale and conveyance of the Real Property, Seller shall be paid Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00) for each of
the two parcels of Real Property for an aggregate price of Five
Hundred Thousand Dollars ($500,000.00) in current U.S. funds (the
"Real Property Purchase Price") as described in this Section 7
hereof.
7.1 Real Property Escrow. At Closing the parties hereto
shall execute an escrow agreement to establish an escrow account
("Real Property Escrow Account") as described hereafter. At the
Closing the Real Property Purchase Price shall be paid in full,
subject to any and all prorations as provided in Section 15 hereof,
by Purchaser at the Closing, by certified check, cashier's check or
wire transfer of federal funds to the Real Property Escrow Account
of the Escrow Agent selected by Seller and approved by the
Purchaser.
7.1.1 Deed Escrow. At Closing, Seller shall
execute the two (2) special or limited warranty deeds, whichever is
applicable under appropriate state law, covering the Real Property
and deliver such into escrow with the Escrow Agent for delivery as
described herein, which special or limited warranty deed shall
warrant title in and to the Purchaser from the xxxx Xxxxxx acquired
the Real Property.
8. Real Property Inspection Rights.
8.1 Condition of Real Property. The Real Property is
being sold by Seller to Purchaser, and Purchaser is acquiring the
Real Property, in an "AS-IS, WHERE-IS" condition.
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8.2 Condition of Real Property and Rights of Inspection.
The Purchaser shall have the right to conduct a Phase I or Phase II
environmental audit of the Real Property during the period
beginning on the date of Closing and ending thirty (30) days from
the date of Closing ("Real Property Inspection Period").
8.3 Environmental Engineering Firm. Any Phase I or
Phase II environmental audit of the Real Property to be performed
pursuant to the terms of this Agreement shall be performed at the
cost of Purchaser by an independent nationally recognized
environmental engineering company selected by the Purchaser, but
which is satisfactory to the Seller ("Environmental Firm").
8.3.1 Remediation Cost of $15,000 or Less. If
(a) the Phase I or Phase II environmental audit on the Real
Property performed by an Environmental Firm shows contamination, in
which such Environmental Firm determines would require a total
expenditure of $15,000 or less to remediate ("Remediation Cost")
for all such contamination, if any, on both parcels of Real
Property, and (b) the Escrow Agent receives written notice from
both the Seller and the Purchaser during the Real Property
Inspection Period stating such Remediation Cost, the Real Property
Purchase Price shall be reduced by such Remediation Cost and the
Escrow Agent shall at the termination of the Real Property
Inspection Period (i) deliver the Remediation Cost, not to exceed
a total of $15,000, to the Purchaser from the funds in the Real
Property Escrow Account, (ii) deliver the balance of the funds
within the Real Property Escrow Account to the Seller, and (iii)
deliver the two (2) special or limited warranty deeds, as
applicable and as described in Section 7.1.1, covering the Real
Property to the Purchaser. If written notice stating the
Remediation Cost is not received by the Escrow Agent from both the
Seller and Purchaser during the Real Property Inspection Period,
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the Escrow Agent shall, unless the Escrow Agent has been notified
in writing by the Seller and the Purchaser that negotiation
pursuant to Section 8.3.2 is being conducted, immediately deliver
all of the funds within the Real Property Escrow Account to the
Seller and deliver to the Purchaser the two (2) special or limited
warranty deeds, as applicable and as described in Section 7.1.1,
covering the Real Property.
8.3.2 Remediation Cost of More than $15,000. If
the Phase I or Phase II environmental audit on the Real Property
performed by an Environmental Firm shows contamination on such Real
Property, which such Environmental Firm determines would require an
expenditure of more than $15,000, in the aggregate, to remediate,
and the Seller receives written notice during the Real Property
Inspection Period stating such cost of remediation, the parties
hereto shall have ten (10) days from the Purchaser's written
notification of such contamination to Seller or the end of the Real
Property Inspection Period, whichever comes first, to negotiate
in good faith, to resolve such issue or issues. If the parties
hereto are unable to resolve such issue or issues through
negotiation during such period, one of the following alternatives
set forth in Sections 8.3.2 (A), (B) or (C) shall occur upon
notification in writing being delivered to the Escrow Agent as
described in Sections 8.3.2 (A), (B) or (C) prior to the expiration
of the ten (10) day negotiation period. If prior to the expiration
of the ten (10) day negotiation period, notice is not given in
writing by the Seller and Purchaser to the Escrow Agent as to which
of the options under Section 8.3.2 (A), (B) or (C) is selected, the
Purchaser shall be deemed to have elected to purchase all of the
Real Property pursuant to Section 8.3.2(A)(3) and the Escrow Agent
shall perform its duties as set forth therein.
A. If the cost of remediation for the Real Property is in
the aggregate greater than $15,000 and the cost of remediation for
each of the two parcels of Real Property as defined in Part 2 of
this Agreement is greater than $15,000:
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1. The Seller may terminate the Agreement pertaining to
the Real Property. The Seller may terminate this Agreement
regarding both parcels of Real Property without any liability or
obligation to the other party. In such case, the Escrow Agent
shall, upon written notification of termination from both the
Purchaser and the Seller, (i) deliver the funds in the Real
Property Escrow Account to the Purchaser, and (ii) deliver to the
Seller the two (2) special or limited warranty deeds covering the
Real Property, as applicable and as described in Section 7.1.1.
2. The Purchaser may purchase none of the Real Property.
The Purchaser may terminate this Agreement regarding both parcels
of Real Property without any liability or obligation to the other
party. The Escrow Agent shall, upon written notification of
termination from both the Purchaser and the Seller (i) deliver the
funds in the Real Property Escrow Account to the Purchaser, and
(ii) deliver to the Seller the two (2) special or limited warranty
deeds covering the Real Property, as applicable and as described in
Section 7.1.1.
3. The Purchaser may purchase all of the Real Property.
In such case, the Purchaser agrees that the remediation cost for
the Real Property is $15,000, in the aggregate, and the parties
hereto agree that the Escrow Agent shall deliver the deeds to the
Real Property and the funds in the Real Property Escrow Account
pursuant to Section 8.3.1 hereof.
4. The Purchaser may purchase one of the parcels of Real
Property and terminate this Agreement regarding the other parcel.
In such case, the Purchaser shall notify the Seller that it desires
to purchase one of the parcels of Real Property and that the cost
of remediation for such parcel of Real Property to be purchased by
Purchaser shall be set at $15,000. In such case, the Seller and
Purchaser shall advise the Escrow Agent in writing on or prior to
expiration of the Real Property Inspection Period and the Escrow
Agent will (i) deliver to the Purchaser $250,000 from the Real
Property Escrow Account, (ii) deliver to the Seller the one special
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or limited warranty deed covering the terminated parcel of Real
Property, as applicable and as described in Section 7.1.1, and
(iii) proceed regarding the non-terminated parcel of Real Property
under Section 8.3.1 with the Remediation Cost to be set for such
purposes at $15,000.
B. If the cost of remediation for the Real Property is
greater than $15,000, in the aggregate, and the cost of remediation
for one of the two parcels of Real Property is less than $15,000
("Low Parcel") and the cost of remediation for the other of the two
parcels of Real Property is more than $15,000 ("High Parcel"):
1. The Purchaser may purchase the Low Parcel and
terminate this Agreement regarding the High Parcel. In such case,
the Purchaser shall notify the Seller that it desires to purchase
the Low Parcel and that the cost of remediation for the Low Parcel
shall be set at the cost of remediation for such parcel of Real
Property as determined by the Environmental Firm, but in no event
to exceed $15,000. In such case, the Seller and Purchaser shall
advise the Escrow Agent in writing on or prior to expiration of the
Real Property Inspection Period and the Escrow Agent will (i)
deliver to the Purchaser $250,000 from the Real Property Escrow
Account, (ii) deliver to the Seller the one special or limited
warranty deed covering the High Parcel, as applicable and as
described in Section 7.1.1, and (iii) proceed regarding the Low
Parcel under Section 8.3.1, with the Remediation Cost relating to
such Low Parcel for such purposes set at the cost of remediation
for such parcel of Real Property as determined by the Environmental
Firm, but in no event to exceed $15,000.
2. The Purchaser may purchase both parcels of Real
Property. In such case, the Purchaser shall notify the Seller that
it desires to purchase both parcels of Real Property and that it
agrees that the cost of remediation for the Real Property shall be
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$15,000, in the aggregate. In such case, the Seller and Purchaser
shall advise the Escrow Agent in writing on or prior to expiration
of the Real Property Inspection Period and the Escrow Agent will
proceed under Section 8.3.1 with the Remediation Cost to be set at
$15,000 for such purposes.
C. If the cost of remediation for the Real Property is
greater than $15,000, in the aggregate, and the cost of remediation
for each of the two parcels of Real Property is less than $15,000:
1. The Purchaser may terminate this Agreement regarding
one of the two (2) parcels of Real Property. In such case, the
Purchaser shall notify the Seller that it desires to purchase one
of the parcels of Real Property and that the cost of remediation
for such parcel of Real Property to be purchased by Purchaser shall
be set at the lesser of (a) $15,000 or (b) the cost of remediation
for such parcel of Real Property as determined by the Environmental
Firm. In such case, the Seller and Purchaser shall advise the
Escrow Agent in writing on or prior to expiration of the Real
Property Inspection Period and the Escrow Agent will (i) deliver to
the Purchaser $250,000 from the Real Property Escrow Account, (ii)
deliver to the Seller the one special or limited warranty deed,
covering the terminated parcel of Real Property, and (iii) proceed
regarding the non-terminated parcel of Real Property under Section
8.3.1 with the Remediation Cost to be set for such purposes at the
lesser of (a) $15,000 and (b) the cost of remediation for such
parcel of Real Property as determined by the Environmental Firm.
2. The Purchaser may purchase both parcels of Real
Property. In such case, the Purchaser shall notify the Seller that
it desires to purchase both parcels of Real Property and that it
agrees that the cost of remediation for the Real Property shall be
$15,000, in the aggregate. In such case, the Seller and Purchaser
shall advise the Escrow Agent in writing on or prior to expiration
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of the Real Property Inspection Period and the Escrow Agent will
proceed under Section 8.3.1 with the Remediation Cost to be set at
$15,000 for such purposes.
8.3.3 Escrow Agent Notice. Notwithstanding
anything to the contrary contained in this Agreement, all notices
to be given to the Escrow Agent by the Seller and Purchaser
pursuant to Section 8 shall be given as follows: Purchaser shall
deliver the applicable notice in writing to Seller and Seller and
Purchaser shall deliver their notice to the Escrow Agent.
9. Deed.
9.1 At Closing. Subject to Bankruptcy Court approval,
at the Closing, Seller shall deliver to the Escrow Agent the
special or limited warranty deeds covering the Real Property, as
applicable and as described in Section 7.1.1, hereof.
9.2 At Conclusion of Real Property Inspection. At the
conclusion of the Real Property Inspection Period and any
associated negotiation period thereafter, pursuant to Section 8.3.2
and, subject to Bankruptcy Court approval of this Agreement, the
special or limited warranty deeds covering the Real Property, as
applicable and as described in Section 7.1.1, and the funds in the
Real Property Escrow Account shall be delivered pursuant to the
terms of Section 8 hereof. If delivery of the deeds covering one
or both parcels of the Real Property deeds is made pursuant to the
terms of this Agreement, it shall be made to Purchaser or
Purchaser's nominee (as determinated pursuant to Purchaser's
written instructions) by recordable special warranty deeds or
limited warranty deeds, as applicable and as described in Section
7.1.1, and in customary form to be consistent with the statutory
requirements of the respective states where the Real Property is
located, which provide for return thereof to the grantee therein
after recording, free and clear of all liens and encumbrances,
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exceptions and defects except and subject to only the following
(collectively, the "Permitted Exceptions"):
(i) Zoning ordinances;
(ii) Real estate taxes which are a lien on the Real
Property but which are not yet due and payable;
(iii) Easements of record which do not materially
interfere with the current use of the Real Property;
(iv) Restrictions of record which do not materially
interfere with the current use of the Real Property;
(v) Standard preprinted Conditions and Stipulations and
Exclusions from Coverage contained in any title policy that the
Purchaser may obtain in connection with its purchase of the Real
Property that Purchaser has requested the title insurer to waive,
endorse, or insure over for a fee and the title insurer has agreed
to waive, endorse or insure over; and
(vi) Any other exceptions, which are shown on the
title insurance commitment described herein and are either waived
by Purchaser or for which a commitment for title insurance over the
same is procured from the Title Insurer (as hereinafter defined) or
to which Purchaser agrees to take the Real Property subject.
If the sale of the Real Property is consummated, Seller shall
also deliver to Purchaser a customary owner's affidavit as to
mechanic's and materialmen's liens and persons in possession of the
Real Property required by the Title Insurer as a condition to its
agreement to delete the standard printed general exceptions related
to such liens and possession from the Commitment.
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10. Seller's Representations and Warranties. Seller
represents and warrants to Purchaser that, unless expressly
provided, the following are true and correct as of the date of this
Agreement and will be true and correct on the Closing:
10.1 Condemnation. Seller is not aware of any eminent
domain or condemnation proceeding or other taking with respect to
any of the Real Property has been commenced, noticed or threatened
by any government, quasi-government, public utility or other entity
having such power.
10.2 Authorization. The transactions provided for
hereunder have been duly authorized by the Board of Directors of
Seller, subject to Bankruptcy Court approval. Seller will seek
Bankruptcy Court approval of this Agreement and the transactions
provided for hereunder so that such transactions will not require
the consent or approval of any other entity or person.
10.3 Legal Capacity and Authority. Seller is a
corporation duly organized, validly existing, and in good standing
under the laws of the state of Oklahoma, but is operating as a
"Debtor-In-Possession" under Chapter 11 of the Bankruptcy
Proceedings.
10.4 Continuance and Survival of Representations and
Warranties. Each of the representations and warranties made by
Seller in this Agreement shall terminate upon the Closing, except
that the representations and warranties made in Section 5.1 hereof
regarding the title of only the Rolloff Containers shall survive
the Closing for a period of six (6) months following the Closing.
PART 3: GENERAL PROVISIONS
11. Conditions Precedent. This Agreement, Purchaser's
performance hereunder and payment of the Asset Purchase Price and
the Real Property Purchase Price are expressly made subject to and
preconditioned upon the conditions set forth in this Section 11.
If either party hereto does not perform pursuant to and satisfy the
conditions set forth in this Section 11, then upon written notice
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to the defaulting party given on or before the Closing, the non-
defaulting party hereto may terminate this Agreement. If this
Agreement is terminated pursuant to any of said conditions, this
Agreement shall become null and void and neither party shall have
any further rights, duties or liabilities to the other under this
Agreement, except for Purchaser's liabilities and obligations under
Section 12 hereof which shall survive the termination of this
Agreement.
11.1 Lender Commitment Letter. Purchaser shall by
Wednesday, February 25, 1998, deliver to Seller a commitment letter
in a form acceptable to the Seller which is from a lender
acceptable to the Seller certifying that the Purchaser has at least
Two Million Eight Hundred Eleven Thousand Six Hundred Fourteen and
No/100 Dollars ($ 2,811,614.00) available for the Closing.
11.2 Approval of the Bankruptcy Court. Seller shall have
obtained an order from the Bankruptcy Court authorizing Seller to
enter into and consummate this Agreement and the transactions set
forth in this Agreement under Section 363 of the United States Bankruptcy
Code, which Order shall be reasonably satisfactory to Purchaser.
Seller agrees to use its reasonable efforts to obtain such
authorization from the Bankruptcy Court.
11.3 Title. Within ten (10) days of the date of this
Agreement, Purchaser shall procure, at Purchaser's expense,
evidence of Seller's title to, and ownership of, the Property in
the currently used form of the American Land Title Association
commitment (the "Commitment") for an owner's title insurance
policy, insured by a title insurance company approved by Purchaser
(the "Title Insurer") covering the title to the Real Property on or
after the date of the Closing, commitment to insure upon demand, by
issuance of the policy form used by the Title Insurer which is
consistent with the currently promulgated version of the American
Land Title Association owner's title insurance policy form with all
endorsements and coverages reasonably requested by Purchaser, fee
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simple title ownership of the Real Property as of the date of the
Closing in Purchaser in an amount not less than the Real Property
Purchase Price, subject at the Closing only to the Permitted
Exceptions and standard preprinted Conditions and Stipulations and
Exclusions from Coverage contained in said policy that Purchaser
has requested the title insurer to waive, endorse, or insure over
for a fee and the title insurer has agreed to waive, endorse or
insure over, if the terms of this Section 11 of this Agreement are
complied with. The Purchaser acknowledges that the Real Property
is subject to certain liens and encumbrances, but that at Closing
and subject to approval by the Bankruptcy Court of this Agreement
and compliance with this Section 11, the Real Property will be
transferred to the Purchaser subject only to the Permitted
Exceptions and the standard preprinted Conditions and Stipulations
and Exclusions from coverage contained in the policy. Said
commitment shall be evidence of title as therein shown as to all
matters insured by the owner's title insurance policy. All costs,
fees and premiums for the Commitment, the resultant basic title
insurance policy coverage, and the coverages and endorsements
requested by Purchaser, shall be the liability of Purchaser.
11.4 Survey. Within ten (10) days of the date of this
Agreement, Purchaser shall, at Purchaser's sole expense, procure a
plat of survey of each parcel of the Real Property (the "Surveys")
made and so certified by a licensed, registered or certified Land
Surveyor as having been made in compliance with the Minimum
Standard Detail Requirements for ALTA-ACSM Land Title Surveys
jointly established and adopted by the American Land Title
Association on October 17, 1992, and the American Congress on
Surveying and Mapping on November 11, 1992, including items 1, 2,
3, 4, 6, 11 and 13 of Table A of said Requirements. The Surveys
shall meet accuracy standards of, and be made in accordance with,
the "Classifications and Specifications for Cadastral Surveys" for
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an Urban survey adopted as of the date of this Agreement by the
American Land Title Association and the American Congress on
Surveying and Mapping. The Surveys shall accurately show the
current location and exterior dimensions of all of improvements on
the Real Property, the size of each parcel of the Real Property,
that there exist no material encroachments of any improvements onto
adjacent property or any material improvements to adjacent property
onto the Real Property, and that all of each parcel of the Real
Property is located within the geographical boundaries of the
governmental jurisdiction(s) described in Schedule III,
respectively. The aforesaid certification(s) shall be made to
Purchaser and the Title Insurer and/or any other person(s) whom
Purchaser reasonably requests. Should the Surveys disclose any
matters which would not be described by the Permitted Exceptions,
or otherwise not be in compliance with this paragraph, the parties
hereto shall meet and attempt, in good faith, to resolve such
matter or matters within the Inspection Period. If the parties are
unable to resolve such matter or matters within the Inspection
Period, then either party hereto, by written notice to the other
party, may terminate this Agreement without any liability to the
other party, except for such liabilities and obligations of the
Purchaser as provided in Section 11.5 hereof.
11.5 Documentation and Cooperation. All documents
required of either party pursuant hereto shall be fully and
properly prepared, executed, attested, and where necessary
acknowledged on or before the Closing, as required herein. All
original documents in final form shall be brought to the Closing.
Copies of all documents shall be provided in advance to each party
not later than five (5) days prior to the Closing. In addition to
all other documents herein required, Seller shall furnish at the
Closing the following documents:
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(i) closing/settlement/proration statement in usual and
customary form setting forth all prorations between the parties and
credits and adjustments to the Real Property Purchase Price;
(ii) all documents, if any, reasonably required by
law or the Title Insurer, for consummating the transaction
contemplated hereunder;
(iii) true and correct copies of all unrecorded
covenants, conditions or restrictions affecting the Real Property
or the use, occupancy or possession thereof, if any.
Both parties shall in all respects cooperate to the extent
reasonably necessary for the consummation of the transactions
contemplated hereunder.
11.6 Escrow Agreement. Seller and Purchaser shall have
entered into an Escrow Agreement with an Escrow Agent, as selected
by Seller, to create the Real Property Escrow Account and the
Rolling Stock Escrow Account as described within this Agreement.
11.7 Possession of Assets. Seller shall deliver to
Purchaser as of the Closing, physical possession, use and control
of the Assets.
11.8 Asset Purchase Price and Real Property Purchase
Price. Purchaser shall deliver to Seller the Asset Purchase Price
and the Real Property Purchase Price as provided by Sections 4, 7
and 9 hereof.
11.9 No Material Loss. If from the date hereof to the
Closing there is a material loss, damage, or destruction from
casualty to any of the items comprising the Assets and/or to the
Real Property ("Material Loss"), Purchaser may at its sole option
either: (1) exclude from this Agreement that particular item of the
Assets or parcel of Real Property which suffered a Material Loss;
or (2) pay the full amount of the Purchase Price for such item of
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the Assets and/or parcel of Real Property as set forth in this
Agreement, which shall not be reduced as a result of such Material
Loss, and accept in addition to the item of the Assets and/or
parcel of Real Property that sustains a Material Loss, all
insurance proceeds collected or collectable by Seller with respect
to that particular item of the Assets or parcel of Real Property
that sustains such Material Loss.
In the event Purchaser purchases Rolling Stock which has
suffered Material Loss, it shall not be entitled to be paid twice
for the same Material Loss and/or Material Damage as provided in
this section and in Section 4.1 of this Agreement; and in such
event Purchaser shall pay to Seller, the amount, if any, that it
receives in excess of the total amount of damage to any item of
Rolling Stock.
11.10 Zoning Ordinances. If any parcel of Real
Property is not zoned to permit trucking terminals, the Purchaser
may terminate this agreement regarding only the parcel of Real
Property which is not zoned to permit trucking terminals if the
Purchaser notifies the Seller in writing of the applicable zoning
restrictions prior to the Closing. Such termination by Purchaser
shall be without any liability or obligation to the other party
regarding such terminated parcel or parcels as the case may be.
12. Inspections. All inspections of the Assets or the Real
Property pursuant to this Agreement which are performed by or for
the Purchaser shall be non-destructive. Purchaser shall, at its
sole cost and expense, immediately at the request of Seller upon
any termination hereof, restore the Assets and/or the Real Property
to the condition thereof existing immediately prior to any such
activities.
During the Inspection Period and the Real Property Inspection
Period, Seller shall make available to Purchaser and Purchaser's
employees, agents, attorneys, accountants and independent
contractors, for purposes of inspection, audit, review,
investigation, examination, analysis, and copying, manually or by
machine, originals (or if not available, then copies) of all
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contracts, papers, documents, books, records, reports, studies,
drawings, test results, surveys, plats, certificates, permits,
licenses, and like material and information (collectively, the
"Documents") of Seller or in Seller's possession, custody or
control relating to the Assets and/or the Real Property. The
Documents shall be made available to Purchaser and Purchaser's
employees, agents and independent contractors as aforesaid, at
either the office of the Seller or within the Real Property,
during regular business hours during the applicable Inspection
Period. In the event that any of the Documents cannot be made
available within the aforesaid time period, then Purchaser and
Seller shall reschedule future times when the same shall be
available, however, there shall be no extension of either the Real
Property Inspection Period or the Inspection Period pursuant to
this provision.
Purchaser shall be completely responsible for all of
Purchaser's acts and omissions and those of Purchaser's employees
and agents in exercising such inspection rights and privileges as
are granted in this Agreement. Purchaser hereby indemnifies Seller
and shall hold Seller free and harmless from and against any and
all losses, costs, damages and expenses (including, without
limitation, reasonable legal fees, costs of litigation and the cost
of removing or bonding over any lien affecting the Real Property)
suffered or incurred by Seller by reason of the exercise of the
rights and privileges granted to Purchaser in this Section or the
breach of Purchaser's covenant to restore the Assets and/or the
Real Property.
Any "due diligence" test, study, examination, analysis,
survey, investigation, or audit of the Assets and/or the Real
Property made by Purchaser pursuant hereto shall not waive or in
any way limit Purchaser's rights elsewhere created by this
Agreement, including, specifically as may arise from any
representations or warranties of Seller, nor constitute a waiver,
release or satisfaction of any conditions to the consummation of
the transaction contemplated hereby except as may be contained in
this Section.
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13. Condemnation of Real Property. All risk of condemnation
or loss to the Real Property by governmental taking or exercise of
power of eminent domain prior to the Closing shall be on and belong
to Seller. If prior to the Closing all or a portion of the Real
Property is subjected to a bona fide threat or notification of
condemnation, taking or exercise of power of eminent domain by any
government, quasi-government, public utility or other entity having
such power or is taken by eminent domain or condemnation (or sale
in lieu thereof) then Purchaser may terminate this Agreement or
elect upon notice given to Seller on or before the Closing, to take
title to the Real Property without any deduction or set off against
the Real Property Purchase Price.
14. Closing.
14.1 The Closing shall take place at a mutually agreeable
time and place within ten (10) days after Seller obtains an order
from the Bankruptcy Court that a authorizes Seller to assume and
consummate this Agreement.
14.2 At the Closing Seller shall deliver to Purchaser the
following, each duly executed and in such number and forms as may
be reasonably required by Purchaser's counsel:
(i) Certificates of title to all of the Rolling
Stock;
(ii) Xxxx(s) of sale to the Rolloff Containers,
Fixed Assets, Spare Parts and Inventory, and Container Rental
Business;
(iii) Assignment(s) of the Rolloff Container Leases;
(iv) Recordable special warranty deeds as set
forth in Section 9 of this Agreement;
(v) A non-foreign person affidavit;
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(vi) A Bankruptcy Court order, which order shall
be satisfactory to Seller and Purchaser; and,
(vii) All other documents and instruments that
are required to be delivered by Seller to Purchaser under this
Agreement or are reasonably requested by Purchaser's counsel to
consummate this Agreement.
14.3 At the Closing, Purchaser shall pay to Seller or to
the Escrow Agent, as applicable, the Asset Purchase Price and the
Real Property Purchase Price as provided in Section 4, Section 7,
and Section 9 subject to prorations for the following items, which
shall be computed through the date of the Closing:
(i) Real property taxes and assessments in
accordance with Section 15.
14.4 Any amounts due under the Rolloff Container Leases
shall be invoiced separately by Seller for the period through the
date of Closing and by Purchaser for the period after the date of
Closing.
15. Real Estate Taxes. Seller shall pay all real estate ad
valorem taxes for the Real Property which accrue prior to the
Closing. All such taxes payable on or before the Closing shall be
paid by Seller at or before the Closing. All real estate taxes
which accrued for the period prior to the Closing, but are payable
as of the Closing shall be paid by Seller and prorated as of the
Closing based on the actual number of days in the calendar year in
which the Closing occurs. If the actual amount(s) of such taxes is
not ascertainable at the Closing (because the Real Property is
being taxed together with other property, or for any other reason),
such proration shall be on the basis of the most recently
ascertainable xxxx(s) therefor (whether whole or installment,
actual or estimated) and, if applicable, on the basis of the actual
size of the Real Property, and without deduction for any
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conditional factors such as vacancy, destruction or homestead and
a reproration shall be made upon the issuance of the actual xxxx(s)
therefor; provided, however, that all taxes allocable to the Real
Property attributable to improvements made to the Real Property by
Purchaser shall be borne entirely by Purchaser; and provided
further, however, under no circumstances shall a reproration of
real estate ad valorem taxes be made where such taxes have been
reduced through the efforts of Purchaser. Seller shall not make
nor suffer there to be made any material improvements to the Real
Property from and after the date of this Agreement until this
Agreement is terminated unless explicitly provided elsewhere herein
or approved by Purchaser. Seller shall assist Purchaser in causing
local tax and assessment rolls, listings, and records to be revised
accordingly to reflect Purchaser's ownership of the Real Property.
In the event that at the time of the Closing, the Real Property or
any portion thereof shall be or shall have been affected by any
assessment, levy, charge, or other imposition that is or may become
payable in installments, then for purposes of this Agreement, all
of the unpaid installments thereof shall be considered due and
payable and liens upon the Real Property affected thereby and shall
be paid and discharged by Seller at the Closing, or, credited by
Seller at the Closing against and reduce the Real Property Purchase
Price. Payment of any real estate ad valorem taxes by Seller, may
be made under protest. All ad valorem taxes relating to the Real
Property accruing after the Closing shall be paid by Purchaser.
16. Transfer and Like Taxes. Purchaser and Seller shall each
pay at the Closing fifty percent (50%) of all transfer, stamp and
documentary taxes or fees imposed by applicable governmental
jurisdiction(s) on the transaction contemplated hereunder with such
payment(s) made payable to the applicable governmental
jurisdiction(s). Payment of any such taxes or fees may be made
under protest on the grounds that the enabling law establishing
and/or imposing such taxes or fees is inapplicable,
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unconstitutional and/or void to the extent that the same purports
to impose taxes or fees upon the transaction contemplated
hereunder.
17. Brokers. Purchaser warrants to Seller, and Seller
warrants to Purchaser that it is represented by no real estate
agent, finder, sales person, or broker has been involved in the
sale and purchase of the Assets and/or the Real Property hereunder.
In the event of a breach of the foregoing warranty, the breaching
party shall save, defend, indemnify and hold forever harmless the
other party from and against all damages, including specifically
those based upon claims for commissions, fees or charges, including
legal fees and costs.
18. Survival. The representations and warranties of this
Agreement shall terminate as of the Closing, except that the
representations and warranties made in Section 5.1 hereof regarding
the title of only the Rolloff Containers, Spare Parts and Fixed
Assets shall survive the Closing for a period of six (6) months
following the Closing.
19. Notices. Whenever any party shall be required to give
notice or demand to another party according to the provisions of
this Agreement, such notice or demand shall be deemed sufficient
and effective if delivered by hand delivery or recognized overnight
courier service, or if deposited in the United States mail, postage
prepaid, certified, return-receipt requested, and by telefax, and
addressed:
19.1 In the case of Purchaser, to:
Metropolitan Environmental, Inc.
P. O. Xxx 000
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: 000-000-0000
with a copy to:
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Xxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxxx Co., L.P.A.
00 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
Fax: 000-000-0000
19.2 In the case of Seller, to:
Environmental Transportation Services, Inc.
0000 Xxxxxxxxx 00xx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X'Xxxxxxxxx, President
Fax: 000-000-0000
with a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
One Leadership Square, Suite 1700
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Any party may change the address to which such notices are to be
addressed by giving the other party notice in the manner herein set
forth.
20. Amendment. This Agreement may be modified, amended or
supplemented only by a writing of equal dignity. The parties'
legal counsel may, on behalf of their respective clients, execute
any writings as aforesaid and such writings shall be deemed
authorized and of the same force and effect as if executed by the
respective parties and may be relied upon by the other party.
21. Assignment; Binding Upon Successors and Assigns. No
party shall delegate or assign this Agreement or any rights or
duties hereunder (including by the merger or consolidation of a
party with any third person) without the prior, written permission
of the other. Anything herein contained to the contrary
notwithstanding, Purchaser shall not be prevented or prohibited
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from making and may freely make an assignment of Purchaser's right
to receive fee title ownership of the Assets and/or the Real
Property in accordance herewith, to Purchaser's nominee. This
Agreement shall be binding upon and shall inure to the benefit of
Seller and Purchaser and the respective successors and permitted
assigns of each upon execution hereof by Seller and Purchaser. Two
(2) duly executed duplicate originals of this Agreement shall be
provided to each party. This Agreement creates no rights as a
third party beneficiary or otherwise in any person not a party.
22. Headings. The various headings used in this Agreement
are for convenience only and shall not be used in interpreting the
text before which the same appear.
23. Severability of Provisions. This Agreement shall not be
severable or divisible; provided, however, that a judicial or
administrative determination by any jurisdiction of the invalidity
or unenforceability of any one or more of the provisions hereof, or
any one or more of the provisions of any instrument or Schedule or
Exhibit related hereto or referred to herein shall not invalidate
the remaining provisions of this Agreement or any instrument or
Schedule or Exhibit related hereto or referred to herein, or the
application of such provision(s) to persons or circumstances other
than those in respect to which it is determined to be invalid or
unenforceable, all the provisions of the same being deemed for
purposes of the aggregate validity thereof to be separate.
Further, with respect to any such provision(s) determined to be
invalid or unenforceable, such provision(s) shall be deemed
reformed to the extent necessary to be valid and enforceable, and
to accomplish the intention of the parties as is most nearly
possible. It is the intent and belief of the parties that each and
every provision of applicable law required to be inserted in this
Agreement should be, and is hereby deemed to be, inserted and that
this Agreement in all respects comports with applicable law. If
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any provision(s) required to be inserted in this Agreement by law
is/are not inserted, or not inserted in correct form, then this
Agreement shall forthwith, upon the request of either party be
deemed amended so that such provision(s) required by law is/are
deemed inserted herein in correct form without prejudice to the
rights of either party.
24. Interpretations. All words or phrases used herein shall
have the meaning ascribed thereto by this Agreement, or if such is
silent, then there shall be ascribed thereto the normal, everyday
meaning as used in the real estate and related fields. The use of
the word(s) "parties" or "party" herein throughout shall mean
Purchaser and/or Seller unless specifically designated otherwise.
The use of the word(s) "person" or "persons" herein throughout
shall mean natural individuals or any recognized form of business
organization, enterprise or entity. The use of the term
"Purchaser" herein throughout shall include and also mean
Purchaser's nominee. The use of the term "Seller" herein
throughout shall include and also mean the actual grantor of the
Assets and/or the Real Property to Purchaser, if not Seller. The
use of the term "public record(s)" herein throughout shall mean the
official, public land title/ownership records wherein ownership of
the Real Property is memorialized. The use of the word(s)
"includes" or "including" or similar words herein throughout shall
be construed as if followed by the phrase "...without being limited
to...." As used herein throughout, references to "and" as well as
to "or" shall be construed either conjunctively or disjunctively as
necessary and wherever appropriate. As used herein throughout,
references to "Schedule(s)" shall mean the schedule(s) attached to
this Agreement and references to "Exhibits(s)" shall mean the
exhibit(s) attached to any of the Schedules. As used herein
throughout the term "hazardous material" shall mean any "hazardous
substance," "hazardous waste," "pollutant," or "contaminant" as
defined by any law relating to, regulating or imposing liability or
standards of conduct in connection with the protection and clean up
-31-
of the environment, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Sections
9601, et seq.), the Hazardous Materials Transportation Act (49
U.S.C. Sections 1802, et seq.), the Resource Conservation and Recovery
Act (42 U.S.C. Sections 6901, et seq.), and the United States Department
of Transportation Table (49 C.F.R. Section 1742.101); any substance
designated pursuant to the Clean Water Act (33 U.S.C. Sections 1251, et
seq.); any element, compound, mixture, solution or substance
designated pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601, et
seq.), as amended; any hazardous waste having the characteristics
identified under or listed pursuant to the Solid Waste Disposal Act
(42 U.S.C. Section 6921), as amended; any toxic pollutant or combination
of pollutants listed under the Clean Water Act (33 U.S.C. Sections 1251,
et seq.), as amended; any hazardous air pollutant listed under the
Clean Air Act (42 U.S.C. Section 7412) as amended; any eminently
hazardous chemical, substance or mixture with respect to which the
Administrator of the United States Environmental Protection Agency
has taken action pursuant to the Toxic Substances Control Act (15
U.S.C. Section 2606)d, as amended; any petroleum or hydrocarbon product
or bi-product; radon; any material containing asbestos; urea
formaldehyde or polychlorinated biphenyls; and any hazardous,
dangerous, corrosive, radioactive, pesticidal, carcinogenic or
toxic chemical, material, waste or substance. As used herein
throughout, references to "law" shall mean any legislative,
executive, judicial or administrative law, enactment, statute, act,
xxxx, order, decision, code, judgment, decree, ruling,
proclamation, rule, regulation, ordination, finding, opinion,
advisement, guideline, ordinance, treaty, resolution, amendment,
consent, approval, permit, notification, mandate, doctrine,
declaration, license, certificate, privilege or similar measure
having force of law, including as based upon custom and
constitutional principle, in each case of any jurisdiction having
authority whatsoever, all as amended, reenacted or in effect as of
or from time to time. The singular form of any word used herein
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throughout shall be interpreted to include the plural or vice
versa. The masculine, feminine or neuter form of any word used
herein throughout shall be interpreted to be that necessary for
factual or grammatical accuracy. All of the foregoing shall be
construed to give proper meaning and grammatical form to the words,
terms, phrases and sentences used throughout this Agreement. This
Agreement shall not be construed more strictly against Purchaser
than against Seller merely by virtue of the fact that the same has
been prepared by legal counsel for Purchaser. It is recognized and
acknowledged by the parties that both Purchaser and Seller and the
respective legal counsel thereof have contributed substantially and
materially to the preparation, form, substance, and content of this
Agreement. In the event that any portion of the Assets and/or the
Real Property is comprised of personal property, then upon the
closing and unless a separate Xxxx of Sale consistent herewith is
delivered to Purchaser, this Agreement shall be deemed to be a Xxxx
of Sale for such personal property with full warranties and
representations of good title therein having been deemed to be made
hereby by Seller, subject only to the Permitted Exceptions.
25. Duties and Rights. No action or failure to act by
Purchaser or Seller shall constitute a waiver of any right, remedy
or recourse, nor shall any such action or failure to act constitute
an approval of, or acquiescence in, any default hereunder, except
as may be specifically agreed in writing. No waiver by Purchaser
or Seller of any default shall operate as a waiver of any other
default or of the same default on a future occasion. All rights,
remedies and recourses of the parties shall be considered to be
cumulative and not exclusive, except where explicitly indicated to
the contrary. Any failure of either party to enforce at any time
any provision hereunder shall not be construed as a waiver of the
right to thereafter enforce such provision and each and every other
provision hereof. Any acceptance of past due performance or curing
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of default by Purchaser or Seller shall not prejudice any of
Seller's or Seller's rights, remedies or recourses hereunder or at
law or equity, except where explicitly indicated to the contrary.
26. Calculation of Time. If the time period by which any
right, option, or election provided under this Agreement must be
exercised, or by which any act required herein must be performed or
by which the Closing must be held, expires on a Saturday, Sunday or
legal holiday, then such time period shall be automatically
extended to the close of business on the next regular business day.
27. Integration. This Agreement and all Schedules and
Exhibits and all instruments related hereto, alone, fully and
completely represent the final, entire and integrated expression of
agreement between Purchaser and Seller and supersedes all prior
negotiations, representations or agreements, either written or
oral, pertaining to the subject matter hereof or the transaction
contemplated hereby. Neither Purchaser nor Seller shall rely upon
any prior statement or representation made by or on behalf of the
other not embodied in this Agreement, the Schedules, the Exhibits
or any other instruments related hereto.
28. Cooperation. The parties shall reasonably cooperate to
fully accomplish the spirit and intent of this Agreement and
consummate the transaction contemplated hereunder.
-34-
29. Notice of Damage to, or Condemnation of, the Assets or
the Real Property Prior to the Closing. If at any time prior to
the Closing all or any material portion of the Assets or the Real
Property is destroyed or damaged or if any eminent domain or
condemnation proceedings are threatened or initiated or notice of
the initiation of any such eminent domain or condemnation
proceedings is received by Seller, Seller shall promptly give
notice thereof to Purchaser.
30. Counterparts. This Agreement may be executed in one or
more separate counterparts, each of which, when so executed, shall
be deemed to be the original. Such counterparts shall, together,
constitute and be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed as of the day and year first above
written.
Signed and acknowledged SELLER:
in the presence of:
/s/ Xxxxx Xxxxxxxx
_________________________________ ENVIRONMENTAL TRANSPORTATION
SERVICES, INC.
Print name: Xxxxx Xxxxxxxx
______________________
By /s/ Xxxxxxx D"Xxxxxxxxx
____________________________
/s/ Xxxxx Xxxx Xxxxxxx X'Xxxxxxxxx
_________________________________ President
Print name: Xxxxx Xxxx
_______________________
PURCHASER:
/s/ Xxxxxx Xxxxxxx METROPOLITAN
_________________________________ ENVIRONMENTAL, INC.
Print name: Xxxxxx Xxxxxxx
______________________
By /s/ Xxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxxxxxxx _____________________________
_________________________________ Xxxxx X. Xxxxxxx
Print name: Xxxxx Xxxxxxxxxxxx Secretary and Treasurer
-35-
Purchase and Sale Agreement
Between Environmental Transportation Services, Inc. ("ETS") and
Metropolitan Environmental, Inc.
February 20, 1998
_________________
Summary of Assets
Purchase
Schedule I Price
__________ _________
Rolling Stock Equipment, Roll-off Containers $2,078,500
and all customer lists, contracts and related
files relating to the Roll-off Container
Business of ETS
Schedule II
___________
All furniture and fixtures, computer equipment, $ 233,114
shop equipment, inventory and spare parts located
at the Company's Chattanooga, TN and Oklahoma City,
OK facilities
Schedule III
____________
Real Estate $ 500,000
- Chattanooga, TN Terminal Facility
- Oklahoma City, OK Office and Terminal Facility
Schedules and Exhibits Index
to
Purchase and Sale Agreement
between
Environmental Transportation Services, Inc.
and
Metropolitan Environmental, Inc.
______________________________________
Listed below are documents which comprise the Schedules and
Exhibits to the Purchase and Sale Agreement between Environmental
Transportation Services, Inc. and Metropolitan Environmental, Inc.,
Copies of any or all of these documents will be provided to the
Commission upon request.
Schedule/Exhibit Description
________________ __________
Schedule I Environmental Transportation Services, Inc.
Rolling Stock and Roll-off Containers
Exhibit A Roll-off Boxes Under Rental Agreement,
February 20, 1998
Exhibit B Roll-off Boxes Not Under Rental Agreement,
February 20, 1998
Schedule II Environmental Transportation Services, Inc.
Other Fixed Assets, February 20, 1998
Exhibit C Environmental Transportation Services, Inc.,
Oklahoma City, Oklahoma Furniture and Fixtures
Exhibit D Environmental Transportation Services, Inc.,
Chattanooga, Tennessee, Furniture and Fixtures
Exhibit E Environmental Transportation Services, Inc.
Computer Equipment
Exhibit F Environmental Transportation Services, Inc.
Tools & Shop Equipment
Exhibit G Environmental Transportation Services, Inc.
Parts and Inventory
Schedule III Environmental Transportation Services, Inc.
Real Estate, February 20, 0000
Xxxxxxx X Xxxxxxxxxxx, Xxxxxxxxx Property Description
Exhibit I Oklahoma City, Oklahoma Property Description
